ALH16 v Minister for Immigration

[2018] FCCA 455

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALH16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 455

Catchwords:
MIGRATION – Protection visa – question of weight given to a 2012 DFAT report – whether the Tribunal failed to have regard to more recent country information contained in a 2015 DFAT report – whether the Tribunal failed to consider the capacity of the applicant’s family to provide a surety on his return to Sri Lanka – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:

NAHI v Minister for Immigration & Multicultural  & Indigenous Affairs [2004] FCAFC 10

SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175

Applicant: ALH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 470 of 2016

Judgment of: Judge McNab

Hearing date: 9 June 2017

Date of Last Submission: 6 September 2017

Delivered at: Melbourne

Delivered on: 1 March 2018

REPRESENTATION

Counsel for the Applicant: Mr McBeth

Solicitors for the Applicant: Allens

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The further amended application filed 9 June 2017 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7706.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 470 of 2016

ALH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of a further amended application filed on 9 June 2017 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 18 February 2016 which affirmed a decision of the delegate of the first respondent to refuse to grant the applicant a Protection visa (‘the visa’).

2. The grounds of the application are as follows:

   1. The decision of the Tribunal was affected by jurisdictional error, in that it applied the incorrect test to the issue of ‘significant harm’ under s36(2)(aa) of the Migration Act.

   2. The Tribunal failed to discharge its statutory duty to review the decision and satisfy itself of the existence or non-existence of the criteria for the visa, in that it relied on older country information before it on the question of mistreatment of failed asylum seekers returned from Australia to Sri Lanka and failed to have regard to more recent country information.

   3. The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to give the applicant an opportunity to give evidence and present arguments relating to an issue arising in relation to the decision under review, namely the issue of whether he would be likely to have a family member provide surety for his bail with the result that he would be detained for only a short time.

   4. The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal made a finding that could not rationally have been supported by the evidence before the Tribunal, namely the finding that a family member would provide surety for the applicant’s bail.

   5. The decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to make a finding on a material fact or a substantial, clearly articulated claim.

Background

1. The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu religion. He was born in Mayiletti in Jaffna and moved to Point Pedro in Jaffna in 1990. The applicant worked as a fisherman with his father, on his father’s boat and then on his own boat. The applicant and his family were displaced to Vanni in 2006 when a cease fire broke down.

2. The applicant arrived in Australia by boat as an irregular maritime arrival. He applied for a Protection visa on 18 December 2012. His claims for protection are summarised at paragraph [3] of the first respondent’s submissions:

   The applicant broadly claimed to fear harm on the basis of his imputed association with the Liberation Tigers of Tamil Eelam (LTTE), his Tamil ethnicity, his status as a Tamil fisherman and his illegal departure from Sri Lanka.

3. Following an interview with the delegate on 13 September 2013, the delegate refused to grant the applicant a Protection visa on 10 December 2013. He applied to the Tribunal for review of the delegate’s decision on 12 December 2013.

4. On 9 June 2015 the applicant attended a hearing at the Tribunal. On 18 February 2016 the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.

5. On 10 March 2017 the applicant applied to this court for judicial review of the decision of the Tribunal.

The Tribunal decision

1. In relation to the applicant’s claim surrounding his imputed association with the LTTE, he Tribunal accepted that the applicant was displaced to Vanni during 2006 and that he was questioned by the army on his return to Point Pedro.[1] However the Tribunal was not satisfied that the applicant was not suspected of being involved with the LTTE upon his return to Point Pedro.[2] The Tribunal accepted that the applicant had been screened and monitored in Point Pedro for links to the LTTE and may have been placed on reporting conditions at the end of the conflict in 2009. However the Tribunal did not accept that the applicant was questioned or made to report because he was suspected of being involved with the LTTE because he had spent 10 days in Vanni in 2006,[3] or that he reported to the Army camp every week until he left Sri Lanka.[4] The Tribunal did not accept that the applicant was suspected of being involved with the LTTE in 2006 or in the three years that followed or in 2009.[5] As the Tribunal did not accept that the applicant had been involved in the LTTE, it did not accept that he was at risk of harm from pro-government paramilitary groups.[6] It did not accept the applicant’s claim that two Sinhalese speaking men from the intelligence services came to his house and asked for his whereabouts within two months after he left Sri Lanka.[7]

   [1] Tribunal decision [13].

   [2] Ibid.

   [3] Ibid [16].

   [4] Ibid [17]

   [5] Ibid.

   [6] Ibid [18].

   [7] Ibid [19].

2. In relation to the applicant’s claim surrounding his status as a Tamil fisherman, the Tribunal accepted that the applicant had to obtain a pass from the Navy or the Army to fish during the conflict and for some time afterwards, and that he may have been mistreated by the Navy or the Army if he strayed into a security zone or failed to return before the night time curfew. However the Tribunal referred to country information which indicated that most of the restrictions on fishing in the north and east of Sri Lanka had been lifted and found that the applicant could resume fishing in Point Pedro without a real chance or a real risk of being beaten by the Army or Navy.[8]

   [8] Tribunal decision [21] – [22].

3. In relation to his claim that he feared harm because of his Tamil race, the Tribunal placed weight on country information and concluded that in view of the “changed and seemingly improved situation in the north”, it was satisfied that the applicant did not have a real chance of serious harm or a real risk of significant harm arising from his race.[9]

   [9] Ibid [24].

