ALI15 v Minister for Immigration
[2015] FCCA 1676
•17 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALI15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1676 |
| Catchwords: MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – complementary protection – whether the Tribunal failed to consider relevant material – impermissible challenge to adverse findings of facts – no jurisdictional error – application dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Applicant: | ALI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1015 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 17 June 2015 |
| Date of Last Submission: | 17 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 June 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Ms B. Rayment Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $5800.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1015 of 2015
| ALI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa. The decision of the Tribunal was made on 24 March 2015 following the decision of the delegate to refuse to grant the visa on 16 August 2013.
The applicant appeared before the Tribunal on 6 March 2015 to give evidence and present arguments and was assisted by an interpreter, as well as being represented by a migration agent.
The applicant’s amended application identifies the following grounds:
I. There are major issues which RRT did not consider.
2. The RRT did not give me an opportunity to respond to negative information which it intended to use to refuse my RRT application.
3. The RRT member made errors in considering my evidence and making the decision.
4. The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me. The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.
I had lawyer until my RRT decision. I do not have a lawyer for this court application. I need to listen to my RRT hearing audio tapes and to see a pro-bono lawyer to file my amended application with the particulars of the above grounds.
The Court notes that the affidavit in support of the original application made an assertion of error by failing to consider the issue of complementary protection. It is clear that there is no substance in respect of that contention and that the Tribunal considered the claim of complementary protection and, in that regard, made findings that were open to the Tribunal.
The Tribunal also took into account the enforcement of the Immigrants and Emigrants Act 1949 as a general law of application and found that it was not discriminatory, that it was not enforced in a discriminatory manner, that it was not discriminatory conduct, that its application did not amount to persecution, and that its enforcement was of a law of general application. The Tribunal further considered the consequences to which the applicant would be exposed in being detained and made findings adverse to the applicant that were open on the material. There is no jurisdictional error by the Tribunal in respect of the matters raised in the applicant’s affidavit filed in support of the application, which in substance reflected the content of the ground 4 of the original application filed by the applicant.
In respect to that original application, to the extent relevant I am satisfied that there is no jurisdictional error of a kind identified in grounds 1 to 4 of the original application.
In relation to the amended application, the substance of the applicant’s complaints is in essence that the applicant does not accept the adverse conclusion arrived at by the Tribunal on the issues identified by the applicant. The applicant accepts that the Tribunal considered all the claims and evidence that was put forward by the applicant, but contends that the adverse findings should not have been made.
The applicant confirmed that the claims relating to fear of persecution were as identified in para.29 of the Tribunal’s decision. The Tribunal identified documents that were provided before and after the Tribunal hearing, which were taken into account. Relevantly, the Tribunal made the following findings:
75. The Tribunal does not accept that the CID had a continuing interest in the applicant from after his return from Singapore until he left in July 2012. It does accept that he was interviewed after his return from Singapore in October 2008 and that he was injured. However, the visa application claim does not refer to continuing CID interrogations, harassment or arrested. The Tribunal takes into account his explanation that his lawyer told him to refer to the most recent incidents and during the entry interview he did not have time and was told to talk only about recent issues, but does not accept those explanations.
76. At the end of the hearing, the representative submitted that the entry interview was part of the applicant’s claim, and referred specifically to pages 11, 12, 13 and 14. At page 14, the interviewer asked the applicant why he left Sri Lanka. The applicant said that he was the President of RDS and the temple. In March 2012, they came, took him to a camp and interrogated and beat him. He said that they asked him about going abroad in 2007 and about the names of two or three people and then left him. That he was asked about going abroad in 2007 was not otherwise mentioned in relation to that March 2012 incident. Again, he did not mention a history of CID or armed group interrogations since his return from Singapore. Those claims reinforce the Tribunal in not accepting the applicant’s claims about the March 2012 incident or that the CID continuously approached him and questioned him from about October 2008.
