APL16 v Minister for Immigration

[2016] FCCA 1806

FEDERAL CIRCUIT COURT OF AUSTRALIA

APL16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1806

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – real risk test – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error identified – application dismissed under r.44.12.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 35(2A), 91R(1)(c), 476

Federal Circuit Court Rules 2001, r.44.12

Cases cited:
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22

Applicant: APL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 635 of 2016

Judgment of: Judge Street

Hearing date: 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Sydney

Delivered on: 15 July 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Ms A Wong
Mills Oakley Lawyers

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 635 of 2016

APL16

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 made on 10 March 2016 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. In June 2012, the applicant decided to leave Sri Lanka and come to Australia, and arrived on the Cocos Islands on 8 July 2012 and then arrived at Christmas Island on 15 July 2013.

2. The applicant claims to fear harm from a group of six supporters of the Sri Lanka Freedom Party who attacked his home in 2008 due to his pro-United National Party political opinion.  The applicant claimed that there are still scars from that incident and that his mother and three brothers have been hospitalised.  The applicant says that the six men were arrested and that he and his mother and brothers testified in the court against them. The applicant alleges that the six men threatened him and that he would be taught a lesson, so he fled to Udappu. 

3. After the applicant fled to that place, he alleges the men came to his mother’s house and, unable to find the applicant, assaulted his brothers.  The applicant says the Court case was finalised on 1 May 2012 and the men were released from prison seven days after.  The applicant feared they would make good their threats and he left for Australia.  The applicant alleges that in July 2013 the men again went to his mother’s house to ask where he was and broke a window.  The applicant alleges two days later the men went to his wife’s house. 

4. At the interview with the delegate the applicant made a new claim, that the men also assaulted him once when he was travelling to work.  The applicant claimed to fear persecution on the basis of his Tamil ethnicity and his status as a failed asylum seeker which would cast on him suspicion as being a person holding a pro-LTTE political opinion.  The delegate expressed serious doubts about the applicant’s credibility, and relevantly found that the applicant’s fear of persecution was not well-founded. The delegate was not satisfied there were substantial grounds for believing it was a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country that there is a real risk he would be subject to significant harm. 

5. The applicant applied for review on 14 November 2014.  By a letter dated 27 January 2016 the applicant was invited to attend a hearing on 23 February 2016.  The applicant appeared on that date to give evidence and present arguments, and was assisted by an interpreter.  The Tribunal identified the relevant law and the applicant’s claims and evidence.  The Tribunal also expressed strong doubts in relation to the credibility of the applicant’s evidence, for orthodox reasons that were set out.  The Tribunal found that it was unable to be satisfied as to the truth of the applicant’s assertion that he and his family members were assaulted and threatened by a group of six men either because of political differences or for any other reason.

6. The Tribunal was not satisfied that the group of six men were the reason why he went to live with his wife’s family in Udappu and was not satisfied that his family or his mother-in-law had been attacked or threatened by such people since departure.  The Tribunal found it was not satisfied that the applicant was at any risk of harm from such men should he return to Sri Lanka.  The Tribunal found that it was not satisfied that the assertions the applicant made about the six men were true. The Tribunal found that this had an adverse impact in respect of the applicant’s credibility. 

7. The Tribunal found it was not satisfied that the applicant, as a young Tamil male, would be suspected for that reason of holding a pro-LTTE or anti-government political opinion.  The Tribunal was not satisfied the applicant would be imputed with a pro-LTTE political opinion.  The Tribunal identified the process to which the applicant would be subjected upon return to Sri Lanka and was not satisfied this would involve the applicant being singled out or targeted in a discriminative fashion because of his Tamil ethnicity or for any other reason. 

8. The Tribunal was not satisfied the applicant would face a real chance of significant harm at the hands of authorities on return to Sri Lanka, either at the airport or after his return to his home, for the reason that he sought asylum in Australia.  The Tribunal was not satisfied the applicant would be at risk of harm on return to Sri Lanka as a result of the criticisms of the country’s human rights record, which have been made by the Australian Government or the Australian media in recent years. 

9. In relation to the applicant’s unlawful departure, the Tribunal noted that the applicant denied at the hearing that he feared harm in Sri Lanka arising from the circumstances in which he left Sri Lanka.  Nonetheless, the Tribunal considered whether or not the fact of his illegal departure could be said to place him at risk of serious harm.  The Tribunal took into account the conditions to which the applicant would be exposed in detention.  The Tribunal found it was not satisfied that there is a real chance that on return to Sri Lanka the applicant would face more than an extended question at the airport, arrest and detention for a relatively brief period.

10. The Tribunal was not satisfied that the treatment that the applicant would experience would reflect anything other than non-discriminatory enforcement of the law of general application and found that it would not amount to serious harm.  The Tribunal found that it was not satisfied that the applicant was at risk of harm from the six men should he return to Sri Lanka.  It was not satisfied that he was at risk of serious harm because of his Tamil race or ethnicity or because it would lead to him being imputed with a political opinion favourable to the LTTE. 

