AKN15 v Minister for Immigration and Border Protection
[2018] FCA 1415
•17 September 2018
FEDERAL COURT OF AUSTRALIA
AKN15 v Minister for Immigration and Border Protection [2018] FCA 1415
Appeal from: AKN15 v Minister for Immigration & Anor [2016] FCCA 2678 File number: VID 1222 of 2016 Judge: KENNY J Date of judgment: 17 September 2018 Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Date of hearing: 3 and 17 September 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 48 The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms M Gangemi (3 September 2018)
Mr N Rogers (17 September 2018)Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent submitted to any order the Court made. ORDERS
VID 1222 of 2016 BETWEEN: AKN15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
17 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 27 September 2016, which dismissed an application for judicial review of a decision of the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) dated 11 March 2015. The Tribunal had affirmed a decision of a delegate of the respondent Minister (the delegate) dated 4 September 2013 to refuse the appellant’s application for a Protection (Class XA) visa (protection visa). The Federal Circuit Court judgment has the citation AKN15 v Minister for Immigration & Anor [2016] FCCA 2678.
On 9 May 2018 a judge of this Court dismissed the appeal for non-appearance under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth) (the Rules). This order was, however, vacated by consent the following day after the Court was notified that the appellant had been incorrectly advised of the hearing time.
BACKGROUND
The appellant is a national of Sri Lanka. He applied for the protection visa on 30 October 2012.
The appellant claimed to fear harm because of his Tamil ethnicity, imputed political opinion as pro-Liberation Tigers of Tamil Eelam (LTTE), as a member of a particular social group being young Tamil males, and as a failed asylum seeker.
On 4 September 2013, the delegate refused to grant the appellant the protection visa. The appellant subsequently applied to the Tribunal for review.
The appellant appeared before the Tribunal by video-link on 27 January 2015 to give evidence and present arguments. He was represented in relation to the review by his registered migration agent, who also attended the hearing by video-link. The hearing was conducted with the assistance of an interpreter. The appellant provided additional country information after the hearing, and also submissions addressing concerns raised at the hearing about his credibility.
On 11 March 2015, the Tribunal affirmed the delegate’s decision.
TRIBUNAL’S DECISION
The Tribunal expressed concerns about the appellant’s credibility, which it said “go to the core of his claims for protection, and impeach his evidence as a whole.” Given the discrepancies between the appellant’s claims at the hearing and in writing, the Tribunal did not accept the appellant’s claims about the problems his brother faced with the authorities, or that these were the catalyst for his own departure from Sri Lanka. The Tribunal rejected the appellant’s evidence of his own mistreatment by the authorities on the basis that his evidence was vague and contained discrepancies. The Tribunal accepted that the appellant’s family home may have burned down since he left Sri Lanka, but found that the claim that the authorities were responsible was purely speculative.
Having accepted that the appellant was of Tamil ethnicity, the Tribunal considered whether he faced a real chance of harm by reason of his race. It accepted that, although the cessation of the civil conflict meant that the situation in Sri Lanka had improved, there continued to be human rights abuses, and Tamils were disproportionately affected by these abuses. The Tribunal found, however, that country information indicated that not all Tamils are at risk, and that “[t]he risk is limited to those who are or are perceived to have a significant role in relation to post-conflict separatism”. The Tribunal found that the only claimed personal or familial link the appellant had with the LTTE was the claim in respect of his brother, which it had rejected. The Tribunal was not satisfied that, having regard to the applicant’s circumstances, he would be a person of interest to Sri Lankan authorities.
The Tribunal considered the appellant’s claims to have suffered discriminatory treatment, including being harassed by Sinhalese fishermen, but did not accept that this mistreatment rose to the level of serious harm, and therefore persecution. It did not accept that the risk of harm would be exacerbated by any other relevant characteristic of the appellant, including his status as a young male Tamil.
