AQN16 v Minister for Immigration

[2017] FCCA 1434

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1434

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal failed to consider the advanced social group of the applicant – whether the applicant was denied procedural fairness – whether the Tribunal properly considered the conditions of possible detention – no jurisdictional error identified – application dismissed.

Legislation:

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

Immigrants & Emigrants Act 1949 (Sri Lanka)

Cases cited:

SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556

Applicant: AQN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 674 of 2016

Judgment of: Judge Street

Hearing date: 26 June 2017

Date of Last Submission: 26 June 2017

Delivered at: Sydney

Delivered on: 26 June 2017

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 first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 674 of 2016

AQN16

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 24 February 2016, affirming the decision of a delegate not to grant the applicant a protection 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 if returned to Sri Lanka on the basis of his Tamil ethnicity as well as on the basis that he would have an imputed political opinion of being pro-LTTE. The applicant also claimed to fear harm because of his membership of two particular social groups. The applicant is a young Tamil male who would be at risk of harm if returned to Sri Lanka, and on the basis of his return to Sri Lanka, he would be a Tamil person who was returning as a failed asylum seeker.

3. On 16 July 2013, the delegate found that the applicant failed to meet the criteria for the grant of a protection visa. The applicant applied for review on 23 July 2013.

The Tribunal’s decision

1. The applicant was invited to attend at three hearings before the current Tribunal to give evidence and present arguments and was represented on each occasion by his migration agent. Following the third hearing on 3 February 2016, further submissions were provided to the Tribunal dated 16 February 2016. Those submissions were expressly referred to and summarised in the Tribunal’s reasons.

2. The Tribunal identified the applicant’s background and set out the relevant law. The Tribunal set out the applicant’s claims and that he was born in the Northern Province and is a Tamil and that he travelled to Qatar in December 2011 and then waited there until May 2012, and he claimed to have been deported from Malaysia in 2008. The Tribunal noted the applicant claimed he feared harm by being persecuted by the Sri Lankan Army, if returned to Sri Lanka, and by reason of being a Tamil from a particular area. The applicant claimed that five of his relatives had been killed.

3. The applicant claimed problems began from around December 2010 when he started working in a phone company as a sales representative. The applicant claimed he left the phone company and became afraid and went into hiding. The applicant claimed that CID officers came to his home twice asking about him and the applicant claimed he would be detained at the airport and that he would be tortured and killed by the CID. The applicant claimed to be fearful of the Sri Lankan Army and claimed that he had a friend of his and other Tamil youths who had been killed by the army while they were at the beach.

4. The applicant claimed that he was fearful the CID and the army shared the same information and, by implication, information held by the CID about the applicant would be available to the army. The applicant claimed the authorities could not protect him because the CID and the army are part of the instruments of the state and the applicant claimed he would not be protected because he was a Tamil person and, in essence, preference was given to Sinhalese people in Sri Lankan society.

5. The Tribunal expressly made reference to the submissions summarising that the applicant claimed to fear harm on the basis of his membership of a particular social group of young Tamil males from the northern province of Sri Lanka, as well as referring to the applicant’s real chance of serious harm as a failed asylum seeker if he returns to Sri Lanka.

6. The Tribunal noted that the first hearing had to be adjourned because the applicant claimed he was too stressed to continue the proceedings. On the second occasion, the applicant was suffering from a respiratory medical condition and the Tribunal did not believe it was fair to proceed with a hearing on that occasion, given the applicant’s health.

7. The Tribunal summarised the evidence and claims of the applicant at the hearings and, in particular, in detail as to what occurred on 3 February 2016, when the applicant’s representative attended by telephone.

8. The Tribunal clearly raised concerns with the applicant about his evidence in the course of that hearing. The Tribunal referred to the post-hearing submissions, which suggested that the difficulties of the applicant were not because he was being evasive but because the applicant was stressed and had trouble thinking clearly during the proceedings, taken together with his uncertain immigration status.

9. The Tribunal found it was not satisfied as to the applicant’s claims that he has a well-founded fear of persecution if returned to Sri Lanka, based on his claims and the evidence to the Tribunal. The Tribunal was not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and some aspects of his claims.

10. The Tribunal, in that regard, took into account the applicant’s evidence and submissions, as well as country information. The Tribunal did not consider the claims that the applicant’s sister was detained and questioned for one day by authorities about LTTE connections would place the applicant at risk in Sri Lanka, in accordance with the 2012 UNHCR eligibility guidelines for people at risk in Sri Lanka for real or perceived links to the LTTE. The applicant claimed that he was questioned and accused of being associated with the LTTE, but was never charged or physically harmed. The applicant claimed he left Sri Lanka without difficulty and travelled on his own passport.

