ALQ16 v Minister for Immigration

[2016] FCCA 2081

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALQ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2081

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – real chance test – whether the Tribunal erred in making adverse credit findings – whether the Tribunal failed to take relevant considerations into account – whether the Tribunal failed to apply the correct test – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476.

Federal Circuit Court Rules 2001, r.44.12

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: ALQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 479 of 2016

Judgment of: Judge Street

Hearing date: 15 August 2016

Date of Last Submission: 15 August 2016

Delivered at: Sydney

Delivered on: 15 August 2016

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Stephen Hodges Solicitor

Solicitors for the First Respondent: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 479 of 2016

ALQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Tribunal made on 4 February 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.  The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. 

2. The applicant claims to fear harm if returned to Sri Lanka on the basis of his Tamil ethnicity and on the basis of an imputed political opinion that he is pro-LTTE.  The applicant also claimed to fear harm on the basis of an actual and imputed opinion that he was a supporter of the Akila Ilankai Tamil United Front Party (AITUF).  The applicant also claimed to fear harm if returned to Sri Lanka because of his membership of a particular social group, that being a failed asylum seeker who left Sri Lanka illegally and sought asylum in a Western country.  The applicant also claimed to fear harm from the Sri Lankan authorities including the police and the army and also claims to fear harm from the paramilitary groups if he were to return to Sri Lanka. 

3. The applicant arrived at Christmas Island on 18 July 2012.  On 30 December 2013, the delegate refused to grant the applicant a Protection (Class XA) visa.  The delegate was not satisfied the applicant had a real chance of being persecuted for a Refugee Convention reason and was not satisfied that the applicant’s fear was well-founded.  The delegate was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the receiving country that there was a real risk that the applicant would be subject to significant harm. 

4. On 7 January 2014, the applicant applied for review.  The Tribunal invited the applicant to attend two hearings which were held on 6 and 19 January 2016 at which the applicant gave evidence and presented arguments. 

5. The Tribunal identified the relevant law and the applicant’s claims and evidence. The Tribunal was not satisfied that the applicant had been credible in relation to some aspects of his evidence and some aspects of his claims.  The Tribunal was not satisfied that the applicant has a well-founded fear of persecution if returned to Sri Lanka based on his claims. 

6. The Tribunal found that the applicant was not a credible witness.  The Tribunal did accept the applicant in relation to a particular incident in July 2009.  The Tribunal found after considering the applicant’s claims both individually and cumulatively that it did not accept on the basis of the evidence, materials and information before the Tribunal that the applicant faces a real chance of serious harm for a Convention-based reason if he returned to Sri Lanka now or in the reasonably foreseeable future. 

7. The Tribunal was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that he would be subjected to any form of harm whether it be the result of an act of omission by which severe pain, suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paras.(a) to (e) of the definition of torture in s.5(1) of the Migration Act 1958 (Cth).

8. The Tribunal was not satisfied that there were substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering whether physical or mental, or other pain or suffering, either physical or mental, intentionally inflicted on the person, which act or omission in the circumstances could reasonably be regarded as cruel or inhumane in nature within the definition of cruel or inhumane treatment or punishment in s.5(1) of the Migration Act 1958.

9. The Tribunal was not satisfied there were substantial grounds for believing that there is a real risk the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Act. The Tribunal was also not satisfied there were substantial grounds for believing that there is a real risk the applicant will suffer arbitrary deprivation of life or the death penalty. The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the delegate.

10. The grounds of the amended application are as follows:

    Ground 1

    The AAT committed jurisdictional error as it failed to consider the Applicant's previous traumatic experience in Sri Lanka [25] and more recent loss of a close family member [22] when drawing inferences that the Applicant was vague, unclear and inconsistent in his responses.

    PARTICULARS

    (iii) The AAT stated at [25]

    …The Tribunal asked the applicant about the details surrounding the questioning and beating. The Tribunal found it difficult to get specific details from the applicant.

    It is unclear as to what “specific details” the AAT was after, as the Applicant had provided the Tribunal sufficient details related to the torture he underwent at the Uppuveli police station.

    (iv) It is submitted that the AAT failed to consider the AAT's Guidelines on Vulnerable Persons and paragraph 29 of the Guidelines on the Assessment of Credibility when drawing inferences that the Applicant was vague and unclear in his responses.