The Tribunal did not accept that the appellant faced a real chance of persecution as a failed asylum seeker, or failed Tamil asylum seeker, or by reason of any political opinion imputed to him on that basis.
In relation to his claims arising from illegal departure, the Tribunal accepted that the appellant would likely be charged on return for breaching Sri Lankan emigration laws. It accepted that, on being charged, he could be held on remand for a few days before being able to appear before a magistrate and obtain bail on personal recognisance. The Tribunal found, however, that these laws applied to all returnees and were not applied discriminatorily, and it was not satisfied that his detention on remand gave rise to a real chance of persecution.
The Tribunal then considered whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that he will suffer significant harm. The Tribunal noted that it was not satisfied the appellant would suffer harm on return to Sri Lanka for the reasons he claimed. The Tribunal found that the appellant did not face a real risk of significant harm whilst being held on remand, because although conditions in prison were poor due to overcrowding, there was no evidence of the deliberate mistreatment of those held on remand. The Tribunal was not satisfied that the treatment he faced as someone who departed unlawfully rose to the level of “significant harm” under s 36(2A) of the Migration Act 1958 (Cth) (MigrationAct).
The Tribunal concluded that the appellant did not satisfy the criterion in s 36(2)(a) or the alternative criterion in s 36(2)(aa) of the Migration Act and accordingly affirmed the delegate’s decision.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 8 April 2015, the appellant applied for judicial review of the Tribunal’s decision in the Federal Circuit Court. On 27 September 2016, the Federal Circuit Court dismissed the appellant’s application for judicial review of the Tribunal’s decision. The primary judge gave reasons ex tempore and revised written reasons shortly thereafter.
The primary judge noted that at the hearing the appellant had raised for the first time a claim of poor interpretation or errors in interpreting before the Tribunal, and had sought an adjournment on this basis. His Honour refused the adjournment application.
The appellant raised two unparticularised grounds of review in the Federal Circuit Court. The first ground was that the Tribunal did not afford him procedural fairness. The second ground was that the Tribunal “applied the wrong legal test”.
The primary judge held that there was no reviewable error discernible from the reasons of the Tribunal. In relation to the first ground, the primary judge noted that no specific ground had been raised, and it appeared from the Tribunal’s decision that it had complied with its procedural fairness obligations contained in Division 4 of Part 7 of the Migration Act. The Federal Circuit Court noted that the appellant attended a Tribunal hearing (by video-link) and was represented at that hearing. His Honour also noted that submissions were made on the appellant’s behalf during and following the hearing. Regarding the second ground, the primary judge found that there was no basis for concluding that the Tribunal applied the wrong legal test. His Honour held that it was plain from the Tribunal’s reasons that it had 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 Migration Act.
PROCEEDINGS IN THIS COURT
By a notice of appeal filed on 14 October 2016, the appellant raised nine grounds of appeal.
1.The learned judge failed to take into consideration all the facts together the whole situation of the Applicant in order to arrive at a reasonable conclusion.
2.The learned judge failed to consider the applicant's traumatic experience due to mistreatment by the authorities.
3.The learned judge failed to consider the applicant's fear of persecution at the hands of Sinhalese people, if detained.
4.The Administrative Appeals Tribunal (AAT) and Federal Circuit Court of Australia took into account irrelevant matters, facts and evidence and failed to take into account relevant facts, matters and evidence.
5.The AAT and/or the Federal Circuit Court of Australia hearing and decision is unreasonable in all the circumstances of the case.
6.The AAT and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by me.
7.The AAT and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented.
8.The AAT and/or the Federal Circuit Court of Australia erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the law, regulations, policy and guidelines in deciding and determining whether I was a genuine refugee and that I had a genuine fear of persecution.
9.The Federal Circuit Court failed to take all of the above into account and thereby erred and as such its decision to dismiss my appeal is wrong in law and/or in fact and/or unreasonable.
