ANA15 v Minister for Immigration

[2016] FCCA 2859

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2859

Catchwords:
MIGRATION – Application for protection visa – whether Tribunal failed to consider an integer of claim – whether finding of Tribunal not supported by evidence – whether Tribunal failed to consider claim constituted serious harm under s.91R of the Migration Act 1958 – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Cases cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002(2003) 73 ALD 1; (2003) 198 ALR 59; (2003) 77 ALJR 1165; (2003) 24(11) Leg Rep 10; [2003] HCA 30
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263

Applicant: ANA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 822 of 2015

Judgment of: Judge Jones

Hearing date: 21 September 2016

Date of Last Submission: 21 September 2016

Delivered at: Melbourne

Delivered on: 21 September 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitor advocate for the Respondents: Mr Hornsby

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the name of the Second Respondent be amended to the ‘Administrative Appeals Tribunal’.

2. That the application for judicial review filed on 20 April 2015 be dismissed.

3. That the Applicant pay the First Respondent’s costs in the fixed amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 822 of 2015

ANA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and Background

1. This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 23 March 2015, affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) not to grant him a Protection (Class XA) visa (“the visa”). 

2. The Applicant is a citizen of Sri Lanka who arrived in Australia on

   
   

   8 July 2012.  On 6 December 2012, he applied for the visa to the then Department of Immigration and Citizenship (CB 27-54). He appointed a migration agent to represent him (CB 76-78). His application was refused by the delegate. He subsequently, through his appointed migration agent, applied to the Tribunal for review.  He was invited by the Tribunal on 12 January 2015, to appear at a hearing on 18 February 2015, to give evidence and make submissions (CB 141-145).

3. By letters dated 11 February 2015 and 17 February 2015, the Applicant’s migration agent provided written submissions to the Tribunal (CB 149-207). On 18 February 2015, the Applicant appeared at the hearing, together with his migration agent, and was assisted by an interpreter in the Tamil and English languages. 

Applicant’s claims

1. The Applicant’s claims were first set out in his statutory declaration dated 5 December 2012, which was included in his application for the visa (CB 79 to 81).  In this declaration, the Applicant stated his area of birth, the fact that he worked in the United Arab Emirates between 1999 and 2002 and that he then returned to Sri Lanka and worked as a fisherman. He also says that he went to Malaysia to look for work in 2007, and then returned to his home area in 2009. 

2. He then goes on to deal with the difficulties that he experienced from the Sri Lankan Army. He says that because the LTTE are both Tamils and enemies of the Sri Lankan Army, all Tamils are seen to be connected with the LTTE and to support them. He refers to the harassment and bullying of Tamil people by the Army. He refers to curfews that were imposed by the Army at his village.  At paragraph 11 of his statutory declaration, he says that he had to apply to the Army for a pass to be allowed to fish, that fisherman were told the times that they had to start and finish fishing, and that this made work as a fisherman very difficult. He points out that only Tamils are subject to this restriction. 

3. The Applicant refers to the fact that since he has been in Australia, the Army has gone to his house and asked where he was.  His family told them a lie and said he had gone to work.  He said that they did not tell the Army officers that he was in Australia.  He refers to two bombs exploding in his village in 2009, but says he does not know who set off the bombs.  At paragraph 15 of his statutory declaration, he says that because of the problems he was having with the Army, he decided to leave Sri Lanka and seek protection in Australia. 

4. The Applicant then refers to his fear about what might happen to him as a failed asylum seeker, and that he would be scared that the CID will kidnap him and might kill him. He is also concerned that, because he left Sri Lanka illegally, if he returns the CID will kidnap him and they might punish him. 

5. The Applicant also provided a supplementary statement dated 6 March 2013 (CB 90-91). He makes it clear that this statement has information that he did not include in his original application. 

6. The Applicant says that his wife contacted him on 6 February 2013 to inform him that the police have come to his house to search for him, because he was expected to appear at a Court hearing on

   
   

   8 February 2013. He was told by his wife on 9 February 2013, that a friend of his who had appeared in Court for the same offence, told his wife that the Applicant was now required to attend Court on 28 June 2013. He says his wife reminded him of the reason for the Court hearing, which he had forgotten to mention, being that he was arrested by the CID and taken into custody on 27 May 2012. The reason for the arrest was a suspicion that he was planning to leave Sri Lanka without permission and come to Australia. He said he was arrested with 10 others and taken in a van to the Colombo CID Office and kept for two nights. The group was released on bail after someone paid one million rupees as surety.  He left before the scheduled Court hearing date.

