AKN15 v Minister for Immigration

[2016] FCCA 2678

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2678

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal –application for protection visa – whether Tribunal did not afford applicant procedural fairness – whether the Tribunal applied the wrong legal test – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Applicant: AKN15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 718 of 2015

Judgment of: Judge McNab

Hearing date: 27 September 2016

Date of Last Submission: 27 September 2016

Delivered at: Melbourne

Delivered on: 27 September 2016

REPRESENTATION

The applicant in person

Counsel for the Respondent: Mr Rogers

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The applicant’s application filed 8 April 2015 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 718 of 2015

AKN15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

1. In this matter, the applicant had filed an application on 8 April 2015, seeking judicial review of a decision of the Refugee Review Tribunal (as it then was). The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant is seeking an order that the decision of the Tribunal be quashed.  

2. The applicant set out two grounds of review of the Tribunal’s decision:

   i)that the Refugee Review Tribunal did not afford the applicant procedural fairness; and

   ii)the Refugee Review Tribunal applied the wrong legal test.

3. On 8 April 2015, the applicant swore an affidavit which annexed

   
   

   a copy of the decision of the Refugee Review Tribunal dated

   
   

   11 March 2015. In that affidavit, he stated that “the Tribunal erred in applying the wrong legal test to my claims”. When this matter was called on for hearing, the applicant, who was appearing unrepresented with the assistance of an interpreter speaking the Tamil language, sought an adjournment of this hearing on the grounds that there was a failure of proper interpretation before the Tribunal and he asserted that, in a hearing involving his brother which was conducted by the same Tribunal member using the same interpreter, another court has remitted the matter for re-hearing on the grounds of an error in interpreting.

4. I note that the court made orders by consent on 22 July 2015 (at which time the applicant appeared when the orders were made) and among the orders that were made, were orders that the applicant file and serve by 5 August 2016 any amended application with proper particulars of the grounds of application, a supplementary Court Book, if any, and written submissions. The matter was then fixed for hearing on this day.  I also note that the court ordered on that day that the first respondent file two copies and serve one copy of the Court Book by

   
   

   10 December 2015.

5. I am satisfied, having seen a letter from the solicitors for the first respondent addressed to the applicant, at the address which is the same address shown in the affidavit that he swore on 8 April 2015, that a copy of the Court Book was served shortly after 8 December 2015.

   
   

   In those circumstances, I refused an application to adjourn the proceeding.  The applicant was aware of the material filed and relied on by the first respondent. He had, without explanation, failed to file further material in support of his claim generally and in relation to any issue with formulation before the Tribunal in particular. I note further that this claim of poor interpretation or errors in interpreting was raised for the first time this morning. There is no evidence before the court in relation to those matters. There is no evidence before the court that the same interpreter was used in any matter involving the applicant’s brother.

Grounds of Application

1. Dealing with the substance of the application, I have had the benefit of written submissions which were filed on behalf of the first respondent. Those submissions comprehensively set out the background of the applicant’s visa application, a review application, and the reasons of the Tribunal. A copy of those submissions were served upon the applicant in accordance with the orders of the court made on

   
   

   22 July 2015. In my opinion, there is no reviewable error discernible from the reasons of the Tribunal. Accepting that the applicant is not represented and his application appears to have been made without the benefit of legal advice, even taking into account those limitations, there has been no discernible error identified by the applicant which would give rise to the orders that he seeks.

2. I note that the applicant made an application for a visa on or around

   
   

   30 October 2012,[1] at which time he was represented by a migration agent.  In support of his application, he provided a statutory declaration which was dated 18 October 2012. That statutory declaration set out the matters which are referred to from [9.1] to [9.8] of the

   
   

   first respondent’s outline of submissions. The substance of his claim was that:

   a)he had left Sri Lanka because he feared for his safety as a Tamil;

   b)that he feared reprisal in Sri Lanka because of an imputed political opinion and as a result of his race; and

   c)as a result of the applicant’s membership of a particular social group, being a failed asylum seeker and a young Tamil male.

   [1] Court Book 19-100

3. The applicant was also provided with the opportunity and took up the opportunity of making post-hearing submissions.[2] Those submissions were filed for the purpose of addressing concerns with the applicant’s credibility raised with him at the hearing by the Tribunal member and to provide additional country information.

