ANH15 v Minister for Immigration
[2015] FCCA 2012
•24 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANH15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2012 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – procedural fairness – where applicant concealed evidence from Tribunal – where submissions not taken into account by Tribunal – material not of importance to exercise of Tribunal’s functions – no jurisdictional error – application dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 Dagli v Minister for Immigration (2003) 133 FCR 541 |
| Applicant: | ANH15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1085 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 24 July 2015 |
| Date of Last Submission: | 24 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2015 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Mr B O'Donnell |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The application is dismissed.
The applicant pay the costs of the First Respondent fixed in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1085 of 2015
| ANH15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 19 March 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant appeared before the Tribunal on 15 January 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by a registered migration agent.
The applicant was found to be a citizen of Sri Lanka, and advanced claims in respect of his fear of persecution in being returned to Sri Lanka based on his Tamil ethnicity, imputed political opinion, being a pro-LTTE/anti-government supporter, by reason of his membership of a particular social group namely failed Sri Lankan asylum seekers, and/or by reason of being a member of a particular social group, being illegal Tamil departees.
The application identified the following two grounds:
1. RRT decision is unsupported by any evidence
2. RRT did not fully deal with my problems
The proposition that the Refugee Review Tribunal was unsupported by evidence is clearly inconsistent with the detailed analysis of the applicant’s evidence, the country information and the findings set out by the Tribunal. Paragraph 1 of the grounds of the application fails to disclose any jurisdictional error.
The assertion raised in relation to para.2, that the Tribunal did not deal fully with the applicant’s problems if construed as referring to the applicant’ s claims, again fails to make out any jurisdictional errors. It is clear that the Tribunal properly addressed each of the applicant’s claims.
The applicant provided a further document entitled Outline of Submissions. That document on its face was in substance a series of further grounds of alleged jurisdictional error. The document is as follows:
1. The Tribunal erred by failing to consider, or failed to give proper consideration to, a substantial, clearly articulated argument or claim clearly arising upon the material before it, namely, whether the applicant had a well-founded fear of persecution for reason of his imputed political opinion and, accordingly:
a. failed to conduct, or constructively failed to exercise its jurisdiction to conduct, a “review” within the meaning of s 414 of the Act; and/or
b. failed to afford the applicant procedural fairness.
Particulars
a. It was a condition of the exercise of the Tribunal's jurisdiction that it properly consider substantial, clearly articulated arguments or claims clearly arising upon the material before it.
b. The applicant claimed to fear harm in Sri Lanka due his imputed anti-government and pro-LTTE opinion.
c. The Tribunal found the applicant to be a witness of credit.
d. The applicant gave evidence that CID officers had, over a number of years, repeatedly interrogated him about his involvement with the LTTE and that, on at least one occasion, those officers had refused to believe his denial and had assaulted him. The applicant also gave evidence that in April 2013 his wife had been visited by unidentified men looking for him.
e. In purportedly considering, and rejecting, the applicant's claim, the Tribunal relied exclusively on the "”available information"” which, in context, meant the available DFAT Country Information: Tribunal's Decision at [47].
f. The DFAT Country Information on which the Tribunal relied did not indicate, and did not conclusively indicate, that a person in the applicant's claimed position could not have a well-founded fear of persecution for a Convention reason.
g. If, in the alternative, the "”available information"” on which the Tribunal relied included paragraph 356(7) of the decision in GJ & Ors (post-civil war returnees) Sri Lanka [2013] UKUT 319 (GJ), the Tribunal impermissibly truncated its consideration of the applicant's claims by considering that, in order to have a well-founded fear of persecution for a Convention reason, the applicant needed to fall within one of the categories set out in paragraph 356(7) of that decision.
2. The Tribunal impermissibly truncated its inquiry and therefore:
a. failed to ask the correct statutory question, namely, whether the applicant had a well-founded fear of persecution for a Convention reason; and/or
b. failed to consider or properly consider the individual features of the applicant's claim, thereby failing or constructively failing to exercise its "review" function or failing to afford procedural fairness.