    Paragraph 29 of the Guidelines on the Assessment of Credibility states,

    29. Traumatic experiences including torture may impact upon a number of aspects of an applicant's case including the timeliness of an application, compliance with immigration laws, or the consistency of statements since arrival in Australia. They may also impact adversely on an applicant's capacity in providing testimony of such events.

    Ground 2

    The AAT failed to consider the possibility that the Applicant who was unrepresented on the second occasion [21] may not have been aware of the submissions made by his representative [22].

    PARTICULARS

    (i) The AAT's Practice Direction made under s 18B of the Administrative Appeals Tribunal Act 1975 states at paragraph 11.2,

    ...The pre-hearing submission should be accompanied by a signed declaration from the applicant that the submission has been read or explained to them and that it accurately and completely presents their claims

    The AAT failed to consider that claims made by the Applicant's representative may not have been read or explained to the Applicant.

    Ground 3

    The AAT failed to apply the real chance test when assessing if the Applicant's fear was well-founded.

    PARTICULARS

    (i) The AAT accepted at [37]

    ... The reports also noted that the Department assessment was that there were credible reports of torture carried out by Sri Lankan security forces and the reports came from a wide range of actors and including ... ... from people held on suspicion of LTTE connections.

    It is submitted that the AAT failed to consider the real chance of the Applicant being seriously harmed for reasons of suspected LTTE connections as occurred in the past which has been accepted by the AAT as an incident that did occur [50].

11. The matter was fixed for a show cause hearing on 21 April 2016.  In relation to ground 1 of the amended application, the issue of the applicant’s previous traumatic experience and close family member loss was not advanced by the applicant as a reason for the applicant’s inconsistencies in the giving of his evidence or as to why the evidence was vague and unclear as the Tribunal found. 

12. The Tribunal’s observations in relation to the applicant’s evidence and its observation about the applicant’s reluctance to provide specific details were observations the Tribunal was entitled to make.  There was nothing before the Tribunal to identify the applicant as a vulnerable witness requiring application of the guidelines referred to in ground 1. 

13. Mr Hodges, the solicitor for the applicant, did not seek to develop oral argument in relation to grounds 1 and 2.  Ground 1 is in substance an impermissible challenge to the adverse findings of credit made by the Tribunal.  Those adverse findings were open to the Tribunal and cannot be said to lack an evident and intelligible justification.  Ground 1 fails to identify any arguable jurisdictional error. 

14. Ground 2 seeks to raise a complaint in relation to the second hearing day.  The second hearing was one in which the representative did not attend.  At the end of the second hearing day, a further two weeks were provided for the representative to be able to provide any further submissions as a result of that second hearing. 

15. On 3 February after the second hearing day, further submissions were advanced. There was no specific adverse credibility finding made by reason of the possibility that the applicant may not have read the representative’s submissions. Ground 2 is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 2 fails to identify any arguable jurisdictional error. 

16. Oral argument was developed in relation to ground 3 and in particular focus was drawn to the finding by the Tribunal accepting the applicant’s incident described in July 2009 where he along with his brothers were detained for one day and questioned about supporting the LTTE and that they were mistreated on that occasion. 

17. The Tribunal identified in that regard that the applicant was able to use his passport to travel to Dubai in 2011 and return to Sri Lanka without incident after two weeks.  The Tribunal made an assessment of the applicant’s evidence and claims and country information that had been referred to and found they indicated to the Tribunal that the applicant was not of any interest to the Sri Lankan authorities on the basis of any perceived link to the LTTE. 

18. The Tribunal did not accept that the evidence or relevant country information indicates that the applicant has a well-founded fear of persecution on the basis of an imputable opinion that he is pro-LTTE if he should return to Sri Lanka now or in the reasonably foreseeable future.

19. The Tribunal correctly identified the relevant test in relation to the law and applied the relevant test in respect of real chance in para.57.  Notwithstanding the succinct submissions of Mr Hodges on behalf of the applicant, I am not persuaded that there is any arguable case of jurisdictional error in relation to the application of the real chance test as raised by ground 3.

20. I take into account the principles and caution identified in Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The amended application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 September 2016