APP15 v Minister for Immigration

[2015] FCCA 3369

FEDERAL CIRCUIT COURT OF AUSTRALIA

APP15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3369

Catchwords:
MIGRATION – Administrative review – whether tribunal’s decision affected by jurisdictional error – where no error in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Citizenship v Le [2007] FCA 131

Applicant: APP15

First Respondent:

Second Respondent

MINISTER FOR IMMIGRATION & BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 348 of 2015

Judgment of: Judge Vasta

Hearing date: 8 December 2015

Date of Last Submission: 8 December 2015

Delivered at: Brisbane

Delivered on: 8 December 2015

REPRESENTATION

Solicitors for the Applicant: RASAN T SELLIAH & ASSOCIATES

Solicitors for the Respondent: SPARKE HELMORE

ORDERS

1. That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. That the Application filed 24 April 2015 be dismissed.

3. That the Applicant pay the First Respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 348 of 2015

APP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this Court on 24 April 2015 and then by amended application filed in this Court on 26 November 2015, the Applicant, APP15, applies to this Court for judicial review of a decision by the Administrative Appeals Tribunal that affirmed an earlier decision of the delegate of the Minister for Immigration and Border Protection refusing a protection visa. 

2. It seems that the Applicant arrived in this country as an illegal maritime arrival sometime in the latter half of 2012.  He applied for a protection visa on 8 November 2012, and on 8 August 2013 the delegate of the Minister refused to grant that visa. 

3. The Applicant then lodged an application for review of the decision on 14 August 2013 with the then Refugee Review Tribunal, which is now the Administrative Appeals Tribunal.  It seems that the Tribunal did hold a hearing in the matter on 15 January 2015.  At the end of that hearing the Applicant then presented the Tribunal with an undated 23-page statement which seemed to have been made in December 2014.  The Tribunal had to look at that material and consider whether another hearing was required. 

4. The Tribunal did do that, and there was a second hearing on 13 March 2015.  From my perusal of the record, especially the court book, it would seem that there is a great deal of material and that the Tribunal has been extremely thorough in exploring all the material and all issues raised. 

5. The Applicant was born in Sri Lanka in 1988.  He is a single Tamil male.  He is of the Hindu religion.  He has completed high school.  He did attend university, studying a bachelor of arts, between January 2010 and 16 June 2012 in Kandy.  He has worked in a soda shop.  He had done masonry work as well.  His parents, two sisters and brother live in Sri Lanka.  However, it seems that there was a brother that went to Malaysia in August of 2013, a time after the Applicant had left Sri Lanka to come to Australia. 

6. In effect the Applicant claims that he would suffer serious harm, if he were sent back to Sri Lanka.  He spoke in his written material and in his evidence to the Tribunal about his involvement with the TNA party, the trouble with the TMVP party members and a number of incidents that occurred that would cause him fear of serious harm. 

Ground One

1. The grounds of this application are as follows:

   “Ground One

   1. The Second Respondent engaged in legal error by failing to consider a claim or component integer for the Convention reasons and for Complementary protection; and failed to make a finding.

   Particulars:

   1.1 The Applicant claimed that (statement 36 and 37 of dated 31 October 2012) "Every time when I was going to class I would have to pass through Army check points. I constantly encountered problems because I am a young Tamil male. Young Tamils who are seeking to achieve an education are also targeted by the authorities because they do not want people of Tamil ethnicity to achieve an education".

   1.2 The Second Respondent did not consider or make a finding about the constant problems that the Applicant was facing on his way to class at the checkpoints (Para 130 RRT decision).

2. As I said in argument, the Tribunal did, when setting out the claims of the Applicant at paragraph 12, say this at paragraph 12f.

   “f. When attending class he would have to pass through checkpoints and constantly encountered problems because he was a young Tamil male.  Young Tamil males who seek an education are targeted because authorities do not want Tamils to have an education.”

3. The complaint made is that whilst the claim may have been mentioned by the Tribunal, the Applicant says that there was no specific finding about this particular matter and that the Tribunal made credibility findings under various headings of all his claims except for this particular and specific claim. 

4. It seems to me, on my reading of the Tribunal’s reasons, that what the Tribunal has done is go through all of the claims for which the Applicant contends that he would suffer serious harm if he is returned to Sri Lanka.  It is that aspect (whether there would be serious harm) that the Tribunal really has to look at in considering the convention criterion and the complementary protection criterion. 

5. The Tribunal, in its reasons, did list a number of findings under various headings.  The Tribunal started with a question “Is the Applicant credible?” and then made findings under headings such as “TNA involvement”, “LTTE cousins”, “Early years”, “April 2009 detention by TMVP and threats and November 2011 beating by army”, “In hiding”, “New claims” and “New claims after immigration interview”.  After going through all of those, the Tribunal then asked itself, “does Australia have protection obligations under the refugee convention?”. 

6. The complaint made is that there was no specific heading for being stopped at the checkpoint.  One has to look at what the basis of the complaint is.  As already noted, it was a complaint of general discrimination.  There was no allegation, in that complaint, that the Applicant was fearful that there would be serious harm visited upon him. 

