AQN15 v Minister for Immigration & Anor
[2016] FCCA 58
•27 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQN15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 58 |
| Catchwords: MIGRATION – Protection Visa. |
| Legislation: Migration Act 1958, ss.65, 476, 477 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 WZATH V Minister for Immigration & Anor [2014] FCCA 612 |
| Applicant: | AQN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 373 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 20 November 2015 |
| Date of Last Submission: | 20 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 January 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the application is dismissed.
That the applicant pay the costs of the first respondent in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 373 of 2015
| AQN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant was born on 20 August 1982 in Sri Lanka. He arrived at Christmas Island on 18 May 2012.
The applicant applied to the Department of Immigration for a Protection (Class XA) visa under section 65 of the Migration Act 1958 (“the Act”).
He made this application on 23 August 2012.
On 12 September 2013 the Minister’s Delegate refused to grant to the applicant the visa which he sought.
On 18 September 2013 the applicant filed an Application for Review of the decision by the Minister’s delegate.
On 3 December 2014 the applicant was invited to appear before the relevant Tribunal to give evidence and to present arguments. On 13 February 2015 a hearing took place before the Tribunal and the applicant participated in person together with his representative by telephone. An interpreter assisted the applicant.
After the hearing took place on 13 February 2015 – the Tribunal wrote to the applicant stating that the Tribunal wished to conduct a second hearing. The Tribunal wrote on 24 February 2015. The purpose of the second hearing was to obtain the applicant’s comments on the relevant part of a new DFAT report dated 16 February 2015. The Tribunal advised the applicant that it would be able to conduct a short telephone hearing to avoid inconvenience and the Tribunal was available on 2 March 2015. However, the Tribunal also noted that the applicant would need to consent in writing in order to waive the prescribed period for the hearing to proceed as planned.
However, on 24 February 2015 the applicant’s representative advised that they had been unable to contact the applicant in order to obtain his consent for the hearing that had been referred to in the Tribunal’s letter. The Tribunal forwarded a copy of the DFAT report dated 16 February 2015 and invited the applicant to provide comments/submissions as soon as possible and certainly by 11 March 2015. The applicant did provide a response to the Tribunal’s invitation to comment on the DFAT report. This response was dated 1 March 2015.
On 12 March 2015 the Tribunal decided to affirm the decision of the Minister’s delegate. The Tribunal’s decision affirmed the decision of the Minister’s delegate not to grant to the applicant a Protection Visa. The applicant was notified of the Tribunal’s decision on 1 April 2015.
In paragraph 25 of the Tribunal’s decision dated 12 March 2015 it is stated:-
“25. The applicant claimed he was involved in the early warning response project and received and sent warnings about ethnic tensions. He also claimed he reported on paramilitary and intelligence operations in the area. While the tribunal accepts he worked on the early warning response system for FCE, it does not accept he was involved in or that the project was involved in reporting on paramilitary, army activity or government or LTTE activity. The tribunal considers the applicant embellished his claims in that regard as it is clear from independent information that that was not the role of FCE or the project or field coordinators.”
Accordingly, the Tribunal accepted that the applicant worked on the early warning response system for the Foundation of Coexistence (FCE). However, the Tribunal did not accept that the applicant was involved in or that the project was involved in reporting on paramilitary, army activity, the government or the Liberation Tigers of Tamil Eelam (LTTE) activity. The Tribunal considered that the applicant embellished his claims. It came to this conclusion by referring to independent information on the role of the FCE. In this regard I note paragraphs 25, 26 and 27 of the Tribunal’s decision.
In paragraph 31 of the Tribunal’s decision it is apparent that the Tribunal concluded that it accepted that the applicant was involved in supporting and helping the local community but the Tribunal did not accept that the applicant was involved in “Human Rights activity, providing protection or advocating for human rights or this type of activity”. The Tribunal noted that according to the applicant’s employment letter – “the applicant was involved in supporting regional governance through communal dialogue…” Note paragraph 31 of the Tribunal’s decision.
