ANN16 v Minister for Immigration
[2018] FCCA 2927
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANN16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2927 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal decision – whether Tribunal decision affected by jurisdictional error – whether Tribunal considered each integer of applicant’s claims – whether Tribunal made a finding that was illogical or irrational – whether a breach of ss 424A or 424AA occurred – grounds of review not made out – no jurisdictional error discerned – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 424A, 424AA, 476 Migration Regulation 1994 |
| Cases cited: Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 |
| Applicant: | ANN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 492 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 3 October 2017 |
| Date of Last Submission: | 3 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Ms Stone |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The amended application filed on 4 September 2017 be dismissed.
The Applicant pay the costs of the First Respondent fixed at $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 492 of 2016
| ANN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 4 September 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
For the reasons which follow, I have concluded that the application should be dismissed.
Background
The applicant, an unmarried 34 year old male Sri Lankan national of Tamil ethnicity, first arrived in Australia as an unauthorised maritime arrival on 20 June 2012.
On 27 November 2012, the applicant applied for a Protection visa. The applicant was assisted by a registered migration agent in his application.
By a statutory declaration made on 20 November 2012, the applicant described in brief terms the bases on which he claimed to fear harm in Sri Lanka. In short, the applicant, who had operated a hardware store in his home town of Kulavanchipudi, claimed to have been harassed by members of the Army who, he said, had taken goods from his shop without payment and under the implicit threat that he would be detained if he made complaint about the taking of those goods. The applicant also claimed that he was at risk by reason of his having lent support to a member of the Tamil National Alliance (TNA) during elections.
On 10 August 2013, the applicant’s migration agent served detailed submissions upon the delegate. In those submissions, a further claim was made that the applicant had been summoned to an Army camp, assaulted and threatened with death. The claims made in support of a visa were based upon the applicant’s ethnicity as a Tamil, his actual or imputed political opinion as a sympathiser of the Liberation Tigers of Tamil Eelam (LTTE) (or as a Tamil person holding separatist views), or his membership of a particular social group (as a failed asylum seeker or Tamil businessman).
The applicant failed to attend an interview with a delegate of the Minister in consequence of which the applicant’s agent communicated with the delegate seeking a further interview.
By letter dated 5 December 2013, the Department of Immigration and Border Protection wrote to the applicant stating that as a result of having conducted checks, it had received information which was unfavourable to the application and questioned the genuineness of documents which the applicant had provided for his visa application. Responding to an invitation to provide translations of those documents, the applicant’s migration lawyers stated that it may take the applicant some time to comply with the request. Translations of the subject documents were provided in due course.
On 25 February 2014, the applicant’s agent furnished further submissions to the delegate. Those submissions appear, in substance, to replicate the submissions filed earlier. Indeed, they are a copy of those submissions. By the materials furnished by or on behalf of the applicant, it appears that the applicant claimed his family had owned a hardware store which provided supplies to shops located in a LTTE controlled area, and had done so during the Sri Lankan civil war.
The applicant’s substantive claim appeared to be that, in early 2011, he had supplied goods for use in the construction of an army base. His complaint was that he had been paid only 50 per cent of the moneys due for the supply of those goods, and that the non-payment of the balance of his invoice had affected his business. Further it was claimed that in about March or April 2011, the applicant had sought payment for the goods which he had supplied in early 2011. The applicant stated that in response to his request for payment of the balance of his invoice, he had been beaten. The applicant claimed that after this beating, the store had ceased supplying goods to the Sri Lankan Army (SLA) and Special Task Force (STF).
The applicant further claimed that in May 2012, he was approached by masked men whom he believed to be from the Criminal Investigation Department (CID) who sought materials from his store and had used the applicant’s previous provision of goods into LTTE areas as the reason or justification for their demand. The applicant claimed that he then, out of fear for his life, fled Sri Lanka within 15 days.
The applicant claimed that after leaving Sri Lanka, the hardware store had been taken over by his brother but closed in September 2013.
