AOV15 v Minister for Immigration

[2015] FCCA 2202

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2202

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (class XA) visa – whether the Tribunal’s decision was supported by evidence – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: AOV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1154 of 2015

Judgment of: Judge Street

Hearing date: 14 August 2015

Date of Last Submission: 14 August 2015

Delivered at: Sydney

Delivered on: 14 August 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms M Stone
DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1154 of 2015

AOV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a protection (class XA) visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  On 12 January 2015, the Tribunal invited the applicant to appear before the Tribunal and the applicant appeared before the Tribunal on 1 April 2015 to give evidence and present arguments and he was assisted by an interpreter as well as being represented by a migration agent.

3. The applicant claimed to fear harm in Sri Lanka due to his Tamil ethnicity, due to his father being a suspected LTTE supporter and his own imputed political opinion, incidents involving the Sri Lankan authorities, his religion as a Christian, being a Tamil from the north of Sri Lanka and a person who departed Sri Lanka illegally, being a failed asylum seeker and by reason of being a person who would be suspect of being involved with the Tamil diaspora.

4. On 29 January 2014, the delegate refused to grant the applicant a protection visa, and it was on 5 February 2014 that the applicant applied for a review of the delegate’s decision.  Relevantly, the Tribunal made certain findings as to what occurred to the applicant’s father and rejected the applicant’s evidence as to his father transporting goods for the LTTE.  In relation to the applicant’s fear as a result of his practice as a Christian, the Tribunal found:

   29. At the Tribunal hearing, I put to the applicant that none of the country information  I had seen may satisfy me that Christians had a real chance of being subject to serious harm for this reason in Sri Lanka in the reasonably foreseeable future. The applicant did not agree. Be that as it may, none of the country information I have seen has satisfied me the applicant has a real chance of persecution in Sri Lanka for reason of his Christian religion or for reason of the claimed spread of Buddhism in Sri Lanka. That is not to say that adverse incidents do not take place. However, as a mere Christian practitioner, and not (for instance) an evangelic Christian, I am not satisfied the applicant has a real chance of persecution in Sri Lanka.

5. In relation to the applicant’s father’s involvement concerning the LTTE, relevantly, the Tribunal found:

   32. …In the circumstances, the Tribunal is not satisfied the applicant has a real chance of persecution for this reason in Sri Lanka.

   …

   35. … I am not satisfied the father was seriously suspected of being an LTTE cadre. Therefore, if the applicant’s pass was withheld from him, and if the chair was thrown at him, I am not satisfied it was for the reasons claimed (ie his father’s suspected support for the LTTE). 

6. In relation to the applicant’s fears concerning his ethnicity and activities as a fisherman, the Tribunal found:

   37. By migration agent submissions dated 25 March 2015, it appeared to have been conceded the applicant was still able to subsist as a fisherman in Sri Lanka (though he had to give the SLA and Navy some of the fish he caught); so the Tribunal is not satisfied the applicant’s capacity to subsist was threatened. That said, the Tribunal understands that differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies… [However] it is only in certain circumstances that discrimination will amount to persecution (UNHCR Handbook [54]). Consequently, even if the applicant did have to provide part of his catch (on occasion) to the SLA, I am not satisfied this amounts to persecution. Further, as stated below, the Tribunal is satisfied there has been a reduction in SLA personnel stationed in the north and that human rights have improved, particularly in the almost 3 years since the applicant departed Sri Lanka.

   38. At any rate, based on the country information in the sources cited herein, and given my above, discussion and findings, I am not satisfied the applicant would have a real chance of persecution for any of the above reasons should he return to Sri Lanka.

7. In relation to the applicant’s ethnicity in coming from the north of Sri Lanka, the Tribunal found:

   44. At any rate, based on the country information in the sources cited herein, and given my above, findings, I am not satisfied the applicant would have a real chance of persecution for any of the above reasons should he return to Sri Lanka. That means that based on the information before me, I am not satisfied the applicant has a real chance of being persecuted for reason of being a Tamil, for reason of having resided in the north of Sri Lanka, or by militias in Jaffna.

   …

   46. However, given I am not satisfied the applicant (or his family) are presently seriously suspected of being LTTE members or supporters, and given I am not satisfied the applicant has any other profile (how-so-ever descried) that would bring him to the adverse attention of the authorities or anyone else, should he return to Sri Lanka, I am not satisfied he has a real chance of being subject to any action under the PTA.

8. The Tribunal turned to the issue of illegal departure.  They relevantly found:

   51. At any rate, the Tribunal has discussed the monitoring of persons returned to Sri Lanka, elsewhere. That said, ordinarily the non-discriminatory application of generally applicable laws does not constitute persecution; and this may still be so whether or not the relevant law is repugnant to the values of Australian society. However, whether something amounts to a law of general application is a finding of fact. It is also settled law in Australia that where a law or policy results in discriminatory treatment of a person for a Refugees Convention reason, the question of whether the discriminatory treatment constitutes persecution ultimately depends on whether that treatment is ‘appropriate and adapted to achieving some legitimate object of the country [concerned]’.

   52. … However, as stated above, I am not satisfied that an essential and significant reason for any prosecution of the present applicant for having breached Sri Lanka’s departure laws, is for a Refugees Convention. That is because (for instance) I am not satisfied he has any profile that would exacerbate his circumstances on return.

   …

   56. …However, and though I am sufficiently satisfied of my immediately above finding, even if he was subject to a brief period in detention (in order to investigate his claimed identity), given the Tribunal’s satisfaction about his lack of any material profile, I am satisfied the present applicant would only be detained (for questioning) for a few hours (while his identity was being established). I am satisfied the applicant, like the majority of persons, would also be granted bail on personal recognisance immediately by the magistrate.

