AJL16 v Minister for Immigration &Anor
[2018] FCCA 1680
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJL16 v MINISTER FOR IMMIGRATION &ANOR | [2019] FCCA 1680 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Refugee Review Tribunal – protection (class XA) visa – natural justice – justification of claim – application dismissed. |
| Cases cited: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | AJL16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 303 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 16 February 2018 |
| Date of last submission: | 16 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the respondents: | Ms J Lucas |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The applicant’s application filed on 18 February 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 303 OF 2016
| AJL16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal
(“the tribunal”) on 18 January 2016. In its decision, the tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on
9 January 2014 not to grant the applicant a protection (class XA) visa (“the visa”).
The tribunal’s decision can be found in the Court Book at pages 309 to 325.
The applicant’s application filed on 18 February 2016 contains the following two grounds of review:
1.Tribunal failed to take the facts of application without giving me any sufficient opportunities to justify my claim; and
2.Tribunal rushed up with its decision without following the principal of natural justice. (sic).
Notwithstanding orders made by a Registrar of this court on
6 July 2016 providing the applicant with the opportunity to file and serve any amended application with proper particulars of the grounds of his application and written submissions, no such documents were filed or served in this application.
At the commencement of the hearing, the following exchange occurred with the applicant, who appeared on his own behalf and was assisted by an interpreter:
HER HONOUR: …in your application you say that the grounds of your application are that the tribunal failed to take the facts of the application without giving me any sufficient opportunities to justify my claim. Can you tell me what do you mean by that?
THE INTERPRETER: I informed them that I was with the LTTE during the interviews, but I do not think that they believed my story.
HER HONOUR: Yes. Anything else?
THE INTERPRETER: One of my colleagues who used to work with me, he was shot dead last year …
…
HER HONOUR: Yes.
THE INTERPRETER: But they did not take my evidence into account.
HER HONOUR: And when you say your colleagues you mean back in your home country?
THE INTERPRETER: He was in LTTE along with me back in my country.
HER HONOUR: Yes. And you told that to the tribunal?
THE INTERPRETER: He was killed only last year so I didn’t get a chance to tell this to the tribunal.
HER HONOUR: I see.
THE INTERPRETER: And I am afraid of the same happening to me.
HER HONOUR: … Is there anything else you want to say in relation to the first ground, where you say that the tribunal failed to take into account the facts of your application without giving you an opportunity to justify your claim? Is there anything else?
THE INTERPRETER: I did not exactly understand the court book, your Honour, because my English is limited. But at the same time there is one of the important evidence that I gave during the interview. But I feel they did not consider this evidence.
HER HONOUR: Okay. So just so that I understand, what you are saying is that you gave evidence to the tribunal which you think the tribunal did not consider; is that right?
THE INTERPRETER: Yes, your Honour.
HER HONOUR: Yes. Alright. And then the second ground is that the tribunal rushed with its decision without following the principle of natural justice.
THE INTERPRETER: Yes, your Honour. And I was a secret member of the movement so I have not chance of proving that I was actually a member. That’s also a reason.
HER HONOUR: So is there anything that you want to say? You’ve said that in your application that, if we take that second ground in two parts, one was that the tribunal rushed its decision and the second is that you were not afforded natural justice. Is there anything further that you want to say about that?
THE INTERPRETER: No your Honour. The only think I want to raise is the shooting incident that took place last year. And I’m afraid the same might happen to me if I’m forced to my country.[1]
[1] Transcript page 2 at lines 44 to 45; page 3 and page 4 at lines 1 to 17.
Following the Minister’s submissions, when the applicant was invited to respond, he said:
There were many evidence that… immigration official (sic) did not accept… as an ex-LTTE member I’m extremely afraid of my life. And not only that, during the peace period, even though it looked normal for the outside, after the peace period all the secret agents and the people who are working for LTTE were targeted for the bombings and other incident that took place during the peacetime.[2]
[2] Transcript page 10 at lines 1 to 6.
The applicant also made some comments about the fact that his lawyer, whilst acknowledging that he was provided on a pro bono basis for which he was grateful, may not have paid particular attention to his file.[3]
[3] Transcript page 10 at lines 10 to 19.
Background and the applicant’s claims
At paragraph 12 of its reasons, the tribunal noted the following:
The applicant was born on 14 August 1983 in the village of Oddakapulam in Jaffna district. He is of Tamil ethnicity and Roman Catholic religion. He and his family moved to Jaffna Town in 1990 after the Army occupied their home. His father, who had been a clerk in the Bishops’ office, died in December 2006. His mother and two brothers remain in Jaffna. One brother works as a money recovery officer for an organisation called World Fund… His other brother is training to be a priest. The applicant completed secondary school in 2003, worked as a sales representative from 2004 to 2005 and for a cable TV company in 2006. He studied in India from 2007 to 2010 then worked again for the cable TV company from 2011 to 2012. He is not married. He left Sri Lanka in July 2012.[4]
[4] Court book at page 361 at paragraph [12].
