Amm15 v Minister for Immigration - [2015] FCCA 2339

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMM15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2339

Catchwords:
MIGRATION – Protection (Class XA) visa – whether tribunal's decision was affected by jurisdictional error – no jurisdictional error – application dismissed.

Applicant:

AMM15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

DNG 14 of 2015

Judgment of:

Judge Jarrett

Hearing date:

24 August 2015

Date of Last Submission:

24 August 2015

Delivered at:

Darwin

Delivered on:

27 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent:

Ms Buchanan

Solicitors for the First Respondent:

Australian Government Solicitor

The Second Respondent entered a submitting appearance

ORDERS

The name of the second respondent be changed to “Administrative Appeals Tribunal”.
The application filed on 16 April, 2015 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 14 of 2015

AMM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By his application filed on 16 April, 2015 the applicant seeks that a decision of a refugee review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant to him a Protection (Class XA) visa be set aside. The applicant seeks the issue of constitutional writs of certiorari and mandamus.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
On 1 May, 2015 directions were made to prepare the matter for hearing. The applicant was given the opportunity to file an amended application setting out his grounds of review and any particulars in respect of those grounds. The parties were also directed to file written submissions.
The applicant has filed no written submissions. The first respondent has filed written submissions to which I have had regard.

Background

The applicant is a citizen of Sri Lanka. He arrived at Christmas Island as an unauthorised maritime arrival on 29 May, 2012.
Soon after his arrival he lodged an application for a Protection (Class XA) visa. He was assisted to do so by a migration agent. He attached a statement of his claims to his visa application. He also participated in an entry interview with a delegate of the first respondent for the purposes of his visa application.
The first respondent’s delegate refused the applicant’s visa application on 3 January, 2013. The applicant sought review of that decision by a refugee review tribunal.
The tribunal was unable to make a favourable decision on the papers and so invited him to attend at a hearing to give evidence and present arguments. That hearing occurred on 13 March, 2013. The applicant was represented at the review by a registered migration agent. The agent provided written submissions to the tribunal both before and after the hearing. The applicant was also assisted by an interpreter.
On 30 April, 2014, the tribunal affirmed the decision of the first respondent’s delegate.
However, on 13 October, 2014 the Federal Circuit Court set that decision aside, with the consent of the first respondent and remitted the review application for reconsideration according to law.
The applicant attended a further hearing before a differently constituted tribunal on 5 March, 2015. His migration agent provided written submissions both before and after that hearing.
On 18 March, 2015 the second tribunal affirmed the decision under review. It is that decision which is now the subject of the application before me.
The applicant’s claims for protection were based upon his race and imputed political opinion. He claimed to fear harm on the basis that he was a Tamil and that his father had disappeared after challenging a Sinhalese fishing boat owner who had refused to pay his father. He claimed that after that, men came looking for him and threatened him.
He claimed that he would be considered to be a supporter of the Liberation Tigers of Tamil Eelam because he was a young Tamil male whose father was apparently abducted while fishing on the east coast of Sri Lanka and that he had claimed asylum in Australia. He claimed also to fear harm as a member of particular social groups, namely failed asylum seekers and persons who departed Sri Lanka illegally.
As the first respondent’s written submissions record, the tribunal’s reasons for decision set out, at length, the applicant’s claims and evidence put forward at the various stages of his visa application and the review processes. The tribunal devotes no less than 55 paragraphs of its reasons for decision to setting out those details. The tribunal also set out the extensive range of country information that it took into account, including the country information that was provided on behalf of the applicant. It relied on a recent country report prepared by the Department of Foreign Affairs and Trade for the purposes of protection status determinations.
The tribunal accepted the applicant’s evidence in large part where his evidence related to his own experiences. The tribunal, however, did not accept what it considered to be the applicant’s speculation about events where he was not present. In that respect, the tribunal said:
93. In this particular instance, notwithstanding some variation in details from occasion to occasion, the Tribunal found the applicant’s evidence about his own direct experiences to be generally credible. However, the Tribunal was unable to simply accept at face value, and considered very carefully, the applicant’s speculation about events where he was not present (for example, his father’s disappearance and the 2012 visits to his mother and grandmother of men in civilian clothes).
The tribunal made a number of findings of fact. It found that the dispute between the fishing boat owner and the applicant’s father on which the applicant’s case, at least in part, relied arose over a business or employment dispute and did not occur for a convention reason.
When the applicant left Sri Lanka, the tribunal did not consider that he had a profile as an LTTE suspect. The tribunal took into account all of the applicant’s circumstances including his age, the dispute by his father with the fisherman and the area in which the applicant lived. The tribunal further found that the applicant would not be imputed with such a profile should he return to Sri Lanka.
Further, the tribunal decided that having regard to the Department of Foreign Affairs and Trade 2015 assessment, the applicant would not be targeted on a return to Sri Lanka because he might be seen as a failed asylum seeker or because of his ethnicity.
The tribunal carefully analysed the consequences for the applicant because of his illegal departure from Sri Lanka. The tribunal was satisfied that the local Sri Lankan law against illegal departure was not applied in a discriminatory way. Nor were the penalties disproportionate to the offence created by the law. The tribunal determined that whilst returnees were questioned on their return to Sri Lanka, the circumstances of such questioning and detention were not generally such as would give rise to persecution for the purposes of the Act or the refugees convention.
The tribunal found that the applicant’s status as a passenger on a people smuggling vessel, his work history in Australia and the provision of time for payment arrangements for fines in Sri Lankan legislation, the applicant would be able to pay any fine resulting from prosecution for illegal departure from Sri Lanka and the fine would not amount to a serious or significant harm on its own account.
Further, the tribunal determined that whilst the applicant might be held in prison on remand for a few days when he returned to Sri Lanka, as the applicant would not be imputed as a supporter of the LTTE, there was no real risk of the infliction of harm nor persecution for a convention reason as a result of the applicant’s punishment for illegal departure. Imprisonment, the tribunal determined, for returning illegal departees was a risk faced by the population generally and it would not be imposed for a convention reason.
In this application only one ground of review is specified. However, it is stated so generally as to be devoid of any meaningful content. It is:
1. The decision was affected by jurisdictional error.
I accept the first respondent’s submission that in the absence of any particulars the ground should be rejected.
It is clear from the tribunal’s reasons for decision that it considered each of the claims raised by the applicant. On the evidence before it, it simply did not accept those claims. The findings made by the tribunal were open to it on the body of material that was before it. There is no error apparent in the process adopted by the tribunal in this case. There is no error evident in its consideration of the applicant’s claims, either factual or legal.
In his oral submissions before me, the applicant was at pains to point out that he could not understand or accept how the tribunal could have decided against him when the previous tribunal decision had been set aside by this Court. He did not understand why his visa application had not been granted in those circumstances.
His arguments demonstrated that he was seeking merits review of the tribunal’s decision that is now before me. For the reasons I have given, in my view that decision is not affected by jurisdictional error. It is a privative clause decision and cannot be reviewed by this court.
Accordingly, the application for review is dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 27 August, 2015.

Associate:

Date: 27 August, 2015