Particulars
a. The Tribunal considered whether the applicant fell within category 7(a) and (d) set out in paragraph 356 of GJ, and found that the applicant did not fall within those categories.
b. For the Tribunal to ask, and answer, the correct statutory question, it was incumbent on it to consider the individual and distinctive features of the applicant's claim and to give close consideration to the situation of the particular applicant, rather than simply asking whether the applicant fell within some a priori classification of persons at risk.
c. If the Tribunal found that the applicant did not have a well-founded fear of persecution for reason of his imputed political opinion exclusively because he did not fall within the GJ categories, then the Tribunal impermissibly reasoned from an a priori classification and failed to consider the individual and distinctive features of the applicant's claim and to give close consideration to the situation of the particular applicant.
3. The Tribunal breached s 499(2A) of the Act.
Particulars
a. The Tribunal was obliged to comply with Ministerial Direction No. 56 and, accordingly, was obliged to take account of the Department of Immigration and Border Protection's PAM3: Refugee and Humanitarian - Refugee Law Guidelines (RL Guidelines) to the extent relevant.
b. The applicant claimed that, in its operation, the Sri Lankan Immigration and Emigration Act indirectly discriminated against Tamil persons and, therefore, was "”discriminatory” within the meaning of s 91R(l)(c) of the Act. In rejecting that claim (at [52]), the Tribunal relied exclusively on the objects of the Act, and failed to consider whether indirect discrimination was capable of constituting "”discrimination” for the purposes of s 91R(1)(c).
c. Had the Tribunal taken account of the RL Guidelines, and in particulars 6.5.2 of those guidelines, it would have appreciated that indirect discrimination was capable of constituting “discriminatory conduct”.
4. The Tribunal erred (at (52]) by misconstruing “discriminatory conduct” for the purposes of s91R(1)(c) of the Act,
Particulars
The Tribunal wrongly considered that, for a law to be "discriminatory", it was necessary that the objects of the law be facially discriminatory.
5. The Tribunal erred in finding at [60], [62] that it was not satisfied that the applicant satisfied the criterion in s 36(2A) of the Act because its finding was premised on the correctness of its findings as to the applicant's claim under s 36(2) which findings were in error.
Particulars
The applicant repeats the grounds above and the particulars thereto
In support of the application, the applicant relied upon the above grounds, as well as saying that he cannot return to his home country, and that his life would be in danger. The applicant also raised, for the first time, a proposition that his brother had become a martyr in support of the LTTE. This was raised orally and it is clear from the reasons of the Tribunal that the Tribunal explored the applicant’s connections with the LTTE and relevantly found:
45. …Taking each component in turn, the applicant’s own evidence was that neither he, nor any member of his family, was ever involved in the LTTE.…
The applicant from the bar table said that he had concealed from the Tribunal his brother’s martyrdom. He proffered an explanation for that due to information he had received from other persons. The applicant maintained that he had concealed that from the Tribunal, from his migration advisor and indeed from the lawyer who assisted his so-called outline of submissions that are the above additional grounds.
The applicant conceded that what he told the Tribunal was a lie and he said in explanation that he thought that if he disclosed the true position of his brother’s involvement that may have adversely affected his claim to refugee status. It is the position that this was an applicant in respect of whom there was not a general adverse finding of a want of credit.
The respondent submitted that the new matter asserted by the applicant as to his brother’s martyrdom was not a matter that was before the Tribunal. Indeed the applicant had frankly conceded that it was concealed by the applicant from the Tribunal.
The respondent submitted that in those circumstances, there was no jurisdictional failure by the Tribunal in the conduct of its review and, in the context of the finding of fact that was made by the Tribunal that neither the applicant nor any member of his family was ever involved in the LTTE, this was consistent with the applicant’s own evidence. I accept the first respondent’s submissions that the martyrdom of the applicant’s younger brother is not a matter that can give rise to any jurisdictional error in the circumstances of this case. The statutory review is conducted on the evidence adduced and the assessment of that evidence by the Tribunal. It is not a review of undisclosed material or a review upon subsequent alleged facts that were concealed.
