ANL16 v Minister for Immigration

[2017] FCCA 803

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANL16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 803

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – application for a protection (Class XA) visa – where Applicant seeks impermissible merits review – whether Tribunal made a factual finding not supported by evidence – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

WZAVW v Minister for Immigration and Border Protection (2016) FCA 760

Applicant: ANL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 487 of 2016

Judgment of: Judge Hartnett

Hearing date: 3 April 2017

Delivered at: Melbourne

Delivered on: 24 April 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Tran

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 487 of 2016

ANL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court was an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) to affirm a decision of the delegate to refuse to grant the Applicant a protection (Class XA) visa (‘the visa’).  The application was filed by the Applicant on 11 March 2016.  The grounds as set out in the application filed are as follows:-

   a)the Tribunal erred and made a jurisdictional error by not assessing the Applicant’s claim cumulatively, of being a young Tamil fisherman of Catholic faith, with imputed political opinion in support of the LTTE, and his membership of a social group as his stepfather with known links to LTTE; 

   b)the Tribunal has not assessed the Applicant’s integer claims cumulatively;

   c)the Tribunal has not made a finding that the Applicant was deprived his livelihood due to restrictions imposed in fishing for being a Tamil of his profile and thereby threatened his capacity to subsist under section 91R (2)(e) of the Migration Act 1958 (Cth) (‘the Act’);

   d)the Tribunal misconstrued, and its assertion that the Applicant’s mother and stepfather was released from incarceration in November 2009 by the authorities indicate that the Sri Lankan government formed the view that they were not involved with LTTE, is not supported by evidence.

2. The First Respondent filed a response on 21 March 2016, seeking dismissal of the application and that the Applicant pay the First Respondent’s costs of the proceedings.  The basis on which the First Respondent sought dismissal was that the decision under review is not affected by jurisdictional error. 

3. On 3 August 2016, Registrar Buljan made orders by consent in the proceedings.  Included in those orders were orders that the Applicant, on or before 20 February 2017, file and serve written submissions.  The Applicant has not filed any written submissions but did make oral submissions at the hearing on 3 April 2017.  Those oral submissions were essentially that the Applicant had given approximate dates in his interview based on his lawyer’s advice.  Later on, he came to know that the dates on which he relied were wrong.  This oral submission does not support a finding of jurisdictional error in the Tribunal decision.  Essentially, the Tribunal made adverse credibility findings against the Applicant.  The Applicant does not put before the Court any evidence of fraud on the part of his lawyer, nor suggest that is the case, and any incorrectness of dates does not reveal a jurisdictional error in the Tribunal’s decision.   

Background

1. The Applicant was born on the 15 August 1987. He is a citizen of Sri Lanka.  He is a Tamil of Hindu religion who comes from Udappu on the west coast of Sri Lanka, north of Colombo.  He left school after completing year 8 at the age of 13 and worked as a fisherman in Sri Lanka.  From 2003 to 2006, he trained in jewellery making with a distant relative in Colombo, but he did not work in the jewellery field and, instead, was engaged as a fisherman whilst residing in Sri Lanka. 

2. The Applicant claims to have departed Sri Lanka in July 2012 illegally. He arrived in Australia on Christmas Island by boat as an unauthorised maritime arrival on 9 July 2012. 

3. On 10 December 2012, the Applicant applied to the Department of Immigration and Citizenship (as it then was) for the visa. 

4. The Applicant claimed protection (in a statutory declaration dated 19 December 2012) on the basis that he feared harm “at the hands of the Sri Lanka police service and other government authorities on account of (his Tamil ethnicity), because they believe (he is) a supporter of the Tamil Tigers and because (he) left Sri Lanka unlawfully.”