Also in paragraph 31 of its decision the Tribunal made it clear that it did not accept that the applicant’s role and work at the Organised Councils for Peace and Coexistence (OCPC) and Foundation of Coexistence (FCE) – put the applicant at a risk of harm as a Human Rights activist or as someone who was anti-government. The Tribunal did not accept that the applicant passed any reports or information to the government. The Tribunal did not accept that the applicant collected information about paramilitary groups, the LTTE, Karuna or the Pilliayan Group.
The Tribunal did not accept that the applicant had left his positions at FCE and OCPC (respectively) because of threats that were made towards him. The Tribunal stated that country information indicated that the project work being conducted by FCE and OCPC had ended around the time that the applicant finished working.
The applicant ceased work with FCE on 17 December 2009. He commenced work with OCPC in February 2010. The Tribunal concluded that it did not accept that the applicant would have left one job in December 2009 because of threats and fear of harm and start another job with OCPC in February 2010. This was a finding made against the applicant on credibility grounds. I note what the Tribunal said in paragraph 37 of the decision:-
“37. The tribunal accepts he wanted to work and assist his family and likes the work, but the tribunal does not accept that it is credible that he would commence similar work if he was afraid for his life and left a similar employment because he was afraid, less than three months before. The tribunal considers the fact he took up the OCPC employment so soon after leaving FCE suggests that he was not threatened and was not in fear of his life.”
I note the conclusions of the Tribunal in paragraphs 39 and 54 where it is stated:-
“39. The applicant’s evidence about the threats was evasive, changed and lacked details. The tribunal noted a number of times he did not answer the question asked, even though he understood it and said he had no problems understanding the interpreter. Further, it was evidence in the hearing that he had good English as he could respond to questions before they interpreted (though the tribunal ensured it was interpreted). He gave evidence in English without the interpreter at his request at one point due to sensitivity of an aspect of a new claim he added at the end of the hearing. The tribunal considers the applicant was not recalling events but making up the story and thinking all the time about whether his response would fit with what he had already said or anticipating how it might fit with future questions or evidence he might have to give.”
…
“54. The tribunal has considered the applicant’s evidence but finds he embellished his claims regarding his work at FCE and OCPC and he was not telling the truth about threats made to him or his mother. The tribunal does not accept that any threats were made against him or to his mother or that anyone was looking for him. It follows the tribunal does not accept that anyone followed or chased him when he was near the market or tried to abduct him in March 2012 as claimed. The tribunal does not accept CID, the authorities, paramilitaries, Karuna or Pillayian group are looking for him or have any interest in him.”
The above quoted paragraphs of the Tribunal’s decision make it abundantly clear that on many aspects the Tribunal made credit findings against the applicant.
Further, I note what the Tribunal had to say in paragraph 56 of the decision:-
“56. Further, country information is that many thousands suspected of LTTE sympathising were detained or arrested or sent to rehabilitation camp towards the end of the war. However, the applicant was not so questioned or detained and continued his work very publicly without harm or questioning or arrest by the authorities. The tribunal does not accept he was perceived as LTTE or anti-government because of his uncles or cousin’s LTTE affiliations as he would have been detained or questioned if that were the case towards the end of the conflict or since then. The applicant was not so detained and he was not questioned or harmed. The tribunal does not accept the applicant was or will be perceived as LTTE. The tribunal does not accept he was doing work against the government or that he was anti-government or that he was or is perceived as LTTE or anti-government or a political or human rights activist.”
In summary, the Tribunal were not willing to accept that the applicant was perceived as LTTE or anti-government.
The Tribunal made reference to the applicant’s Tamil ethnicity. The Tribunal concluded that Tamils do not face a real chance of suffering serious harm solely on account of their ethnicity from the Sir Lankan authorities or because they are Tamils from the north or areas formerly controlled by the LTTE (in this regard generally I note what was said in paragraphs 67, 68, 69 and 70 of the Tribunal’s decision).
