AOI15 v Minister for Immigration
[2016] FCCA 1517
•2 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOI15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1517 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to provide applicant with material negative to his case – whether the Tribunal’s review contravened Ministerial Direction No. 56 – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 65, 414, 422B, 424A, 476, 499 Ministerial Direction No.56 |
| Cases cited: AJW15 v Minister for Immigration & Border Protection [2016] FCA 197 ARS15 v Minister for Immigration & Border Protection [2015] FCCA 2135 Minister for Immigration & Border Protection v SZTJF [2015] FCA 1052 Plaintiff M61/2010E & Commonwealth (2010) 243 CLR 319; [2010] HCA 41 Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23 |
| Applicant: | AOI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1114 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 June 2016 |
| Date of Last Submission: | 2 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2016 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1114 of 2015
| AOI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
This is an application for judicial review of a decision of the Refugee Review Tribunal[1] dated 19 March 2015. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error. His application contains two grounds, namely, that the Tribunal denied the applicant procedural fairness by failing to provide him with material that was negative to his case. Secondly, that the Tribunal failed to comply with Ministerial Direction No.56 in contravention of s.499(2A) of the Migration Act 1958 (Cth).
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
In order to understand those grounds and the disposition of them, it is necessary to give a brief outline of the relevant facts. The applicant is a citizen of Sri Lanka, who arrived in Australia on 5 June 2012 and made an application for a protection visa on 5 December 2012. His claims were as follows (at Court Book pages 84 and 85):
·The Applicant originates from the village of Udappu in the North Western province, is of Tamil ethnicity and Hindu faith. From around 20 years old (ie around 2005 to 2007) had moved to Mulliativu in the North Eastern province in order to work.
·At the time of moving to Mulliativu it had been under the control of the LTTE. After arriving in the area the Applicant was required by the LTTE to attend training held at a LTTE camp. After completing the training sessions the LTTE required the Applicant to join them but he was able to escape this through the intervention of the family the Applicant was staying with at the time.
·The Applicant started in 2007 to work as a delivery driver transporting fish and ice between Muliathivu and Colombo. The Applicant had to pass through checkpoints for his work and was regularly stopped and subjected to questioning and checking.
·In 2008 the Applicant was stopped at a checkpoint while in the delivery truck and accused of transporting weapons. The army officers forced the Applicant out of the truck and then drove off with it indicating they were going to inspect it. The Applicant was then detained and held for three days where he was questioned and subjected to physical abuse. The Applicant was then taken to the Arunchalan camp in Vavuniya that was occupied mostly by Tamils displaced from the conflict and was forced to remain in this camp for 15 months. The Applicant was aware of women being raped and people being tortured while at this camp.
·The Applicant was taken from the camp to an army base in Mallamadu, Mulliativu where he was held for a further two years. While at this camp the Applicant was forced to carry out work for the army and was subjected to physical abuse. At one stage the Applicant begged with an army officer that he could arrange to have his family pay money for his release from the camp. After the Applicant’s father transferred the money to the officer’s camp and he assisted the Applicant in being able to leave the camp. The Applicant returned back to Udappu.
·The Applicant went back to work as a lorry driver while remaining within Udappu travelling again between Mulliativu and Colombo but only staying very briefly in each of these towns.
·In March 2012 the Applicant was stopped and questioned at a checkpoint near Mulliativu by army officers and was asked to report back to Mallamadu camp. The Applicant finishing his journey to Colombo the Applicant returned back to Udappu and did not report to the camp. The Applicant’s father arranged for the Applicant to marry believing this may protect him from further harassment.
·A few days after the Applicant married he heard through a relative that army officers were asking for his whereabouts in Udappu. Fearing for his safety the Applicant felt to stay with a Sinhala friend in a nearby Sinhalese village where he stayed until he was able to arrange to depart Sri Lanka.
(Errors and emphasis in original)
In essence, the applicant claimed that Australia had protection obligations to him because he had a well-founded fear of persecution in Sri Lanka for reason of his ethnicity as a Tamil, his actual reputed political opinion being a perceived sympathiser or supporter of the LTTE and membership of the particular social group of failed asylum seekers. In addition, the applicant claimed to fear harm as a result of the fact that he left Sri Lanka illegally. On 21 October 2013, a delegate of the Minister decided to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.
Tribunal’s decision
In submissions to the Tribunal, the applicant’s agents summarised his claims consistently with the summary set out above and also referred to information concerning the overcrowded conditions and lack of proper hygiene in prison in Sri Lanka. The applicant gave evidence at a hearing before the Tribunal on 22 January 2015 and the Tribunal made its decision on 19 March 2015. The Tribunal found that the applicant was not a witness of credit. First because of the large number of unexplained inconsistencies between the evidence in his statement and what he told the Tribunal during the hearing; and secondly, because the applicant lodged a statement which he conceded contained evidence which he knew not to be true.
