AMR15 v Minister for Immigration

[2016] FCCA 2200

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMR15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2200

Catchwords:
MIGRATION – Application for judicial review – no jurisdictional error – application dismissed with costs.

Legislation:

Migration Act 1958 (Cth)

Applicant: AMR15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: (P)MLG814 of 2015

Judgment of: Judge McGuire

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Melbourne

Delivered on: 31 August 2016

REPRESENTATION

Applicant: Appeared in person

Counsel for the First Respondent: Mr Smythe

Solicitors for the First Respondent: Clayton Utz

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: No appearance

ORDERS

1. That the application for judicial review be dismissed.

2. That the applicant pay the first respondent’s costs set at a quantum of $8,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

(P)MLG814 of 2015

AMR15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS  TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”). Affirming a decision of the Minister’s delegate to refuse the applicant a Protection (Class XA) Visa (“the visa”).

2. The applicant appears before this Court unrepresented but with the assistance of an interpreter. He has provided the Court with a document titled “Applicant’s contentions of fact and law” albeit out of time provided by the Registrar’s directions. Consequently, the first respondent had already provided written submissions without the benefit of the applicant’s document but then provided supplementary submissions.

3. The applicant’s application is unparticularised in claiming that the Tribunal’s decision is “affected by an error of law” and “denied the applicant procedural fairness.” I, therefore, consider the applicant’s arguments as extracted from his written submissions and short oral submissions to this Court.

Background

1. The applicant is from Sri Lanka and of Tamil ethnicity. He applied for the visa on 11 December 2012. He claims protection because of his Tamil ethnicity and his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) and further as to his potential status as returning to Sri Lanka as a failed asylum seeker.

   
   

   The applicant engaged the complimentary protection obligations of the Commonwealth in asserting that, if returned to Sri Lanka, he would be subject to arbitrary deprivation of his life, torture and/or subjected to cruel, inhuman or degrading treatment by the Sri Lankan authorities.

2. In his submissions to the delegate and the Tribunal the applicant said members of the Sri Lankan Liberation Army (“SLA”) had killed his friend and later sought him out by name at his home causing him to flee Sri Lanka from Malaysia and onto Australia.

3. The Ministers delegate refused to grant the visa on 12 December 2013. The applicant filed an application for review before the Tribunal on

   
   

   19 December 2013. He was invited to attend the hearing.

4. The applicant’s representative provided written submissions including documents relating to the persecution of Tamils and perceived LTTE supporters in Sri Lanka and also referencing the persecution of failed asylum seekers in Sri Lanka.

5. The applicant attended the hearing on 12 March 2015. He had the benefit of an interpreter. His representative appeared albeit by telephone.

6. The Tribunal affirmed the delegate’s decision on 20 March 2015.

The Tribunal’s decision

1. The Tribunal made a number of findings contrary to the applicant’s credibility and in respect of his claims of past harm in Sri Lanka and the alleged killing of his friend then [19]-[20].

2. The Tribunal accepted that the applicant had some interaction with and provided low level support to LTTE members [21] but did not accept that the applicant’s claims have “come to the attention of the Sri Lankan authorities as a result of his interaction with the LTTE members” and did not accept that the SLA had made enquiries about his whereabouts at his home at any time prior to or following his departure from Sri Lanka.

3. It is clear that the Tribunal’s findings as to credit resulted from inconsistencies in the applicant’s own evidence in previous statements.

4. The Tribunal had the benefit of objective country information [30] and accepted that Tamils in Sri Lanka faced harassment, discrimination and persecution during the conflict between LTTE and Sri Lankan authorities due to their ethnicity but that the war ended in May 2009 and:

   “UNHCR’s assessment that protection should no longer be presumed as being needed for Sri Lankans of Tamil Ethnicity originating from the north of the country and information in other sources indicating that the focus of the Sri Lankan governments concern is now on those who are perceived to be a threat to the integrity of Sri Lanka as a single state…”

5. The Tribunal considered objective country information in being unable to accept that the applicant would be targeted for serious harm on the basis of his imputed political opinion as pro-LTTE.

