Aky15 v Minister for Immigration
[2015] FCCA 2798
•23 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKY15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2798 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misunderstood the facts, was biased and reached a decision which was incorrect. |
| Legislation: Tribunals Amalgamation Act 2015, item 15AG of sch.9 Migration Act 1958, ss.36, 91R, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | AKY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 131 of 2015 |
| Judgment of: | Judge Cameron |
| Hearing date: | 23 September 2015 |
| Date of Last Submission: | 23 September 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 23 September 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr O. Young of Sparke Helmore |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.
The Administrative Appeals Tribunal replace the Refugee Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
ADG 131 of 2015
| AKY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 19 July 2012. On 4 December 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka because of his political opinion. On 4 March 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa were relevantly set out in the Tribunal’s decision as follows.
Proceedings before the department
The applicant made the following claims in a statutory declaration declared on 4 December 2012:
a)his local government had been run by the Sri Lankan Freedom Party (“SLFP”) for many years;
b)his friend was the United National Party (“UNP”) candidate in the July 2011 local elections. He assisted his friend during the election campaign by organising meetings and putting up posters. He also did some canvassing work, which involved him going door-to-door explaining to people the advantages of electing a UNP representative;
c)during the campaign period he and other supporters of the UNP often came into conflict with SLFP supporters over poster space. The SLFP supporters would threaten them;
d)after the UNP lost the election, people from the SLFP came to his house in search of him. However, by that time he had already gone into hiding;
e)three days after the election, SLFP supporters came to his workplace and tried to abduct him but he managed to escape;
f)about a week after that attack, he saw SLFP supporters approaching his house but he escaped through the back door. Thereafter, until his departure from Sri Lanka in July 2012, SLFP supporters continued to come to his house about once a week to look for him. However, he would see them coming and run away every time. They would harass his family and threaten them with death if they went to the police;
g)after he fled to Australia his family continued to face harassment. When the SLFP supporters discovered that he had fled, they went to his brother’s house, beat him and said that they would kill him if he did not produce the applicant on the next occasion. Knowing that his life was at risk too, his brother also fled to Australia but was forcibly returned to Sri Lanka, whereupon he was arrested for departing the country illegally, questioned by the Criminal Investigation Division and released on bail pending a court hearing;
h)his brother was in hiding in Sri Lanka and could not return to their village because he would be killed by the SLFP;
i)the SLFP were still searching for him. Recently, they broke all the windows in his house;
j)his family could not make a complaint to the police because of threats from the SLFP. Further, the SLFP was in government and the police worked for them;
k)he could not move to another part of Sri Lanka. The SLFP would search for him and would be able to find him anywhere; and
l)he also feared being punished by the authorities because he had left Sri Lanka unlawfully. He feared that he would be treated like his brother and would not be treated fairly or have a fair trial because he had supported the opposition UNP against the government.
Proceedings before the Tribunal
The applicant made the following additional claims in pre-hearing submissions and in a further statutory declaration received by the Tribunal on 6 March 2015:
a)his fear of serious harm in Sri Lanka also arose from his membership of the particular social groups “failed asylum seekers” and/or “returnees who have fled Sri Lanka unlawfully”;
b)he had a higher profile by reason of his political activities. Consequently, the questioning he would undergo at the airport upon his return to Sri Lanka would be framed in the context of his political opinion; and
c)if the authorities detained him upon his return to Sri Lanka, he would be vulnerable to mistreatment and harm because of his political profile and because of the length of time he had spent in Australia as an asylum seeker.
The applicant appeared before the Tribunal on 11 March 2015 at which point he made the following additional claims:
a)his campaign work on behalf of the UNP candidate began about a month before the election;
b)his main role during the campaign period involved putting up posters, which put him into conflict with SLFP supporters who were doing the same thing. Although there was never any physical action taken, SLFP supporters would abuse him verbally;
c)although they did not say anything to identify themselves, he believed that the people who had tried to abduct him at this workplace had been SLFP supporters;
d)he returned to work the day after that incident and continued to work at the same place until his departure; and
e)his home village offered him the greatest protection because he knew the area very well and therefore could escape from any attack and avoid being followed.