Further, I note what was stated by the Tribunal in paragraph 82 where it was concluded:-
“82. Considering the applicant’s circumstances and the independent information the tribunal does not accept that the applicant faces a real chance of persecution now or in the future because of Tamil race or ethnicity or membership of a particular social group as Tamil from the east or male Tamils or young male Tamils or male asylum seeker Tamils from the east or Tamil, being perceived or suspected pro LTTE, or having relatives who were LTTE, or anti-government sympathiser, aid or community worker, or as human rights or political activist (the latter two are not accepted). Further, (as discussed below) the tribunal does not accept he will be imputed with LTTE or antigovernment sentiment because he departed illegally, sought asylum in a western country or Australia or spent time in Australia.”
In paragraphs 82, 83 and 90 (amongst other paragraphs) the Tribunal concluded that the applicant does not face a real chance of serious harm as a failed asylum seeker.
The Tribunal did not accept that the applicant was known to the authorities or that he was of adverse interest to the authorities. The Tribunal came to the conclusion that it did not accept the applicant’s claims that CID or anyone was looking for him or threatened him.
Under the heading “Illegal Departure” from page 19 of the Tribunal’s decision – the Tribunal made various findings including findings that the applicant may well be questioned at the airport in Sri Lanka upon his return – to ensure that he can establish his identity. He may well also be charged under the Immigrants and Emigrants Act (IEA) – because he departed the country illegally. He may well be charged at the airport and brought before a Court so that he can apply for bail. The Department of Foreign Affairs and Trade was informed in March 2014 that no returnee “who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally” (note paragraph 92 of the Tribunal’s decision).
The Tribunal concluded that the Sri Lankan departure laws are laws of general application and, accordingly, when the authorities enforce those laws – this did not amount to persecution. Further, the question, arrest and generally poor conditions experienced by returnees who are on remand – or indeed in relation to subsequent questioning, etc of detainees – did not amount to “systematic and discriminatory conduct under section 91R(1)(c)”.
On 1 May 2015 the applicant filed an application in the Federal Circuit Court of Australia seeking Judicial Review of the decision of the second respondent (the Tribunal). The applicant’s application for Judicial Review was therefore made within the 35 day time limit (note section 477 of the Act).
On 20 November 2015 in the Federal Circuit Court of Australia the applicant appeared and was assisted by an interpreter. The applicant explained further in Court the so called “private matter” which had been referred to in the Tribunal’s decision. This was apparently in relation to the fact that the applicant says that in his own chest area he looks like a female and this causes him embarrassment. He says that he felt he was embarrassed and ashamed at having been ridiculed at check points because of this situation. Paragraph 39 of the Tribunal’s decision relevantly notes in relation to this issue:-
“39. … Further, it was evident in the hearing that he had good English as he could respond to questions before they were interpreted (though the tribunal ensured it was interpreted). He gave evidence in English without the interpreter at his request at one point due to sensitivity of an aspect of a new claim he added at the end of the hearing. The tribunal considers the applicant was not recalling events but making up the story and thinking all the time about whether his response would fit with what he had already said or anticipating how it might fit with future questions or evidence he might have to give.”
At the hearing held in the Federal Circuit Court of Australia on 20 November 2015 the applicant, with the assistance of the interpreter, confirmed that the sensitive matter referred to in paragraph 39 was the matter relating to the applicant’s contention that in his chest area he looks like a female. The applicant also confirmed that any references in the Tribunal’s decision to a “private matter” referred to this particular issue that the applicant considers that in his chest area he presents as a female and this causes him embarrassment and shame and that he has, in the past, been ridiculed as a result of his presentation. The Tribunal took into account all of these claims by the applicant. I note what was stated in the Tribunal’s decision in paragraph 112:-
“112. The tribunal has had particular regard to the private matter raised by the applicant and accepts he was laughed at when stopped by military at a checkpoint on the bus during the conflict. Given the reduction in checkpoints and monitoring and change since the end of the conflict, the tribunal is not satisfied he faces a real risk of similar harm. However, the tribunal does not accept that even if this occurred again, even in the context of questioning or prison, that being laughed at or ridiculed amounts to significant harm.”