11. After considering the applicant’s evidence, the Tribunal did not accept the applicant has a well-founded fear of persecution if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil ethnic extraction or because of his membership of a perceived social group of young male Tamils from the northeast of Sri Lanka. The Tribunal did not accept that the evidence and country information supported the applicant’s claims in relation to that issue. The Tribunal referred to the applicant’s vague and unresponsive answers in relation to some of the Tribunal’s questions. The Tribunal also identified inconsistencies between the applicant’s claims in the statutory declaration and his subsequent statement of May 2014 and the evidence he gave to the Tribunal. The Tribunal identified those inconsistencies in its reasons in relation to the adverse credibility findings. The Tribunal’s overall assessment of the applicant’s credibility was that after taking into account the totality of the evidence, was that that applicant is not a credible witness.

12. The Tribunal did not accept the applicant’s suggestion of claimed interpreter problems in relation to the interview with the Department’s delegate. In totality, the evidence caused the Tribunal not to accept the applicant as a credible witness. The Tribunal did not accept that the adverse credibility findings could be excused by claimed stress-related conditions of the applicant or his inability to recall incidents. The Tribunal found that it was the totality of the applicant’s evidence that caused the Tribunal not to accept the applicant as a credible witness.

13. The Tribunal found that the applicant was not of any interest to the Sri Lankan authorities on the basis of perceived links to the LTTE. The Tribunal did not accept that the evidence provided in the country information indicates the applicant has a well-founded fear of persecution on the basis of an imputed political opinion that he is pro-LTTE, should he return to Sri Lanka either now or in the reasonably foreseeable future.

14. The Tribunal did not accept that because the applicant’s sister was detained for one day in 1998 on suspicion of being connected to the LTTE that the applicant faces a real chance of serious harm on that basis should the applicant return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal did not accept that the applicant has a well-founded fear of persecution on the basis that his sister was detained for one day in 1998 on suspicion of being connected to the LTTE.

15. The Tribunal did not accept that the applicant was asked to pay money to the CID as claimed. The Tribunal did not accept that the applicant was threatened by the CID. The Tribunal did not accept that the applicant left his job at the telephone company because he believed that the CID would cause problems for him.

16. The Tribunal did not accept that the CID visited his home when he returned from Qatar and spoke to his sister about his whereabouts or that the CID had previously questioned his sister in December 2011 about the applicant’s whereabouts. The Tribunal expressly took into account, in this regard, the applicant’s evidence and that he did not have any problem with the authorities when he returned from Qatar in May 2012. The Tribunal did not accept the applicant’s claim that a number of Tamil young men, including his friend, were killed on a beach by the army.

17. The Tribunal accepted that the applicant departed Sri Lanka unlawfully, and that in those circumstances he is likely to be charged with an offence of having unlawfully departed under the Immigrants & Emigrants Act 1949 (Sri Lanka) (“the IE Act”) in Sri Lanka. The Tribunal accepted that the prison conditions in Sri Lanka are poor. The Tribunal noted that it referred to issues surrounding the grant of bail and the circumstances surrounding a guarantor in the situation of the applicant and the country information.

18. The Tribunal expressly referred to asking the applicant as to whether a family member would be available to act as a guarantor and to collect the applicant if returned to Sri Lanka and if he was charged with an offence and granted bail. The Tribunal noted that the applicant’s evidence to the Tribunal did not indicate that he would not be assisted by a family member if that situation arose if he was returned to Sri Lanka. The Tribunal found that the enforcement of the IE Act in Sri Lanka is a non-discriminatory enforcement and a law of general application intended for the legitimate state purpose of border control.

19. The Tribunal was not satisfied, after considering the evidence and country information, that there was a real chance of serious harm to the applicant on the basis of his detention under that Act. The Tribunal, after considering the applicant’s claims, both individually and cumulatively, did not accept that the applicant faces a real chance of serious harm for a Convention reason if returned to Sri Lanka now or in the reasonably foreseeable future.

20. The Tribunal, after considering the totality of the evidence and the country information, was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk he would be subjected to any form of harm, whether it be the result of an act or omission, by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a) to (e) of the definition of torture in s.5(1) of the Act.

21. The Tribunal was not satisfied there were substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, whether physical or mental, or an act or omission that could reasonably be regarded as cruel or inhumane, such that it would meet the definition of cruel or inhumane treatment or punishment in s.5(1) of the Act.

22. The Tribunal was not satisfied there were substantial grounds for believing that there was a real risk that the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) of the Act. The Tribunal was not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer arbitrary deprivation of life or the death penalty. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations. The Tribunal was not satisfied the applicant met the criterion in s.36(2)(a) of the Act.

23. The Tribunal found that the applicant did not meet the criterion in s.36(2)(aa) of the Act, and affirmed the decision under review.

Proceedings before this Court

1. On 5 May 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Grounds in the application

1. The grounds in the originating application are as follows:

   Ground 1

   • The Tribunal failed to consider integers of social group advanced by the Applicant.

   Particulars

   • The Tribunal accepted that the Applicant was Tamil from particular area.

   • The Tribunal did not consider the claimed.

   • The Tribunal committed jurisdictional error.

   Ground 2

   • The Tribunal denied the Applicant's procedural fairness and fair hearing.

   Particulars

   • Further particulars would be provided from transcript.

   • The Tribunal committed jurisdictional error.

   Ground 3

   • The Tribunal committed jurisdictional error regarding the Applicant's detention.

