Aoo15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 74

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

AOO15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 74

File number(s):	SYG 1394 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	24 September 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) Visa –where the applicant failed to appear before the Tribunal – whether the Tribunal failed to have a genuine intellectual engagement with the applicant’s claims and evidence – whether the Tribunal failed to assess the applicant’s claims against the refugee criteria and complementary protection criteria – no jurisdictional error – amended application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5AAA, 36(2)(aa), 426A, 426A(1A), 476
Number of paragraphs:	76
Date of hearing:	26 July 2021
Place:	Sydney
Counsel for the applicant:	Mr B Zipser, of Counsel
Solicitor for the respondent:	Ms M Kelly, Sparke Helmore

ORDERS

SYG 1394 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AOO15

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The court orders the applicant to pay the first respondent’s costs fixed to the amount of $5,000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) is in respect of an Administrative Appeals Tribunal (“the Tribunal”) decision made on 10 April 2017, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Protection (Class XA) Visa (“the Visa”).

   BACKGROUND

2. The applicant is a citizen of Sri Lanka and his claims were assessed against that country.

3. On 29 June 2012, the applicant arrived in Australia as an unauthorised maritime arrival.

4. On 23 October 2012, the applicant applied for the Visa, and provided a statutory declaration in support of his claims to fear harm, dated 15 October 2012. 

5. In summary, the applicant identified himself as a Tamil fisherman for a particular district. The applicant claimed that the Liberation Tigers of Tamil Elam (“the LTTE”) had forced him to pay bribes.

6. The applicant alleged that, in 2004, he was appointed president of a particular society relating to his occupation, and that there were other branches similar to his society. The applicant alleged that, as president of the society, he was forced to carry out LTTE instructions and orders from time to time. The applicant alleged that he had helped the LTTE during Martyr’s Day celebrations and other important LTTE events, including ensuring other members of the fishing society would attend events, pay taxes and engage in other relevant related activities. 

7. Following the tsunami in 2004, the applicant’s family suffered a tragedy; the applicant lost family members as a result of the tsunami. The applicant lived in a temporary shelter from approximately December 2004 until 2006. He moved back to his home district in 2007, together with other relatives and their families.

8. The applicant identified that, after he returned, the war between the LTTE and the Sri Lankan Army (“SLA”) got worse, and that many Tamils from his home district were killed. The applicant alleged that the war intensified in 2008, and that he, his relatives and their families were forced to flee. The applicant claimed that he went to another location within his home district and dropped off his fishing gear at a friend’s house, who was killed as a result of the war. 

9. The applicant remained in that other area for approximately a year, as it was not possible to work as a fisherman in that location during the ongoing war. The applicant nevertheless travelled back to his home area to check on his fishing gear, and he was trapped back in his home area for approximately a day. The applicant returned back to where he had been living to find that his other family members had fled, except for one particular relative and his family. The applicant fled with his other relative and family, and entered another location where he remained for a month. The applicant then left that area and returned to his home district. 

10. The applicant alleged that, on a particular day in April 2009, he was injured due to rocket attacks, and that shrapnel struck part of his forehead.

11. The applicant alleged that the SLA captured him and other Tamils in May 2012. The applicant alleged that he was taken to a detention centre and separated from his other relatives. The applicant alleged that he was interrogated several times by the Criminal Investigation Department (“CID”), as they believed he was an LTTE member, but that the applicant was not tortured. The applicant identified that, in April 2010, he was released by the Sri Lankan authorities and taken to a location in his home district. 

12. The applicant identified having difficulty re-commencing work as a fisherman, and that he did not receive assistance in relation to his livelihood from the SLA. The applicant identified borrowing funds to purchase boats and gear, and again was appointed president of a particular union.

13. The applicant identified having problems from Somali Sinhala fisherman who had caused problems to Tamil fisherman like the applicant. The applicant, with other Tamil fishermen, went to a government department and complained. The applicant was informed that the Sri Lankan government had decided to issue a certain number of permits to the Sinhala fishermen. 

14. The applicant alleged that he opposed that move, and that the CID asked for his telephone number. The following day, the applicant claimed that the CID called him and wanted to speak to him in private, and asked him to come to a CID camp. The applicant alleged that he went to the camp and was told he should do as he was told. The applicant alleged that, during that interview, he was threatened with a gun. The applicant claimed that he was also threatened that, if he did not keep quiet, he would be on a list of missing persons.

