AJS15 v Minister for Immigration

[2015] FCCA 2356

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2356

Catchwords:
MIGRATION – Protection (Class XA) visa – whether tribunal’s decision affected by jurisdictional error – where no error in tribunal’s decision – application dismissed.

Legislation:

Migration Act1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases:
BZAHA v Minister for Immigration and Border Protection [2015] FCA 942

Applicant: AJS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 9 of 2015

Judgment of: Judge Jarrett

Hearing date: 24, 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Darwin

Delivered on: 28 August 2015

REPRESENTATION

The Applicant appeared in person with the assistance of an interpreter.

Solicitor for the First Respondent: Ms Newman

Solicitors for the First Respondent: Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

1. The name of the Second Respondent be amended to “Administrative Appeals Tribunal”;

2. The application filed on 30 March, 2015 is dismissed;

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 9 of 2015

AJS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476(1) of the Migration Act1958 (Cth) for review of a decision of a refugee review tribunal given on 23 February, 2015 that affirmed a decision of a delegate of the first respondent to refuse the applicant a Protection (Class XA) visa.

2. The application was filed by the applicant without legal assistance.  It is poorly drafted and does not provide any proper grounds of review.  Directions were made on 30 April, 2015 to prepare the application for hearing.  Those directions provided the applicant with the opportunity to file any amended application, with full particulars of each ground of review and any affidavit evidence, by 3 June, 2015.  The applicant has not taken up that opportunity.

3. The parties were both directed to file and serve written submissions prior to the hearing date.  The applicant has filed no submissions; the first respondent has.  I have had regard to the written submissions filed by the first respondent.

4. At the hearing before me, the applicant did not make any oral submissions to advance his application in any real sense.

Background

1. The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 2 August, 2012.  He participated in an entry interview on 27 September, 2012.  He applied for a Protection (Class XA) visa on 11 December, 2012.

2. The applicant made claims for protection in his visa application.  He reiterated those claims during an interview with a delegate of the first respondent for the purposes of his visa application on 18 October, 2013. 

3. The applicant claimed that:

   a)he was born in Madampe, Puttalam District, North Western Province in Sri Lanka;

   b)he is of Sinhalese ethnicity and Buddhist religion;

   c)he was an active member of the United National Party for 6 years;

   d)he attended meetings, put up posters and helped with other work as required;

   e)in 2011 there was a local election in the Puttalam District. A man by the name of Lakshman approached the applicant and asked him to help with the campaign for the Sri Lanka Freedom Party. The applicant did not want to help because he was a member of the UNP, however Lakshman was very powerful in the local area and the applicant did not want to refuse, so he said  he would think about it;

   f)the applicant went on to help the campaign for the UNP candidate and not for the SLFP;

   g)one month before the election, about 30 people attacked the applicant and his friend with wooden poles. The applicant was badly hurt in the back and right arm;

   h)one or two days before the election, Lakshman threatened the applicant that if he did not help the SLFP candidate and that candidate lost the election, Lakshman would kill him;

   i)on election day, the applicant went with his mother and brother to his aunt’s house because they were worried about the outcome of the election. On returning home three days later, they found that the windows on their house were shattered. The applicant did not stay at home with his mother and brother, and instead stayed on a boat at Negombo and with his employer in Jaffna;

   j)the applicant returned to Madampe three weeks after the election. The SLFP put the applicant’s boss under pressure to fire him, but the boss did not do so.  The SLFP successfully forced the boss to close down the local workshop.  Between the election and his departure for Australia, a period of approximately a year, the applicant stayed with his employer in Jaffna and elsewhere where his employer had work contracts;

   k)nothing further happened to the applicant’s mother and brother, however Lakshman had warned the applicant’s brother that the applicant should not return to his village;

   l)the applicant fears returning to Sri Lanka because he will be arrested by SLFP people in the airport. Two of his roommates who were returned were arrested and jailed. The applicant will not be able to subsist in Sri Lanka because SLFP people make life very difficult for anyone who is not on their side. The Sri Lankan authorities cannot protect him because the police and SLFP have very strong connections to one another; and

   m)after leaving Sri Lanka, the applicant’s brother informed him of the death of a friend, Jeewan Kumara. The applicant was concerned that his friend had been killed for reasons connected to the applicant’s claims, as the friend had given the applicant a ride from Madampe to another town, on his journey to Australia.