7. On 11 February 2015, the Applicant’s migration agent also provided written submissions (CB 149-180). The migration agent referred to further additional information that the Applicant wanted to put before the Tribunal which was that, on 23 November 2014, people in civilian dress came to his house and asked his wife where he was. She told them that he had gone to Australia. He is not aware who these people were. He also said that he had been informed by his brother that the Court hearing in relation to the offences that I have previously referred to were now to be heard on 6 March 2015. 

8. In the Applicant’s written submissions, the migration agent described the Applicant’s individual and cumulative claims as:

   1.fearing persecution because of his Tamil ethnicity;

   2.a. his imputed political support of the LTTE on account of his Tamil ethnicity;

   b. his illegal departure from Sri Lanka; and

   c. his extended presence in Australia as an asylum seeker (CB 150); and

   3. his membership of a particular social group of a Tamil returned failed asylum seekers.

9. The migration agent made it clear that the Applicant also claimed he would suffer significant harm under the complementary protection provisions because of these reasons. 

Tribunal decision

1. The Tribunal accepted that 112 Sri Lankans were detained by the Sri Lankan authorities on 27 May 2012 on suspicion of attempting to depart Sri Lanka illegally. However, the Tribunal did not accept that the Applicant was one of these people, in circumstances where his claims about the circumstances of his arrest were inconsistent with the contents of documents provided in support of his claim and, in addition, because he failed to raise this claim when he made his protection application (CB 221-222 at [12]-[18]). 

2. I will return to this matter, as it is a key concern of the Applicant in these judicial review proceedings. I also note that the Tribunal had very serious concerns about the credibility of the Applicant’s evidence and said that it considered that the Applicant’s claims in relation to his detention in 2012 were “fabricated in their entirety” (CB 222 at [18]). 

3. The Tribunal accepted that during the Civil War, the Sri Lankan Army regulated the movement of Tamils and required them to show identity cards at checkpoints. It also accepted the Applicant’s work as a fisherman was subject to restrictions, and that people died in his village in 2009. The Tribunal found, given the Applicant’s evidence that he experienced no other adverse attention from the authorities prior to departing Sri Lanka in June 2012 and that he was not a person of interest to the Sri Lankan authorities at the time of his departure. Given this, and the inconsistencies in his evidence, the Tribunal rejected the Applicant’s claims that the authorities were looking for him and had questioned his wife about his whereabouts, and described those claims as implausible (CB 223 at [22]-[24]).

4. The Tribunal did accept that Tamils faced a degree of harassment, discrimination and, in some cases, persecution, during the Civil War.  However, on account of having regard to available country information, including information from DFAT, the UNHCR and the UK Home Office Assessment, the Tribunal found that Tamils, including young males from the north, do not face a real chance of serious harm solely on account of their ethnicity. The Tribunal stated that it was satisfied that the Applicant would not face a real chance of serious harm in the reasonably foreseeable future because of his Tamil race, or any imputed political opinion arising from his race. In so doing, the Tribunal noted that the Applicant had not claimed that neither he nor his family had ever been associated with the LTTE and, consequently, did not otherwise fall within the risk categories set out in the UNHCR guidelines. Therefore, the Applicant would not be imputed as a LTTE supporter (CB 224-226 at [27]-[36]).

5. The Tribunal accepted that the Applicant may be identified as a person who had unsuccessfully sought asylum in Australia if he returned to Sri Lanka, and that he may then be questioned. However, given his lack of profile, it did not accept he would be suspected of involvement with the LTTE (CB 228-229 at [42]-[44]).

6. The Tribunal then dealt with the question of the Applicant’s status as a person who departed Sri Lanka illegally. It noted that the Applicant would be held on remand in conditions which were substandard.  However, because of the Applicant’s lack of any profile, did not accept he would face torture at the airport or on remand, or  he would be treated differently from other returnees for any convention reason. 

7. Consequently, the Tribunal reached its ultimate conclusion in relation to the grounds relating to the Convention upon which the Applicant made his claims (230 at [50]):

   Given the Tribunal’s findings above, it does not accept there be a real chance that the applicant will be targeted for serious harm by the Sri Lankan authorities on the separate or cumulative bases of his Tamil ethnicity, his actual or imputed political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.

8. It did not accept that there would be a real chance that the Applicant would be targeted for serious harm by Sri Lankan authorities on the separate or cumulative basis of his Tamil ethnicity, his actual or imputed political opinion, his illegal departure from Sri Lanka or the fact that he had sought asylum in Australia. 

