Alq15 v Minister for Immigration

[2015] FCCA 1704

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1704

Catchwords:

MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal had put adverse information to the applicant – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.424, 425, 476

Muin v Refugee Review Tribunal [2002] HCA 30
SZBEL v The Minister for Immigration and Multicultural Affairs [2006] HCA 63

Applicant: ALQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1025 of 2015

Judgment of: Judge Street

Hearing date: 19 June 2015

Date of Last Submission: 19 June 2015

Delivered at: Sydney

Delivered on: 19 June 2015

REPRESENTATION

Solicitors for the Applicant

Mr F. Nikjoo

Michaela Byers

Solicitors the First Respondent:

Mr K. Eskerie

Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1025 of 2015

ALQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction, under s.476 of the Migration Act1958 (Cth), in respect of a decision of the Tribunal, made on 10 March 2015, affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.

2. The grounds of the application are as follows:

   1. The Tribunal erred in failing to provide a fair hearing in accordance with s.425 of the Act.

   Particulars

   a. The Tribunal hearing took place on 10 December 2014.

   b. At [81] the Tribunal stated as follows:

   “It has also taken into account a range of information from independent sources concerning relevant matter in Sri Lanka including the DFAT “Country Information Report: Sri Lanka” dated 3 October 2014 and 16 February 2015.”

   c. The Tribunal relied adversely on the Country Information Report dated 16 February 2015 which post-dated the hearing on 10 December 2014 in [117] and [124] of its decision record.

   d. This is a jurisdictional error was held by the High Court of Australia in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; 76 ALJR 966; 190 ALR 601; 68 ALD 57, failure to provide reasonable opportunity to respond to adverse material.

3. The applicant appeared before the Tribunal to give evidence and present arguments, and was assisted by an interpreter as well as being represented by his migration agent.  That hearing occurred on 14 February 2013. The Tribunal identified that it had post hearing submissions that it received on 14 February 2013, and held a further hearing on 10 December 2014.

4. The substance of the alleged breach of s.424 advanced by the applicant is that the Tribunal has referred to country information that post-dates the hearing that took place on 10 December 2014.

5. The Tribunal refers, in para.81, to a report dated 16 February 2015.  That report is more accurately described in footnote 5, on pg.24 of the Tribunal’s reasons, where it refers to Country Information Report Sri Lanka DFAT, dated 3 October 2014, and Reissued Report of 16 February 2015.  Accordingly, it is clear that the reference in para.81 to a report dated 16 February 2015 is the re-issued 3 October 2014 report dated 16 February 2015, which was country information of a kind that the applicant had the opportunity to meet at the hearing, in respect of the report dated 3 October 2014.

6. It is clear that the reports dated 3 October 2014 and 16 February 2015 are the reports to which the Tribunal referred, in para.129, as being reports containing the same information. It is in these circumstances that there is no jurisdictional error and no substance in relation to ground 1 of the application. I note the country information is information in respect of which s.424A(3)(a) applies.

7. It is clear in this case that the Tribunal properly assessed the applicant’s claims, that the applicant had a genuine hearing, and that the adverse findings of fact made by the Tribunal were open.

8. The applicant’s claims may be summarised as follows:

   2.

   …

   a. In mid-2005, the applicant attended a party at his cousin’s house in Trincomalee when a bomb exploded in a nearby tea-shop, injuring two Sri Lankan Arm (“SLA”) soldiers. The SLA beat and then arrested the applicant and his cousin, bringing them before a Magistrate. They were both then taken into custody by the police and detained for seven days. The applicant and his cousin were subsequently released after his father and local priest vouched for them.

   b. Four months later, another cousin was killed by the SLA in a targeted attack.

   c. In mid-2006, after several months of fear and uncertainty, the applicant travelled by boat to India illegally. He was put in a refugee camp in India, where his parents and siblings joined him. He remained in India until his departure for Australia.

   d. The applicant’s father returned to Sri Lanka on two occasions to visit his other siblings. On the first occasion, he was detained and questioned for around three hours and then released. His father remained in Sri Lanka for a month and obtained a Sri Lankan passport. On the second occasion, his father went back to Sri Lanka in order to prepare for his daughter’s engagement.

   e. The applicant left India because feared repatriation to Sri Lanka, where he continues to fear harm because of the 2005 incident. He fears that the police, the CID, the EPDP, the SLA and the Karuna and Pillayan groups will arrest and kill him on suspicion of his past. The authorities will not protect him because he is Tamil. Nor can he relocate safely because he is sought by the CID, Karuna and Pillayan.