The applicant also claimed that he feared harm due to his support for the TNA, due to his Tamil ethnicity, imputed support for the LTTE, his membership of the particular social groups of Tamil businessmen and failed asylum seekers and the result of his illegal departure from Sri Lanka.
On 8 May 2014, the visa application was refused by a delegate of the Minister.
On 5 June 2014, the applicant applied to the Tribunal for a review of that delegate’s decision.
On 21 December 2015, the applicant was invited to attend a hearing before the Tribunal on 15 February 2016 to give evidence and present arguments relating to the issues arising in his case. The applicant attended the hearing and was assisted by a Tamil interpreter.
On 23 February 2016, the Tribunal made a decision affirming the decision of the delegate to refuse the Protection visa application. The Tribunal provided a statement of reasons for that decision (Reasons). In my view, those reasons were comprehensive.
Tribunal decision
For the reasons detailed at [38]-[50], the Tribunal did not accept that the applicant was a person of interest to the authorities due to his activities of selling goods to shops in LTTE controlled areas during the civil war: Reasons, [50]. Further, the Tribunal found at [51] that the applicant did not have a real chance of serious harm or face a real risk of significant harm arising out of these activities.
The Tribunal did not accept that the applicant was threatened by the CID or senior army figures at his shop in May 2012 or at any other time before that time: Reasons, [52]. The Tribunal found at [53] that the applicant’s evidence in relation to this claim was vague and speculative and that it had changed over time.
The Tribunal accepted at [55] that the Army had been indebted to the applicant for the supply of goods and that he may have been mistreated while seeking to recover that debt. The Tribunal found at [56]-[59] that the applicant would not seek repayment of the debt if he returned to Sri Lanka and that the debt had been written off. The Tribunal concluded at [60] that the applicant did not face a real chance of serious harm or a real risk of significant harm because of that debt or his dealings in relation to it.
The Tribunal also considered the statements in one of the applicant’s letters of support that the applicant may be harmed by creditors of the hardware business and that false charges may be made against him. The Tribunal relied on the applicant’s evidence at the hearing that there was no money owed to the business and no false charges laid against him, concluding at [61]-[62] that the applicant did not have a real chance of serious harm or face a real risk of significant harm for either of those reasons.
The Tribunal considered the applicant’s claims to have supported the TNA. The Tribunal noted the applicant’s evidence that the local TNA member had been a customer who had bought paint for use in connection with his election campaign. The Tribunal also referred to the applicant’s evidence that he did not fear harm because of the fact that he had sold paint to the TNA candidate or because of any imputed support for the TNA more generally. The Tribunal concluded at [63] that the applicant did not have a real chance of serious harm or face a real risk of significant harm for these reasons also.
Having addressed the applicant’s specific claims, the Tribunal proceeded to consider the more general claims to protection.
The Tribunal considered and found at [65]-[82] that the applicant did not face a real chance of serious harm or a real risk of significant harm because he was a male Tamil, because of imputed anti-government sentiments or because he had been a businessman. The Tribunal referred to country information in rejecting the applicant’s claims that all Tamils from the East of Sri Lanka faced harm by reason of race, gender, business dealings or where they had come from: Reasons, [82].
Concerning the claim to protection based upon being a returned asylum seeker, the Tribunal found at [85]-[109] that the applicant may be charged with an offence under the Immigration and Emigration Act (Sri Lanka) because of his illegal departure from Sri Lanka. The Tribunal further found at [107] that the applicant would be held briefly on remand and then granted bail pending a hearing. The Tribunal concluded at [105] and [109] that the applicant would ultimately be fined and that he was able to pay that fine.
As concerned the refugee criterion in para 36(2)(a) the Tribunal noted at [108] that the Immigration and Emigrants Act was a law of general application such that the processes to which the applicant would be subject under this law (including questioning and being held in remand) did not amount to persecution.
With respect to the complementary protection criterion in para 36(2)(aa), the Tribunal found at [110] that the imposition of a fine did not amount to significant harm. The Tribunal considered the prison conditions in which the applicant may be held on remand, finding at [113] and [115], that the conditions did not amount to significant harm as they lacked the element of intention on the part of authorities.
