Aml16 v Minister for Immigration

[2016] FCCA 2483

FEDERAL CIRCUIT COURT OF AUSTRALIA

AML16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2483

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

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

Applicant: AML16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 502 of 2016

Judgment of: Judge Driver

Hearing date: 26 September 2016

Delivered at: Sydney

Delivered on: 26 September 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms S He of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416 in accordance with the Federal Circuit Court Rules 2001 (Cth) at the time the application was filed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 502 of 2016

AML16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 19 February 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 16 September 2016. 

3. The applicant is a male citizen of Sri Lanka born on 18 December 1967.[1]  He arrived in Australia on 16 July 2012.[2]

   [1] CB 105

   [2] CB 106

4. The applicant applied for a protection (Class XA) visa on 15 October 2013.[3]  His claims were set out in a statement accompanying the application.[4]  In summary, the applicant claimed that:

   a)he was active in the election campaigns of 2005 and distributed pamphlets and organised meetings for the United National Party (UNP). As a result of his political activities for the UNP, he had been threatened and harmed by government authorities who were members and supporters of the ruling party;

   b)unknown people came to his house to kill him but he was not home at the time. The applicant's wife informed him of this and he fled to his cousin's house for three months;

   c)shortly after he returned to his home village, unknown men came to his house and made explicit threats against the applicant to his family. The applicant went into hiding from this time until he left Sri Lanka;

   d)he feared that if he was returned to Sri Lanka he would be harmed by ruling party supporters and could not seek the protection of the authorities as they are part of the governing party;

   e)there was not part of Sri Lanka where he could be safe as he would be identified as a UNP supporter.

   [3] CB 18 - 74.

   [4] CB 45 - 46.

5. The application was refused on 29 September 2014 by a delegate of the Minister who found that the applicant was not a witness of truth and had fabricated material elements of his claims.[5]

   [5] CB 105 - 118.

6. The applicant applied to the Refugee Review Tribunal (as it then was) for review of the delegate's decision on 1 October 2014.[6]  The applicant's migration agent provided a “Record of Phone Conversation” in support of his claims for protection.[7]

   [6] CB 119 - 120.

   [7] CB 160 - 161.

7. The applicant gave oral evidence before the Tribunal on 4 February 2016.  The Tribunal handed down its decision on 19 February 2016.

The decision of the Tribunal

1. The Tribunal set out the applicant's claims as provided in his protection visa application[8] and noted the applicant had additionally provided a letter from a Mr Fernando and a record of a phone conversation between the applicant and his representative.[9]

   [8] see [21] - [27]

   [9] see [28] - [29]

2. The Tribunal set out the oral evidence provided at the hearing from [31] - [43].  At [44] the Tribunal accepted that the applicant may have had some difficulties with a family in his locality in the past as he was a newcomer and owned more than the usual number of plots of land, however it found that the applicant had resolved this issue.  The Tribunal did not accept that the neighbouring family was as powerful as the applicant claimed.

3. The Tribunal accepted that the applicant may have undertaken activities supporting UNP candidates in some elections between 1994 and 1995 and was involved in four or five elections between 2005 to 2009 or 2010.  The Tribunal did not accept that the applicant had a profile that brought him to the attention of political opponents.[10]

   [10] see [45]

4. The Tribunal considered the letter of Mr Fernando but did not accept the generalised claims that the applicant had to be away from home “most of the times”, had to live with many problems and “was forced to be migrated to this country to save”.[11]

   [11] see [48]

5. The Tribunal did not accept that there were incidents in 2005, that the applicant had to go into hiding, that there was an incident in June 2012, or that the applicant would be identified as a UNP supporter, located and harmed anywhere on return to Sri Lanka.[12]

   [12] see [47]

6. The Tribunal did not accept that there was a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm on his return to Sri Lanka because of his political activities in the past or in the future.[13]

   [13] see [48]

7. The Tribunal considered the applicant's claim about an incident in Australia where he had an argument with two asylum seekers who tried to bash him and accepted this incident occurred.  The Tribunal considered the applicant's claim that the offenders threatened to kill him if he returned to Sri Lanka, however it did not accept that there was a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm from the offenders in Sri Lanka.[14]

   [14] see [50] - [52]

8. The Tribunal accepted the applicant left Sri Lanka illegally and that he would be subjected to the procedures set out in the DFAT Report if he returns to Sri Lanka, including that he will be charged with an offence and be fined. The Tribunal did not accept that the applicant would be given a custodial sentence. The Tribunal did not accept that there was a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm because of interviewing, questioning and investigations carried out by Sri Lankan authorities on his return as a failed asylum seeker or because he will be charged or fined with the offence of illegal departure. The Tribunal found that the applicant has the financial resources to finance the payment of a fine which can be paid by instalment.[15]

   [15] see [53] - [55]

9. The Tribunal did not accept that there was a real chance that the applicant would suffer serious harm or a real risk he would suffer significant harm if the applicant was detained for a short time, such as over the weekend.[16]

   [16] see [57]

10. In considering his claims singly and cumulatively, the Tribunal did not accept that there was a real chance the applicant would suffer serious harm or a real risk the applicant would suffer significant harm.[17]

    [17] see [59]

The present proceedings

1. These proceedings began with a show cause application filed on 7 March 2016.  The applicant continues to rely upon that application.  There is one ground in the application:

   1. I believe the AAT decision made was not made according to law, I am searching for a lawyer to represent me in court.

2. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book filed on 11 April 2016. 

3. Only the Minister prepared written submissions in advance of today’s hearing in accordance with procedural orders made by a registrar.

4. I invited oral submissions from the applicant this afternoon.  He stated that he cannot return to Sri Lanka.  He referred to the deaths of his wife and his brother.  Those were matters which he had drawn to the tribunal’s attention.  They were matters mentioned in a record of a phone conversation reproduced at CB 160.  They are further mentioned by the Tribunal at [30] and [49] of its reasons.  It appears that the applicant has a second brother who remains living in Sri Lanka. 

5. The applicant asserted from the bar table that a number of things were mixed up in the consideration of his claims.  He was, however, unable to point out any particular problems by reference to the Tribunal’s reasons.  It appears from the applicant’s oral submissions that he is concerned about the outcome before the Tribunal rather than any problem with the Tribunal’s process. 

6. I agree with the Minister’s submissions that the applicant is unable to point to any arguable case of jurisdictional error by the Tribunal. 

7. The Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act).

8. There was no information relied on by the Tribunal which had not been provided by the applicant. As such, the Tribunal’s s.424A obligations were not enlivened in this matter.

9. The applicant was invited to and attended a hearing as required under s.425 of the Migration Act, and he was clearly on notice of the dispositive issues in the review from the delegate's decision.

10. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

11. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The amount sought by the Minister is $3,416 which was the scale amount at the time the application was filed.  The applicant did not wish to be heard on costs. 

12. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with the Federal Circuit Court Rules and scale at the time the application was filed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 27 September 2016