AQS15 v Minister for Immigration

[2015] FCCA 2176

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2176

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal properly considered an imputed political opinion – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 476

Applicant: AQS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1217 of 2015

Judgment of: Judge Street

Hearing date: 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Sydney

Delivered on: 12 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr M Glavac
Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1217 of 2015

AQS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ in the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 10 April 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. The applicant filed an amended application pursuant to orders made by the Court on 11 June 2015, which identified the following grounds.

   There are major issues which RRT did not consider.

   The RRT did not give me an opportunity, during the hearing and after the hearing, before this decision was taken, to respond to negative information which was intended to use to refuse my application.

   Particulars:

   There is country information before the RRT including the UNHCR, US State Report and UK report on Sri Lanka indicate that the security situation for Tamils like me has not considerably improved and is still volatile for Tamils like me. If I were return to Sri Lanka I would be detained on my arrival and would be kept in a prison with poor conditions until a person gives me a surety for my release. I have no family in Sri Lanka and they (wife and children aged 9 and 13) are in India in a refugee camp with great difficulties. My family remains in India as they still fear to return to Sri Lanka. The country information supports these facts. The RRT has failed to take into account this relevant information

   I refer to the RRT's findings and reasons in which the RRT stated why they rejected my application. This adverse information during the hearing and after the hearing, before this decision was taken was not put to me in writing or by a formal hearing for my response. This is a clear breach of natural justice pursuant to sections 424A and 424AA.

2. In support of the application, the applicant said he could not return to his home country because he feared for his life and that for the past 26 years he had been living a refugee life.  The applicant also raised that his family was still living in India as refugees and that two of his children were studying in India and, therefore, he could not return to Sri Lanka.  The applicant claimed to fear persecution based on an imputed political opinion arising from his support of the LTTE and the fact that he is adverse to the Sri Lankan government.

3. The imputed political opinion was claimed by the applicant by reason of his Tamil race or ethnicity and his being a member of a particular social group of failed asylum seekers and returnees who left Sri Lanka unlawfully.  Each of these claims was identified and addressed by the Tribunal.  Those claims were identified by the Tribunal at para.20 and the Tribunal rejected the imputed political opinion at para.24, providing detailed reasons, in the course of which the Tribunal did refer to the applicant mentioning photographs that had been identified in his visa interview on 11 June 2013 and in para.34, referred to the applicant’s role as a photographer that had been raised at the interview.

4. Relevantly, the Tribunal found:

   36. …However, I am not satisfied it is plausible this has led them to view him as an activist opposed to them or a person with a significant adverse political profile. Nor, given the ENDLF’s strong opposition to the LTTE, am I satisfied that he has been imputed with a pro-LTTE political opinion as a result of his joining in the march. I find it generally implausible, and I do not accept, that participation at this level, without more, would have motivated the authorities to approach his mother about him three years later, at a point when he had been absent from Sri Lanka for a period of twenty-six years. Further, in the absence of any substantiation for his evidence about the fate of other marchers who returned to Sri Lanka I am not satisfied that this claim, which was raised for the first time at the Tribunal hearing, is credible.

   37. Taking these matters together I am not satisfied that the Applicant has ever been imputed with a political opinion in favour of the LTTE as a result of support given to the LTTE by his family, his brother’s conscription by the LTTE or his own participation in a protest march in India. Nor am I satisfied that his single episode of political involvement in the many years in which he lived in India, even if it extended over a period of some two months, led the Sri Lanka government to view him as a political adversary or motivated them to target him by making enquiries at his home. I am not satisfied that a political opinion supportive of the LTTE and adverse to the government would be imputed to him if he were to return to Sri Lanka.

   …

   39. …This does not lead to a conclusion that all Tamils were members of the organization or even that a majority supported it during that period, however, and I am not satisfied the available information indicates that the Sri Lanka authorities presently hold such a view about members of the Tamil minority, almost six years after the end of the war. Nor am I satisfied that simply because the Applicant is a Tamil - or more specifically because he is a young Tamil male from the Eastern Province - he would be suspected for that reason of holding a pro-LTTE or anti-government political opinion.

   …

   40. …However, as further discussed below, having considered the information on the treatment of returnees to Sri Lanka cited in the delegate’s decision record and in the submissions, together with reporting by DFAT4 I am not satisfied it supports a conclusion that returning Tamils are in fact suspected of having links with the LTTE simply because they have sought asylum in Australia or because they have been living in Australia for an extended period. I am not satisfied that the Applicant would be imputed with a pro-LTTE political opinion for this reason.

5. The Tribunal then turned to the issue of the applicant’s Tamil race or ethnicity and relevantly found:

   45. Taking this information together, I am not satisfied it indicates that those Sri Lankans who are ethnically Tamil now face a real chance of serious harm simply because of their ethnicity, or that associated factors such as being a young male or having geographic origins in the North or East of the country put them at greater risk of such harm. I am not satisfied the information supports a conclusion that there is a real chance the Applicant would suffer serious harm because of his ethnicity. Nor am I satisfied that the fact he is a relatively young male whose origins lie in the Eastern Province (even though he has not lived there since 1990) would operate to exacerbate the fact of his Tamil ethnicity so as to create such a real chance.

   …

   47. While DFAT reporting does indicate that Tamils continue to face some degree of societal discrimination I am not satisfied that this can reasonably be seen as rising to the level of serious or significant harm. Nor am I satisfied, on the information available to the Tribunal, the Tamils are subjected to serious or significant harm through being denied political, economic, religious or other rights.