4. During the interview with the delegate, the applicant provided a letter of support that was allegedly authored by a member of the North Western Provincial Council dated 30 November, 2012.

5. The delegate found that the applicant did not meet the criteria for the grant of the visa.  On 7 February, 2014 the applicant applied for a review of that decision by a refugee review tribunal.

6. The tribunal could not decide the application on the papers alone and accordingly, on 5 November, 2014 the tribunal invited the applicant to appear before it to give evidence and present arguments on 5 December, 2014.

7. Before the hearing, on 28 November, 2014 the applicant’s agent wrote to the tribunal attaching country information in support of the applicant’s claims, stating that she had not been able to obtain instructions from the applicant and requesting that the tribunal refrain from making a decision in relation to the review until the agent had had “an opportunity to take instructions and provide full written submissions on [the applicant’s] behalf”.

8. On 3 December, 2014 the applicant’s agent again wrote to the tribunal, making detailed written submissions in support of the applicant’s claims.  The applicant submitted that:

   a)Lakshman came to the applicant’s house and threatened to murder him one day prior to the election. After the applicant left home, Lakshman threatened to kill his older brother and asked about the applicant’s whereabouts. Although the applicant’s brother was a member of the UNP, the applicant himself was the only one who actively worked against the SLFP;

   b)in relation to the delegate’s findings that there was no indication that the beating or vandalism of his home were politically motivated, the applicant stated that he had no enemies other than those in politics;

   c)following the election, the person who won the election sent the applicant’s employer a letter telling him to close down his business because it was bad for the environment. The elected member took legal action against his boss and a court order was delivered requiring him to close down the workplace. The applicant believes that this request concerned politics rather than the environment as it was given by the member against whom he had campaigned;

   d)following the election the applicant went to Negombo and stayed with a friend, and then went to Jaffna; and

   e)the applicant’s friend who was killed was killed for political reasons as he had helped the applicant escape Sri Lanka. The applicant’s friend was involved in the UNP.

9. The letter also attached a submission setting out country information which closely resembled the information set out in the applicant’s letter to the tribunal dated 28 November, 2014. 

10. On 5 December, 2014 the applicant attended the tribunal hearing assisted by his representative and an interpreter in the Sinhalese language.  At the hearing, the applicant added a further claim to his case, namely that Lakshman’s brother had been recently released from prison, where he had been held for murder. The applicant claimed that Lakshman’s brother would kill him.

The tribunal’s decision

1. The tribunal accepted that the applicant was born in the North Western Province of Sri Lanka, that he was of Singhalese ethnicity and that he worked as a stonemason, fisherman and welder.

2. However, the tribunal believed little else of what the applicant claimed.  The tribunal did not accept that the applicant genuinely held any fear of harm should he return to Sri Lanka.

3. The tribunal held a number of concerns about the applicant’s evidence, which caused the tribunal to find that the applicant was not a credible witness and that he had not been truthful in relation to his experiences in Sri Lanka, his reasons for leaving Sri Lanka or his fears about returning to Sri Lanka.

4. In reaching this view, the tribunal had regard to the applicant’s inability to recall important dates and details relevant to his claim, inconsistencies within the applicant’s evidence and the implausibility of important parts of the applicant’s claims.

5. The tribunal was satisfied that:

   a)the applicant and his family were low-level ordinary supporters of the UNP. The tribunal accepted that the applicant would have attended rallies and undertook menial tasks such as putting up election posters. The tribunal did not accept that the applicant was an active member of the UNP;

   b)the tribunal did not accept that a low-level ordinary supporter of the UNP would be targeted for political reasons. The tribunal found the applicant’s evidence regarding his fear of Lakshman and the SLFP vague and lacking in credibility.  The tribunal did not accept that the applicant was asked by Lakshman to assist the SLFP in its election campaign or that the applicant or his family were threatened by Lakshman;

   c)the tribunal did not accept that the applicant was assaulted by 30 people, as he had claimed;

   d)the tribunal did not accept the applicant’s claim that his friend was killed for reasons relating to the applicant;

   e)the tribunal found the applicant’s evidence regarding Lakshman’s brother vague and lacking in credibility, and noted that the claim had been raised for the first time before the tribunal. The tribunal did not accept that the applicant faced harm for this reason;