6. The Tribunal addressed the complementary protection criterion at [34] and [35] and determined that the applicant did not come within the categories of persons identified by UNHCR as being in need of protection in its 2012 guidelines, nor the categories of people identified as being at real risk of persecution or serious harm on return to

   
   

   Sri Lanka.

Application to this Court

1. Nine separate grounds of complaint with the Tribunal’s decisions were identified and extracted for consideration from the applicant’s document “Applicant’s contentions of fact and law”.

Ground 1 - That the Tribunal failed to address the integer of the applicant’s claim in that there was a well-founded fear of persecution based on his membership of a particular social group namely a young Tamil male from the north of Sri Lanka.

1. The applicant’s claims are put to the Tribunal in the form of a comprehensive letter from his lawyers dated 5 March 2015 and where at [17] [CB245] appear the three claims to protection made by the applicant being:

   i)his race;

   ii)his perceived political views; and

   iii)his membership of a particular social group (“failed asylum seekers”).

2. There is no evidence of the applicant putting his claim in any further way before the Tribunal and it is clear that the Tribunal dealt with each of the three integers of the claim set out in the supporting submissions. In any event, the Tribunal at [26]–[27] relates the following:

   “The Tribunal discussed with the applicant DFAT’s assessment with the security and humanitarian situation has improved greatly since the end of the conflict in 2009 and that while the north of Sri Lanka continues to have a military presence, it has reduced since the conflict and there has also been a reduction in the military and police check points in Jaffna and surrounding areas. The applicant stated that it may have reduced however the problems of Tamils have not come to an end and that no one could guarantee his safety.

   The Tribunal noted that the independent sources indicated it would no longer be assumed that all Tamils in northern Sri Lanka were connected with the LTTE nor that Tamils face a real chance of suffering serious or significant harm solely on their Tamil ethnicity. The applicant told the Tribunal that the information was not correct, that the Sri Lankan authorities are taking people to prison and that even after they are released they are being followed by the CID just because they are Tamils. He stated that if he returned home he would be questioned and imprisoned by the CID and that while it was true that the UNHCR was escorting Tamils returning to Sri Lanka, as soon as the UNHCR representative left the CID would question and imprison Tamils and force their families to beg for their release.

3. The Tribunal dealt with this issue at [30] and found that Tamils including that young male Tamil’s living in or originating from northern Sri Lanka do not face a real chance of serious harm solely on account of their ethnicity.

4. Given the above I am of the view the applicant seeks to mount an impermissible merits review this complaint should be dismissed.

Ground 2 – The Tribunal has not properly considered the alternative criteria in s36(2)(aa) of the Migration Act 1958 being the complementary protection regime

1. At [44] and [46] “Complementary Protection” the Tribunal properly set out the relevant criteria and legal tests. The Tribunal proceeded to consider the complimentary protection regime albeit more briefly than it did the applicant’s convention claim. There is no merit, to the argument that the complimentary protection regime was not considered. I understand the remainder of the applicant’s written submissions under this ground to constitute a quest for a further merits review which is impermissible. I find no merit to ground 2 of the applicant’s claim.

Ground 3 – That the applicant was denied procedural fairness

1. In his written submission to this Court the applicant says the Tribunal failed to provide him, for his consideration, aspects of country information relating to pro-government (non-state) paramilitary groups. He says that the Tribunal did not put to him adverse country information in respect of failed asylum seeker/returnee Tamils to Sri Lanka with reference to bail if taken into custody.

2. I accept the submission of Counsel for the first respondent that the procedural fairness/natural justice provisions oblige the Tribunal to invite the applicant to the hearing and secondly, to put to him in a way that the Tribunal considered appropriate anything that the Tribunal felt that it would be reason or part of a reason for refusing him the visa. Importantly, however, the Tribunal is not obliged to disclose, for comment or response, its thought process. Further, that obligation does not apply to information provided by s424A(3) being information of a general nature and not specifically about the applicant. Consequently, no such obligation arose where the Tribunal’s decision rested on inconsistencies between the applicant’s claim and objective or general country information non-specific to this applicant. However, in any event, and despite no obligations, it is clear from [26], [27], [28] and [29] that the Tribunal did discuss with the applicant certain country information.

