AOP15 v Minister for Immigration

[2016] FCCA 2953

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2953

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider all integers of the claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.477

Cases cited:

Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

Applicant: AOP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 592 of 2016

Judgment of: Judge Smith

Hearing date: 31 October 2016

Date of Last Submission: 31 October 2016

Delivered at: Sydney

Delivered on: 31 October 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr T. Galvin, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 592 of 2016

AOP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 2 July 2012. He lodged an application for a protection visa on 26 November 2012 and on 1 July 2013 a delegate of the Minister made a decision to refuse that visa. The applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 5 February 2016 the Tribunal made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the Tribunal’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Background

1. The application for review was filed outside of the 35 day period prescribed by s.477(1) of the Migration Act 1958 (Cth). However, an extension of time was granted pursuant to s.477(2) of the Act and the matter has now been heard on a final basis.

2. In his protection visa application the applicant claimed, amongst other things, that he and his family had constant problems with the Sinhalese people. The applicant claimed that his brother went to work in Trincomalee in about 2008 and has never returned.

3. He said that in the same year, his father was assaulted by the Army and he had bad chest pains afterwards. His father returned to Trincomalee in 2012 where he suffered a heart attack and died. The applicant was told that his father had been chased by Sinhalese people and had suffered the heart attack as a result.

4. The applicant made a number of other claims in support of his visa application, essentially to the effect that he would face persecution for reasons of:

   ·    his race, that is his being a Tamil;

   ·    his imputed political opinion, namely, being suspected of Liberation Tigers of Tamil Eelam (LTTE) links;

   ·    being an opponent of the ruling party; and

   ·    his membership of a particular social group, Failed Asylum Seekers Returned to Sri Lanka.

Consideration

1. The sole ground in the application for judicial review is that the Tribunal failed to consider all of the integers of the applicant’s claims. This was said to arise because the Tribunal accepted that the applicant’s brother went missing in 2008, but that it failed to consider whether the brother’s disappearance had any adverse consequences for the applicant. In light of the narrow nature of that ground of review, it is unnecessary to consider all of the claims and the Tribunal’s findings in any detail.

2. It is necessary to consider the way in which the claim concerning the applicant’s brother was made and developed. First, as I have noted at [3] above, in the protection visa application, the applicant claimed that his brother disappeared in 2008 when he went to work in Trincomalee. The applicant was asked about this at an interview conducted by the delegate. In the delegate’s reasons, the delegate records the evidence given as follows:

   …

   He stated that his father and brother were also working as fishermen and they travelled to other areas including Trincomalee and Batticaloa when extra people were needed for fishing. I asked the applicant what happened to his brother. He responded that the family has no information about the circumstances surrounding his death.

   …

3. In written submissions prepared on 6 September 2013 for the purposes of the review by the Tribunal, the applicant’s agents summarised the applicant’s claims but did not mention the claim concerning the brother. The claim however, did arise at the hearing conducted by the Tribunal on 28 January 2016. In its reasons, under the heading “The applicant (and his family’s) profile in Sri Lanka”, the Tribunal stated:

   [24]The migration agent at hearing said the applicant came from a family with (words to the effect) a known profile in Sri Lanka. It was claimed the brother went missing (which I have accepted he did in 2008, and not 2012 as subsequently claimed); that his father was beaten to death by the SLA in April 2012 (which I have rejected as false); that the applicant was harassed at checkpoints by the SLA (and I accept he was subject to limited harassment - as were virtually all young Tamil males at those times); that he was detained on one occasion in 2012 for not having any identification (which I accept as true); and that should the applicant return to Sri Lanka, the intelligence services would know who he is and he would be mistreated.

   [25]The Tribunal accepts the SLA (and other security apparatus in Sri Lanka) were and are capable of acting in a brutal and arbitrary manner, particularly prior to its cessation, and in the immediate aftermath of the war in May 2009. However, none of the country information set out herein, has satisfied the Tribunal the applicant (nor any member of his family) has any profile that would make the applicant of any adverse interest (to anyone) should he return to Sri Lanka. As stated herein, though the applicant is able to contact his family fortnightly, nothing he claimed to have discussed indicated any interest in the applicant (or his family).

