AQL16 v Minister for Immigration

[2018] FCCA 1665

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQL16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1665

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) Visa –  whether the Tribunal denied Applicant procedural fairness – whether the Tribunal applied the wrong legal test – credibility of the Applicant – no failure to afford procedural fairness – no application of wrong legal test – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

WZAVW v Minister for Immigration [2016] FCA 760

Applicant: AQL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 586 of 2016

Judgment of: Judge McNab

Hearing date: 23 April 2018

Date of Last Submission: 23 April 2018

Delivered at: Melbourne

Delivered on: 23 April 2018

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Ms Koya

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application filed on 23 March 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 586 of 2016

AQL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

1. This application for judicial review comes by way of an application filed 23 March 2016 in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 22 February 2016. By that decision the Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a Protection (Class XA) Visa.

2. The Applicant’s grounds of review are that:

   1.  The Administrative Appeals Tribunal did not afford me procedural fairness;

   2.  The Administrative Appeals Tribunal applied the wrong legal test.[1]

   [1] Application filed 23 March 2016, 3.

Background

1. The background circumstances and the decision of the Tribunal in this matter have been accurately summarised by the First Respondent and are extracted below (citations omitted):[2]

   [2] First Respondent’s submissions, [2] – [12].

2. The Applicant is a male citizen of Sri Lanka of Sinhalese ethnicity who applied for a protection visa on 24 May 2013.

3. The Applicant initially claimed in his entry interview that he travelled to Australia for financial reasons, to build himself a financially secure life. He mentioned that he was involved in a rally in 2012 relating to fisheries and oil prices (‘the fuel rally’), where the army became violently involved. He said he was not personally involved and there was no consequence to him attending the fuel rally.

4. In his Protection Visa application, the Applicant enhanced this claim to say his family was heavily involved in the local fishing committee, particularly his mother who was Secretary. The Applicant claimed that the fuel rally only became violent when he and his father were stopped by the Army. His father was assaulted by an Army officer, and the Applicant punched the Army officer in response. The Applicant claimed the Army came to visit their home later, which led to the Applicant going into hiding. He claimed the Army subsequently repeatedly visited his home and threatened to his family that they would kill him if they found him.

5. On 10 February 2014, a delegate of the first respondent refused the visa application, finding that no plausible explanation existed for the Applicant's initial omission of information and subsequent inconsistent information provided to the Department in respect of the claims.

6. On 12 February 2014, the Applicant applied to the Refugee Review Tribunal (as it then was) for review of the delegate's decision.

7. On 22 February 2016, the Tribunal affirmed the decision under review.

Tribunal Decision

1. At the hearing, the Tribunal traversed the Applicant's claims with him in detail. The Tribunal rejected the Applicant's material claims in respect of past and potential future incidents of harm. It specifically rejected the two assaults at the fuel rally, his family's involvement with the local fishing committee, and the subsequent alleged threats on the Applicant's life from the Sri Lankan army

2. The Tribunal found that the evidence provided by the Applicant at his entry interview was true - that he and his family attended the protest, but that he and his immediate family suffered no injuries or repercussions.

3. The Tribunal accepted that he and his family were members of the fisheries committee but that the authorities did not impact on his day to day life.

4. The Tribunal relied on the inconsistencies between the reasons given at the Applicant's entry interview, a statutory declaration dated 20 May 2013 provided with his application for protection, and at the Tribunal hearing itself.

5. The Tribunal noted that in the entry interview the Applicant was asked twice if there were any other reason apart from economic reasons for him to leave Sri Lanka and responded both times in the negative ([37]). The Tribunal found the Applicant's explanations for this omission were implausible.

6. The Tribunal did not accept that there was a real chance that the Applicant would be persecuted for reasons of his actual, or imputed, anti-government political opinion, his membership of his family, his membership of his mother's family, as a member of the village fishers committee, his status as a returned failed asylum seeker and a person who departed illegally.

7. With respect to the Applicant's illegal departure and complementary protection, the Tribunal found that the Applicant would be charged with offences under the Immigrants and Emigrants Act of Sri Lanka and could be held on remand for a brief period. The Tribunal did not consider that there was a real risk that the Applicant would be sentenced to a term of imprisonment for his illegal departure rather than simply being fined. The Tribunal considered that the Applicant only faced a remote chance of spending any longer than a limited number of days in remand. Further, the Tribunal did not accept that there was a real risk that the Applicant would be subjected to treatment constituting significant harm, including whilst on remand.

8. The Tribunal considered country information which suggested that any period of detention would be short term, and as such the Tribunal did not accept that this would constitute significant harm. The Tribunal did not accept 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 existed a real risk that he would suffer significant harm at the hands of the authorities for any reason.