The Tribunal then set out a number of reasons for those credit findings in detail and added that it found the applicant, during the hearing, to be frequently non-responsive, inconsistent and contradictory in relation to other aspects of his claims. It then made a number of specific findings at [37] to [53] which I set out below:
37.In those circumstances I make the following relevant findings.
38.The applicant was born in December 1985 in the village of Uddapu, in the Puttalam District of the North Western Province of Sri Lanka.
39.The applicant is of Tamil ethnicity and a Hindu.
40.The applicant moved to Mullaithivu, a LTTE controlled area, for work, in 2007. The applicant was not required by the LTTE to undertake self-defence training.
41.The applicant worked transporting fish from Mullaitivu to Colombo, and ice from Columbo back to Mullathivu.
42.He was not stopped by Army officers in 2008 and taken away for questioning, not accused of being an LTTE fighter and transporting weapons, not questioned for three days (or at all) and beaten.
43.The applicant was not subsequently placed in a camp in Arunchalam.
44.The applicant was not subsequently transferred to a camp in Mallamadu.
45.The applicant did not bribe an officer to be released from the camp in Mallamadu.
46.The applicant was not detained in about March 2012 at a checkpoint and questioned by Army officers.
47.The applicant was married on 6 May 2012. The applicant was not told shortly afterwards by a relative that Army officers were in Udappu and looking for him.
48.The applicant did not take a boat to Australia in mid-May 2012 for that reason.
49.The SLA is not presently looking for him and have not spoken to his family in Uddapu.
50.The applicant was not fearful that he would be taken away. The applicant did not flee from Uddapu to Nathandi. The applicant did, not stay in hiding until he boarded the boat to Australia in mid May 2012.
51.The applicant will not be targeted by any Sri Lankan authority on his return, and will not face torture or death by any Sri Lankan authority if he does.
52.While in Australia the applicant has spoken to his family who remain in Udddapu. His family h have not told him that Army officers have been looking to him.
53.Neither the applicant nor any member of his family was a member of the LTTE, involved in the LTTE in any way or forced to undertake tasks or work for the LTTE.
(Errors in original)
The Tribunal then dealt with the applicant’s general claims on the basis of his Tamil ethnicity and political opinion and membership of a particular social group. In respect of these, it noted that it was obliged to take into account a recent country report prepared by the Department of Foreign Affairs and Trade (DFAT) dated 16 February 2015.
The Tribunal’s reliance on that report forms the basis of the first ground, and I will return to it. The Tribunal found that the applicant did not have a well-founded fear of persecution simply because of his Tamil ethnicity on the basis of the country information and found that he did not fall within any of the groups which the country information established might be at risk of some harm in Sri Lanka. The Tribunal then dealt with the likelihood of harm coming to the applicant upon return to Sri Lanka as a failed asylum seeker and having departed Sri Lanka illegally.
The Tribunal accepted that the applicant would be questioned at the airport, detained and investigated by Sri Lankan authorities but it was unlikely that he would be detained for more than a few days and that the most likely penalty for leaving Sri Lanka would be a fine and that he would not be given a custodial sentence. The Tribunal also found that being charged under the Immigrants and Emigrants Act, as the applicant would, and so detained, would be the result of a non-discriminatory enforcement of a law of general application.
For those reasons, the Tribunal found that the applicant had no fear of harm by reason of being a member of a particular group and so the treatment of him pursuant to the Immigrants and Emigrants Act would not be directed at him for a Convention reason. For those reasons, the Tribunal found that the applicant did not satisfy the criterion in sub-s.36(2)(a) of the Act. The Tribunal turned to consider the criterion in sub-s.36(2)(aa), often known as the complementary protection criterion. In this respect, its critical findings were at [80] and [81] of its reasons, which I set out below:
80.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, that the death penalty will be carried out on them, that they will be subjected to torture, or that 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.
81.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 & 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. Therefore being charged under that Act and being detained is the result of the non-discriminatory enforcement of a law of general application.
Importantly, the Tribunal did not accept that the treatment that the applicant might face upon return to Sri Lanka, singularly or cumulatively, might constitute significant harm. On that basis, the Tribunal was not satisfied that the applicant satisfied sub-s.36(2)(aa) of the Act and confirmed the decision of the delegate to refuse to grant the applicant a protection visa.
Consideration
The first ground of the application is that the Tribunal denied the applicant procedural fairness by not putting to him material that was adverse to him and was used in making the decision.
This was directed at the Tribunal’s use of the DFAT report dated 16 February 2015. The Tribunal, at [57] of its reasons, referred to the applicant’s agent’s submissions of 23 July 2014 and 10 February 2015 and said:
…
Obviously, at the time of submitting the submissions … the agent was not able to address any country information assessment prepared by DFAT published after these respective dates.