4. The question of the brother’s disappearance was also dealt with by the Tribunal in its reasons at [37] - [40] under the heading “The Sinhalese people”.

   [37]In writing, the applicant said “we have constant problems with the Sinhalese people”. He said his brother went to work Trincomalee “in about 2008” and never returned. The applicant also said that in 2008 his father was assaulted by the SLA and had bad chest pains after this incident. The applicant also said the father would go to Trincomalee (possibly for work) but he decided to stop going. In 2012 the father commenced to return to Trincomalee, and had suffered a heart attack and died. The applicant said that friends with his father had said the father had been chased by Sinhalese people which had caused him to suffer a heart attack. The Department delegate recorded the applicant as claiming his father passed away in Batticaloa, however he had been beaten before that. The applicant’s father passed away in April 2012.

   [38]At the Tribunal hearing, the applicant said that around April 2012, his father and brother were travelling to Trincomalee and they were stopped by the SLA. The father was beaten to death on that occasion and the brother fled and had not been seen since. When asked if anyone had witnessed the April 2012 incident, the applicant said his father’s ‘boss’ had travelled with the father’s body to the applicant’s home on the day of the incident. When asked again if the ‘boss’ had witnessed the incident, the applicant was not sure, but subsequently agreed with the Tribunal when it put to him (words to the effect), that was what was assumed to have taken place.

   [39]The Tribunal then referred the applicant to his signed statement of 3 November 2012, and particularly at paragraph 9, where the applicant had said ‘my brother went for work to Trincomalee in about 2008 and has never returned. In the same year, [the father] was assaulted by the army and had bad chest pains…He also used to go to Trincomalee but he stopped going. This year [ie 2012, the father] decided to return [to Trincomalee]. He suffered a heart attack and died. His friends who were with him told us that [the father] had been chased by Singhalese people and had suffered the heart attack’. When the inconsistency was put to the applicant for comment, the applicant said his father was also beaten by the SLA in 2008.

   [40]The Tribunal does not accept the applicant’s version of events submitted at hearing. I believe this new evidence was false. The Tribunal accepts the brother went missing in 2008, prior to the cessation of hostilities in May 2009. The Tribunal also accepts that neither the applicant (nor his family) has any idea why the brother went missing, who took him or where he may be. Further, though the issue was discussed, the applicant did not indicate there were any consequences for him or any family member, arising from the brother’s disappearance in 2008. The Tribunal is also satisfied the applicant provided his most recent version of events in order to assist his case. This was one reason that satisfied the Tribunal the applicant was not a credible witness.

   (Errors in original, references omitted)

5. It is well-established that the Tribunal may fall into jurisdictional error by failing to consider a claim, or an integer of a claim, that is articulated by the applicant or that arises on the material before the Tribunal. See for example, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 and Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088; [2003] HCA 26. However, in my view, the Tribunal did not fall into such error in this case.

6. It is important to understand that the claim concerning the brother was very limited. The applicant stated to the delegate that he and his family had no information about the circumstances surrounding his brother’s death. It appears that the highest that the claim went was that the brother’s disappearance was an indication that either the applicant’s family had a profile which attracted adverse attention from the authorities, or was an indication that the applicant might suffer harm at the hand of Sinhalese people without protection from the authorities.

7. The Tribunal accepted the applicant’s claim that the brother disappeared in 2008, but it also considered the two possibilities arising from that disappearance: see in particular, [24] and [40] of the Tribunal’s reasons. For those reasons the ground in the application is not made out.

8. At the hearing, the applicant appeared unrepresented. He made a number of claims concerning the treatment and death of his father and the disappearance of his brother. The applicant said, for instance, that his brother was abducted on suspicion of LTTE membership in 2008 and that his father died as a result of torture and beatings.

9. Those were not precisely the claims made by the applicant to the Tribunal. What is important in these proceedings is that this Court is limited to determining whether the Tribunal acted within the bounds of its jurisdiction. Relevantly, that jurisdiction involved a requirement to review the decision of the delegate of the Minister. That required the Tribunal to review the claims made before it. Thus, any claims that the applicant makes now which were not made before the Tribunal, cannot disclose any error in the Tribunal’s exercise of jurisdiction.

Conclusion

1. For those reasons, the arguments raised today do not justify the grant of the relief sought by the applicant. I can see no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 22 November 2016