4. In relation to the applicant’s claim to fear harm as a returnee to Sri Lanka or a failed asylum seeker, the Tribunal gave weight to DFAT information which indicated that there was no evidence to support allegations of the mistreatment of returning Tamils to Sri Lanka. The Tribunal did not accept that the applicant had been imputed with an LTTE association or that the CID wished to question him in relation to suspected LTTE activity. It did not accept that the Army told him not to leave Sri Lanka or that the authorities would view his departure from Sri Lanka as confirmation of an LTTE association. On the basis of the above finding, the Tribunal found that the applicant would not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures outlined by DFAT.[10] The Tribunal did not accept that there was a real chance or a real risk that the applicant will be harmed at the airport or on return to Point Pedro.[11]

   [10] Ibid [29].

   [11] Ibid [31].

5. In relation to the applicant’s claim to fear harm due to his illegal departure from Sri Lanka, the Tribunal noted the application of s.45 of the Immigrants and Emigrants Act 1945 to all persons who have departed Sri Lanka illegally, however found that the provision is a law of general application and is not being applied to persons discriminatorily. At [36] the Tribunal was satisfied that the applicant will be held in remand for a short period of between one to seven days upon his return. The Tribunal noted that the applicant’s mother, brother and sister are present in Sri Lanka to guarantee his bail and was satisfied that they would do so.[12] The Tribunal accepted that prison conditions in Sri Lanka are poor and do not meet international standards. However it did not accept that a relatively short period of remand (between one and several nights) amounted to an act or omission by which severe physical or mental pain or suffering was intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman in nature or an act or omission which is intended to cause extreme humiliation which is unreasonable.[13] The Tribunal found that a fine of between 5,000 and 50,000 rupees would be imposed on the applicant. The Tribunal was satisfied that as a young man who had been self-employed in the past, he will be able to resume his employment and pay a fine on return to Sri Lanka.[14] It did not accept that the imposition of a fine on the applicant would give rise to a real risk of significant harm.[15]

   [12] Ibid [36].

   [13] Tribunal decision [42].

   [14] Ibid [46]

   [15] Ibid.

6. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.

Finding

Ground one

1. The applicant’s first ground of review hinged on the outcome of the High Court in SZTAL v Minister for Immigration and Border Protection (‘SZTAL’), which was to be heard following the applicant’s hearing in this court. The applicant himself conceded that if the applicant in SZTAL was unsuccessful, the applicant’s arguments on this ground could not succeed. Given that the High Court dismissed the appeal in SZTAL, this ground must fail.

Ground two

1. Ground two asserts that the Tribunal erred in placing weight on a 2012 DFAT report on the question of mistreatment of failed asylum seekers returning from Australia to Sri Lanka and failed to have regard to more recent country information contained in a 2015 DFAT report.

1. The Tribunal did in fact refer to the 2015 DFAT report at [28]. The Tribunal also referred to and relied upon a 2012 DFAT report. The weight that the Tribunal gives to particular country information is a matter for it. No error is demonstrated in the manner in which the Tribunal undertook its task to consider the country information in relation to the applicant.[16] The Tribunal was not required to expressly refer to all the country information submitted on behalf the applicant. No error is apparent in the manner in which the Tribunal approached its task in relation to this ground.

   [16] NAHI v Minister for Immigration & Multicultural  & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]

Ground three

1. In relation to the ground that the Tribunal failed to give the applicant an opportunity to give evidence and present arguments relating to the issue of whether he would be likely to have a family member to provide surety for his bail, in my view there is no error in the way that the Tribunal approached this issue.

2. The Tribunal found that if the applicant was charged with an offence as a result of his illegal departure on his return, “the applicant’s mother, brother and sister are present in Sri Lanka to guarantee his bail”; and the Tribunal was satisfied that they would do this. Annexure ECW–1  of the affidavit of Emily Charlotte Wilde sworn 5 June 2016 at lines 32 – 41 indicate that the Tribunal raised with the applicant at the hearing the issue of illegal returnees to Sri Lanka, being charged with an offence, detained until they can be put before the Court and then generally being granted bail straight away on their own recognisance with a family member as a guarantor. The applicant then had an opportunity to raise any lack of capacity on the part of his family members to provide a guarantee. Further, as the respondent submitted, there is a distinction between a family member being required to act as a guarantor and a family member providing a surety, with the latter requiring the payment of money. The latter requires evidence that the family member has the financial capacity to do so: see SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 at [80].

Ground four

1. Ground four alleges that there was no evidence to support the fact that the applicant’s mother, brother and sister were present in Sri Lanka to guarantee his bail and that they would do so. The issue of family members acting as guarantors for the fines of returning illegal departees was squarely raised with the applicant and if it was the case that he had no family members in Sri Lanka or that those family members were not in a position to guarantee a modest fine, then he was able to raise that as an issue. The evidence of Emily Charlotte Wilde, being an affidavit sworn 5 June 2016, discloses that the applicant told the Tribunal that he was “affectionate with my family” and that if he really wanted to see his family he would have returned Sri Lanka voluntarily had he not held any fear of being harmed for the reasons that he claimed. For these reasons the application must be dismissed and the applicant is to pay the respondent’s costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 1 March 2018