Complementary protection claims

1. The Tribunal then proceeded to deal with the Applicant’s claims, so far as relevant to the complementary protection conditions of the Migration Act 1958 (Cth) (“the Act”). It is clear that the Tribunal based its decision on the fact that the Applicant did not satisfy the complementary protection provisions, having regard to its earlier findings. However, somewhat unusually, the Tribunal dealt with this in some detail. That is, there was not simply a throwaway paragraph but, rather, a genuine consideration. Having done so, the Tribunal said it was not satisfied that the applicant met the criterion under s.36(2)(aa) of the Act.

Judicial review

1. The applicant is self-represented, but is assisted today by an interpreter in the Tamil and English languages. I explained to the Applicant the nature of judicial review before the Court. I took him to the application he filed on 20 April 2015 and proceeded to ask him what he meant by his grounds. 

2. The grounds specified in the application are as follows: 

   1. The Tribunal has erred and fell into jurisdictional error by not assessing his integer claims cumulatively being a Tamil fisherman of Hindu faith and perceived to have been associated with the LTTE.

   2. The Tribunal’s finding that the applicant was not one of the 112 persons arrested in May 2012 was not supported by evidence.

   3. The Tribunal failed to grasp that depriving the applicant’s right to subsist as a fisherman is a serious harm under section 91R(2) of the Migration Act and thereby not assessed this particular claim.

3. It became very apparent early on that the Applicant did not understand the meaning of these grounds. This is no criticism of the Applicant. After all, he is not a lawyer and he does not speak the English language. The Applicant says that these grounds were prepared for him by a lawyer. It is becoming a common practice before this Court that a self-represented person has their grounds of application prepared by a lawyer without any particulars, and in respect of which the self-represented Applicant has no idea what the grounds are intended to convey. This is entirely unhelpful. It places the self-represented Applicant under a great degree of stress as he or she attempts to understand and explain the grounds, is of no assistance to this Court and puts the Minister in a difficult position in attempting to respond.

4. In any event, I asked the Applicant to forget about those grounds and simply tell the Court why he felt the Tribunal made a mistake. It is apparent from the submissions that he gave that there are two reasons, which are intertwined. The first is his fervent belief that the documents he gave to the Tribunal, Court documents which he said were summons issued to his brother and sister and Court documents which he says include his name (contained in CB 193-207), were ignored by the Tribunal. In fact, he said the Tribunal found that they were fraudulent or not good.

5. I pointed out to the Applicant that the Tribunal, in fact, did not say the documents were fraudulent or not good. Rather, the Tribunal did not give them any weight because the contents of those documents were inconsistent with the Applicant’s claims, and because the Tribunal had made adverse credibility findings about him. That is, that he was not a witness of truth. Nevertheless, the Applicant persisted very strongly in his assertions, which reflected his belief that these documents ought to have convinced the Tribunal that he was arrested, and that the Tribunal was wrong in not accepting the veracity of the documents. 

6. His other concern was the Tribunal’s finding that he was not one of group of persons who were arrested in 2012. That complaint is reflected in ground 2 of his grounds of application.

7. The Applicant also submitted that the Tribunal had, in other cases, accepted Court documents from other Applicants. This seems to me to form part of his disbelief that the Tribunal did not accept his documents. However, I make it clear that the Tribunal’s statutory obligation was to consider the Applicant’s application, to consider his evidence and his claims, and to make a decision in respect of the Applicant alone. What may or may not have happened in other matters before the Tribunal, of which I have no knowledge, cannot be relevant to this Court conducting a judicial review. 

Grounds of review

1. The first ground is what is referred to as a failure to consider a claim or integer of claim.  It is a settled principle that where an Applicant makes a claim expressly, or which arises apparently from the material before the Tribunal, and the Tribunal fails to consider this claim, the Tribunal falls into jurisdictional error because it has not performed its statutory obligation of review (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263).

2. Having had regard to the various claims made by the Applicant, I am not satisfied that the Applicant made a claim to fear harm, persecution or significant harm as a Tamil fisherman of Hindu faith perceived to have been associated with the LTTE. It is apparent from my recitation of the submissions made by the migration agent, that this was not a claim expressly made nor, having regard to the two written statements made by the Applicant, did this claim emerge from the material.

3. I also note that the Tribunal dealt with the Applicant’s claim about his imputed political opinion because of a perceived association with the LTTE (CB 226 at [33]-[36]). The Tribunal found that the Applicant would not be perceived to have an association with the LTTE. Consequently, I would dismiss ground one.