15. The applicant identified that the SLA was occupying a building that Tamil fishermen had used and stored their gear, and refused to move from that area. That caused the applicant further hardship.

16. The applicant identified that, as the situation was getting worse and it was not possible to voice his opinion as the president of a particular union, he decided to flee Sri Lanka when the opportunity arose in June 2012. The applicant believed that he would be seriously harmed if he remained in Sri Lanka, by the Sri Lankan authorities or other Sinhala fishermen. 

17. On 27 February 2014, the delegate found that the applicant failed to meet the criteria for the grant of the Visa. 

18. On 5 March 2014, the applicant applied for review before the Tribunal. On 24 March 2015, a differently constituted Tribunal affirmed the decision of the delegate. 

19. The applicant sought review of the decision of this differently constituted Tribunal by the Court. On 26 May 2016, a Judge of this Court remitted the matter to be determined according to law.

    BEFORE THE TRIBUNAL

20. By letter dated 29 November 2016, the currently constituted Tribunal wrote to the applicant and explained that, having considered the material before it, the Tribunal was unable to make a favourable decision on that information alone. The letter invited the applicant to attend a hearing on 17 January 2017.

21. On 20 December 2016, the applicant’s representative provided information and an indication of his intention to attend the hearing.

22. On 20 December 2016, the applicant contacted the Tribunal and stated that he had not received the hearing invitation letter. The applicant was sent the hearing invitation again. The applicant responded, requesting a further seven days, identifying that he suffered from post-traumatic stress disorder, and attached a psychologist report from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”).

23. On 22 December 2016, the Tribunal responded via email, identifying that it was not quite sure it understood what the applicant was requesting.

24. On 22 December 2016, the Tribunal wrote to the applicant, referring to the communication sent by the applicant, which was treated as a request for the postponement of the hearing. The letter indicated that the Tribunal had carefully considered the request, but decided not to postpone the hearing. The letter stated that the hearing would therefore proceed on 17 January 2017 for the applicant to give evidence to present arguments, and again provided the hearing date details. The letter also explained the consequences if the applicant failed to attend the hearing.

25. On 30 December 2016, the applicant contacted the Tribunal via email, making reference to his request for an extension and attached a response to the hearing invitation, which indicated that he would take part in the Tribunal hearing scheduled for 17 January 2017.

26. By letter dated 3 January 2016, the applicant provided further information for the Tribunal’s reconsideration, referring to his post-traumatic stress disorder and asked for his application to be reassigned to a different senior member of the Tribunal. The applicant also provided an authorisation for another person to represent him, and a STARTTS report dated 23 December 2016.

27. On 6 January 2017, the Tribunal responded to the applicant’s letter, and identified that any application for recusal could be made at the commencement of the hearing. However, the Tribunal noted that there was no apparent reason as to why the proposed member was not appropriate to undertake the review.

28. On 11 January 2017, the applicant indicated that he was sick and provided an attached medical report, dated 11 January 2017. The correspondence and medical report made a request for the applicant’s application to be adjourned for six weeks. 

29. On 12 January 2017, the Tribunal emailed the applicant, indicating that the request for an adjournment had been declined and that the hearing will commence as scheduled. The email reminded the applicant of the time, date and place of the hearing.

30. On 13 January 2017, the applicant emailed the Tribunal again, asserting that he was sick and requested an adjournment.

31. On 13 January 2017, the Tribunal responded and indicated that the applicant could discuss his concerns about his ability to participate in the hearing with the member at the scheduled hearing on 17 January 2017. The Tribunal stated that the applicant’s request for a postponement had been declined and again, provided details of the time, date and place of hearing, as well as the consequences if the applicant failed to appear, being that the Tribunal may make a decision on the review without taking further action to allow the applicant to appear.

32. On 16 January 2017, the applicant again requested a postponement of the hearing. The Tribunal responded on 16 January 2017 indicating that the matter was still fixed for hearing on 17 January 2017.

