ALA16 v Minister for Immigration

[2018] FCCA 1003

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALA16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1003

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal erred in being too critical and demanding – whether the Tribunal drew an unsupported inference – whether the Tribunal erred in the weight it gave to certain evidence – whether the Tribunal required the applicant not to engage in politics – whether it was open to the Tribunal to base its decision on matters of degree.

Legislation:
Migration Act 1958

Cases cited:
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71

Applicant: ALA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 363 of 2016

Judgment of: Judge Riley

Hearing date: 16 March 2018

Date of last submission: 16 March 2018

Delivered at: Melbourne

Delivered on: 16 March 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Ashlee Briffa

Counsel for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 26 February 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 363 of 2016

ALA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 16 March 2018. The applicant filed an application for extension of time to appeal on 18 April 2018. Chambers ordered a transcript of the reasons for judgment on 18 April 2018. Auscript provided the transcript of the reasons for judgment on Thursday 19 April 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on Monday 23 April 2018.

1. This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The applicant applied for a protection visa on 16 January 2013.  A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 11 August 2014. 

2. In a statutory declaration,  the applicant said that:

   a)he is a Sri Lankan of Sinhalese ethnicity and Buddhist religion;

   b)he had worked for six months in support of a particular United National Party (“UNP”) candidate in the 2004 election;

   c)he was threatened by three men at his home in the last few weeks before the election;

   d)he suspected the men were from the People’s Alliance (“PA”);

   e)he was frightened by the threat, and moved his family as a precaution;

   f)between 2004 and 2007, he was twice threatened by PA members even though he told them that he was no longer supporting the UNP; and

   g)he was again threatened in 2011.

3. The delegate found that the applicant’s claims were not entirely credible.  The delegate accepted that the applicant had engaged in some low level activity in support of a candidate for the UNP in the 2004 election.  The delegate also accepted that the applicant had been threatened at that time to stop his political activity.  The delegate accepted that the applicant had ceased all political activity after that. The delegate did not accept that the applicant was threatened between 2004 and when he departed Sri Lanka in 2012.

4. On 14 August 2014, the applicant applied to the Tribunal for review of the delegate’s decision.  The applicant appeared at a hearing conducted by the Tribunal on 24 November 2015.  The applicant was assisted at the hearing by a registered migration agent and a Sinhala interpreter.  The agent provided pre and post-hearing written submissions. 

5. The applicant told the Tribunal that he would continue to receive threats because of his involvement in the 2004 election.  The applicant told the Tribunal that he had not been involved in politics since 2004. 

6. The Tribunal noted that it had concerns about the applicant’s claim to have supported the UNP in the past.  That was because the applicant was only able to give vague reasons for supporting the party and could not identify any policies of the party. 

7. The Tribunal noted that the applicant could not recall when the 2004 election occurred, saying that it took place in late 2004 when, in fact, it occurred in April 2004.  Nevertheless, the Tribunal acknowledged that a low level person such as the applicant could assist in a campaign without having detailed knowledge of the party.

8. Ultimately, the Tribunal did accept that the applicant assisted a particular UNP politician for six months prior to the 2004 election.  The Tribunal also accepted that the applicant was threatened in the context of the 2004 election.

9. However, the Tribunal did not accept that the applicant was threatened or harmed by rival political supporters following the 2004 election.  The Tribunal gave a number of reasons for this. 

10. Firstly, the Tribunal noted that the applicant gave inconsistent evidence about the threats.  In his statutory declaration, he said that he was threatened three times after the election, being twice at his home between 2004 and 2007 and once after his wife died in 2011. However, he told the Tribunal that he was only threatened twice after the election in total.

11. Secondly, the Tribunal found it implausible that PA supporters would wait until July 2007 and November 2011, which are respectively three years and seven years after the election, to threaten the applicant. 

12. Thirdly, the Tribunal noted that the applicant did not claim that his now adult children had ever been approached by PA supporters looking for the applicant or had experienced any problems as a result of their father’s support of the UNP.  The Tribunal considered that this indicated that the applicant was not of any ongoing adverse interest to PA supporters.

13. The Tribunal noted the applicant’s claim that his daughter had been refused entry to an army training camp in 2013. However, the Tribunal noted that she had been able to join the army in 2012 as a medical laboratory technician.  The applicant suspected the refusal to allow his daughter to attend the army training camp was because of his own political activities in 2004. However, the Tribunal considered that this was entirely speculative. The Tribunal did not accept that the applicant’s daughter was unable to attend an army training camp in 2013 because of the applicant’s political activities in 2004.

14. Fourthly, the Tribunal noted that the applicant had provided a letter of support from the leader of the opposition in the municipal council. However, the Tribunal noted that the letter of support was inconsistent with the evidence provided by the applicant himself.  The letter said that the applicant’s entire family had been UNP supporters, whereas the applicant’s evidence was that only he had been a UNP supporter.  Consequently, the Tribunal gave the letter little weight.

15. The Tribunal considered that the applicant had ceased involvement in politics in 2004 because he was simply not interested.  The Tribunal considered that it was unlikely that the applicant would engage in political activities in Sri Lanka in the future.  However, even if the applicant did engage in political activities upon return, the Tribunal considered that the chance of anything untoward befalling the applicant was remote. 