The Tribunal further found at [114] that any treatment the applicant may face due to his illegal departure, including detention in poor prison conditions, would apply to every person in Sri Lanka who breached the law such that it was a risk faced by the population generally, and not the applicant personally. The Tribunal found that the provisions of para 36(2B)(c) were engaged and it was to be taken not to be a real risk that the applicant would suffer significant harm: Reasons, [114].
The Tribunal concluded that the applicant was not a refugee within the meaning of para 36(2)(a) and was not entitled to complementary protection under para 36(2)(aa).
Procedural History
On 11 March 2016, the applicant filed an application for judicial review of the Tribunal’s decision. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the Tribunal decision made on 23 February 2016.
The applicant affirmed an affidavit on 11 March 2016 to which he exhibited a copy of the Tribunal’s decision record. The applicant deposed that he was:
[A]ggrieved by the decision of the [Tribunal] and belief (sic) that the decision was infested (sic) by jurisdictional error.
The affidavit did not otherwise adduce any evidence in support of the application for judicial review.
By a Response filed on 31 March 2016, the Minister opposed the relief claimed in the application on the basis that no arguable case for the relief sought was raised.
On 3 August 2016, orders were made, by consent, that the application be listed for final hearing. By this order, the applicant was afforded an opportunity to file an amended application with proper particulars of the grounds of the application, together with any supplementary Court Book and written submissions in support of their application.
On 4 September 2017, the applicant filed an amended application and a written outline of submissions.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).[1]
[1]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [75]-[76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2]; see also Minister for Immigration and Citizenship v SZMDS (SZMDS).[3]
[2] (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ).
[3] (2010) 240 CLR 611, [40] (Gummow A-CJ, Kiefel J), [102] (Crennan and Bell J).
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat.[4]
[4](2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for a Protection visa are set out in s 36 of the Act and Subclass 866 of Sch 2 to the Migration Regulations 1994. Subclass 866 prescribes the primary and secondary criteria that must be satisfied in relation to a Protection visa application, at the time of the application and at the time of decision respectively.
As the applicant was self-represented before me, I have considered the Reasons and the materials contained in the court book. The Reasons confirm that the Tribunal identified and applied the correct legal test to the merits review of the application.
I am satisfied that the Tribunal brought an active intellectual process to, and gave genuine consideration to the applicant’s claims: Minister for Immigration and Citizenship v Khadgi.[5]
[5] (2010) 190 FCR 248, [57]-[65] and cases cited (Stone, Foster and Nicholas JJ).
Six grounds of review were advanced by the amended application. The applicant’s written submissions did not entirely engage with each of the proposed grounds of review. To the extent that they did so, I have set them out below. In some cases the grounds may be considered collectively. In some respects, the applicant’s written submissions appeared to have been modelled upon the work of others.
Grounds 1 & 2 – integers of claim
Ground 1 reads:
The Tribunal fell into jurisdictional error by not assessing the applicant’s integer claim of being a Tamil Hindu businessman from East of Sri Lanka who was associated with the LTTE and had a political persuasion contrary to the Sri Lankan government.
Ground 2 reads:
The Applicant further claimed that he supported the TNA. The Tamil National Alliance- Political Party supported the Tamils and against the Sri Lankan government. (CB 53 & CB171).
The applicant’s written submission was that the Tribunal had failed to:
. . . consider the applicant’s claim cumulatively and singularly. It has not assessed the applicant’s integer claims. It was imperative on the Tribunal to assess the applicant's claims singularly and cumulatively. Nowhere in the decision the Tribunal assessed his claim of being a supporter of the TNA or his social status as a Tamil business man (Being a Tamil business man brings him under a distinct social group and a supporter of the TNA brings him under the political opinion) The decision of the Tribunal clearly demonstrates that the Tribunal has not performed its mandatory task and thereby fell into jurisdictional error. (Reference drawn from Htun-v-MIMIA {2001) FCA 182)
It is clear that the Tribunal was obliged to consider each integer of the applicant’s claims. So much was accepted by the Minister.