7. It is submitted, by the Applicant, that the Tribunal should have made a credibility finding on that aspect, as a failure to do so meant that the Tribunal had not considered all of the claims.  If it had not considered all of the claims, then the Tribunal would fall into jurisdictional error. 

8. It is trite to say that it is not necessary for a Tribunal to go through chapter and verse every single claim that has been made by an Applicant before it.  However, in this case it would seem to me that when one does read the reasons of the Tribunal, the Applicant’s claim that the Tribunal did not consider this aspect cannot be supported. 

9. At paragraph 130 the Tribunal said this:

   “130. The Applicant has been educated to university level (though not complete), worked in a soda shop and as a labourer doing masonry work.  His father worked for the government in the survey department.  Based on the evidence before it, the tribunal is not satisfied there is a real chance of serious harm, including any denial of access to health, employment and education, or the ability to subsist, or any denial of social or economic rights, as a result of the applicant’s ethnicity (being a Tamil, a male Tamil from the East) and/or political association or any other reason, in the reasonably foreseeable future. Further, the cessation of forced registration and trend of monitoring and harassment has generally eased since the end of the conflict and the tribunal does not accept passing through checkpoints or monitoring amounts to serious harm or that there is a real chance of serious harm for the applicant as the tribunal does not accept he has a suspected LTTE profile or other at risk profile.”

10. So it would seem to me that, far from having to go through and give a credibility finding as to whether this happened, the Tribunal has accepted that, in the past, before the Applicant came to Australia, he, as a male Tamil, was subject to passing through checkpoints and monitoring.  The Tribunal, however, has found that, having accepted that this did occur, if it were to still occur, it would not amount to serious harm.  The Tribunal used the country information to note that the cessation of forced registration and the trend of monitoring and harassment has generally eased since the end of the conflict. 

11. So in my view, it is clear that the Tribunal did, in fact, look at the matter.  Whilst it may not have given it the same degree of prominence as it gave to other aspects of the matter or that it did not talk about this aspect in as much detail as the Applicant would have liked, is not to the point; the point is that I cannot see that the Tribunal did not consider this particular aspect.  For those reasons, Ground One fails.

Ground Two

1. Ground Two is  as follows:

   “Ground Two

   2. The Second Respondent made a Jurisdictional Error by failing to make inquiries where the information is critical and the providers of information are contactable.

   Particulars

   2.1 The Second Respondent stated at Para 91 that the Applicant's brother's UNHCR ID card does not contain his brother's last name and thus, places no weight on it.

   2.2 The Applicant provided two letters from members of Parliament from the TNA Political Party and one letter from a Member of the Eastern Provincial Council. All letters contained contact details and stated that the Applicant is a strong supporter of the TNA.”

2. The Tribunal did not accept the authenticity of the card or the letters. The Applicant submits that the Tribunal should not have discounted these two pieces of evidence. The submission is that firstly, the Tribunal could easily have made some form of communication with the United Nations in Malaysia to find out whether or not this particular ID card of the brother’s was, in fact, genuine, and secondly, could have communicated with the members of Parliament and Provincial Council member to see whether or not those letters were, in fact, genuine.

3. The Applicant relies upon the High Court authority of the Minister for Immigration and Citizenship v SZIAI [2009] HCA 39. This was because of a comment made at paragraph 25 by the majority of the Court that said:

   “…It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.…”

4. There is no doubt that this statement by the High Court is what the law is in this country, and it is the standard to which this Court is held.  However, when one has a look at what has occurred here, it is not that there is a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained. That is because, whilst it is said that it was easy for the Tribunal to simply make inquiries overseas to find out the genuineness of the letters, that does not really take into account what the Tribunal has found.

5. What the Tribunal has found is that the claims of the Applicant are totally lacking in credibility. Even though the Tribunal had doubts about the authenticity of the letters, it was the fact that the content of the letters was so inconsistent with the general tenor of the evidence that it had before it as to the Applicant’s activities with TNA, that made the Tribunal discount the letters. 

6. It is also noted by the Tribunal that the basic tenets of that organisation were not known by the Applicant, which is, again, totally inconsistent with someone who says that he is a high ranking or an active member of the party and has these letters that say that he is an active member of the party.

7. So there was quite a deal of credibility lacking, even if one were to assume the correctness of these letters.  It is in my view that even if one could ascertain the authenticity of these letters, it was not a matter that had a sufficient link to the outcome of the Applicant to constitute a failure to review. 

8. It is also quite evident from the passage that I read from the SZAIA (above), and, as the Federal Court later said in the Minister for Immigration and Citizenship v Le [2007] FCA 131, a situation where the Tribunal ought, of its own volition, to have made inquiries, would be rare and exceptional.

9. This is not such a case.  Therefore, I do not see that the failure to have made the inquiry was in any way a link to the outcome of the matter.

10. That being so, it cannot be said that this so-called failure has amounted to a jurisdictional error.  Therefore, Ground Two also fails. 

11. I have looked through the reasons of the Tribunal.  I cannot find any other matter that could ever be thought to have amounted to a jurisdictional error.  In those circumstances, I dismiss the application with costs fixed in the amount of $5,800.00.  I amend the name of the Refugee Review Tribunal to now be the Administrative Appeals Tribunal.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 December 2015