   f)the tribunal found that the applicant did not have a profile which would result in him facing harm, and found that as a low-level supporter of the UNP he would be able to freely continue to support the UNP on his return to Sri Lanka;

   g)the tribunal accepted that the applicant left Sri Lanka illegally and that it would become known upon his return that he had unsuccessfully sought asylum in a Western country.  The tribunal found that the applicant did not have an adverse political profile at the time of his departure from Sri Lanka.  The tribunal did not accept that the applicant would face persecution or significant harm as an illegal departee and failed asylum seeker;

   h)The tribunal found that, as a person suspected of illegal departure, the applicant would be questioned upon return at the airport.  The tribunal accepted that the applicant may be detained and interviewed and may be held for a limited period in remand whilst awaiting bail. The tribunal noted that conditions in remand had been described as overcrowded and unsanitary, with a lack of access to adequate food and water, a lack of access to assistance and there was the possibility of violence and maltreatment. However, the tribunal considered that the applicant would only be detained briefly and that the poor conditions in remand did not amount to systematic and discriminatory conduct as required by s.91R(1)(c) of the Act, or to significant harm; and

   i)The tribunal considered that the elements of the processing of returnees and any penalties to which the applicant may be subjected would be applied on a non-discriminatory basis under a law of general application.

6. Accordingly, the tribunal found that the applicant did not satisfy the criteria set out in section 36(2)(a) of the Act and that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm in terms of s.36(2)(aa) of the Act.

7. The grounds of review set out in the applicant’s application for review  filed on 7 April, 2015 are that:

   1.  The Refugee Review tribunal did not afford me procedural fairness

   2.  The Refugee Review tribunal applied the wrong legal test.

8. As the first respondent points out, the application is otherwise not particularised and the applicant has not filed an amended application, any evidence, or any written submissions in accordance with the procedural orders made by the Court.

9. The first respondent submits that the tribunal afforded procedural fairness to the applicant.  I agree.  The tribunal considered all of the claims made by the applicant whenever they were made.  The tribunal invited the applicant to a hearing when it determined that it could not make a decision in his favour on the papers.  The tribunal conducted a hearing with an interpreter and with the applicant’s agent present.  The applicant makes no complaint about the standard of the interpretation the conduct of his agent, or the conduct of the hearing by the tribunal.

10. The tribunal put to the applicant for his comment the matters that were troubling it. In my view, there was no failure on the part of the tribunal to afford the applicant procedural fairness as required by the Migration Act.

11. Nor am I satisfied that the tribunal did not apply the correct legal tests.   As the first respondent submits, the tribunal rejected most of the applicant’s claims on the basis of its adverse credibility findings.  The tribunal accepted that the applicant was a low-level ordinary supporter of the UNP, but did not consider that he would be harmed for this reason. 

12. The tribunal accepted that the applicant left Sri Lanka illegally and that it would become known upon his return that he had unsuccessfully sought asylum in a Western country, however did not accept that the applicant would face persecution or significant harm as an illegal departee and failed asylum seeker.

13. In my view, a fair reading of the tribunal’s reasons for decision reveal that the tribunal in fact applied the correct tests to the review for the delegate’s decision.

14. In the course of oral submissions, the applicant suggested that the tribunal’s findings and conclusions were unfair and unreasonable.  But the facts of the case do not engage the principles relating to unreasonableness in administrative decision making.  As summarised by Logan J in BZAHA v Minister for Immigration and Border Protection [2015] FCA 942:

    18          To establish unreasonableness, it is not necessary to show that an administrative decision-maker’s decision, or absence of satisfaction more particularly in this case, was bizarre or irrational: see, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68]. But where there is a body of material which supports, reasonably, an absence of satisfaction, a challenge based on an unreasonableness of ground must fail, see, for example, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [194]. See also, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 184 CLR 259.

15. No unreasonableness in the relevant sense is revealed by the tribunal’s reasons for decisions.  The findings made by the tribunal were all open to it on the material before it. In light of those finding’s, the conclusions reached by the tribunal were not unreasonable.

Conclusion

1. I am not satisfied that the applicant has demonstrated that the tribunal’s decision is affected by jurisdictional error.  The tribunal’s decision is a private clause decision and not amenable to review in this court.

2. The application must be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on

Associate: 

Date: 28 August 2015