The appellant also filed an affidavit affirmed by him on 11 October 2016. In that affidavit, he stated that he understood that “the current apparent improvement in the situation in Sri Lanka has been used to justify the decision of the Tribunal and so dismiss the application for judicial review”. He annexed to his affidavit three copies of news reports which he asserted “the Court can use to justify my application and further rule that the situation has not changed for the better”.
The Minister relied on written submissions filed on 2 May 2018. The Minister submitted that the grounds of appeal do not disclose any error in the judgment under appeal, and that the appeal should be dismissed.
The appellant did not file any written submissions. The appellant appeared in person at the hearing of this appeal on 3 September 2018 with the aid of an interpreter. I took the appellant through the grounds referred to in the notice of appeal and gave him the opportunity to make submissions to the Court. The appellant made various submissions elaborating on the grounds in the notice of appeal, including that:
·the individual who assisted the appellant with his application had left some things out;
·the interpreter did not interpret what the appellant said correctly;
·there are still problems for people returning to Sri Lanka after illegally departing, and the appellant would have his share of personal problems if he goes back; and
·the appellant’s brother cannot go back to Sri Lanka because he will face problems and, as a result, the appellant will also face problems and be in danger.
During the hearing, however, it became apparent that the appellant’s real complaint was that, in relation to a hearing and decision involving his elder brother conducted and made by the same Tribunal member, the appellant claimed that the Federal Circuit Court had set aside that decision and remitted the matter to the Tribunal for re-hearing on the basis of an error in interpreting. The appellant submitted that, because his case depended on his elder brother’s case, the appellant’s case should also have been remitted for re-hearing. I note that the appellant apparently made very much the same submission in the Federal Circuit Court: see AKN15 v Minister for Immigration & Anor [2016] FCCA 2678 at [3].
At the time of the hearing of this appeal, counsel for the first respondent did not have instructions on the history of the appellant’s brother’s case. I adjourned the hearing and ordered that:
… the first respondent file and serve by email a short statement of the procedural history of the appellant’s brother’s case and brief submissions on what the first respondent says is the consequence in terms of jurisdictional error in the appellant’s case.
In compliance with that order the first respondent filed submissions dated 11 September 2018. In summary, the first respondent submitted that:
… contrary to the assertion made by the appellant at the hearing on 3 September 2018, his brother’s application for judicial review was not remitted to the Tribunal for reconsideration on the basis that there were interpreting errors made at the hearing of the brother’s review application. … [I]t was in fact remitted on the basis that the Tribunal failed to have regard to all of the integers of the brother’s claims for protection. That error has no bearing on the Tribunal’s decision in the present case …
In response to the Court’s request, the first respondent’s legal representatives subsequently provided to it a copy of the written submissions filed by the appellant’s brother in the Federal Circuit Court judicial review proceeding. The first respondent advised that he had not filed any written submissions in response but had agreed to the orders mentioned at [38] below. The first respondent also advised that, upon the Federal Circuit Court’s orders that the decision in the appellant’s brother’s case be set aside and the matter remitted to the Tribunal for reconsideration and determination, the Tribunal made a new decision. This decision was to affirm a decision of a delegate of the first respondent to refuse his visa application.
At the hearing today the Court explained the first respondent’s further submissions to the appellant, and drew his attention to the note attached to the orders of the Federal Circuit Court in the appellant’s brother’s judicial review proceeding. The Court asked the appellant whether there was anything he wished to say in response. The appellant said that the Tribunal had told him that it would make a decision in his case after it had made a decision in his brother’s case. The appellant referred to the fact that the Tribunal had not, as outlined below, considered all of his brother’s claims (see at [38] below). The appellant submitted that if the Tribunal had done these cases properly in the first place then there would have been no need to come to Court.
CONSIDERATION
Grounds 1, 6 and 7
By grounds 6 and 7 the appellant claimed that the Tribunal or the Federal Circuit Court fell into jurisdictional error by failing “to give proper consideration to and weight to the evidence presented by [the appellant]”; and by “summarily dismiss[ing] and discount[ing] the evidence presented.” By ground 1, the appellant submitted that the primary judge failed “to take into consideration all the facts together the whole situation of the [appellant] … to arrive at a reasonable conclusion”.