   3. The applicant claimed to be at risk of harm on the basis of “his Tamil ethnicity; his actual/imputed political opinion as a ‘perceived sympathiser/supporter of the LTTE’, or as someone perceived as holding views in opposition to the current Sri Lankan government; and his membership of the particular social [group] of ‘failed asylum seekers’” (CB 226 at [12]). In addition, the applicant claimed to fear harm on return to Sri Lanka because he is “a young Tamil male who fled to India shortly after an investigation” (CB 229 at [34(d)]), because he is “a Pentecostal Christian and he had to evangelise and because his brother-in-law is a pastor” (CB 235-236 at [69]), and because he would be prosecuted for illegal departure (CB 236 at [72]).

9. Relevantly, the Tribunal found as follows:

   5. The Tribunal noted that in assessing the applicant’s claims, it had taken into account:

   “… a range of information from independent sources concerning relevant matters in Sri Lanka, including DFAT ‘Country Information Report: Sri Lanka’ dated 3 October 2014 and 16 February 2015, which for the present purposes contain the same information, and the ‘Issues Paper’ prepared in June 2013 by the Tribunal’s former Country Research Unit ‘Sri Lanka: Treatment of Opposition Groups, Critics, and Persons with Certain LTTE Links’” (CB 238 at [81]).

   6.  The Tribunal accepted that the applicant departed Sri Lanka by boat in mid-late June 2006 without the knowledge of the Sri Lankan Government and resided in a refugee camp in India until he departed by boat for Australia in 2012 (CB 239 at [85]).

   7. Notwithstanding various anomalies in the applicant’s evidence regarding the claimed incident involving an explosion in 2005 (CB 239 at [87]-[88]), the Tribunal was also prepared to accept that the incident took place, that the applicant was amongst the people rounded up by the SLA on suspicion of being involved in the incident, and that he was beaten and harmed by SLA soldiers and kept in police custody for seven days, after which he was released with no further action taken against him (CB 240 at [90]).

   8.  However, the Tribunal found the applicant’s evidence about what occurred between his release from police custody in 2005 and his departure to India “inconsistent and contradictory” (CB 240 at [91]; CB 242-243 at [100]-[101]). The Tribunal found the applicant’s inability to provide a consistent account of the details of such “significant events” reflected poorly on his credibility and reliability as a witness, and his “willingness to adjust his evidence” to reconcile inconsistent statements “undermined his credibility” (CB 242 at [97]).

10. I accept the first respondent’s submission that it is clear that the reports dated 3 October 2014 and 16 February 2015 were the same.  That being so, citing the version reissued in February 2015, the Tribunal was not considering any new information or new matter beyond those arising from the earlier DFAT report.

11. It is also clear, from the Court book that the country information, including the DFAT country information, was put to the applicant during the hearing and it was the subject of post hearing submissions.  Relevantly, at Court book pgs.111-123, 236, 238 at [72] and [78] and 249 at [124].

12. I agree with the first respondent’s submissions that, in those circumstances, it cannot be said that the applicant was not given adequate notification of the issues that might be said to arise from the DFAT country information. 

13. This is not a case where there was new critical information to which the Tribunal had regard, and there was no contravention of s.424. In these circumstances, this was not adverse material of the kind which required a further opportunity to respond, as identified in Muin v Refugee Review Tribunal [2002] HCA 30.

14. Nor was the re-issued report dated 16 February 2015  information of a kind that fell within SZBEL v The Minister for Immigration and Multicultural Affairs [2006] HCA 63.

15. To the extent that the applicant advances an alleged breach of s.425 of the Act, it is clear that the applicant had a genuine hearing and a reasonable opportunity to deal with the DFAT report, dated 3 October 2014, and that there is no breach of s.425, by reason of the Tribunal taking into account the identical republished report, dated 16 February 2015. The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  30 June 2015