The Reasons explicitly recognised the applicant’s claims: Reasons, [19]-[22]. Some caution should be applied in reaching a conclusion that a Tribunal has failed to address an applicant’s claims, in particular, where the reasons for Tribunal’s decision are otherwise comprehensive.
As concerns the matters complained of by the applicant, I do not accept that the Tribunal failed to assess the applicant’s claims to being a supporter of the TNA or his social status as a Tamil businessman. While the Tribunal did not accept that the applicant was involved with the LTTE or was to be imputed with a political opinion, it otherwise considered each of the applicant’s claims: Reasons, [74], [117]. In particular, it stated at [74]:
The Tribunal does not consider that the applicant is a person whom the authorities will be interested in, for the reasons specified individually or cumulatively, for any imputed anti-Government of pro-LTTE political opinion.
In my view, the Tribunal’s Reasons were comprehensive and, as set out above, dealt with each of the claims about which complaint is made.
Grounds 1 and 2 are rejected.
Grounds 3 & 4 – debts owed by Army
Ground 3 reads:
The Tribunal’s finding that the debts owed to the applicant by the SLA (Sri Lankan Army) and STF (Sri Lankan Special Task Force) for goods provided to them was written off and hence the applicant will not face persecutory treatment is a pure supposition not supported by evidence. In the alternative, any such evidence if any was based on the fact that the applicant was mortally fearful to confront the SLA and the STF due to his profile.
The applicant submitted that:
The Tribunal’s finding that the debt owed to him by the SLA (Sri Lanka Army) and STF (Special Task Force) was written off and hence the applicant will not face persecutory treatment is an overstatement which had obscured the core issue that such act by the applicant would (if occurred) not voluntary but due to the mortal fear for the SLA and STF. The applicant respectfully submits that this finding was so illogical and irrational and “simply not open on the evidence” and by doing so the Tribunal fell into jurisdictional error. (Reference is drawn from Minister for Immigration and Citizenship -v- SZMDS {2010} HCA 16)
Contrary to the applicant’s Ground 3, the Tribunal expressly set out the evidence upon which it concluded that the applicant had written off the debts owed to him by the Army. The issue was examined in the Reasons at [53]-[60]. At [58]-[59] and [77] the Tribunal stated:
The Tribunal has considered this issue. The applicant sought the repayment in March and April 2011, and after some rough treatment, chose not to pursue the army debt in the year after his approach. His brother also did not seek to recover the money in the 18 months he controlled the business after the applicant left. He did make payments to creditors, and recovered some money from some smaller creditors. But the applicant and his brother have not sought payment since April 2011.
The Tribunal considers, based on the evidence and submissions before it, that the applicant will not seek the repayment of money owed by the SLA and STF for goods provided up to early 2011. The Tribunal considers that the applicant and his brother would have made further efforts to recover this money during their time in Sri Lanka, should they have had an interest in doing so, but made the decision to not pursue it and write it off as a debt that would not be repaid. The business has now closed, and money left owing to it has been written off as a bad debt. The Tribunal considers that the applicant would not seek the repayment of the money on return to Sri Lanka. The Tribunal considers that the applicant would not approach the SLA for a debt he says is owed that was created so long ago. On the basis of the information before it, the Tribunal finds that the debt has been written off as a bad debt, and the Tribunal does not accept that the applicant would seek the repayment of the money owed by the SLA and STF on return to Sri Lanka.
The Tribunal asked the applicant about his concerns as a businessman. The applicant stated that he ran a successful business, though the issue with the non-payment of the SLA credit line caused difficulties with suppliers, as it was more difficult to pay. The Tribunal has not accepted that the applicant had any other difficulties in operating the business, having determined that the applicant was not subject to any further incidents aside from his direct interaction at the SLA camp in March and April 2011. The applicant has not otherwise claimed that he was threatened or harmed because he was a Tamil businessman from the East. The financial records as provided by the applicant show that the business had a reasonable turnover. The applicant and subsequently his brother maintained the business, though it was challenged due to the financial difficulties that occurred due to the non-payment of funds. The Tribunal considers that the fact that the applicant and his brother were able to operate this business in the past without being harmed provides some guidance to the future prospects of the applicant. The Tribunal notes that the applicant and his family have closed the business.