   [2] Court Book 2, 271 - 291

4. In its decision, the Tribunal accepted that the applicant is a Tamil, however the Tribunal had significant concerns about the credibility of the applicant and found that those concerns “go to the core of his claims for protection and impeach his evidence as a whole”.[3] The Tribunal considered all of the applicant’s claims of risk to harm to him as a result of him being a member of the Tamil race. 

   [3] Court Book 301, 18

5. The substance of the Tribunal’s findings as to whether the applicant faced a real risk of harm because of his race are summarised as follows:

   a)the Tribunal accepted that Tamils are disproportionately affected by human rights abuses, despite the civil conflict coming to an end. However it found that country information suggests that not all Tamils are at risk, and not even all who had connections to or sympathies with the LTTE;

   b)the risk is limited to those who are, or are perceived to have, a significant role in relation to post-conflict separatism;

   c)the Tribunal rejected the only claimed personal or familial link the applicant had with the LTTE was the claim in respect of his brother.[4]

   Having regard to all of the applicant’s circumstances, the Tribunal was not satisfied that he would be a person of interest to Sri Lankan authorities.[5]

   [4] CB 309, [57]−[58]

   [5] CB 309−310, [58]

Claims of Discriminatory Treatment

1. The Tribunal considered the applicant's claims to have suffered discriminatory treatment, which included being harassed by Singhalese fishermen. However, it did not accept that this mistreatment rose to the level of serious harm, and therefore persecution.[6] The Tribunal did not accept that the applicant faced a serious risk of harm that would be worsened by any other relevant characteristic of the applicant, including his status as a young male Tamil.[7]

   [6] CB 310, [59]

   [7] CB 310, [59]

Risk of Harm as a Failed Asylum Seeker

1. The Tribunal considered the risk of harm to the applicant as a failed asylum-seeker, and someone who departed Sri Lanka illegally. The Tribunal accepted that the applicant would face charges on his return for breaching Sri Lankan emigration laws and that he could be held on remand for a few days. However, it did not accept that the applicant faced a real chance of persecution as a failed asylum−seeker, or failed Tamil asylum seeker, or for reason of any political opinion imputed to him on those bases as these laws are applied to returnees of all races and not applied discriminatorily.[8]

   [8] Court Book 311-312

No Risk of Significant Harm

1. The Tribunal found that the applicant did not face a real risk of "significant harm" whilst being held on remand. The Tribunal took into consideration the poor conditions in prison due to overcrowding, but held that there was no evidence of the deliberate mistreatment of those held on remand.[9] The Tribunal was not satisfied that the treatment he faced as someone who had departed Sri Lanka illegally rose to the level of significant harm under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

   [9] CB 312, [71]− [75]

2. Having set out the applicant’s claims and having considered each of them, the Tribunal concluded that it was not satisfied that the applicant had a well-founded fear of persecution and therefore did not satisfy the refugee criteria in s.36(2)(a) of the Act and it was not satisfied that there were substantial grounds for believing that there is a real risk that the applicant would suffer significant harm and therefore did not satisfy the complementary protection criteria in s.36(2)(aa) of the Act.

Consideration

Ground 1- Denial of Procedural Fairness

1. Dealing with the grounds of review specifically raised by the applicant, albeit in a very vague form, in relation to an alleged denial of procedural fairness, I note that no specific ground has been raised.

   
   

   It appears from reading the Tribunal’s decision that the obligations in Div. 4 of Part 7 of the Act have been complied with. Those obligations include the obligation to invite an applicant to appear and give evidence and present arguments. In this case, the applicant was invited to and attended the hearing before the Tribunal and he was represented at the Tribunal. Submissions were made on his behalf, both during the Tribunal hearing and following the hearing. No submission was made that there was an error in translation. This ground is not made out.

Ground 2 – Applying Wrong Legal Test

1. In relation to the ground that the Tribunal applied the wrong legal test, there is no apparent basis for this ground advanced and, in my view, it is plain from the Tribunal’s reasons that it has cited and applied the correct test for a protection visa, including the correct legal test for both s.36(2)(a) and (aa) of the Act.

2. On the basis of those matters, the application has failed to disclose any jurisdictional error on the part of the Tribunal and should be dismissed with costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 19 October 2016