In this case, the Tribunal relevantly found:
41. I have considered the country information referred to in the applicant’s submissions. In my view the DFAT reports I have referred to should, on account of their recency, be treated as reliable. The available information indicates, and I find, that the applicant does not have a well-founded fear of persecution for reason simply of his Tamil ethnicity. I am not satisfied that the applicant, in his particular circumstances outlined above, has a well-founded fear of persecution for reason of his Tamil ethnicity.
…
47. I have considered the country information referred to in the applicant’s submissions. In my view the DFAT reports I have referred to should, on account of their recency, be treated as reliable. The available information indicates, and I find, that the applicant, in his particular circumstances outlined above, does not have a well-founded fear of persecution for reason of imputed political opinion (pro-LTTE/anti-Government) and by reason of his membership of a particular social group ‘failed Sri Lankan asylum seekers’. I am not satisfied that the applicant, has a well-founded fear of persecution for reason of his Tamil ethnicity.
…
51. I reject all these submissions on this issue. As to submissions (1), (2) and (3), I have considered the country information referred to in the applicant’s submissions. In my view the DFAT Country Report of 16 February 2015 should on account of its recency be treated as reliable. I am satisfied that independent reports and information suggests and I find that the applicant will be questioned at the airport, detained and investigated by Sri Lankan authorities. I find that the applicant is unlikely to be detained for more than a few days while those investigations are carried out. The DFAT Country Report of 16 February 2015 (as did the Report of 3 October 2014) suggests that the most likely penalty for leaving Sri Lanka illegally will be a fine (unless the applicant was involved in organizing people smuggling) and that he will not be given a custodial sentence.
52. As to submission (4), the objects of the Sri Lankan Immigrants and Emigrants Act include regulating the departure from Sri Lanka of Sri Lankan citizens. Therefore I am satisfied that being charged under that Act and being detained is the result of the non-discriminatory enforcement of a law of general application. As to submission (5), I am not satisfied on the basis of the available country information that the Immigration and Emigration Act cannot be considered to be appropriate and adapted towards achieving a legitimate objective.
53. Accordingly I find that the applicant does not have a well-founded fear of persecution by reason of being a member of a particular social group, namely being an illegal Tamil departee from Sri Lanka.
54. I am not satisfied that any problem the applicant may face as a result of being questioned, detained or charged is directed at him for a Convention reason, but are incidents which may be experienced by anyone returning to Sri Lanka. Nor am I satisfied that being questioned, detained or charged amounts to systematic and discriminatory conduct as required by s.91R(1)(c).
55. I have considered each of the applicant’s fears of serious harm amounting to persecution both individually and cumulatively. I do not consider that the applicant has a real chance of persecution for any of the reasons claimed, or cumulatively, or arising on the evidence, or otherwise. It follows that I am not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that I am not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.
56. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.
In those circumstances, the Tribunal turned to the issue of complementary protection and relevantly found:
58. Significant harm for these purposes is exhaustively defined in s.36(2A) of the Act: see s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment. Having regard to the information discussed above, I find the applicant will not be subjected to deprivation of life or the death penalty or torture from anyone in Sri Lanka. I find the process of penalising him for illegal departure would not amount to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
59. I have assessed each of the applicant’s claims, namely that he fears persecution on the grounds of:
• race (Tamil ethnicity);
• imputed political opinion (pro-LTTE/anti-Government) and by reason of his membership of a particular social group ‘failed Sri Lankan asylum seekers’; and
• being a member of a particular social group (illegal Tamil departees from Sri Lanka), in the context of the complementary protection criteria.