I agree in the Minister’s submission that the finding at [59] that the applicant had written off the debt flowed logically from the matters which were set out at [58]-[59].
In relation to Ground 4, I also agree in the submission that the Tribunal at [77] considered the applicant’s concerns as a Tamil businessman.
The Tribunal did not accept that, apart from the non-payment of the Army debt, the applicant had suffered any difficulty in his business and had not encountered any particular difficulty aside from the incidents in early 2011. The Tribunal recognised that the applicant had closed the business. There was nothing illogical or irrational about the impugned finding and it was one open on the evidence before the Tribunal: SZMDS;[6] Minister for Immigration and Border Protection v Sabharwal.[7]
[6] (2010) 240 CLR 611, [130]-[132], [135] (Crennan and Bell JJ), [78] (Heydon J).
[7] [2018] FCAFC 160, [45] (Perram J, Allsop CJ and Lee J agreeing).
Grounds 3 and 4 are rejected.
Ground 5 – procedural fairness
Ground 5 reads:
The applicant was unrepresented before the Tribunal and has not afforded procedural fairness and the Tribunal fell into jurisdictional error by not providing the applicant an opportunity to comment its concerns and made an adverse decision within few days of the hearing. (Errors in original).
The applicant submitted that he had been unrepresented and was:
. . . entitled to comment on any adverse information the Tribunal may have before the Tribunal affirming the decision. Such opportunity was not given to the applicant and the application was dealt within few days of the hearing. By such conduct the Tribunal breached procedural fairness and fell in to jurisdictional error.
The applicant was entitled to procedural fairness. However, I do not accept that any breach of ss 424A or 424AA occurred in the way in which the Tribunal addressed this application. Nothing in the manner of the Tribunal’s conduct before or during the hearing of the application engaged such obligations. The applicant was not entitled to a minute by minute disclosure of the Tribunal’s consideration of issues as and when they may have arisen. It was not required to give the applicant advance warning of an adverse finding unless it was obviously not open on the materials before the Tribunal.[8] Nor was it obliged to give the applicant a running commentary on his evidence, prospects of success or all possible reasons for the failure of the application.[9]
[8]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [36] (per curiam).
[9] SZMUF vMinister for Immigration and Citizenship [2009] FCA 182, [22] (Flick J).
Ground 5 is rejected.
Ground 6 – intentional harm
Ground 6 reads:
The Tribunal erred in its construction of the phrase “intentionally inflicted” as it fell into Jurisdictional error because it only considered whether there was an “actual, subjective, intent” to cause harm to the applicant (the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions. (SZTAL -v-Minister for Immigration and Border Protection {2016} FACFC 69- Subject to High Court Appeal – S272/2016). In the alternative the Tribunal fell into jurisdictional error by finding that it does not accept the authorities are intentionally seeking to harm by placing the applicant in poor prison condition. (CB 279 paragraph 113)
The applicant submitted that:
. . . the Tribunal may also have fallen in to jurisdictional error by finding that it does not accept the authorities are intentionally seeking to harm the applicant by placing the applicant in poor prison condition. This matter is canvassed in the High Court and the Judgment is reserved. (S 272/2016- High Court special leave appeal)
On 6 September 2017, judgment was delivered in SZTAL v Minister for Immigration and Border Protection.[10] The High Court dismissed the appeal and affirmed the decision of the Full Federal Court. The foundation for Ground 6 has fallen away.
[10] [2017] 91 ALJR 936.
Ground 6 is rejected.
Conclusion
As the Grounds of review are not made out and as I am otherwise unable to discern any other basis on which the Tribunal decision may be impugned for jurisdictional error, the application must be dismissed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 19 October 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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