The appellant has not provided particulars, or details, to explain and support any of these grounds. The grounds apparently challenge the way in which the Tribunal (and the primary judge) has assessed the evidence. It was the Tribunal’s function to appraise the evidence relied on by the appellant, as in fact it did. There is no evident error in the way it went about this task. The appellant did not identify any particular error in the way it undertook this task. Rather, the appellant took issue with the findings the Tribunal made and the conclusions it reached on the merits of the appellant’s protection visa application. In proceeding in this way, the appellant failed to establish an error of a “jurisdictional” kind, which might have led a court to set aside the Tribunal’s decision.
The primary judge did not err in reviewing the lawfulness of the Tribunal’s decision, as opposed to making the Court’s own findings of fact as the appellant mistakenly claimed it should have done.
It was not open to the Federal Circuit Court in the appellant’s judicial review proceeding, or this Court on appeal, to assess and determine on the basis of the evidence before the Tribunal or filed in court whether or not the appellant’s claims in support of his protection visa application should be accepted as entitling him to a protection visa. This was a matter for the delegate and, on review, the Tribunal. This observation is also relevant to grounds 2 and 3, considered below.
Grounds 2 and 3
By grounds 2 and 3 the appellant alleged that the primary judge failed to consider “the applicant’s traumatic experience due to mistreatment by the authorities” and “the applicant’s fear of persecution at the hands of Sinhalese people, if detained”. The issue for the primary judge was not whether he would have reached the same conclusion as the Tribunal. Rather, his Honour was concerned to identify whether there had been any error in the way the Tribunal had reached its decision; and whether that error was of a kind that the law would regard as jurisdictional error. His Honour considered the Tribunal’s reasons and failed to identify an error of this kind.
It does not appear to me that his Honour relevantly erred; and I am unable to see any basis for this claim in the Tribunal’s reasons.
Ground 4
By ground 4, the appellant maintained that the Tribunal and the Federal Circuit Court took into account irrelevant considerations or failed to take into account relevant considerations.
As already noted, however, the appellant has not pointed to any matter that the Tribunal wrongly took into account or wrongly failed to take into account. The Tribunal would appear to have considered all the appellant’s claims and whether such claims gave rise to a well-founded fear of persecution, or a real risk of significant harm. There would not appear to be any matter it should have considered and did not; nor would there appear to be any matter that it wrongly considered.
Grounds 5 and 9
By ground 5, the appellant claimed that the Tribunal and Federal Circuit Court “hearing and decision is unreasonable in all the circumstances of the case”. By ground 9, the appellant claimed that the Federal Circuit Court’s decision to “dismiss [the] appeal is wrong in law and/or in fact and/or unreasonable”. If the appellant was attempting to say that the Tribunal’s decision was “illogical” or “irrational”, then, it does not seem to me that this was established. There was also no error involved in the decision of the Tribunal or the judgment of the Federal Circuit Court on this account.
Ground 8
By ground 8, the appellant alleged that the Tribunal or the Federal Circuit Court misapplied law, regulations, policy and guidelines. There is simply nothing in the reasons of the Tribunal or of the Federal Circuit Court to indicate any tenable basis for this allegation.
Interpreter ground
Reference to the note accompanying the orders of the Federal Circuit Court made by consent in the appellant’s brother’s judicial review proceeding discloses that the respondent Minister conceded that the Tribunal’s decision in the appellant’s brother’s case was affected by jurisdictional error in that the Tribunal “failed to consider the claim that the applicant [the appellant’s brother] had been harassed both by Sinhalese people and the Sri Lankan authorities in connection with his work as a fisherman”. It may be inferred that it was for this reason that the Minister agreed that the Tribunal’s decision about the appellant’s brother should be set aside and the matter remitted to the Tribunal for reconsideration and determination according to law. Reference to the written submissions filed by the appellant’s brother in his Federal Circuit Court proceeding indicates that this concession was made after the Minister’s attention was drawn to the Tribunal’s mistaken finding that the brother had relied on incidents of other Tamil fishermen being harassed by Singhalese people but failed to refer to “any incidents of harassment directed towards him personally”.