60. For the same reasons as set out above, I am not satisfied that , as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
61. As discussed above, I find that the applicant may be detained for a few days when he returns to Sri Lanka, will be investigated by the authorities and charged with offences under the Immigration and Emigration Act of Sri Lanka, but that the most likely penalty is a fine, unless he was considered to be an organiser of illegal migration of people from Sri Lanka. I do not accept that these matters singularly or cumulatively constitute significant harm. DFAT has advised that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act, and that the risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. There is no suggestion that the applicant falls into this class of person. Again I note that the objects of the Sri Lankan Immigrants and Emigrants Act include regulating the departure from Sri Lanka of Sri Lankan citizens. In any event, there is taken not to be a real-risk that the applicant would suffer significant harm, as the risk is one that is faced by the population of Sri Lanka generally and is not faced by the applicant personally: s36(2B)(c) of the Act.
62. Having considered the applicant’s circumstances and having regard to the DFAT October 2014 Thematic Report for Sri Lanka and the DFAT February 2015 Country Report for Sri Lanka, I am not satisfied there are substantial grounds to believe 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 suffer significant harm in terms of s.36(2)(aa) of the Act.
In response to ground 1 of the outline of submissions, the first respondent submitted that the Tribunal had properly dealt with the articulated claims and that there was no substance in relation to the assertion of a failure to properly conduct the statutory review, nor any substance in relation to the alleged failure to accord procedural fairness. The respondent carefully identified the claims that were advanced and the findings by the Tribunal on those claims were open.
The first respondent pointed out that the Tribunal, in para.47, clearly identified that it had considered the country information referred to in the applicant’s submissions and that there was no substance in the assertion of a limited or exclusionary approach by the Tribunal.
The first respondent also took the Court to para.51 of the Tribunal’s reasons, which supports the taking into account of material beyond the DFAT reports. The first respondent submitted that the finding by the Tribunal in para.51 that the DFAT reports should be treated as reliable was a finding of fact and that, in substance, grounds 1and 2 the outline of submissions was seeking to advance a merits review.
In relation to the reference to the UK Upper Tribunal decision, the first respondent pointed out that this was a matter raised by the applicant’s representative in submissions advanced on the applicant’s behalf and that far from confining itself to that material or impermissibly posing questions founded on that material, the Tribunal had properly addressed the statutory questions on a fair reading of paras.44 to 47. The first respondent submitted that there was no substance in relation to ground 2, and that the Tribunal had correctly approached the statutory tasks and that ground 2 was, in substance, a repetition of ground 1(g) and was without substance. I accept the first respondent’s submissions in relation to grounds 1 and 2.
In relation to ground 3, the first respondent submitted that it was clear that the Tribunal, in the making of the finding as to the non-discriminatory enforcement of the Immigrants and Emigrants Act 1949, was clearly alive to the potential for indirect discrimination flowing from the reference to the standards and procedures in relation to mistreatment in para.49 of the Tribunal’s reasons. I accept the first respondents’ submissions that there is no jurisdictional error made out by ground 2 or ground 3 of the outline of submissions. The first respondent submitted that ground 4 was in substance a repetition of the same argument and was without substance. I accept the first respondent’s submission in relation to ground 4. In respect of ground 5, the first respondent submitted that it cannot identify any jurisdictional error and it did not develop any fresh argument. I accept the first respondent’s submission.
The first respondent put on an affidavit identifying that there was a supplementary submission from the applicant’s representative dated 3 March 2015 that was not expressly referred to in the Tribunal’s reasons. That supplementary submission enclosed four documents said to be in support of the applicant’s claims to fear harm as a failed asylum seeker/illegal departee from Sri Lanka. The document continued:
2. I draw the Tribunal's attention in particular to the accounts of 'passengers being tortured and brutalised while in the custody of the Sri Lankan forces’ upon return in the first article cited above from The Guardian, as well as the suggestion in the latter by Prime Minister Wickremasinghe that Australia has 'stayed silent on human rights abuses in Sri Lanka in exchange for cooperation in cracking down on people smuggling’. With this in mind, it is submitted that the Tribunal should carefully consider alternative sources of country information, and accord due weight to those sources, rather than having primary regard to the DFAT Reports on Sri Lanka.