5. The Applicant attended a protection visa interview on 13 November 2013 at the Department of Immigration and Border Protection’s offices in Melbourne.  A summary of his claims are as follows:-

   a)the Applicant worked as a fisherman.  In 2009, he went to Mullaitivu for seasonal fishing.  At the same time in 2009, the Applicant’s mother remarried a known supporter of the LTTE.  The Applicant states that he was not close with his mother;

   b)shortly after the Applicant returned to Udappu, the Criminal Investigation Department (‘CID’) came to the Applicant’s house and asked about his mother and stepfather.  He was taken to their office and questioned all day;

   c)two weeks later, the CID took the Applicant again, asking the same questions.  He informed them he had no connection with his mother. They did not believe him; 

   d)these type of incidents occurred 10 to 15 times between early 2009 and June 2012;

   e)his mother returned to Udappu after the war. The CID questioned her three times. She then fled to Kuwait; 

   f)the Applicant was continually questioned over his mother and her whereabouts.  He feared for his life so fled Sri Lanka;

   g)after the Applicant’s departure from Sri Lanka, the CID went to his house looking for him.  His aunt admitted he fled to Australia.  They also beat his aunt with a broomstick;

   h)the Applicant states he fears harm because he has been subjected to harassment in the past due to being Tamil and with perceived links to the LTTE; 

   i)the Applicant also fears he will be tortured and killed for leaving Sri Lanka illegally and applying for asylum in Australia. 

6. On 17 February 2014 a delegate of the Minister refused to grant the Applicant the visa.

7. On 26 February 2014 the Applicant applied to the Tribunal for review of the delegate’s decision.

8. On 17 February 2016 the Tribunal affirmed the delegate’s decision. 

9. As submitted by Counsel for the First Respondent, it is evident from the Tribunal’s reasons for decision that the Tribunal carefully discussed the Applicant’s claims with him at the hearing and put matters to him for comment.  The Tribunal ultimately rejected the Applicant’s claims because it did not believe that he was ever, or was ever perceived to be, a member of the LTTE and nor was he a family member of an LTTE member, or supporter.  In particular, the Tribunal did not accept that the Applicant had spent one and a half months living in Mullaitivu, or that his stepfather was connected with the LTTE.  Further, the Tribunal concluded that the Applicant did not have a well-founded fear of persecution on a Convention ground as a failed asylum seeker, having regard, in particular, to country information.  The Tribunal also concluded that the Applicant did not satisfy the complementary protection provisions.  The Tribunal noted that while the Applicant may be charged for leaving Sri Lanka illegally, there was evidence that the Applicant would only be held in a prison for a brief period at most.  While prison conditions in Sri Lanka are poor, being detained for the short period under contemplation did not satisfy the complementary protection provisions.  Otherwise, having regard to its earlier findings, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

Consideration

Ground 1

1. What the Applicant complained of in this ground is the merits of the Tribunal’s decision.  It is not a part of this Court’s function to review the merits of the Tribunal decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272).

2. The Applicant made no claim to be Catholic and made no claim to fear persecution because of his Catholic religion.  To the contrary, he said he was Hindu in his entry interview, claimed he was Hindu in his application for the visa, and also claimed to be Hindu in his statutory declaration of 2 December 2012. 

3. The Tribunal did consider a possible claim that the Applicant feared persecution on account of being a young Tamil fisherman, or a fisherman, as set out in paragraph 67 of the Tribunal Statement of Decision and Reasons (‘the Decision Record’).  The Tribunal said, relevantly, as follows:

   “ (26) I referred to the Applicant’s evidence that in early 2009, he had gone to Mullaitivu to fish and I asked him how he had got there. The Applicant said that he had gone there with a local fisherman to do seasonal work for one and a half months.  He said that this person had organised his pass and they had gone there in a van.  He said that in order to work in Mullaitivu, he had needed a pass from the police, and this other person had organised this.  He agreed that he had had to pass through both government and LTTE checkpoints. He said that at every checkpoint his boss had given this pass and his ID card and eventually they had reached their destination.  I questioned why he would have gone to Mullaitivu to fish for one and a half months in the middle of a war.  The Applicant confirmed that he claimed that he had gone to Mullaitivu just before the war had ended, but he said that there had been no intense war at that time.