Consideration

1. In appearing before the court today, with the assistance of a Sinhalese interpreter, the court asked the Applicant to advise in his own words what the errors in the Tribunal’s decision were. His response was:

   
   “I just want to remain in this country”.

   There may have been some confusion in his answer; he may have been giving a response as to why he has brought an Application. But when I sought to clarify this with the Applicant, he continued to state that his main focus was to try and remain in the country.

2. In my view, there is no error apparent in the decision of the Tribunal. The Tribunal summarised the Applicant’s claims both upon entry and in a statement made for the purposes of a Protection Visa. The Applicant is a Sinhalese man and a Catholic.[3] He has spent his life in Chilaw on the west coast of Sri Lanka, north of Colombo, and worked as a fisherman in that place.[4]

   [3] Court Book 178 [1].

   [4] Ibid.

3. Upon arriving in Australia illegally by boat, the Applicant was interviewed by the Department of Immigration and Border Protection. He was asked why he left his country of nationality[5] and in response stated:

   [5] Ibid 183 [24].

   I came because of problems. I want to make my own house. I came … in my house. That’s why I came. I want to build my own house here. I don’t think I will ever be able to have my own house if I stay in Sri Lanka.

   Why don’t you think you will be able to have your own house? ---There is not enough money.

   Is there any other reason you left Sri Lanka? ---No.

   Why did you come to Australia? ---To make my own life here.

   What will you do here? ---To do a job here.

4. The Applicant was also asked whether he or any members of his family were involved in any activities or protests against the government.[6] He responded yes and stated:

   we wanted to do a rally as part of the Fishery Summit to bring the oil prices down. My mother’s sister had a gunshot wound to her hand. The army came and shot people during this rally. I can’t remember the date this was. It was maybe last year.

   [6] Ibid.

5. In his Protection Visa application the Applicant developed this claim in significantly and stated that his family were heavily involved in a local fishing committee, particularly his mother who was the secretary. The Applicant said he and his father were at the front of the protest because they were well known in the professional fishing group. The Applicant claimed that the fuel rally only became violent when he and his father were stopped by the army. His father was assaulted by an army officer and the Applicant punched the army officer in response. The Applicant claimed the army came to visit his family’s home later which led the Applicant going into hiding. He claims that the army kept coming back to the house and saying ‘we will kill him if we ever come across him’.[7]

   [7] Ibid 179 [6].

6. He also claims that the army found out that he had left the country, they stated: ‘if he ever comes back into the country, we will kill him’.[8]

   [8] Ibid.

7. The delegate of the Minister refused the visa application, finding that no plausible explanation existed for the Applicant’s initial omission of information and subsequent inconsistent information provided to the Department of Immigration in respect of his claims.

8. In its decision, the Tribunal set out the Applicant’s claims in detail and did not accept the discrepancies between the reasons given for fleeing

   
   

   Sri Lanka at the Applicant’s entry interview and the statutory declaration dated 20 May 2013, which was provided with his application for protection.

9. In relation to a failure to raise reasons for coming to Australia, apart from economic reasons, the Tribunal found the Applicant’s explanations for omissions to be implausible.[9] The Tribunal found that it did not accept that there was a real chance that the Applicant would be persecuted for reasons of; his actual or imputed anti-government political opinion, his membership with his immediate family, his membership with his mother’s family, as a member of the village fisher’s committee, or his status as a returned failed asylum seeker.[10]

   [9] Ibid 186 – 187 [33] – [37].

   [10] Ibid 190 [42].

10. The Tribunal considered the Applicant’s claims for protection and complementary protection and did not accept that there was a real risk that the Applicant would be subject to treatment constituting significant harm as a result of his return to Sri Lanka, including significant harm whilst on remand if he was placed on remand upon his return.[11]

    [11] See ibid 191 [49].

11. In my view, there is no substance to the claim that the Tribunal did not afford the Applicant procedural fairness. The inconsistencies between the Applicant’s evidence to the Tribunal and the entry interview were claims made in the course of the application for review. At [24] and [36], The Tribunal set out the basis for the findings of inconsistency and for these reasons, in my view, there is no error apparent in the decision of the Tribunal.

12. In relation to the claim that the Tribunal applied the wrong legal test in regards to the Applicant’s claims, this ground is not particularised. The failure to particularise this ground renders it too vague and broad to be successful: WZAVW v Minister for Immigration [2016] FCA 760 [35] per Gilmour J. This ground is not made out.

13. In those circumstances, the Court dismisses the application for judicial review. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  2 July 2018