   57. The Tribunal therefore does not accept the applicant has a real chance of being subject to serious harm for this reason should he return to Sri Lanka.

9. In relation to the applicant’s fear of being part of the overseas Tamil diaspora, relevantly, the Tribunal found:

   59. The Tribunal has discussed the issue of monitoring on return (elsewhere). That said, the UNHCR position on the lack of any need for ‘group based protection mechanisms’ remains ongoing.  Based on the accepted evidence, the Tribunal is not satisfied the present applicant has (or had) a political or other profile such that he would have a real chance of coming to the adverse attention of the Sri Lankan authorities (or anyone else) should he return. Neither am I satisfied he would be imputed with such a profile. Further, based on the country information considered, I am not satisfied the applicant having illegally departed Sri Lanka in mid-2012, and travelled to Australia where he has resided for almost 3 years, would mean he has a real chance of being harmed for reason of being suspected as part of the overseas Tamil diaspora who continue to support the LTTE or Tamil separatism. Further, nothing he claimed to have done in Australia (principally work) would suggest he would be harmed on return.

   60. The Tribunal is therefore not satisfied the applicant has a real chance of being persecuted for this reason in Sri Lanka.

10. In relation to being a failed asylum seeker, the Tribunal found:

    62. Though not nominated by the migration agent, it appears the most likely claimed risk profile may be “6)” above. However, as stated above, I do not accept the applicant’s father (or the applicant) had any links to the LTTE. Irrespective of this, I do not accept the applicant falls within any of the UNHCR risk profiles given I am satisfied he would have been subject to more harm and or harassment (than I am satisfied he was), if he was suspected of falling into one of the above categories. Therefore the Tribunal does not accept the applicant falls within the UNHCR risk profiles.

    …

    67. … Given the Tribunal’s findings as to the applicant’s lack of any material profile, I am not satisfied he has a real chance of being suspected of being an ongoing threat. Neither am I satisfied his political or other convictions, how-so-ever described, would cause him to be a threat. Based on the evidence before me, I am not satisfied the present applicant has a real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker, in the reasonably foreseeable future.

    68. Finally, even considering those of the applicant’s claims that I have accepted cumulatively, I remain not satisfied he is a person in respect of whom Australia has protection obligations.

    69. For the reasons given above, the Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (b) of the Migration Act.

11. The Tribunal addressed the issue of complementary protection and relevantly found:

    72. Based on those of the applicant’s claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in Sri Lanka. That said, and with respect to prison conditions, the UK Home Office reported:

    3.16.10 Conclusion: Conditions in prisons and detention centres remain poor. Taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of ill treatment, including torture, are likely to reach the Article 3 threshold and a grant of humanitarian protection may be appropriate…

    73. … Furthermore, mere negligence or lack of resources (which appeared to be the cause of the poor prison conditions) does not suffice to give rise to cruel or inhuman treatment or punishment, or torture, under Australian law; given I am not satisfied there is any identifiable intention by the Sri Lankan government to cause such harm. …

    74. The evidence in the sources cited herein, indicate the Sri Lankan prison population is broadly representative of the country’s overall ethnic and religious composition. Be that as it may, and for the reasons set out above, the Tribunal is not satisfied there is a real chance (real risk), the applicant would be subject to a custodial sentence in Sri Lanka. Given his (lack of any material) profile, I am not satisfied the present applicant would be detained (for questioning) beyond a few hours (while his identity was being established). I am also satisfied the applicant would be granted bail on personal recognisance immediately by a magistrate.

    75. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Sri Lanka.

    76. Next, and for the same reasons, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment). If he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment - and none of the country information in the sources cited herein, has satisfied me the ‘possible harassment’ that a person with the applicant’s lack of profile may suffer, would constitute significant harm. Next, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture). Again, if he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment.

    77. Finally, none of the country information in the sources cited herein, have satisfied me the applicant has a real risk of suffering arbitrary deprivation of life in a Sri Lanka.

    78. Neither am I satisfied there is any issue, squarely raised by the evidence though not articulated, that the applicant may have a real risk of significant harm for any other reason in Sri Lanka.

    79. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he will suffer significant harm if returned to Sri Lanka.

12. The grounds of the application are as follows:

    1. RRT decision is unsupported by any evidence

    2. RRT did not really deal with my problems

13. In relation to ground 1, the proposition that the review by the Tribunal was unsupported by the evidence is clearly without substance.  Not only did the applicant attend, in response to the invitation, a genuine hearing before the Tribunal, but the applicant also had the benefit of detailed written submissions that were provided to the Tribunal dated 25 March 2015 which were clearly referred to and taken into account by the Tribunal (see para.17).  The adverse findings by the Tribunal were clearly open on the material before the Tribunal and ground 1 is, in substance, an impermissible challenge to the adverse findings of credit which were open to the Tribunal and cannot be said to lack a logical foundation.  Ground 1 fails to disclose any jurisdictional error.

14. In relation to ground 2, it is clear that the Tribunal dealt with the applicant’s claims as identified above and that there is no substance in the assertion of a failure to deal with the claims advanced by the applicant.  In substance, ground 2 is an impermissible challenge to the merits of the claims which were matters for determination by the Tribunal.  I accept the first respondent’s submissions that the Tribunal properly addressed the component integers of the applicant’s claims and complied with their obligations under part 7 division 4 of the Act.  Ground 2 fails to make out any jurisdictional error. 

15. I note this is a matter where the Court made an order on 4 June 2015 providing the applicant an opportunity to amend the application, put on further evidence or file submissions and no such step was taken.  The applicant indicated that he had given all the information to the RRT and that the RRT had not accepted his application.  Nothing said by the applicant identified any jurisdictional error by the Tribunal.  The application is dismissed.

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

Associate: 

Date:  18 August 2015