77. The Tribunal does not accept that he would have got a government job at the end of 2009, beginning of 2010, if CID had an adverse interest in him from his return from Singapore in October 2008, and that he would have been able to retain it until leaving of his own volition in July 2012. The Tribunal takes into account the applicant’s explanation that CID is separate from the administration of government and that criminal convictions are taken into account in relation to government employment, but he had no such conviction, but CID is not involved. The Tribunal does not accept that explanation. The applicant’s claims of harm that he fears CID will inflict upon him reflect an all-powerful agency which would be capable of preventing an individual being given or keeping a government job if it had an adverse interest in him. Similarly, the representative submitted that in New South Wales, the head of a bikie gang was head of the NSW roads authority, which shows that the applicant could have got a job and remained in it despite CID’s ongoing interest in him. The Tribunal does not accept the representative’s submission. It has no country information supporting the factual basis for it and the Tribunal does not accept that if CID wanted to harm the applicant as he claimed, that they would have permitted him to continue to work in what he acknowledged was a good job as an employee of the Sri Lankan government, of which the CID is an instrument.
78. The Tribunal does not accept that the applicant was of interest to the CID because of his role as President of RDS or his role in the temple. His visa application sets out the March 2012 interrogation as the first incident arising because of that role. He told the Tribunal it was in May 2012. He told the Tribunal that he was president from the end of 2009 until he left Sri Lanka. It is not apparent why CID would suddenly become interested in the applicant in 2012 because of his position in RDS which he had held from the end of 2009.
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83. The Tribunal does not accept that the applicant’s position meant that he had more information about missing people or people in the village, than the Grama Sevaka would have had. The Tribunal does not accept that the Grama Sevaka told the CID to speak to the applicant for that reason. In making that finding, the Tribunal has also taken into account the applicant’s claimed involvement in the temple and politics. Those claims do not cause the Tribunal to come to a different conclusion.
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85. The Tribunal finds the applicant’s claim in his visa application that CID questioned him in March 2012 is inconsistent with his evidence at the Tribunal hearing that they questioned him so many times from 2010 onwards because of his role in the RDS.
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87. When the Tribunal had earlier asked the applicant where RDS got its funding, he said from the villagers. When the Tribunal pointed that out to the applicant, he said that he was talking about allocations that do not come in the form of money, for example, 100 metres of drainage works. Both those claims were different from the applicant’s claim during the departmental interview, recorded in the decision record the applicant provided to the Tribunal, that the Gramma Sevaka provided the funding. When the Tribunal pointed that out to the applicant, he said that he meant that when the Divisional Secretary gets an allocation he will inform the Gramma Sevaka who tells the RDS. The Tribunal finds the applicant’s evidence about the funding of the RDS was inconsistent which is inconsistent with his having knowledge of the funding from his claimed role as President from 2009. The Tribunal takes into account the submission that there is no serious inconsistency in that evidence and that the applicant has no history of bad character or criminality. The Tribunal does not accept that the inconsistency is not serious. It does accept that the applicant has no history of bad character or criminality. That does not cause the Tribunal to alter its finding.
88. The Tribunal does not accept that the Certificates of Participation in relation to the sports meet on 2 April 2012 are genuine. The applicant told the Tribunal that the children who attended the Krishna Primary School were two to five years of age. They do not play baseball, cricket or golf. The two small images on the top left and top right of the certificates are of a baseball player holding the baseball bat over his left shoulder ready to strike, and of a female golfer putting. The Tribunal queried whether the certificates were genuine, and pointed out the images of older people playing games not played by the children, and the mis-spelt “CERTFICATE” in capital letters in the middle of the certificate.
89. The applicant denied that they were not genuine. He claimed that the baseball player was a cricket player. In any event, he said that the images were icons downloaded from the internet. The Tribunal accepts that. He claimed that the images were to make the certificate more interesting. He said that the spelling mistake was just a mistake. The representative pointed out that English was not the first language of those producing the certificate. The Tribunal accepts that but notes that the applicant studied in English in Singapore. When the Tribunal queried why the certificates were not in Tamil, the applicant claimed that the certificates were in English in case the children moved to an English medium school. He pointed to the four Tamil letters under “a b c d”, showing that the certificate was in both languages. If the certificates were to be presented to an English school, the Tribunal finds that it would be important to ensure that there were no spelling errors. The Tribunal does not accept that the certificates are genuine which reinforces its finding that the applicant’s evidence about his position with the RDS was not credible.