33. On 17 January 2017, the applicant wrote to the Tribunal again, requesting an adjournment. The Tribunal case note dated 17 January 2017 indicates that the applicant was contacted via telephone on that day and asked if he would like an interpreter, and that the applicant indicated that he would. The applicant was also informed that his hearing would be proceeding and that if he did not attend, the Tribunal may make a decision on the case based on the information on hand. The applicant maintained that the hearing should be adjourned.

34. The applicant was informed that the requests for an adjournment were not accepted and that the hearing would proceed at the scheduled time. It was repeated that if the applicant did not attend, the Tribunal may make a decision without giving him the opportunity to provide further information. The applicant repeated his requests for an adjournment and was again informed that the hearing would proceed.

35. The applicant then asserted that he could not attend the hearing. The applicant was informed that, if he could provide additional medical information, then it would be up to the Tribunal member to determine whether the hearing proceeded. The applicant then terminated the call.  An email was sent to the applicant repeating the substance of the telephone conversation and confirming the refusal to adjourn the matter. The email reiterated that, if the applicant failed to attend, the Tribunal member may proceed to make a decision.

36. The applicant failed to attend the hearing.

37. The Tribunal identified the background to the application for review. The Tribunal made a decision to proceed to make a decision on the review pursuant to s 426A(1A) of the Act. In Annexure 1 to the Tribunal’s reasons, the Tribunal set out the steps taken on remittal and the communications sent to the applicant in relation to the hearing date.

38. The Tribunal had regard to an email sent by the applicant on 17 January 2017, referring to the psychologist information provided. At that stage, the Tribunal decided to send the applicant a letter, inviting the applicant to appear on a further occasion.

39. By a letter dated 18 January 2017, the Tribunal invited the applicant to attend a hearing to take place on 16 February 2017. On 10 February 2017, the applicant sought an adjournment and provided medical information. On 13 February 2017, the Tribunal responded, stating that the hearing would proceed on 16 February 2017.

40. On 16 February 2017, the applicant failed to attend the scheduled hearing. Nonetheless, the Tribunal wrote to the applicant on 16 February 2017, identifying that the Tribunal would make a decision to proceed without waiting to take any further action. The letter also identified that the Tribunal would not make a decision on the applicant’s review prior to 5pm on 3 March 2017, and gave the applicant an opportunity to provide further information.

41. The Tribunal identified further communications received from the applicant, including a fax dated 5 March 2017.

    THE TRIBUNAL’S DECISION

42. In its reasons, dated 10 April 2017, the Tribunal identified further communications received from the applicant and further identified having taken multiple steps to give the applicant an opportunity to participate in the review and appear before the Tribunal to give evidence and present arguments.

43. The Tribunal identified the applicant’s requests for postponement of the two hearing dates that had been set down, and the applicant’s failure to appear. The Tribunal made reference to the medical evidence that was provided in support of the postponement, and referred to the communications sent to the applicant. The Tribunal’s reasons dealt in detail with the medical evidence provided, but noted that the applicant did not identify having mental health concerns which would adversely impact upon his capacity to participate in the review or in a hearing. 

44. The Tribunal noted that no other evidence had been provided in support of the further requests of the postponement of the hearing.

45. The Tribunal found that it gave the applicant a fair opportunity to appear before it, and accordingly, decided to proceed to make a decision on the review without taking further steps to allow the applicant to appear before it.

46. In relation to that opportunity and the communications that took place, the Tribunal’s reasons reflect a genuine intellectual engagement with the requests for an adjournment and provide an evident and intelligible justification for the adverse exercise of the discretion in s 426(A) of the Act.

47. The Tribunal also identified the requests for recusal, and declined to do so. There is no material before the Court to suggest that the Tribunal member approached the review with anything other than an open mind reasonably capable of persuasion as to the merits.

48. In its reasons, the Tribunal identified that it must assess whether the applicant faces a well-founded fear of persecution, and referred to the applicant’s claims and evidence. The Tribunal identified that, if the applicant was found not to meet the criteria under the 1951 Convention on the Status of Refugees (“the Refugee Convention”), it must consider the complementary protection criteria.

49. The Tribunal made express reference to the applicant’s Visa application and his statutory declaration, in respect of the village that he was born in and his ethnicity, as well as the consequences of the tsunami. The Tribunal identified the applicant having been a self-employed fisherman in his home district from April 2010 until June 2012, as well as his past fishing involvement.