As noted, the “private matter” referred to in paragraph 112 is a matter to which I have already referred – namely the applicant’s contention that in his chest area he presents as a female and that he has suffered ridicule as a result of this. The Tribunal therefore had regard to the so called private matter raised by the applicant and reached its own conclusion.
The Tribunal concluded further:-
“113. On the evidence before it, the tribunal is not satisfied that during any questioning at the airport, bail conditions, possible detention on remand, questioning, prison conditions or subsequent contact or monitoring visit that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment. The tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.
114. The tribunal finds that there are no 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 that he will suffer significant harm (as defined).
115. Having considered these circumstances, singularly and cumulatively, the tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm.
116. The tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) [of the Act].”
CONCLUSIONS
117. For the reasons given above, the tribunal is not satisfied that 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).
118. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the tribunal has considered the alternative criterion in s.36(2)(aa). The tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
119. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
120. The tribunal affirms the decision not to grant the applicant a Protection visa.”
As noted, on 1 May 2015 the applicant filed an application in the Federal Circuit Court of Australia seeking judicial review of the decision of the second respondent. The ground of review stated:-
“That the decision of the second respondent, the refugee review tribunal, was affected by legal error”.
The applicant only identified this one single ground of review.
The applicant told the Court on 20 November 2015 that a Justice of the Peace had written this ground of review for him. The applicant did not at any time provide any particulars of the ground of review.
The applicant had an opportunity to file and serve an Amended Application but he did not do so. Further, the applicant had an opportunity to file and serve written submissions before the hearing date. The applicant did not do so.
The ground for review stated by the applicant is not properly particularised. I note what was said by His Honour Judge Lucev in WZATH v Minister for Immigration & Anor [2014] FCCA 612 at paragraph 60 – where His Honour stated:-
“60. Ground 2 is not properly particularised. The failure to particularise a ground of review is sufficient basis for it to be dismissed (Note: SZELX v Minister for Immigration [2007] FMCA 209). The Court has, however, given consideration to the grounds for review as best it can in the absence of particulars.”
An appeal against the decision of the primary Judge in WZATH (supra) was dismissed by the Federal Court of Australia (per Siopis J) (WZATH v Minister for Immigration and Border Protection & Anor [2014] FCA 969).
In the case currently before the Court – despite the fact that the applicant was given many opportunities to provide particulars of the ground of review – he failed to do so. On this basis alone the application is dismissed. But there are other reasons that the application must be dismissed in any event.
The applicant – during the course of the hearing on 20 November 2015 continually raised factual matters and was requesting that the Court embark upon an impermissible merits review of the decision of the Tribunal. The applicant’s submissions were aimed at highlighting errors by the Tribunal in relation to factual issues and errors by the Tribunal in relation to findings of credit against the applicant. All of the matters raised by the applicant at the hearing on 20 November 2015 were designed to urge the Court to embark on an impermissible merits review of the Tribunal’s decision.
The applicant referred to some recent postings on certain websites in the latter part of 2015. This Court is, however, considering an application for Judicial Review of a decision made by the Tribunal in March 2015.
I have come to the conclusion that the applicant has not been able to identify any jurisdictional error in the Tribunal’s decision. The applicant’s submissions were all aimed at trying to get the Court to embark on an impermissible merits review of the Tribunal’s decision. There was nothing raised by the applicant that could be said to be relevant or that could be said to highlight some jurisdictional error in the Tribunal’s decision. It is important to keep in mind what was said by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 where it was stated:-
“…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative actions, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.””
The applicant has not been able to show any jurisdictional error. The decision of the Tribunal dated 12 March 2015 is a privative clause decision under section 476 of the Act. The application must be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Howard
Associate:
Date: 27 January 2016
25
5
2