16. The Tribunal considered the risks to the applicant as a failed asylum seeker and as a result of leaving Sri Lanka illegally. However, the Tribunal did not accept that the applicant faced a real risk of serious harm on either of those grounds.  The Tribunal considered the complementary protection criteria, and found that the applicant did not face a real risk of significant harm for any reason.

17. The applicant appeared before this court without the benefit of legal representation. However, he did file written submissions which have the appearance of having been prepared with the assistance of a lawyer. 

18. The applicant filed a notice of address for service on 16 November 2017 which included a lawyer’s street address and email address. However, it did not indicate that the lawyer was acting and did not indicate that the applicant was changing his legal representation.  A lawyer by the name of Madhu Warnakulasuriya sent by email to chambers a notice of intention to cease acting on 15 March 2018. However, the solicitor was never on the record, so he did not need to file the notice of intention to cease acting.

19. In any event, the grounds set out in the application are:

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

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

20. The applicant did not wish to elaborate on those grounds before the court today. 

21. It seems to me that the Tribunal did afford the applicant procedural fairness as required by the Migration Act 1958.  The Tribunal invited the applicant to a hearing which he attended with his registered migration agent.  The Tribunal took into account the claims made by the applicant.  The Tribunal decided the matter on essentially the same basis as the delegate.  In these circumstances, there is no indication of any denial of procedural fairness.

22. In relation to the legal test applied by the Tribunal, the Tribunal set out in an attachment to its reasons a summary of the relevant law.  That summary was accurate.  I have been unable to detect anything in the Tribunal’s reasons which suggests that it, in any way, applied the wrong legal test. 

23. In the applicant’s written submissions, the applicant raised a number of other issues.  The applicant said that, in paragraph 18 of its reasons for decision, the Tribunal was too critical and demanding in requiring the applicant to recite critical political manifestos of the UNP. However the Tribunal did not do that.  The Tribunal noted that the applicant was not able to nominate any specific policies of the UNP. The Tribunal then expressly stated:

    18. Despite these concerns the Tribunal acknowledges that a person such as the applicant can offer support to an individual’s election campaign in ways described by the applicant - for example organising meetings and distributing pamphlets and leaflets - without requiring a detailed knowledge of the party.

24. Ultimately, the Tribunal did accept that the applicant assisted the UNP politician he had named for six months prior to the 2004 election. The applicant’s submission in relation to paragraph 18 of the Tribunal’s reasons for decision is misconceived.

25. The applicant said that the Tribunal erred in paragraph 20 of its reasons for decision by relying on the difference between the applicant’s statutory declaration and his oral evidence. The applicant stated in his statutory declaration that he had been threatened three times after the election but stated to the Tribunal that he had been threatened only two times after the election.  If that had been the Tribunal’s only reason for not accepting the applicant’s claims, there would be force in the applicant’s submission.  However, that issue was only one of four bases that the Tribunal relied on for not accepting the applicant’s central claims.

26. The applicant said that the Tribunal erred in paragraph 21 of its reasons for decision by drawing an unsupported inference as to locality.  That was not the issue in paragraph 21.  The point the Tribunal was making in that paragraph was that it was implausible that the rival political supporters would wait three years and seven years after the election to threaten the applicant.  The Tribunal found the applicant’s explanation for the delay unpersuasive. The Tribunal noted particularly that the applicant and his family did not move away from the Colombo area until August 2007, which was after the alleged threat in July 2007. Consequently, the Tribunal’s conclusions on this issue were open to it.

27. The applicant submitted that the Tribunal erred in paragraph 22 of its reasons for decision by not giving any weight to the applicant’s evidence that his daughter was discriminated against due to his political involvement. However, the applicant’s own evidence was that he merely suspected that his daughter had not been permitted to go on an army training camp because of his political activities.  He was not able to support that suspicion with any solid evidence. The fact is that the daughter was able to join the army in 2012. Consequently, the Tribunal’s conclusions on this issue were open to it.

28. The applicant submitted that the Tribunal erred in paragraph 23 of its reasons for decision by failing to give any weight to the letter of support.  The Tribunal, in fact, said it gave little weight to that letter rather than no weight. The Tribunal said the letter was inconsistent with the applicant’s own claims in that the applicant had only said that he was involved with the UNP whereas the letter said his entirely family was. Consequently, the Tribunal’s conclusions on this issue were open to it.

29. The applicant submitted that the Tribunal erred in paragraph 26 of its reasons for decision by saying that the applicant would not engage in politics if he returned to Sri Lanka.  The applicant referred to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71. However, the Tribunal did not suggest that the applicant ought to restrict his political activity. Rather, the Tribunal considered that the applicant would not engage in political activity simply because he did not have sufficient interest to do so. Nevertheless, the Tribunal went on to consider that, even if the applicant did participate in any political activity, the chance of him suffering harm as a result was remote. Consequently, the Tribunal’s conclusions on this issue were open to it.

30. The applicant submitted that it was not open to the Tribunal to base its conclusion on matters of degree such as remoteness. However, that was entirely open as the question for the Tribunal is whether the applicant faces a real chance of serious or significant harm.  That question invites a consideration of matters of degree. 

31. It seems to me that there is no substance to the matters raised in the applicant’s outline of submissions.  I have read the Tribunal’s reasons for decision and parts of the court book.  I am unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process. Consequently, the application will be dismissed.

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

Associate: 

Date:  23 April 2018