50. The Tribunal identified the applicant’s claims in a detailed summary numbering 21 paragraphs, and made reference to the written submissions that had been provided. The Tribunal also made reference to the country information provided including the increased Sinhala presence in fishing waters. The Tribunal also reviewed the written record of the applicant’s entry interview and listened to the audio recording.

51. The Tribunal referred to the applicant’s claims in relation to him being pursued by the CID, following his support for a Tamil group in the provincial election, and that his fishing gear had not been returned. The Tribunal referred to a letter provided in support of the applicant’s involvement in a fishing body.

52. The Tribunal also identified having regard to the audio recording of the applicant’s oral evidence to the first Tribunal, and found that the evidence advanced appears problematic. The Tribunal identified its concerns in relation to past adverse experiences which informed the applicant’s decision to flee. The Tribunal identified that the applicant’s oral evidence relating to an encounter with the CID was different to the evidence that he gave in his 2012 statutory declaration. The Tribunal referred to the applicant’s assertion of being asked to sign a petition, that two people came to his house on motorbikes, and that he was told to go to the CID the following day. The applicant’s oral evidence to the Tribunal in 2015 referred to the applicant going to the CID office between 40 and 50 times, whereas the applicant had told the delegate that he went to CID office 15 to 20 times.

53. The Tribunal also referred to the applicant’s resignation as president of a particular body, and the CID coming around every two weeks, which was not mentioned in his statutory declaration.  The Tribunal also identified another assertion provided by the applicant in the 2015 Tribunal hearing, in which the applicant claimed that he was accused by the Sri Lankan authorities of hiring LTTE members, which was not identified in his statutory declaration.

54. The Tribunal also identified that, at the Tribunal hearing in 2015, the applicant referred to relatives continuing to work as fishermen and earning a living in the applicant’s home district. The Tribunal referred to the post-2015 submissions advanced on behalf of the applicant, which attempted to address anomalies. The Tribunal stated that it would have discussed these matters with the applicant had he attended the hearing, among other things relevant to the applicant’s claims and evidence, in the context of Sri Lanka now and in the reasonably foreseeable future.

1. The Tribunal correctly identified that it is for the applicant to satisfy the Tribunal of the applicant’s claims. This is consistent with s 5AAA(2) of the Act. The Tribunal correctly identified that the decision maker is not required to make the applicant’s case for him, and that the Tribunal is not required to accept, unequivocally, any and all allegations made by the applicant.

2. The Tribunal identified the requirements in relation to s 36(2)(aa) of the Act. The Tribunal identified that it was not satisfied about significant aspects of the applicant’s past and present circumstances, such as his current personal and family circumstances in Sri Lanka. 

3. Considering any relevant matters which have transpired regarding the applicant’s claim since the 2015 Tribunal hearing, the nature of any harm he continues to fear in the reasonably foreseeable future, and the motivation for the harm he may fear in the context of the current situation in Sri Lanka, the Tribunal found that it was not satisfied that the applicant faces a real chance of persecution involving serious harm in Sri Lanka, now or in the reasonably foreseeable future.

4. There is an obviously typographical error in the Tribunal’s reasons, where the Tribunal referred to Malaysia rather than Sri Lanka in the first sentence of paragraph 27 of its reasons. The Tribunal correctly identified the relevant country in the last sentence of paragraph 27, where the Tribunal found that the applicant does not have a well-founded fear of persecution in Sri Lanka. The Tribunal again identified the correct country in paragraph 28 of its reasons, where it found that the applicant did not meet the criteria under s 36(2)(aa) of the Act.

5. The typographical error in relation to Malaysia was just that, and does not give rise to any jurisdictional error in the conduct of the review by the Tribunal. The Tribunal found that the applicant failed to meet the refugee criteria under s36(2)(a) of the Act and failed to meet the complementary protection criteria under s36(2)(aa) of the Act and affirmed the decision under review.

   BEFORE THE COURT

6. These proceedings were commenced on 8 May 2017, and the matter was listed for hearing on 26 July 2021.

7. On the morning of 26 July 2021, the applicant’s representative, Mr Zipser of counsel, emailed the Court’s associate an amended application. The Court granted leave to the applicant to rely upon the amended application, and dispensed with the need for the filing of the same.