It is clear from the note accompanying the Federal Circuit Court’s orders in the appellant’s brother’s case that the brother’s matter was not remitted to the Tribunal for reconsideration on the basis that there were interpreting errors made at the previous Tribunal hearing. Rather, the appellant’s brother’s matter was remitted on the basis that the Tribunal failed to have regard to all of the integers of the brother’s claims for protection. The appellant’s submissions to this Court and to the Federal Circuit Court were misconceived.
The Tribunal did not make the same error in the appellant’s case as it made in his brother’s case. Rather, in the appellant’s case, the Tribunal not only had regard to the appellant’s claim to fear harm as a fisherman, but it also had regard to the integers of that claim.
The appellant’s claim to fear harm as a fisherman was made a number of times, including in his Irregular Maritime Arrival Entry Interview and in his statutory declaration made 18 October 2012. The Tribunal addressed the claim and its integers in its reasons at [33] and [59].
Thus, at [33] it stated:
The applicant claims he has suffered harassment from Singhalese fisherman (who have taken fish from him and on one occasion shoved him) and also Sri Lankan authorities who take fish from him nearly every time he goes fishing. The Tribunal discussed with the applicant at hearing the country information referred to in the delegate’s decision that there is no suggestion in news articles and DFAT reports that the Sri Lankan authorities take the catches from fishermen, however he disputes this and reiterated his claims that the authorities have taken his fish. On the basis of the country information the Tribunal does not accept that the authorities took any of his fish. The Tribunal is prepared to accept that the applicant may have suffered some harassment from Singhalese fishermen, as this is consistent with country information which indicates that there is a moderate level of discrimination between particular ethnic groups, (“societal discrimination”) largely as a result of the civil war and its causes. The Tribunal does not accept that his harassment from Singhalese fishermen rises to a level that would constitute any form of serious harm, and thus persecution.
At [59], the Tribunal stated that it had considered the appellant’s claims of discriminatory treatment as a Tamil, including being harassed by Singhalese fishermen, but did not consider that “this treatment rises to a level that would constitute any form of serious harm, and thus persecution”. The Tribunal added that “[o]n the basis of the country information the Tribunal is not satisfied that as a Tamil fisherman he faces a real chance of serious harm for this [ethnicity] reason, either at the hands of the authorities, or other Singhalese fishermen.”
For the same reasons, the Tribunal did not accept that there was a real risk that the appellant would face significant harm, as defined in s 36(2A) of the Migration Act, including as a fisherman.
As explained, even if it is accepted that, as the appellant submitted, neither his own or his brother’s cases would have come to Court had there not been the error made in his brother’s case (see [27] above), this error did not give rise to any jurisdictional or appellate error in the appellant’s case.
Summary
The Tribunal’s failure to take into account all of the integers of the appellant’s brother’s claim as to the harm he would suffer as a fisherman, leading the Federal Circuit Court to set aside its decision respecting his brother, did not affect the Tribunal’s decision about the appellant.
Further, as noted above, the appellant claimed to have a well-founded fear of persecution because of his relationship to his brother, but, for the reasons outlined earlier, the Tribunal rejected this claim and, for the same reasons, the appellant’s claim that he would face significant harm on his brother’s account. There is, however, no discernible jurisdictional error at this point or elsewhere in the decision of the Tribunal.
For the reasons stated, no jurisdictional error has been identified in the decision of the Tribunal and no relevant error is shown in the judgment of the Federal Circuit Court. Accordingly, the appeal should be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 17 September 2018
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