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91. The undated letter from the Secretary of the [Y] Sports Club provided after the hearing does refer to the applicant’s organising Heroes Days and pongutamil programs and his arrest by the army and the CID group, his torture and release and the abduction and disappearance of other club members at that time. The name of the secretary of the [Y] Sport Club on the two letters is different. The letters were provided to the Tribunal within one week. That the second letter which supported the applicant’s claims was not provided initially, is signed by a different secretary, and was provided after the applicant had raised his claims about organising Heroes Days and pongu Tamil celebrations at the hearing and the Tribunal had pointed out that the [Y] Sports Club letter he had provided did not refer to those activities, reinforce the Tribunal in finding that the second letter it is not genuine but has been created in response to what happened at the hearing.
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93. The letterhead for the Society as of the 18 February 2015 and 12 May 2014 is quite different from the Society’s letterhead for the 2010 and 2012 letters which included in the left hand column, the names and addresses in English of the President, Secretary and Treasurer. The letterhead used for the 2014 and 2015 letters is completely in Tamil. The only names appear as signatures.
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97. On their face, the 2014 and 2015 “letterhead” was easier to produce than the 2010 and 2012 letterhead which included Tamil and English script and a book symbol surrounded by a circle of script. The Tribunal finds it implausible that a rural development society for a Tamil village would go to the expense of producing letterhead in the style of that used in the 2010 and 2012 letters, incorporating English and Tamil and what appears to the Tribunal to be Singhalese script in the top three lines of the letterhead, and information about office-holders in English when the body of the letter was in Tamil. The Tribunal finds that the letterhead including the English information was designed, created and intended for an English-speaking decision-maker.
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99. The Tribunal does not accept that the photographs provided to the Tribunal after the hearing support the applicant’s claims. There is only one photograph in which he is identified. He is not standing next to the “guest Anthony” in the photograph, which would be expected if he were the most important organiser of the function the guest was attending, for example if he were the President of the RDS. There is no photograph of his involvement in the sports activities or presenting any certificate, although there are photographs of the guest Anthony and another man holding or presenting a certificate or gift.
100. For the above reasons, the Tribunal does not accept the applicant’s claim that he was President of the RDS or his claims for protection arising from his holding that position and his involvement in the RDS. It does accept that he was involved in the [Y] Sport Club but does not accept that he was engaged in [X] Tamil or Heroes Day celebrations. It does not accept his claims for protection based on those activities.
101. The undated letter from the Justice of the Peace provided after the hearing supports the applicant’s claims. The writer does not explain the source of the information he provides. The Tribunal does not accept that the writer has knowledge apart from what the applicant or his family has told him for the purpose of obtaining the letter for the purpose of this hearing to support the applicant’s claim. The Tribunal gives it no weight.
102. The Tribunal does not accept that the applicant’s evidence about the reasons for his and his brother’s coming to Australia is credible. It has taken into account the representative’s submission that the applicant’s job was a reason why the Tribunal should accept his claims. He would not have left it except for those experiences. The Tribunal does not accept that submission because it does not accept the applicant’s evidence about the CID’s ongoing interest in him since 2009 for the reasons given, including that he has provided documents that are not genuine in support of his fabricated claims.
103. For those reasons, the Tribunal does not accept that the applicant or his brother had been arrested, questioned, beaten, detained or investigated by the CID or any other Sri Lankan government authority since about the beginning of 2008. It does not accept that the applicant was President of the temple or President of RDS. It does not accept that he was president of the temple. There is no corroborating evidence. It does not accept that CID or any other Sri Lankan authority or agency had any interest in him for those reasons. It does not accept that CID or any other government agency has any interest in his brother.
104. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or that there is a real risk that the applicant will suffer significant harm in the future if he returns to Sri Lanka because of one or more of his studying in Singapore in 2007-2008, his presidency of the RDS or the temple, or his involvement in the [Y] Sports Club, or his brother.
105. The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or that there is a real risk that he will suffer significant harm in the future for any one or more of the reasons that he is a Tamil, that he is a member of a particular social group of young Tamil males and will be imputed with a pro-LTTE or anti-government political opinion.
106. His own history does not support those claims. He was able to leave Sri Lanka and study in Singapore during the civil war although he was a Tamil from the Eastern Province. The Tribunal accepts that he was interrogated and suffered injury on his return in 2008, however, that was at the height of the final period of the civil war which ended in May 2009. He has been employed in a government job since around the end of 2009. His claims of harm arise from his role in the RDS and the temple, the Sports Club and studying overseas, which the Tribunal does not accept for the reasons given above.