   Particulars

   • The Tribunal did not give proper consideration that the Applicant's detention in poor conditionsl.

   • The Tribunal failed to carry out its duties and committed jurisdictional error.

   Ground 4

   The Tribunal committed jurisdictional error regarding the application for bail.

   Particulars

   • The Tribunal did not give proper consideration that the Applicant would get bail.

   • The Tribunal failed to carry out its duties and committed jurisdictional error.

   (Errors in original)

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by a 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. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the Court would set aside the decision and send it back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the applicant’s application would be dismissed. The Court explained that it would have identified the evidence and then 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 the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table, the applicant asserted that he had not had a proper opportunity before the Tribunal to present his case, and that the Tribunal did not inquire properly into the applicant’s case. Notwithstanding the particulars to Ground 2 of the application, which suggested that a transcript would be provided of the hearing, no transcript was provided. On the material before the Court, it is apparent that the applicant had three hearings before the Tribunal, and that the Tribunal adjourned earlier hearings in order to ensure that the applicant could meaningfully participate in the hearings.

2. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the applicant had a real and meaningful opportunity to present his claims and evidence and submissions before the Tribunal. The Court notes that there is no suggestion in the submissions received after the third hearing that the applicant wanted a further adjournment or further opportunity to adduce further evidence. Accordingly, the Court does not accept the applicant’s contention that he did not have a real and meaningful hearing before the Tribunal.

3. There is no easily identifiable information identified by the applicant that could give rise to any duty to inquire by the Tribunal. The Court does not accept that there was any failure by the Tribunal to conduct the review in accordance with the requirements of the Act. On the face of the material before the Court, the review was conducted in accordance with the requirements of procedural fairness.

4. The applicant, from the bar table, sought to take issue with the adverse findings in relation to credibility and criticised the sequence of the questioning, and asserted that he was confused. It is clear that submissions were made to the Tribunal in relation to the applicant’s credibility, and that the applicant’s credibility was a live issue at the hearing. The adverse findings by the Tribunal were the subject of identified inconsistencies that were reasonable and rational on the material before the Tribunal. The adverse credibility findings cannot be said to lack an evident and intelligible justification. The applicant’s complaint that the Tribunal did not believe him and took issue with the claims that he advanced was, in substance, an invitation to this Court to engage in impermissible merits review. This Court explained to the applicant it does not have power to make fresh findings of fact or revisit the merits.

5. The applicant suggested that he requested an adjournment during the hearing, which was declined. On the face of the evidence before the Court, as indicated, the Tribunal did grant an adjournment of the first hearing, and, indeed, on the second hearing at the applicant’s request. There is no evidence before the Court of any further request for an adjournment during or after the third hearing. It is apparent that the applicant had the opportunity to put on submissions following the third hearing, which the Tribunal took into account.

6. The applicant maintained that there were still problems in his country. However, what the applicant said in that regard was, again, an invitation to this Court to engage in impermissible merits review.

7. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration of grounds

Ground 1

1. In relation to Ground 1, the Tribunal correctly identified the social groups the subject of submissions to the Tribunal, and made adverse findings in that regard. Those adverse findings were open for the reasons given by the Tribunal. This is not a case where there is any failure by the Tribunal to consider the integers of the applicant’s claims. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, no transcript has been produced and no particulars of alleged unfairness have been articulated by the applicant, beyond taking issue with the adverse credibility findings. Ground 2 fails to make out any jurisdictional error.

Ground 3

1. In relation to Ground 3, it is apparent from the Tribunal’s reasons that the Tribunal expressly took into account the poor prison conditions and to the extent that Ground 3 seeks to raise an issue in relation to the PAM3, it was expressly referred to by the Tribunal and there is no basis to infer that the Tribunal failed to take into account the PAM3.

2. To the extent that Ground 3 seeks to advance an issue relating to SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556, this Court is bound by the decision of the Full Court, and the Tribunal made adverse findings that were open to it in relation to the applicant in respect of the applicant’s claims for refugee status and complementary protection. There is no substance in the assertion that the Tribunal failed to carry out its duties or committed a jurisdictional error, on the face of the material before the Court. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to Ground 4, it is apparent from the Tribunal’s reasons that the Tribunal expressly raised with the applicant the ability of his family to provide suretyship for him for his release in relation to his illegal departure from Sri Lanka on return. There is no substance, on the face of the material before the Court, that the Tribunal failed to give proper consideration to the applicant’s claims in relation to consequences of his return to Sri Lanka, having illegally departed Sri Lanka, and the Tribunal made findings in relation to the applicant’s ability to obtain bail that were open to the Tribunal.

2. On the material before the Court, there is no substance in the assertion that the Tribunal failed to carry out its duties or committed jurisdictional error in its findings in relation to the applicant’s claims in respect of the processes to which he would be subjected as a consequence of the IE Act of Sri Lanka and his illegal departure. Ground 4 fails to make out any jurisdictional error.

Conclusion

1. As the application fails to make any jurisdictional error, the application is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  18 July 2017