   (27) I put to the Applicant that at any time in 2009 there had been very intense fighting around Mullaitivu.  The Applicant said he could not remember the month but it had been very early in 2009, and at that time the war had not been intense.  I put to him that it had been: the Sri Lankan Army had been advancing on Mullaitivu, driving the LTTE back into an ever smaller area around Mullaitivu, yet it was at this time that he claimed that he and his employer had made a trip to go fishing for one and a half months to Mullaitivu.  The Applicant said that he was unable to give me the exact date but that he could assure me that he had gone in early 2009 and that, at that time, it had not been that bad.  But when they had heard that the situation had been getting worse they had returned home early.  He said that he recollected that he had spent less than two months there just before the fighting had started.

   (28) I put to the Applicant that the fighting had started in 2005.  The Applicant said that although the fighting had started in 2005 it had been intermittent and the fishermen from Udappu had been going to Mullaitivu.  I put to him again that by the time he had said he had gone there in 2009, the LTTE had been driven back into a very small pocket of land centred on Mullaitivu which had been where the LTTE had made its last stand.  The Applicant said that the serious trouble had started after he had left.  He said that he believed that what I was saying referred to what had happened in May 2009, but he had left earlier.  He said that he had already returned to Udappu three months before this.  I put to him that even if he had been there in February there would have been very heavy fighting going on in any area through which he could have approached Mullaitivu.  The Applicant said that at that time they had not felt that there had been any big problems in the area where they had been fishing, but as soon as the problems started they had returned home.  He repeated that it had been only afterwards that the intense fighting had started.

   (42) After a break I put to the Applicant that, as we had discussed, I had difficulty in accepting that he had gone to Mullaitivu at the time he had said that he had.  I put to him that, as we had discussed, the war had been very intense in that part of Sri Lanka at the time, and I had difficulty in accepting that he and his employer would have decided to go there for a one and a half month fishing trip.  The Applicant said that they had not planned to be there for one and a half months.  He said that normally they would spend five to six months there in seasonal work, but because the trouble had started and his mother had also got married there, he had come back, otherwise he would have stayed longer.  I asked him if he was saying that his mother’s marriage had had something to do with his decision to return.  He said that only then had he learned that she had married, and this had also been a reason to come back.  He said that the people with whom he had been working had been talking badly about him and his mother and he had not liked this.

   (67)…I do not accept that the Applicant’s mother married a person with known links to the LTTE, nor that the Applicant himself was ever a member or perceived as a member of the particular social group proposed by his representatives “family members of LTTE members/supporters/those accused of being an LTTE member/supporter”.  Since for the reasons given above I do not accept that he or his mother or his stepfather were ever regarded as being involved with or as having links or connections with or being members or supporters of the LTTE, I do not accept that there is a real chance that he will be persecuted for reasons of his members of the particular social group constituted by his family if he returns to Sri Lanka.  When he was interviewed by the primary decision-maker the Applicant said that he had been arrested on one occasion in Sri Lanka because he had not had his ID with him when he had been going to work as a fisherman.  He said that they had held him for a day and had then let him go.  He has not claimed that he fears being persecuted as a fisherman or specifically a Tamil fisherman if he returns to Sri Lanka, and I do not accept on the evidence before me that there is a real chance that he will be persecuted for reasons of his membership of the particular social group of fishermen or Tamil fishermen if he returns to Sri Lanka now or in the reasonably foreseeable future.”

4. The Applicant’s claims of imputed political opinion in support of the LTTE and membership of a social group defined as family members of the LTTE members/supporters were considered by the Tribunal with such claims expressly set out in paragraph two of the Decision Record.  The Tribunal put matters in relation to the LTTE to the Applicant during the hearing, being matters which concerned the Tribunal as to the claims made by the Applicant.  The Tribunal in its conclusions noted those matters which it had put to the Applicant during the Tribunal hearing. In conclusion the Tribunal said:-

   “(60)...I do not accept that the Applicant went on a fishing trip to the area under the control of the LTTE in Mullaitivu for one and a half months in January and February 2009, nor that at around the same time his mother married a known supporter of the LTTE.  I therefore do not accept that after he claims he returned from Mullaitivu he was repeatedly detained and tortured by the CID asking him about his mother and stepfather, and why he had gone to Mullaitivu, nor that whenever the CID came to the village they would call him demanding money or liquor.  I accept, on the evidence which he produced, that his mother did remarry and that she was briefly held in a relief village in Vavuniya after the end of the war.  I also accept that she subsequently went to Kuwait to work in or around June 2010 but that she returned to Sri Lanka after the Applicant’s grandmother died in 2013, and that she remains there living at the Applicant’s home in Udappu.  I do not accept that the Applicant’s mother has ever been questioned or beaten by the CID, either during the six months for which she remained in Udappu before going to Kuwait or after she returned from Kuwait.  I do not accept, on the evidence before me, that either the Applicant or his mother has ever been suspected of being involved in or having links with the LTTE.”