The applicant arrived on Cocos Island by boat on 10 August 2012 and the Department conducted an interview with him on 13 August 2012.[5] On 19 December 2013, the applicant applied for the visa.[6] The applicant provided a statutory declaration in support of his claims dated 9 December 2012[7] and was represented throughout the proceedings before the delegate and the tribunal by the Refugee Immigration Law Centre (“RILC”).
[5] Court book at page 70 at paragraph [1].
[6] Court book at page 70.
[7] Court book at page 70.
RILC assisted the applicant and made numerous submissions throughout the applicant’s application process, including:
a)
a 22 page written submission to the Minister’s delegate dated
1 November 2013;
b)supporting the applicant at his interview before the (then) Refugee Review Tribunal; and
c)a 34 page written submission to the Refugee Review Tribunal in support of the applicant’s application for review of the delegate’s decision.
The applicant claimed to fear harm at the hands of the Sri Lankan army on account of:
a)his Tamil ethnicity;
b)his suspected links to the Liberation Tigers of Tamil Eelam (“LTTE”);
c)his dispute about the confiscation of family land;
d)his identity as a young Tamil male from the north of Sri Lanka; and
e)the fact that he departed Sri Lanka illegally.
On 9 January 2014, the delegate refused to grant the applicant the visa.[8]
[8] Court book at page 171.
On 17 January 2014, the applicant applied to the tribunal for a review of the delegate’s decision and as stated above was again represented throughout this process by RILC.[9]
[9] Court book at page 191.
By letter dated 13 May 2015, the applicant was invited to a hearing before the tribunal to take place on 18 June 2015 in Melbourne.[10] By letter dated 3 June 2015 that hearing was rescheduled to 17 June 2015 in Wagga Wagga, New South Wales following a request made by the applicant.[11]
[10] Court book at page 220.
[11] Court book at page 234.
On 16 June 2015, the applicant’s representatives provided a further statement on behalf of the applicant dated 15 June 2015 and a lengthy submission to the tribunal.[12]
[12] Court book at page 247.
The applicant appeared at the hearing before the tribunal and was assisted both by his representative and a Tamil interpreter.[13] The hearing was adjourned to 1 July 2015.[14]
[13] Court book at page 283.
[14] Court book at page 290.
On 18 January 2016, the tribunal affirmed the delegate’s decision not to grant the applicant the visa.[15]
[15] Court book at page 309.
The Tribunal’s reasons
The following is taken from the Minister’s written submissions which is a fair summary of the tribunal’s reasons.
The tribunal did not accept the applicant had been imputed with an LTTE association and moreover, did not accept that the applicant faced a real chance of serious harm either now or in the reasonably foreseeable future, or a real risk of significant harm because of his imputed association with the LTTE.[16]
[16] Court book at page 368 at paragraph [50].
In coming to this conclusion, the tribunal relied upon the following key findings:
a)the tribunal accepted that the applicant and his colleagues at the cable TV company may have been questioned by the Sri Lankan Army in mid-2006 following an explosion nearby. However, the tribunal did not accept that the applicant was detained overnight or in the workplace due to the inconsistent nature of his evidence on this topic.