3. In all of those circumstances I reject the assertion that the Tribunal failed to comply with its obligations in s424A and this ground of complaint is without merit.

Ground 4 – From oral submissions – the applicant says “that the Tribunal did not pay sufficient attention to his claim and based its view on the department’s decision”

1. The Tribunal whilst re-exercising the merits consideration is entitled to consider the delegate’s decision and to inform itself as to the process before the delegate. The Tribunal here gave a lengthy written account of its reasons and on any reading of those reasons cannot be said to have not understood, addressed and considered the applicant’s claims.

2. I find no merit to this oral ground of complaint.

Ground 5 – Oral complaint – “That the Tribunal rejected my application as my reasons were not credible. I am unable to accept this explanation”

1. It’s true that the Tribunal made numerous findings of credit contrary to the applicant. It set out in ample detail its reason for doing so based on serious inconsistencies together with findings of fact. It is trite to observe that the Tribunal is the finder of fact and it is not for this Court to offer yet another opportunity for merits review.  Put simply, the applicant’s complaint here does not raise a jurisdictional error on the Tribunal’s findings or process. There is no merit to this complaint.

Ground 6 – “If my life is not endanger then why would I leave Sri Lanka and why would I leave my country”

1. This oral complaint made through the interpreter at the hearing before this Court is put in the form of a rhetorical question and does not raise any alleged jurisdictional error. There is no merit to the complaint.

Ground 7 – “It (the Tribunal) did not enquire appropriately as per the Refugees definition”

1. The Tribunal sets out the protection criteria under s36(2)(aa) at [44] of its reasons. The Tribunal found Sri Lanka to be a “receiving country” for the purposes of s51(1) and recognised its obligation to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country there is a real risk that the applicant will suffer significant harm. The Tribunal noted authority for the “real risk” [46] the engagement of the Tribunal is evident at [45] and [46] of the reasons.

2. I find no merit in this ground of complaint.

Ground 8 – The applicant complains that his representative appeared by telephone at the hearing before the Tribunal and that he “could not understand properly”

1. The reading of the record of the Tribunal preceding suggest that the applicant’s representative may have been in Sydney and appearing by telephone whilst the applicant and his interpreter were in person before the Tribunal. There is no reference of any complaint being made in this regard or in the Tribunal’s reasons. The applicant has not provided a transcript of audio to evidence any such difficulties. The mere

   
   

   non-physical attendance by the applicant’s representative does not of itself raise a jurisdictional error.

2. I find no merit to this ground of complaint.

Ground 9 – That the Tribunal’s outcome is inconsistent with the law in that “many people have been deported from Australia and have been arrested by military, and they have gone missing.

1. It is clear on a reading of the Tribunal’s reasons that it was privy to relevant country information and discussed the same with the applicant. This fact alone does not necessarily or logically lead to a conclusion that the Tribunal’s decision was irrational or illogical. To the contrary, the Tribunal addressed the issue and made findings of fact and credit in respect of this applicant. The applicant’s own subjective views as to his fears within this context are therefore irrelevant. I find no merit with this ground of complaint.

Conclusion

1. There being no merit in any of the written or oral grounds of complaint made by the applicant, the application will be dismissed with an order for costs. The first respondent seeks a quantum of costs over and above the relevant scale amount of $7,206.00 and in an amount of $8,206.00 by reason of the need to have prepared further and supplementary written submissions after the late filing and serving of the applicant’s written contentions of fact and law. It is clear that the applicant did not lodge his documents in compliance with the Registrar’s orders and directions. This caused the first respondent to address the further issues raised by the applicant (given the unparticularised generic status of his formal application) after the filing of the first respondents written submissions. In those circumstances I am satisfied that an award for costs in the sum sought by the first respondent is appropriate.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 31 August 2016