5. The Tribunal set out very clearly in its Decision Record the reasons for its non-acceptance of the Applicant’s claims.  The findings made by the Tribunal were open to it on the evidence before it and the Tribunal dealt with each and every of the claims made by the Applicant and in some detail, and with each of the integers of such claims. 

6. This ground of review cannot succeed.

Ground 2

1. For the reasons as stated above, this ground of review also must be rejected.  The ground is un-particularised and can be rejected for a lack of particularity, WZAVW v Minister for Immigration and Border Protection (2016) FCA 760 at 35 (Gilmour J). Further, the ground has no merit as the Tribunal did, as said in respect of ground 1, consider each and every of the Applicant’s claims and in some detail and did what is required of it in respect of its consideration.

Ground 3

1. As submitted by Counsel for the First Respondent, the Applicant never made a claim either to the delegate or to the Tribunal or at all that he was at risk of being deprived of his livelihood in Sri Lanka.  There is nothing to suggest that the claim now made in the Applicant’s application was a “substantial, clearly articulated argument relying upon established facts”.  See Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at 29 to 37 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 24. The Tribunal was under no obligation to deal with this claim now made, and this ground cannot succeed.

Ground 4

1. This ground is also rejected. There was clear evidence before the Tribunal for its conclusion that the release of the Applicant’s mother and stepmother from incarceration in November 2009 indicated that the Sri Lankan Government formed the view that they were not involved with the LTTE.  The Tribunal set out the following in its Decision Record:-

   “(44)  I put to the Applicant that the document which he had produced suggested that both his mother and stepfather had been in a relief village in Vavuniya in November of 2009 which indicated that they had been regarded as displaced persons:  they would have been screened and a decision would have been made that they were not involved in the LTTE.  (Footnote 6, case book 217).  The Applicant said that they had not been released officially:  they had paid money to get out.  I put to him that this was not what the document which he had produced said.  The Applicant said that he had only produced this as a proof that they had stayed there in the camp.  He said that it was not the release document.  I put to him that it was a release document:  it was permission to leave the relief village.  The Applicant repeated that they had paid money in order to be released.

   (45)  I put to the Applicant that the fact that they had been in a relief village at all indicated that the Sri Lankan Government had formed a view that they had not been in the LTTE.  I put to him that everyone on those areas under the control of LTTE had been screened after the end of the war and those who had been involved in the LTTE had been taken to detention centres while those who had been regarded as internally displaced people had been housed in relief villages or welfare centres.  I put to him that the fact that his mother and stepfather had been in the Ananda Coomaraswamy Relief Village indicated that they had not been regarded as being involved in the LTTE.  The Applicant asked why the CID had been coming to his house, looking for his mother and beating him up.  I put to him that this made it very difficult to believe his evidence that the CID had been coming to his home and asking him about his mother and stepfather and beating him up.  The Applicant said that the CID would not have known that they had been in the camp.  He said that his evidence was truthful.”

1. The Tribunal thereafter concluded, in paragraph 57 of its Decision Record, that the Applicant’s mother and stepfather were housed in a relief village as they were regarded as internally displaced persons and not as people involved in the LTTE, on the basis of the country information before it, and noted that such country information had been put to the Applicant who, in response, raised for the first time at the Tribunal hearing a claim that his mother and stepfather had paid money in order to be released.  Such claim was rejected by the Tribunal, the Tribunal noting in any event that was beside the point.  The fact that they were so housed meant they were not involved in the LTTE.  The Tribunal relied upon and expressly cited the country information dealing with the mass detention of Tamils after the end of the war and the process of screening people so detained to identify LTTE members and their supporters.