4. The Tribunal did find that he was a Tamil fisherman of Hindu faith, but the gist of the Applicant’s ground completely falls away given the Tribunal’s finding. The Tribunal’s finding then informed, as I have already indicated, its later findings that the Applicant did not have the relevant profile identified in country information, such as the UNHCR guidelines and the UK Home Office Assessment, of those at risk of persecution, to fear harm on that basis.

5. Finally, as is apparent from my recitation of paragraph 50 of the Tribunal decision record (at [18] above), the Tribunal individually and cumulatively considered all of the Applicant’s claims, both those made expressly or those which arose from the material before it. Consequently, I conclude that this ground does not give rise to jurisdictional error.

6. The next complaint is that the Tribunal’s finding that the Applicant was not one of the 112 persons arrested in May 2012, was not supported by evidence. As I have indicated, this was also a ground expressed by the Applicant in his oral submissions. That is, the Applicant’s claim that the Tribunal erroneously found the Court documents he provided to be fraudulent and was not probative evidence for it to conclude that he was not one of the 112 persons arrested. The Applicant made it clear he disagreed with this finding of the Tribunal.

7. A ground of review based on no evidence is a ground that must meet a very strict standard. I am satisfied that there was evidence available to the Tribunal to make this finding. As I have indicated earlier, the Tribunal considered this matter in its decision record (CB 221-222 at [12]-[18]). Its findings that the Applicant was not part of the 112 persons arrested and detained arose from its satisfaction that the Applicant’s claims, that is, that he was transported to Colombo in a CID vehicle, were inconsistent with the material and the Court documents.

8. The Tribunal also considered the translated document purporting to be a summons issued to the Applicant’s brother and sister, requiring them to appear before the Chief Magistrate’s Court, for failure to produce the Applicant to the Court (CB 222 at [17]-[18]). It decided that it would give the documents little weight because of its significant adverse credibility findings regarding the Applicant. 

9. I refer to a decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, in which Gleeson CJ said, in respect of an argument that the Tribunal failed to assess or give any weight to the Applicant’s evidence in light of corroborating evidence, at [12]:

   It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

1. As I have indicated, the Tribunal found that the Applicant fabricated his claims, and found certain claims implausible. The Tribunal’s approach in giving the Applicant’s Court documents little weight, in light of its credibility findings, cannot be criticised. I have formed the view that, particularly in light of the Applicant’s oral submissions, that in fact, what he is urging the Court to accept, is his dissatisfaction with the Tribunal’s finding.

2. The Applicant at times, in these proceedings, referred to various documents and asked for time to consider further documents, notwithstanding the fact that I repeated on a number of occasions that I was looking at the Tribunal decision and what was before the Tribunal. I formed the view that, in essence, the Applicant is requesting this Court to engage in impermissible merits review.

3. The final ground in the Applicant’s application relates to his right to subsist as a fisherman in Sri Lanka. The Applicant, in his oral submissions, did not raise this ground. I have formed the view that this is really, again, a question of the Applicant being dissatisfied with the outcome of the Tribunal’s decision. As correctly pointed out by the Minister, the Tribunal accepted that there were restrictions on the Applicant’s capacity to work as a fisherman (CB 222 at [20]).

4. The only evidence or iteration of this claim is at paragraph 11 of the Applicant’s statement made on 5 December 2012 (CB 80). His claim was the restrictions made it difficult for him, not that it constituted serious harm. The Tribunal accepted that Tamils did face a degree of harassment and discrimination during the time of conflict between the LTTE and the Sri Lankan authorities on account of their Tamil ethnicity (CB 225 at [31]).  However, based on country information, including the UNHCR guidelines and the UK Home Office Assessment, the Tribunal, as I have indicated, found that Tamils, including young male Tamils living in or originating from northern Sri Lanka, do not face a real chance of suffering serious harm solely on account of their ethnicity. The Tribunal again repeated this finding at [32] of its decision record.

5. I am satisfied that the Tribunal, whilst not expressly dealing with the Applicant’s restrictions as a fisherman, dealt with this issue generally in its findings regarding any harassment discrimination on the basis of his Tamil ethnicity. Consequently, I would find that there is no jurisdictional error on these grounds.

Conclusion

1. Accordingly, for the reasons I have given in this judgment, I will make Orders dismissing the Applicant’s claim for judicial review, as well as an order that the Applicant pay the Minister’s costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date:     7 November 2016