APT15 v Minister for Immigration

[2016] FCCA 2757

FEDERAL CIRCUIT COURT OF AUSTRALIA

APT15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2757

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – whether the Tribunal took into account irrelevant considerations – adverse findings made by the Tribunal cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Applicant: APT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 171 of 2015

Judgment of: Judge Street

Hearing date: 26 October 2016

Date of Last Submission: 26 October 2016

Delivered at: Sydney

Delivered on: 26 October 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr T Hillyard

Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 171 of 2015

APT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 March 2015 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.

2. The applicant claimed to fear harm by reason of an imputed political opinion of The Liberation Tigers of Tamil Eelam (“LTTE”) supporter due to his father being born in a particular location; by reason of an imputed political opinion of being an LTTE supporter due to the applicant working in a particular area;  an imputed political opinion of LTTE supporter due to the applicant being the sole survivor of an alleged attack at a particular place in 2008; an imputed political opinion as the applicant’s uncle was allegedly involved in an LTTE attack in 2008 and is still missing; and an imputed political opinion as his father is a supporter of the United National Party (“UNP”) as well as alleged harm from his village and his illegal departure from Sri Lanka.

3. The applicant arrived at the Cocos (Keeling) Island on 12 August 2012 having departed Sri Lanka by boat around 27 July 2012. On 12 December 2012, the applicant lodged an application for a protection visa. 

Before the Delegate

1. On 8 January 2014, the delegate refused to grant the applicant a protection visa making adverse credibility findings in relation to the applicant’s claims and evidence. The delegate was not satisfied that Australia had protection obligations to the applicant and found that the applicant did not meet the criteria under s.36(2) of the Act.

Before the Tribunal

1. On 14 January 2014, the applicant applied for review to a formerly constituted Tribunal. By letter dated 18 November 2014, the applicant was invited to attend a hearing on 18 December 2014. The applicant appeared on that date to give evidence and present arguments and his migration agent also spoke to the Tribunal by telephone during that hearing.

2. The Tribunal received post-hearing submissions from the applicant’s migration agent on 13 January 2015, which were summarised in the Tribunal’s reasons. The Tribunal identified the relevant law as well as setting out the applicant’s claims and evidence. The Tribunal identified what it considered to be the relevant country information.

Credibility

1. The Tribunal accepted some of the applicant’s evidence. However, the Tribunal found the applicant was not a credible witness. The adverse findings by the Tribunal, took into account the applicant’s alleged depression, anxiety and PTSD but found that that condition was not a satisfactory explanation for the credibility issues identified by the Tribunal. The Tribunal rejected certain aspects of the applicant’s claims and evidence as unreliable or fabricated. The applicant admitted having destroyed his identity card because he did not intend to return to Sri Lanka. 

Refugee protection assessment

1. The Tribunal took into account the applicant’s youth and Tamil ethnicity and found there was not a chance that the applicant will suffer serious harm for reason of his perceived links to the LTTE which would amount to persecution for reasons of his actual imputed political opinion. The Tribunal found there was only a remote chance the applicant will be perceived as a Tamil with LTTE sympathiser and that the risk the applicant faces of serious harm is not at the level of a real chance.

2. The Tribunal found that it was not satisfied the applicant or his family, faces a real chance of serious harm for reasons of their support for the UNP in Sri Lanka. The Tribunal rejected the applicant’s claim that he faces persecution for reasons of his actual or imputed political opinion as a supporter of the UNP. The Tribunal found that the applicant would not be viewed now, or in the reasonably foreseeable future as a person with LTTE links for reasons of his father’s origin from a particular location. 

3. The Tribunal took into account the applicant’s medical/psychological reports in considering the applicant’s claims of past harm and the risk of future harm in Sri Lanka. The Tribunal found the applicant does not face a real chance of serious harm amounting to persecution by reasons of his illegal departure from Sri Lanka.

4. The Tribunal was not satisfied there is a real risk that applicant will suffer significant harm from the police and/or the army, or from villagers, or for reasons of being perceived as a UNP supported should the applicant be removed to Sri Lanka. The Tribunal found the applicant did not face a real chance of serious harm for having destroyed his identity card. The Tribunal found the applicant did not have a well-founded fear of persecution should he return to Sri Lanka now or in the reasonably foreseeable future.

Complementary Protection Assessment

1. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm.  Having regard to the adverse credibility findings by the Tribunal, the Tribunal was not satisfied the applicant was permanently separated from his family, or would not be able to trace them, or would not be able to rely upon them for support upon his return to Sri Lanka.

2. The Tribunal found that it was not satisfied the applicant is a person in respect of whom Australia has protection obligations and found that the applicant did not meet the criterion under s.36(2) of the Act and affirmed the decision of the delegate.