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108. The Tribunal summarised to the applicant the assessment of the treatment of returnees in the Department of Foreign Affairs and Trade Country Report on Sri Lanka dated 16 February 2015. The Tribunal said that the law relating to illegal departure was a law of general application and was not discriminatory and was not persecution. Similarly, the conditions faced during detention were the consequence of a law of general application and were not discriminatory and were not persecution. The Tribunal said that it accepted that he may be questioned by CID after he returned to his home.
109. When the Tribunal asked if he wished to comment on what it had said, the representative submitted that there was a real risk that he will suffer significant harm. He was instructed that the applicant had suffered scarring to his nose and back. The applicant said that he told the departmental interviewer about being beaten by a plastic chair which broke and being hung upside-down. That was the first time the plastic chair incident and scarring had been mentioned at the hearing. The Tribunal commented that the applicant’s case was growing and changing. The representative submitted that under the IAAA scheme cases do evolve as issues are explored. The entry interview is short. The representative referred to pages 11, 12, 13 and 14 of the entry interview and said that they are part of the applicant’s claim.
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112. The Tribunal finds that the Immigrants and Emigrants Act is a law of general application. It is not discriminatory in its terms or intention, including its impact. It is not enforced in a discriminatory manner. The conduct under that Act, including detention, is not discriminatory conduct and therefore does not satisfy s 91R(1)(c). It is not persecution. For the same reasons, the Tribunal does not accept the conditions during detention pursuant to a law of general application are discriminatory in terms of intention, impact or enforcement.
113. The Tribunal does not consider that the procedures followed on the applicant’s return, including detention at the airport or in the prison, would constitute a real risk of significant harm to the applicant. In making that finding, the Tribunal has taken into account the country information about conditions in places of police or military detention and prison conditions, including claims of torture and cruel, inhuman or degrading treatment. However, in the applicant’s circumstances, the Tribunal does not accept that there is a real risk of significant harm because of detention or imprisonment for a short period.
114. The Tribunal does not accept that the conditions while detained at the airport or at the prison for a maximum of three days are serious harm or significant harm. In making the latter finding, the Tribunal has considered the definitions in s.36(2A) and s.5.
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116. The Tribunal has taken into account that the applicant was questioned by CID after he returned from Singapore legally in 2008. It accepts that on that occasion he suffered injuries arising from a plastic chair breaking. He returned from overseas when the war in Sri Lanka had escalated following the government’s pulling out of the 2002 ceasefire agreement and launching a massive offensive in January 2008. A summary of the ensuing conflict is set out in the BBC News Sri Lanka Profile. The conflict ended in May 2009.
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118. The Tribunal finds that the applicant has not suffered any harm from the CID since the one incident after his return. He returned at a time heightened conflict. That is no longer the case. The Tribunal does not accept that in the current circumstances, there is a real chance that the applicant will suffer serious harm or that there is a real risk that the applicant will suffer significant harm from the CID or any other armed group after he returns to his home area in Sri Lanka.
119. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka. He does not have a well-founded fear of persecution.
120. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not the criterion set out in s.36(2)(a).
It was in those circumstances the Tribunal turned to consider complementary protection and relevantly found:
122. For the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm
123. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
It is clear that the Tribunal took into account each of the matters raised in relation to the CID, RDS, [Y] Sports Club and the role alleged by the applicant at least, as president of RDS.
I am satisfied that the adverse findings made by the Tribunal were open on the material before the Tribunal and that the adverse findings cannot be said to lack an evident and intelligible justification. The adverse findings are not irrational or disproportionate. Ground 1 is, in substance, an impermissible challenge to adverse findings of facts and does not identify the jurisdictional error.
In relation to ground 2, it is clear that the Tribunal took into account the submissions advanced from what appears in paras.29-38 and para.44 and that there is no substance in relation to ground 2. Ground 2 is, in essence, an impermissible challenge to the merits of the decision.
I am satisfied that the applicant had a genuine hearing, that the Tribunal properly addressed the applicant’s claims and evidence, and that the adverse findings were open on the material before the Tribunal and that there is no jurisdictional error of the kind alleged in either the amended application or the original application. The amended application is dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 30 June 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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