   THE GROUNDS

8. The grounds in the amended application are as follows:

   Ground 1

   1.The Administrative Appeals Tribunal (“the Tribunal”) reasoned in paragraphs 26 to 28 of its decision that, because the applicant did not attend a hearing before the Tribunal, the Tribunal “cannot be satisfied” that the applicant meets the criteria for a protection visa.  The fact that an applicant for a protection visa does not attend a hearing before the Tribunal does not mean that the Tribunal “cannot be satisfied” that the applicant meets the criterion for the visa.  This process of reasoning by the Tribunal was erroneous, and constituted jurisdictional error.

   Ground 2

   2.The Tribunal, by adopting the reasoning process in paragraphs 26 to 28:

   a.did not carry out its statutory function of review required by s 414 of the Migration Act 1958 (Cth);

   b.did not engage in an active intellectual process, or give proper, genuine and realistic consideration, in relation to the applicant’s claims; and/or

   c.did not deal with the matter which the Federal Circuit Court, in the course of quashing an earlier decision of the Tribunal (differently constituted) (“the First Tribunal “), stated that the First Tribunal had failed to deal with.

   In the circumstances, the Tribunal’s reasoning process at [26]-[28] involved jurisdictional error.

   GROUND 1

9. In relation to Ground 1, Mr Zipser took the Court to the applicant’s statutory declaration as well as the delegate’s decision, and made reference to the submissions that had been advanced to the earlier Tribunal. Mr Zipser submitted that the references in the Tribunal’s reasons in paragraphs 26 and 27 to “cannot be” should be read as conveying that the Tribunal reasoned that, because the applicant did not attend, he could not meet the criteria.

10. The Tribunal’s reasons are inconsistent with any such approach by the Tribunal. The Tribunal’s reasons reflect a genuine intellectual engagement with the applicant’s claims and evidence. The Tribunal identified problematic evidence by way of an example that it would have wished to explore with the applicant and material omissions from his statutory declaration.

11. The Tribunal’s reasons are inconsistent with the submission advanced by the applicant that the Tribunal treated the failure to appear as determinative of the application for the Visa under the refugee criteria, or in relation to the complementary protection criteria. The Tribunal’s reasons are not to be read with a keen eye for error.

12. On a fair reading, the Tribunal identified that, on the evidence provided, the Tribunal is not satisfied that the applicant meets the refugee criteria and that the applicant did not meet the complementary protection criteria. The submission that the Tribunal reasoned by reference to the failure to appear in determining whether the applicant met the respective criteria is incorrect.

13. No jurisdictional error as alleged in Ground 1 is made out.

    GROUND 2

14. In relation to Ground 2, Mr Zipser submitted that the Tribunal did not have an active intellectual engagement with the applicant’s claims and evidence, and that it had not given genuine and realistic consideration to the applicant’s claims. The Tribunal’s reasons must be read as a whole, and the Tribunal clearly identified the applicant’s claims.

15. There has been no claim identified that the Tribunal failed to take into account, and it is apparent on the Tribunal’s reasons that the Tribunal identified having had regard to the evidence that was before it. 

16. Mr Zipser made reference to the finding of jurisdictional error by the first Tribunal, and contended that the Tribunal, as currently constituted, did not deal properly with the applicant’s livelihood claim. It is apparent from the Tribunal’s reasons, and in particular the detailed reference to the applicant’s claims, that the Tribunal understood the applicant’s claim to fear harm in relation to his livelihood as a fisherman. The Tribunal’s identification of the inability to explore the anomalies in relation to the applicant’s claims in the context of Sri Lanka, now and in the reasonably foreseeable future, should not be read as excluding the applicant’s claim in relation to livelihood.

17. On a fair reading, the Tribunal’s reasons provide a logical and rational basis for the adverse findings and do not reflect any failure to have a genuine intellectual engagement with the applicant’s claims and evidence. The submissions advanced by Mr Zipser in relation to explanations of inconsistencies and the applicant’s future prospect if he returned to his home region are, in substance, a disagreement with the merits and do not identify any jurisdictional error. On a fair reading, the Tribunal did have a genuine intellectual engagement with the applicant’s claims and evidence. 

18. No jurisdictional error as alleged in Ground 2 is made out. 

19. Accordingly, the amended application is dismissed.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       24 September 2021