Proceedings Before this Court

1. By orders made on 27 May 2015, the applicant was given an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

2. At the commencement of the hearing today, the Court explained to the applicant that the hearing was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair. 

3. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, the decision of the Tribunal would be set aside and the matter sent back for further hearing. The Court explained to the applicant that if not satisfied the Tribunal’s decision was affected by relevant legal error the application would be dismissed. 

4. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, 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 the nature of the hearing as explained by the Court. 

5. The grounds of the application are as follows:-

   The Tribunal made a jurisdictional error in determining the applicant did not meet the criteria to be granted a Protection (Class XA) visa under s65 of the Migration Act.

   1. Taking into account irrelevant considerations

   Particulars

   a) Giving too much weight to the Independent Country Information as this information does not apply to each and every case

   b) The Applicant's inability to speak Tamil would mean that he could not communicate with the terrorist group known as the Liberation Tigers of Tamil Eelam (LTTE) and therefore he could not have been a person of interest to the Sri Lankan authorities

   c) The Applicant's relative youth would have in the eyes of the Sri Lankan authorities precluded him from having any links to the L TTE and therefore he could not have been a person of interest to the Sri Lankan authorities

   d) The Applicant belonged to the Singhalese majority and would not be subjected to discrimination

   e) Applicant's continuous employment in Sri Lanka

   f) The Applicant's family may only have suffered discrimination during the Sri Lankan civil war and that would no longer be the case because of the changed political circumstances in Sri Lanka

   2. Failing to take into account relevant considerations

   Particulars

   a) The LTTE conscripted chid soldiers and at the time of the Kukulawa attack in 2008, the Applicant was the prime age for LTTE recruitment

   b) The applicant belonged to a minority group in Sri Lanka being that he was a Singhalese Catholic, whereas the Singhalese Buddhists are the majority

   c) Singhalese majority are discriminated against for a variety of reasons, including having links to the LT    TE and these persons with LTTE links are shown no mercy

   d) The Applicant was a person suspected of having links with the LTTE and the Applicant’s father was a person suspected of having links with the LTTE

   e) The Sri Lankan authorities would find or have reason to believe that the Applicant:

   i. travelled to an LTTE controlled area in 2008 amidst the civil war because he had protection of the LTTE

   ii. was an undercover LTTE operative because he was the son of a suspected supporter, who was the sole survivor of an attack in an LTTE controlled area

   iii. would be on a watch list with respect to his activities and be suspected of having links with the LTTE

   iv. may be an LTTE operative who is waiting for the opportunity to assist rebuild the LTTE

   f) The harassment from the community which caused serious psychological harm that led the Applicant to decide to commit suicide

   g) The Applicant's medical records which indicated that he suffered from PTSD

   h) The changed political circumstances in Sri Lanka in which there is a fear amongst most Sri Lankans of a second LTTE uprising and that any LTTE supports are dealt with sometimes by imprisonment, torture and death

   i) The Applicant having to change his employment frequently due to harassment he received for having links with the LTTE

   j) The Sri Lankan authorities may conclude that the Applicant left Sri Lanka on a boat to avoid further questioning and persecution with respect to alleged links to the LTTE

   k) The Applicant's father was detained for 14 days subsequent to the Applicant's departure from Sri Lanka

   1) The changed political circumstances in Sri Lanka and the fear of a second LTTE uprising which would cause the community and the Sri Lankan authorities to be extra cautious of persons suspected of having LTTE links

   3. The Decision was unreasonable in all of the circumstances

   a) Highly significant factors including:

   i. the significant psychological harm suffered by the Applicant at the hands of the Sri Lankan authorities and the community which caused him to plan to commit suicide

   ii. the psychological reports indicating that he suffered from PTSD

   iii. being the sole survivor of the Kukulawa attack in 2008 at the prime age for LTTE child soldiers, which would cause the Sri Lankan authorities to be suspicious that the Applicant was an undercover LTTE operative particularly when no one travelled to LTTE controlled areas during this time, unless they had the protection of the LTTE

   iv. after his return from the Kukulawa attach in 2008 the Applicant was assaulted by the Sri Lankan authorities to elicit a confession that he was an LTTE cadre

   V. that the Applicant belonged to a minority group being the Singhalese Catholics and that even the majority Singhalese suffer from discrimination

   vi. that LTTE spoke many languages not just Tamil and his inability to speak Tamil would not preclude him from being an L TTE cadre

   vii. the country information does not apply to each and every case, were not properly considered by the Decision Maker and he unreasonably found that because the Applicant was not pursued by the authorities that he would not be at risk of serious harm. Further, the Decision Maker unreasonably failed to take into account the serious harm that the Applicant has suffered at the hands of the community which believed him to have LTTE links, the suffering which caused him to want to commit suicide.

   b) The Decision Maker unreasonably found that upon returning to Sri Lankan he would not be subjected to serious harm when there was clear evidence that he suffered from PTSD due to his experiences in Sri Lanka including the Sri Lankan authorities and the community.

   c) The Decision Maker unreasonably found that the Applicant could return to Sri Lanka although he no longer has any family support as he no longer knows where his family is and unreasonably failed to see that without this family support he would be targeted by the community and he would be subjected to serious harm.