…
However, the later submissions of 10 February 2015 do address the DFAT thematic report of 3 October 2014. Understandably, these submissions do not address the DFAT country report for Sri Lanka dated 16 February 2015 which were published after the hearing and after the submissions of 10 February 2015. The Tribunal noted, however, that it was obliged to take that report into account. That note was a reference to Ministerial Direction No.56, which is subject to the second ground.
The Tribunal then noted that the information in the DFAT report dated 16 February 2015 in two respects was relevantly identical to information that had been addressed by the applicant’s agents and the only relevant differences related to the defeat of the Rajapaksa government in the recent election. The Minister argues that the Tribunal was not obliged to put that country information to the applicant for two reasons. First, the Tribunal’s obligation to put adverse information to the applicant only arises under s.424A of the Act and the country information in this case does not fall within that section.
In any event, the Tribunal noted that the DFAT country report did not contain any relevant new information of which the applicant was not aware. Although I did not have the full DFAT country report before me nor all of the information which was referred to by the applicant’s agents in their submissions, the applicant has not established that the Tribunal was incorrect in what it said at [57] of its reasons. For both of those reasons, the first ground in the application is rejected.
Secondly, the Tribunal was not obliged, even at common law by procedural fairness, to put country information that was not substantially new or different to that of which the applicant was already aware. I accept both of those submissions. In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41, the High Court referred to the obligation under s.424A at [91], and said:
…
But that obligation is subject to qualifications. In particular, it does not extend (s 424A(3)(a)) to information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”. Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal.
…
Further, because of s.422B of the Act, s.424A is to be treated as exhaustive of the requirements of procedural fairness relating to an applicant’s right to comment on adverse material which is known to the Tribunal and is to be relied upon by it. See Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252 at [41] to [42]; [2010] HCA 23, and Minister for Immigration & Border Protection v SZTJF [2015] FCA 1052 at [53]. For those reasons, there was no denial of procedural fairness brought about by the failure by the Tribunal to provide the applicant with any details of the information in the DFAT country report dated 16 February 2015.
The second ground in the application is that the Tribunal failed to comply with Ministerial Direction No.56 in contravention of s.499(2A) of the Act. Section 499 of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act…
Section 499(2A) requires that a person or body must comply with a direction made under s.499(1). Failure to comply with such a direction may amount to jurisdictional error. Ministerial Direction No.56 was made by the then Minister for Immigration under s.499(1) on 21 June 2013 and relevantly provides:
2. In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’
‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’
By inference, the applicant’s ground is that the Tribunal failed to refer to the first of these guidelines, namely, PAM3: refugee and humanitarian – complementary protection guidelines.
The applicant does not specify which part of these guidelines the Tribunal failed to have regard to. The difficulty, however, that he faces is that at [9] of its reasons, the Tribunal states that it is required to take account of policy guidelines and refers directly to each of the two guidelines in Direction No.56. Further, the Tribunal refers to its obligation to comply with Direction No.56 at [57] and [60] of its reasons. In those circumstances, it is difficult to infer that the Tribunal was not aware of the guideline and, indeed, that it failed to take it into account.
The applicant relied upon the decision of this Court in ARS15 v Minister for Immigration & Border Protection [2015] FCCA 2135 in which the inference was drawn, in the circumstances of that case, that the Tribunal failed to comply with Direction No.56 or have regard to Direction No.56. On the other hand, there are at least two decisions in the Federal Court in which opposite inferences were drawn. For instance, in AJW15 v Minister for Immigration & Border Protection [2016] FCA 197, Barker J said at [46]:
The Court agrees that the Tribunal’s statement that it was required to take account of the guidelines should in itself, on a fair reading of the Tribunal’s reasons in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259, be sufficient to conclude the Tribunal has done so.
…
(Citation omitted)
His Honour then referred to the decision of Nicholas J in SZTCV v Minister for Immigration & Border Protection [2015] FCA 1309. In my view, the inferences to be drawn will depend on the evidence before the Court. I accept what Barker J says, namely, that it is sufficient that the Tribunal has referred at [9] to conclude that the Tribunal has in fact complied with the direction. In this case, the later references at [57] and [60] to the Direction only strengthen that conclusion. Further, as the applicant has not identified any particular aspect of the guidelines which was of such relevance that the failure by the Tribunal to refer to it gives rise to the inference that it failed to comply with the direction, I can only conclude that the Tribunal did not fail to comply with the direction and so I reject ground two.
The applicant appeared unrepresented at the hearing before me. He did not address the grounds in his application. The applicant did say that there were still problems in his country and he could not return there. That submission, if accepted as a fact, might support his claim to be a refugee. However, that was a question to be decided by the Tribunal under ss.65 and 414 of the Act and falls outside the scope of this Court’s jurisdiction under s.476 of that Act. For that reason, it cannot form the basis of any orders setting aside the Tribunal’s decision. For those reasons, I conclude that there is no jurisdictional error affecting the Tribunal’s decision and the application must be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 5 July 2016
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