The evidence before the Court was that the submission was received by the Tribunal but without the supporting documents being attached. The first issue that arises is whether or not on the face of the Tribunal’s decision the inference should be drawn that the supplementary submission was not taken into account by the Tribunal.
The first respondent accepts that there is no reference to the 3 March 2015 submission and accepts that there is no reference to material referred to in that submission. Whilst I take into account the principle that the Tribunal’s decision is not to be read with a fine eye for error, it does appear on a fair reading of the Tribunal’s decision, taking into account the content of what is set out in paras.34 and 35, and the focus that is then brought to bear upon summarising those submissions, and the conclusion expressed in para.41 as well as the reference to the applicant’s submissions in paras.47 and 51, that this is a case where the inference should be drawn that the submission dated 3 March 2015 was not taken into account by the Tribunal.
The first respondent submitted in these circumstances it is necessary to evaluate the seriousness and importance of the failure to deal with that material, referring specifically to Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [111] as well as Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [31] to [32], [36], and [46], and [72] to [77]; and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [50] and [54]. Insofar as the submission dated 3 March 2015 advanced a submission in the last sentence, I accept the first respondent’s submission that this was a repetition of the same submission that had earlier been advanced and was clearly taken into account by the Tribunal. So much appears from para.50(3) as follows:
(3) the Tribunal should have regard to other independent reports regarding the treatment of failed asylum seekers.
The first respondent submitted that the first three documents from the guardian were not significant or of any importance in relation to the reasoning of the Tribunal and that the Tribunal had properly conducted its review. The first respondent submitted that the fourth document was of a different kind but fell into the same category. The fourth document referred to an alleged quote from the Prime Minister of Sri Lanka alleging that:
“the former president had agreed to help stop boats carrying asylum seekers leaving for Australia if Canberra kept quiet about alleged abuses committed by the previous regime.”
In essence, the submission advanced that this was a further ground for the submission that appeared in the last sentence which was taken into account and accordingly was not of importance or significant to the reasoning of the Tribunal or the conduct of its review.
I accept the first respondent’s submissions. It is clear that the Tribunal in fact did look at material beyond the DFAT reports in respect of country information as is made clear by para.51 of the Tribunal’s reasons. It is in those circumstances that I accept the first respondent’s submission that the material to which the Tribunal failed to have regard was not of importance to the exercise of the Tribunal’s functions and that the error was not of sufficient seriousness to constitute a jurisdictional error. I find that the material referred to in the supplementary submission and the supplementary submission dated 3 March 2015 was in this case material that was insubstantial and inconsequential and not of a kind that gave rise to any failure to properly conduct the review consistent with the statutory obligations. I have taken into account in this regard the temporal currency of the four documents and what was said by Rares J in SZJTQ v Minister for Immigration and Citizenship [2008] FCA 1938, which was approved by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [75]. Even taking into account that temporal currency the four documents and the submission were repetitive and cannot be said to be of importance in the reasoning of the Tribunal. I am satisfied in this case that the failure to have regard to the more recent submission was immaterial so that the applicant suffered no practical injustice and being in substance merely repetitive was not realistically capable of affecting the outcome, Dagli v Minister for Immigration (2003) 133 FCR 541 at 559 at 97.
I find that there is no jurisdictional error of the kind identified in the application or as advanced in the further grounds in the outline of submissions referred to above. I find that in this case the failure to have regard to the supplementary submission dated 3 March 2015 did not give rise to any jurisdictional error or a failure by the Tribunal to properly conduct the review. I find that the four documents referred to but not attached to the submission dated 3 March 2015 were insubstantial or inconsequential evidence in the context of this applicant’s claims and the findings and reasoning adopted by the Tribunal. I find that the applicant suffered no practical injustice from the failure of the Tribunal to take into account the submission dated 3 March 2015 or the references to the four documents. I find the undisclosed martyrdom of the applicant’s brother does not give rise to any jurisdictional error. The application is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 28 July 2015
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