6. From the bar table, the applicant maintained that following the decision of the Tribunal, he had had a heart attack as a result of which he was on daily medication and that he could not go back to Sri Lanka because of his need for daily medication.

7. The Court explained to the applicant that his heart attack and medication were not matters that gave rise to any arguable case of jurisdictional error by the Tribunal as the Court had to consider the material that was before the Tribunal. 

8. The applicant also sought to rely upon an updated affidavit describing the applicant’s claims and annexing documents that were not before the Tribunal. The Court explained that it would receive the substance of the applicant’s affidavit as submission but not as truth of evidence of the fact. The documents that were not before the Tribunal were rejected.

9. The applicant sought to explain the hardship that he was facing currently in the community.  The Court explained to the applicant that it could not determine afresh the findings made by the Tribunal and did not have power to grant relief based on compassionate grounds.

10. The Court again explained, that the Court’s only power to grant relief was if the Court was satisfied that the Tribunal’s decision was unlawful or unfair. The applicant confirmed that he understood what the Court had said.

11. The applicant disagreed with the adverse credit findings made by the Tribunal and maintained that his life would be in danger if he was returned to Sri Lanka. The applicant submitted that the Tribunal’s decision was unlawful and was unjust in substance because the Tribunal had rejected the applicant’s claims and evidence.

12. I accept the submissions of the first respondent that the substance of what the applicant put from the bar table invited this Court to engage in an impermissible merits review in respect of which this Court has no power. Nothing said by the applicant from the bar table identified any jurisdictional error in the conduct of the review by the Tribunal.

Consideration and Conclusion

1. In relation to the grounds in the application, the substance of those grounds, again invite this Court to engage in an impermissible merits review. 

2. In relation to Ground 1, paragraphs (a) and (f), it was open to the Tribunal to take into account country information and make findings in that regard. The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification. Nothing in Ground 1 paragraphs (a) and (f) identify any jurisdictional error by the Tribunal. 

3. I accept the first respondent’s submission that Ground 1 paragraphs (b) and 1(c) misrepresent the findings by the Tribunal and do not identify any irrelevant consideration taken into account by the tribunal.

4. In relation to      Ground 1 paragraphs (d) and 1(e), it was relevant and open to the Tribunal to take into account the applicant’s membership of the Sinhalese community not being discriminated against by reference to country information that was put to the applicant. It was relevant to the Tribunal to take into account at paragraph 84 of the Tribunal’s reasons, the applicant’s continuous employment. Ground 1 fails to identify any jurisdictional error. 

5. In relation to Ground 2, I accept the first respondent’s submissions that the matters raised in paragraphs (a) to (c), (h), (i), (j) and (l) were not claims raised by the applicant before the Tribunal and did not arise on the material before the Tribunal. The Tribunal did make findings in relation to the applicant’s fear of being suspected of having links with the LTTE because of his father at paragraph 81 of the Tribunal’s reasons.

6. The Tribunal did take into account the applicant’s claims in relation to harassment from his village and made adverse findings that were open to the Tribunal in that regard. The Tribunal also took into account the applicant’s medical and psychological reports in relation to the applicant’s claims of past harm and risk of future harm.

7. The Tribunal made an adverse finding in relation to the proposition that the applicant’s father was detained for 14 days. The adverse credit findings made by the Tribunal cannot be said to lack an evident and intelligible justification. Ground 2 fails to make out any jurisdictional error. 

8. Ground 3 is in substance, an impermissible challenge to the adverse findings made by the Tribunal that cannot be said to be unreasonable or illogical and were open on the material before the Tribunal. The Tribunal made adverse findings in relation to the applicant’s claimed fears in relation to links with the LTTE and took into account the applicant allegedly suffered from PTSD and the adverse credibility finding in relation to the applicant’s family was open on the material before the tribunal. Ground 3 fails to make out any jurisdictional error.

9. On the material before the Court, the Tribunal complied with its statutory obligations and with its obligations of procedural fairness in the conduct of the review.

10. The application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 6 December 2016