b)While the tribunal accepted that the applicant may have been hit while being questioned in relation to this matter and that being hit may amount to serious physical harm, it did not accept his claims to have been interrogated and tortured over several hours at his workplace. Further, the tribunal noted that the applicant was released after being questioned which indicated, in its view, that the Sri Lankan army did not suspect him of being involved in the attack. The tribunal found it implausible that the Sri Lankan army orchestrated a bomb attack on an army facility in order to question the applicant about his LTTE the involvement as claimed by the applicant.[17]
c)While the tribunal accepted that the applicant may have provided some support or assistance to the LTTE between 2003 and 2006 whilst he was working as a sales representative, including making deliveries, it found that a ceasefire was in place during this period, the LTTE was able to operate openly and most people in northern Sri Lanka had some level of involvement with the LTTE at the time. However, the tribunal rejected the applicant’s claim that he was a secret agent for the LTTE who used to gather intelligence for the LTTE and report suspicious people to his supervisor. The tribunal further observed that the evidence in his written statement and before the delegate was that he had no connection to the LTTE.[18]
d)The tribunal accepted that the applicant may have had to report to the Sri Lankan army camp on three occasions in 2006. They further accepted that when fighting between the LTTE and the government forces resumed in 2005 and attacks began to escalate, the Sri Lankan army may have questioned young Tamil men such as the applicant about their involvement with the LTTE. However, the fact that the applicant was released after 30 minutes of questioning indicated to the tribunal that he was not suspected of any LTTE involvement.[19]
e)The tribunal accepted that the applicant’s cousin may have been injured in an explosion in 2009 and hospitalised for six months. It also accepted that the Sri Lankan army may have questioned his cousin when he was in hospital about his injury and whether he was involved with the LTTE. However, it did not accept that the Sri Lankan army abducted his cousin from the applicant’s home in 2012 and did not accept that the Criminal Intelligence Division of the police (“CID”) questioned the applicant about his cousin’s background and circumstances, nor that the Sri Lankan army threatened, harassed, beat or otherwise harmed the applicant in 2012 after the cousin was abducted. [20]
f)The tribunal did not accept that the applicant was questioned when he departed Sri Lanka in 2011 as it did not accept that the applicant was of any interest to the authorities.[21]
g)The tribunal did not accept that the CID searched the applicant’s home after he returned from India in 2011 to look for information to link him to the LTTE, nor that the CID suspected the applicant of any involvement with the LTTE in 2011.[22] The tribunal did not accept that people in the paramilitary would report him to the Sri Lankan army or harm him.[23]
h)The tribunal accepted that the applicant’s family may have a claim to property that fell within the high security zone for 20 years and further, that the family may have lost the deed to the property and therefore be unable to prove their ownership. The tribunal accepted that the applicant may not be able to reclaim the property if the Sri Lankan army wants to acquire it. However, while the tribunal accepted that loss of property may be unfair or unjust (should it occur), it did not accept that this amounts to serious or significant harm.[24]
i)Moreover, the tribunal did not accept that persons associated with the government attacked the applicant either because he had complained about the land or because of a LTTE connection[25] or that the CID secretly took his passport to prevent him fleeing from Sri Lanka or because he was out of the country between 2007 and 2010. While the tribunal accepted that the applicant was not in Sri Lanka between 2007 and 2010, it noted that he returned to Sri Lanka in 2010 without any problems and remained there until 2012, again without any problems.[26]
j)The tribunal accepted that the authorities may have been aware that the applicant had departed Sri Lanka illegally and may have questioned his mother.[27]
[17] Court book at page 362 at paragraphs [15] to [17].
[18] Court book at page 362 at paragraphs [18] to [22]; and page 365 at paragraph [38].
[19] Court book at page 363 at paragraphs [23] to [24].
[20] Court book at page 364 at paragraphs [29] to [31].
[21] Court book at page 365 at paragraphs [32] to [33].
[22] Court book at page 365 at paragraphs [34] to [36].
[23] Court book at page 365 at paragraph [38].
[24] Court book at page 367 at paragraphs [44] to [45].
[25] Court book at page 366 at paragraphs [41] to [43] and at page 367 at paragraphs [44] to [46].
[26] Court book at page 367 at paragraph [47] to [48].
[27] Court book at page 368 at paragraph [49].
The tribunal did not accept that the applicant faced a real chance of serious harm in Sri Lanka as a Tamil, as a Tamil from the north, or as a young Tamil male from the north or, because of Signalisation of the north, because of the crime rate at present or in the reasonably foreseeable future, or that he faced a real risk of significant harm if he returned to Sri Lanka arising from his Tamil race or his age, separately or combined.[28]
[28] Court book at page 369 at paragraph [56].
Although the applicant stated, when asked by the tribunal that his fear of harm on return to Sri Lanka because he came to Australia and applied for asylum ‘was not his main problem’, the tribunal nonetheless considered this claim and found:
a)It accepted that the applicant would be questioned upon his return to Sri Lanka in accordance with standard questioning and procedures,[29] but did not accept that the applicant faced a chance of serious harm or risk of significant harm at the airport or after he returned to Sri Lanka.[30] Further, while the tribunal acknowledged that persons with certain suspected links to the LTTE may be at risk of harm upon return to Sri Lanka, it referred to its earlier findings where it did not accept that the applicant had or would be imputed with any such LTTE associations.[31]
b)In relation to the applicant’s illegal departure, the tribunal accepted that the applicant would likely be held in remand for a short period of between 1 to 7 days if he was charged with an offence under the Immigrants and Emigrants Act 1945 by reason of his illegal departure. However, the tribunal was satisfied that the applicant’s family were present in Sri Lanka to guarantee his bail.[32]
c)While the tribunal accepted that prison conditions in Sri Lanka are poor and do not meet international standards, it did not accept that a relatively short period of remand amounts to an act which could reasonably be regarded as cruel or inhumane in nature or an act or omission which is intended to cause extreme humiliation which is unreasonable. Further, it observed that mere negligence or lack of resources does not give rise to cruel or inhumane or degrading treatment or punishment as to constitute such treatment it must be intentionally inflicted.
d)The country information indicated that the penalty which would be imposed on the applicant is a fine and that the likelihood of the prison sentence is remote and not a real risk. The tribunal was satisfied that the applicant would be able to pay a fine of between 5000 and 50,000 Sri Lankan rupees and did not accept that the imposition of such a fine would amount to a real risk of significant harm.[33]
[29] Court book at page 369 at paragraph [58]; and page 370 at paragraph [62].