2. There is no jurisdictional error in the Tribunal’s conclusion as to the complementary protection criteria in s.36(2)(aa) of the Act. Having regard to the factual findings of the Tribunal, the Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm because he would be returning to Sri Lanka as a failed asylum seeker, as he had claimed. The Tribunal considered the totality of the Applicant’s circumstances as a young male Tamil who left Sri Lanka illegally, and who would be returning to Sri Lanka from Australia as a failed asylum seeker. The Tribunal took into account the cumulative effect of those circumstances.

3. The Tribunal put to the Applicant country information as to the treatment of returnees, including during their processing at the airport, and the likelihood that the Applicant would be charged under the Immigrants and Emigrants Act (1949) (‘the Act’) of Sri Lanka with offences relating to his illegal departure. The Tribunal noted in paragraph 52 of the Decision Record that it put to the Applicant that the information available to the Tribunal suggested he would only be held in prison for a brief period and that the country information assessed the risk of torture or mistreatment for the majority of returnees was low, including for those suspected of having committed offences under the Act.

4. The Tribunal said as to these matters the following in paragraphs 71 to 74 inclusive of the Decision Record the following:-

   “(71) As I put to the Applicant, the information available to me suggests that he will only be held in a prison for a brief period, for example because a magistrate is not available due to a weekend or a public holiday. As I also put to him, the Australian Department of Foreign Affairs and Trade assesses that the risk of torture or mistreatment for the majority of returnees is low, including for those suspected of having committed offences under the Immigrants and Emigrants Act. The Applicant responded that based on his own experiences he could not say what would happen if he returned to Sri Lanka but definitely he was very fearful and in this time of detention he might be harmed. He said that from the experiences he had had he feared the authorities and he did not want to face this persecution any more. He said that he had told his side of the story. However, having regard to my findings of fact above, I do not accept that his account of his experiences with the authorities in Sri Lanka is true. Having regard to the advice of the Australian Department of Foreign Affairs and Trade I do not accept that there are substantial grounds for believing 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 or specifically that he will experience torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, during any period which he may spend in gaol on remand. Having regard to what I have found to be his circumstances, I consider on the basis of this advice that there is only a remote chance that he will have to spend any longer than a fortnight in gaol on remand.

   (73) I accept that prison conditions in Sri Lanka are poor but I do not accept that spending up to a fortnight in such a gaol amounts to 'significant harm' as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia. For the reasons given in the previous paragraph I do not accept that there is a real risk that the Applicant will be subjected to 'torture' as defined while he is on remand for what I find on the evidence before me will be a period of up to a fortnight. Even taking into account the evidence regarding conditions in prisons in Sri Lanka, I do not accept that spending a brief period in such a prison on remand amounts to 'cruel or inhuman treatment or punishment' or 'degrading treatment or punishment' as defined in subsection 5(1) of the Migration Act.

   (74) I also consider it relevant that the definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act requires that pain or suffering be 'intentionally inflicted' on a person and that the definition of 'degrading treatment or punishment' requires that the relevant Act or omission be 'intended to cause' extreme humiliation. I consider it clear from required is an intention to inflict pain or suffering or to cause extreme humiliation. I have taken into account the fact that the 'PAM3: Refugee and humanitarian – Complementary Protection Guidelines' state that in certain circumstances it may be appropriate to infer an intention to inflict pain or suffering or to cause extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted. I do not consider that it is appropriate on the evidence before me to draw this inference in the circumstances of the present case. I do not accept on the evidence before me that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is 'intentionally inflicted' on prisoners as required by the definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act, nor do I accept that the overcrowding and other problems are 'intended to cause' extreme humiliation as required by the definition of 'degrading treatment or punishment'. I do not accept, therefore, that there are substantial grounds for believing 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 as a consequence of the poor conditions in prisons during any period which he may spend in gaol on remand.”

5. No jurisdiction error attends the decision of the Tribunal. Accordingly the application is dismissed and costs shall follow that event.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  24 April 2017