11. The Tribunal was not satisfied that the applicant was at risk of serious harm as a failed asylum whether or not this was expressed in terms of his membership of a particular social group or because he would be returning to Sri Lanka from a country which had criticised the Sri Lankan Government for its human rights abuses. The Tribunal was not satisfied that a pro-LTTE political opinion would be imputed to the applicant as a male Tamil who had sought asylum in Australia. The Tribunal accepted that the applicant might be placed in remand for a brief period, but was not satisfied that this would constitute serious harm or systematic or discriminatory conduct as required by s.91R(1)(c) of the Migration Act 1958.

12. It was in those circumstances that the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future, and was not satisfied that the applicant was a refugee. 

13. The Tribunal turned to the issue of complementary protection, and, having considered the applicant’s claims individually and cumulatively, found that it was not satisfied there were substantial grounds to believe that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk he would suffer significant harm. It was in those circumstances that the Tribunal found that the applicant did not meet the criteria under ss.36(2) of the Migration Act 1958 and affirmed the decision of the delegate. 

14. On 28 April 2016, a Registrar of the Court fixed the matter for a show cause hearing today and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

15. The application identifies the following grounds:

    1. The Tribunal fail to consider for complementary protection when I am sent back the period of detention in Sri Lanka for leaving Sri Lanka Illegally would amount to “significant harm” or “serious harm” of the Migration Act and thereby committed jurisdictional error and failed to consider complementary protection.

    2. Tribunal fail to consider my claim fairly.

    3. Tribunal did not consider my case properly according to the Migration law in Australia.

    4. I will suffer harm if I go back to my country. I can't take the beating from the police in Sri Lanka.

16. At the commencement of the hearing, the Court explained to the applicant that the matter had been fixed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001.  The Court explained that this was a hearing to determine whether the applicant had an arguable case.  The Court explained that an arguable case required a reasonable argument that the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

17. The Court explained that this, in summary, meant the Court was deciding whether there was a reasonable argument that the Tribunal’s decision was not lawful or that the Tribunal’s decision was not fair.  The Court explained to the applicant that if satisfied that the decision was the subject of a reasonable argument that it was affected by relevant legal error, the applicant’s case would be listed for further hearing. The Court explained that if not satisfied that the Tribunal’s decision was the subject of a reasonable argument of relevant legal error, the application would be dismissed. The applicant confirmed that he understood what had been said by the Court.

18. The Court explained that it would identify the evidence and would hear submissions from the applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed that he understood what had been said by the Court.  From the bar table, the applicant maintained that he could not go back to his country and that if he went back he would be sent to jail and be the subject of torture that he could not go through. 

19. The applicant also raised that he would face a problem because he had a language barrier.  The solicitor for the first respondent submitted that there was no claim of a fear of persecution based on the language barrier raised by the applicant before the Tribunal.  The solicitor for the first respondent submitted that what was said by the applicant from the bar table invited an impermissible merits review. 

20. The solicitor for the first respondent, in relation to ground 1, submitted that the Tribunal correctly identified the relevant law and considered the issue of complementary protection in paras.61 to 63. 

21. The solicitor for the first respondent said that the adverse findings in relation to complementary protection were open and to the extent that ground 1 sought to raise an issue as to qualitative assessment of the kind found to be in error, the alleged error was overruled by the High Court in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22. The solicitor for the first respondent said that ground 1 had failed to identify any arguable case of jurisdictional error.

22. The solicitor for the first respondent submitted that grounds 2 and 3, as unparticularised allegations that the Tribunal’s decision was made fairly or properly, failed to identify any arguable case of jurisdictional error. The solicitor for the first respondent submitted that ground 4 was nothing more than an impermissible invitation to a merits review. 

23. Nothing was said by the applicant from the bar table to identify any arguable jurisdictional error by the Tribunal.  On the face of the Tribunal’s reasons, the Tribunal engaged an orthodox assessment of the applicant’s claims and evidence and complied with its statutory duty.  On the material before the Court I am satisfied that the Tribunal complied with its statutory obligations, and there is nothing before the Court to persuade the Court that the Tribunal failed to comply with the dictates of procedural fairness under the statutory regime in the review.

24. I accept the submissions of the first respondent that ground 1 fails to make out any arguable jurisdictional error.  I accept the submission that the Tribunal correctly identified the relevant law in respect of complementary protection and made findings that were open to it in that regard.  No arguable jurisdictional error is disclosed by ground 1.  I accept the first respondent’s submissions in relation to grounds 2 and 3 as failing to identify any arguable jurisdictional error. 

25. I accept the submissions of the first respondent that ground 4 fails to identify any arguable jurisdictional error and is, in substance, an impermissible invitation to this Court to engage in the merits of the matter. 

26. I take into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am clearly satisfied that the application fails to disclose any arguable jurisdictional error. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001. 

I certify that the preceding twenty-six (26) twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2016