At the hearing the applicant also provided a letter of support which had purportedly been written by the UNP candidate on whose behalf he had campaigned in 2011.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the applicant had been a low level campaign supporter for a month in a local council election during which time his chief responsibility had been to put up campaign posters in a setting where he had faced verbal abuse. Having regard to the minimal level of his political profile, to his activities, to the level of his involvement and to the nature of the claimed threats which had been made against him, the Tribunal found that in the period before the elections the applicant did not face a real chance of serious harm as that term was then defined by s.91R(2) the Act;
b)the applicant claimed that, following the election, SLFP members tried to abduct him from his work. He also claimed that they came to his house in an intimidating manner on a weekly basis for a year until his departure from Sri Lanka. For the following reasons, the Tribunal rejected these claims as fabrications:
i)the claimed initial attack occurred at the applicant’s workplace, a place which, by the applicant’s own account, had large numbers of people going through such that the attackers did not dare to attack him there again. Further, according to the applicant’s evidence, the attackers made no threats and did not say anything to him to identify themselves;
ii)the applicant claimed that after the initial attack he continued to work at the same workplace for the next twelve months. He also claimed that during this period the SLFP continued to search for him. The Tribunal did not accept that the SLFP would have failed to follow the applicant from his workplace in order to discover his whereabouts in the village if they had been as intent on catching him as he claimed. Further, given that they had boldly entered his house and threatened the inhabitants, the Tribunal did not accept that in the course of the year they would have failed to locate the applicant at his wife’s house where he claimed to have regularly hidden;
iii)it was implausible that the applicant was fearful but continued to remain in the same area in the year before his departure. The Tribunal found in this regard that the applicant’s minimal involvement in a local council election would not have been of concern beyond the council area and thus he would have been safe from any local threat if he moved away from the local area; and
iv)the Tribunal did not accept that the SLFP had any motivation to attack the applicant with the intensity or for the period claimed, given that the election had gone in their favour, the applicant was of no immediate threat to them and, in any event, he had occupied a very low level role;
c)in light of these matters, the Tribunal did not accept that the applicant had experienced any serious harm following the election and found that he would not experience harm for reasons of his political opinion in the reasonably foreseeable future;
d)having rejected the applicant’s claims, the Tribunal did not accept that the letter from the UNP candidate evidenced a real chance of serious harm. It also noted that the letter did not accurately represent the applicant’s own claims (in terms of which family members faced harassment) and had only been provided on the day of the Tribunal hearing, some two years after the application for a visa had been made;
e)whilst the Tribunal accepted that upon his return to Sri Lanka the applicant would have to undergo a lengthy interview process and would be placed on remand pending his appearance before a magistrate, it found that such treatment would occur as a result of a law of general application and would be the same for any other Sri Lankan national who had left the country illegally. That being so, the Tribunal found that the applicant did not face a real chance of serious harm in Sri Lanka by reason of his membership of the particular social group of Sri Lankan returnees who had left the country illegally; and
f)the Tribunal accepted that during his temporary detention following his return to Sri Lanka the applicant would be held in facilities which would be of a standard lower than those in Australia. However, it found that such detention would be for the sole purpose of administering a law of general application, without intent to harm and without any disproportionate penalty. It concluded that any harm the applicant might face as a result of his detention would not be so serious as to amount to significant harm.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal fell into jurisdictional error insofar as it proceeded to decision upon a factual misapprehension.
Particulars
The Tribunal erroneously equated an unfulfilled threat of harm with an absence of harm.
The factual misapprehension which the applicant postulated did not exist. An unfulfilled threat of harm is, after all, a threat which has not produced any harm. That is to say, it represents, as far as it goes, an absence of harm. Had the Tribunal reasoned in the fashion the applicant propounded, it would not have misapprehended the facts.
In any event, the question was whether there was a real risk of harm to the applicant in the future were he to return to Sri Lanka. The Tribunal considered all the matters advanced by the applicant in support of his claims, rejected some as fabrications and noted in connection with the others that the worst he had suffered was the receipt of “an idle threat”. The Tribunal noted that there had, in fact, been no real harm suffered by the applicant in the past and reasoned, as was open to it, that such facts suggested that future harm was unlikely. Such an inference was neither illogical nor unreasonable.
The applicant’s pleaded allegation does not identify jurisdictional error on the Tribunal’s part.
At the hearing of his application, the applicant filed short written submissions entitled “Note to Court”. In those submissions he alleged that the Tribunal had been biased. Importantly, that assertion was neither alleged nor particularised in the application as it should have been in order that the Minister could have had a proper opportunity to address it. Moreover, given the seriousness of an allegation of bias and the associated requirement that it be properly pleaded and particularised, the applicant’s failure to advance the allegation in that way suggests that it should not be considered further.
However, it can be said that because the applicant adduced no evidence of what occurred at the hearing, any suggestion of an apprehension of bias in the way the Tribunal conducted itself at its hearing could not be made out. Further, the Tribunal’s decision record, reproduced in the Court Book which was exhibit A, does not suggest any basis to conclude that a finding of apprehended biased would be reasonably open.
More relevantly to the allegation made, the decision record also does not suggest that the Tribunal was in fact biased and had not brought to the determination of the applicant’s review a mind which was open to persuasion. The decision record suggests a detailed and thorough consideration by the Tribunal of the applicant’s claims and evidence. Were it appropriate to make a finding on the allegation of bias, which because of the way it was made I do not consider is the case, I would not find that the Tribunal conducted the review with a mind that was not open to persuasion.
At the hearing of this application, the applicant also raised matters concerned with the merits of his application for a protection visa. As explained earlier in these reasons and to the applicant at the hearing of this application, the Court is not empowered to reconsider his application for a visa. The matters raised by the applicant at the hearing which went to the merits of his visa application did not disclose a basis upon which the Court might set the Tribunal’s decision aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 23 October 2015
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