6. The Tribunal referred to the applicant’s claim of being a failed asylum seeker and it is clear in this regard the Tribunal referred to country information including in respect of the applicant’s fear in respect of his Tamil race and ethnicity in paras.41 and 47 and in paras.49 to 58.  The Tribunal also referred to the applicant’s submissions in relation to country information, which was received by the Tribunal on 27 February 2015, at pp.134 to 147 of the court book, and was summarised at para.15 of the Tribunal’s reasons.

7. The Tribunal relevantly found: 

   58. …Having considered these cases I am not satisfied they have any relevance to the situation of the Applicant, who has never involved himself in political activity of any kind in Sri Lanka and has never been involved in people smuggling ventures.

   59. Taking this information together I am not satisfied the Applicant would face a real chance of serious harm at the hands of the authorities on return to Sri Lanka, either at the airport or after his return to his home, because he had sought asylum in Australia.

8. The Tribunal then turned to the issue of unlawful departure and in addition to the acknowledgement of the requirement to take into account the PAM3 Refugee and Humanitarian Complementary Protection Guidelines, referred to in para.8 of the Tribunal’s reasons, it is clear from para.62 that there was an intellectual engagement in that regard, with the actual conditions in the particular prison consistent with the application of those guidelines.

9. Relevantly, the Tribunal found:

   66. …As the advisor notes, however, such a possibility is only remote, given the information before the Tribunal indicating that custodial sentences have not been imposed for leaving the country unlawfully, and I am not satisfied that this theoretical penalty can realistically be said to constitute persecutory harm.

   …

   67. …However on the basis of all the information before the Tribunal concerning the enforcement of the Act and the treatment of returnees both on arrival and subsequently, I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than extended questioning at the airport, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment on conviction or that he would be released on the basis of a suspended sentence. Nor am I satisfied that the treatment he would experience would reflect other than the non-discriminatory enforcement of a law of general application.

10. It was in these circumstances the Tribunal concluded:

    68. …However, I am not satisfied that there is anything in the information before the Tribunal to demonstrate that long periods of residence abroad, including in India, are in fact seen by the Sri Lanka authorities as a reason for suspicion. The information indicates that many Sri Lankans travel abroad for work purposes and spend extended periods out of the country, and this aspect of the Applicant’s circumstances does not appear to be very remarkable.

    69. In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil race, his actual or imputed political opinion or because he had left the country unlawfully and sought asylum in Australia, whether or not this is expressed in terms of harm inflicted because of his membership of particular social groups. While I accept that he might be placed on remand for a brief period while awaiting a bail hearing on a charge of leaving the country unlawfully I am not satisfied that this would constitute systematic and discriminatory conduct as required by s.91R(1)(c)

    70. The Applicant does not claim to fear serious harm for any other Convention-related reason and no other reason is apparent on the face of the information before the Tribunal.

    71. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

11. The Tribunal then turned to the issue of complementary protection and relevantly found:

    72. As noted, I am not satisfied that the Applicant would suffer serious harm on return to Sri Lanka because of his Tamil ethnicity, his imputed political opinion or the fact that he sought asylum in Australia. Nor, having considered the information available to the Tribunal, am I satisfied he would be at risk of significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act, for these reasons.

    …

    73. …Nor am I satisfied that being fined such an amount would reflect any intention by the state authorities to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied on the information before the Tribunal that he would suffer any more serious form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.

    …

    75. The Applicant has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.

    76. Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.

    77. 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).

12. It was a matter for the Tribunal to determine what weight to give to the country information, and it is clear that the Tribunal had regard to the country information advanced by the applicant as identified in its reasons. 

13. I accept the first respondent’s submission that the criticism of the Tribunal for failing to take into account relevant information is un-particularised and does not identify any jurisdictional error.  It was a matter for the Tribunal to make findings of fact in relation to the conditions to which the applicant would be exposed and in relation to the applicant's claims.  The adverse findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack a logical foundation. 

14. It is clear that the applicant appeared before the Tribunal on 29 January 2015 to give evidence and present arguments, and was assisted by an interpreter, as well as having an advisor in attendance.  I am satisfied that the applicant had a genuine hearing. 

15. The second ground raised by the applicant appears to concerns a criticism of an alleged failure to give the applicant an opportunity to respond to negative information. Section 424A is only engaged where there is in fact information that the Tribunal considers would be the reason or part of the reasons for affirming the decision that is under review. The first respondent submitted that the provision was not engaged in the present case in respect of the reasoning and analysis by the Tribunal. I accept that submission.

16. The first respondent also submitted that the un-particularised reference to adverse information was not capable of giving rise to a contravention of s.424A, and I accept that submission.

17. The first respondent also submitted that when one looked at the information to which the Tribunal had regard in its reasoning, all that information could be identified as falling within the exceptions in ss.424A(3)(a), (b), and (ba) other than the delegate’s interview which it submitted was not used in a way in which it could be said to be a reason or part of the reasons for affirming the decision that is under review.

18. I accept the first respondent’s submission that the delegate’s interview was not used by the Tribunal in a manner reflecting the rejection, denial, or undermining of the applicant's claims so as to enliven an obligation under s.424A.

19. I accept the first respondent’s submission that this is not a case where there is any information identified that enlivened the obligation under s.424A , and that there is no substance and contention of a breach of ss.424A or 424AA, or a breach of natural justice. The amended application fails to make out any jurisdictional error. The amended application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 August 2015