[30] Court book at page 371 at paragraph [63].
[31] Court book at page 371 at paragraph [62].
[32] Court book at page 371 at paragraph [68]; and page 372 at paragraph [69].
[33] Court book at page 373 at paragraphs [74] to [78].
Having regard to all of the circumstances, the tribunal did not accept that the applicant faced a real chance of serious harm now or in the reasonably foreseeable future from the Sri Lankan army, the CID or other Sri Lankan authorities due to:
a)his race (as a Tamil or a Tamil from Jaffna in the north);
b)his imputed links to the LTTE;
c)his opposition to the confiscation of his land by the Sri Lankan army;
d)his application for asylum in Australia, or
e)his illegal departure from Sri Lanka.
The tribunal concluded that the applicant did not have a well-founded fear of persecution in Sri Lanka because of his race or imputed political opinion or as a member of a particular social group or of returnees or failed asylum seekers or persons who left Sri Lanka illegally, separately or cumulatively. The tribunal also found that there are no 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 people suffer significant harm.[34]
[34] SZTAL v Minister for Immigration and Border Protection & Anor [2017] HCA 34; court book at page 373 at paragraph [79]; and page 374 at paragraph [80].
Ground one
The first ground of review in the applicant’s application was:
Tribunal failed to take the facts of application without giving me any sufficient opportunities to justify my claim (sic).[35]
[35] See applicant’s application filed on 18 February 2016.
This ground was not particularised. Having regard to the applicant’s oral submissions at the hearing of this matter, it appears that part of the applicant’s concern was that the tribunal did not accept the evidence that he presented to it.
I am satisfied on the basis of the material before the court that the applicant was afforded procedural fairness in accordance with
Division 4 of Part 7 of the Migration Act 1958 (Cth) (“the Act”). As is evident from the background set out above, the applicant was represented throughout the process both before the delegate and the tribunal. The applicant was invited to and did attend a hearing before the tribunal assisted by his representative and an interpreter. His representative also provided detailed submissions which were considered by the tribunal, as is apparent from the reasons.
The tribunal’s reasons are comprehensive and clearly deal with each of the claims made by the applicant.
Ultimately at the heart of this ground of review, is a complaint that the tribunal did not believe the applicant and this is in essence, an application for merits review which this court cannot undertake.
For these reasons, ground one is not made out.
Ground two
The second ground of review sought in the applicant’s application was:
Tribunal rushed up with it’s decision without following the principal of natural justice (sic).[36]
[36] Applicant’s application filed on 18 February 2016.
It appeared from the applicant’s oral submissions at the hearing of this matter, that the applicant expressed concern that the lawyers who acted on his behalf did not adequately deal with his claim.
It is not evident from the material filed in this matter on what basis the applicant makes this submission. As noted above, the applicant’s representative filed significant material on the applicant’s behalf and appears to have been responsive and timely in its communications on the applicant’s behalf. In any event, it is not clear how it could be said that such a complaint, if valid, of itself could give rise to a claim of jurisdictional error.
The applicant’s application for review of the delegate’s decision was filed with the tribunal by his representative on or about
17 January 2014. The applicant was initially invited to a meeting on
18 June 2015. This meeting was ultimately relocated to accommodate the applicant and occurred over two dates, 17 June 2015 and
1 July 2015. The tribunal received various written submissions on the applicant’s behalf.
The tribunal handed down its decision on 22 January 2016, some six months later. There is no proper basis to support the submission that the tribunal ‘rushed its decision’.
This ground does not identify any jurisdictional error on the part of the tribunal. To the extent that the applicant expanded upon his grounds of review at the hearing, these have been addressed in relation to ground one.
I also note that as stated by his Honour Gilmour J in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760,
‘failure to particularise a ground of review is sufficient basis for it to be dismissed’.[37]
[37] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. See also WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
For these reasons, ground two is not made out.
Other matters
It also appears from the submissions that the applicant wanted to raise concerns about the fact that his colleague was killed. This occurred after the hearing before the tribunal and therefore is not a matter that this court can have regard to in a judicial review application.
Nevertheless this information, if correct, does not give rise to a claim that the tribunal’s decision was infected with jurisdictional error.
Conclusion
As neither of the applicant’s grounds have been made out, the application must be dismissed with costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 6 July 2018
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