ARD15 v Minister for Immigration

[2015] FCCA 2180

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARD15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2180

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – bias – no allegation of bias made out – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: ARD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1248 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: Ms R Krishnan
Australian Government Solicitors

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 application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $4213.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1248 of 2015

ARD15

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 within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect to a decision of the Tribunal made on 8 April 2015 affirming a decision by 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 appeared before the Tribunal on 31 March 2015 to give evidence and present arguments which was conducted with the assistance of an interpreter and the applicant was represented by a registered migration agent.

2. The grounds of the application are as follows:

   1. The Refugee Review Tribunal erred in finding that the tribunal is not satisfied that there is a real risk the applicant will suffer significant harm. The decision is bias and unreasonable.

   Particulars

   (a) Error in finding that the applicant has not been subjected to discrimination or harm

   b) Error in finding that the applicant does not have substantial grounds for believing that there is a real risk will suffer significant harm if returned to Sri Lanka.

3. On 11 June 2015, this Court made orders providing an opportunity for the applicant to file an amended application, any further affidavit evidence and submissions.  No documents were filed by the applicant and at the commencement of the hearing, the applicant indicated that he had not been able to obtain funds to obtain a lawyer to seek legal assistance and he urged the Court to grant him more time in relation to his application.  The application for an adjournment was opposed.

4. There was nothing said by the applicant to indicate that there was any utility in granting an adjournment or that there was any reason to believe that the provision of further time would give rise to the applicant being in a position to have legal representation.  Further, this is a matter that was fixed for hearing on 11 June 2015 and no steps have been taken in accordance with those directions or any explanation advanced beyond the applicant’s lack of financial means to identify steps taken to obtain legal assistance.

5. In these circumstances, there are insufficient grounds to support the grant of an adjournment.  Further, I am satisfied that there would be no utility in granting an adjournment as the application is, for the reasons identified in this decision, doomed to failure. 

6. The applicant identified his political involvement in relation to his fear of returning to Sri Lanka and his belief that he would suffer harm if he was returned to Sri Lanka.  The applicant’s political role was clearly identified and addressed by the Tribunal.

7. I accept the first respondent’s submission that what was raised by the applicant orally were matters going to the merits of the application for review which were matters for the Tribunal to decide and do not disclose any jurisdictional error.  Insofar as the application asserts that the Tribunal erred in finding that it was not satisfied that there was a real risk that the applicant would suffer significant harm, this was an adverse finding of fact that was open on the material before the Tribunal.

8. Insofar as the application advances the proposition that the decision was affected by bias, I accept the first respondent’s submission that bias has to be clearly alleged and properly proved and that the applicant has failed to prove that allegation.  Further, there is no conduct identified, other than the adverse findings by the Tribunal, in relation to the allegation of bias and that is not a basis upon which bias can be made out.

9. Further, I accept the first respondent’s submission that the adverse findings by the Tribunal are not a basis upon which a reasonable observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  The allegation of bias is not made out.  Insofar as the application asserts that the adverse findings were unreasonable, the Tribunal gave reasons for dealing with the applicant’s claims and those adverse findings cannot be said to lack an evident and intelligible justification.

10. To the extent that the grounds in the application sought to cavil with the adverse findings of the Tribunal, I accept the first respondent’s submission that the adverse findings of fact were open on the material before the Tribunal and have a logical foundation. The application fails to disclose any jurisdictional error.  The first respondent also drew attention to the allegation in the affidavit filed in support of the application that the Tribunal had failed to consider relevant material relating to the applicant’s political party involvement, his personal circumstances and alleged discrimination.

11. The first respondent submitted that it was clear from the Tribunal’s reasons, and in particular at paras.33 and 43, that the applicant’s personal circumstances, including political involvement, were addressed as well as the applicant’s fears of discrimination.  I also accept the first respondent’s submission that it is clear that the Tribunal intellectually engaged with the application of the PAM3 Refugee and Humanitarian Guidelines in light of the reference to those guidelines in para.19 and the analysis of the conditions which the applicant would face, identified in para.85 of the Tribunal’s reasons.

12. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country and relevantly, the Tribunal found:

    33. The Tribunal asked if the applicant had ever been threatened or harmed because of his involvement with the JVP. The applicant stated he had not been. The Tribunal asked if the applicant feared harm because of his involvement with the JVP. The applicant said no.

    34. The Tribunal accepts that the applicant was involved with the JVP, as a member and a candidate for local elections. The Tribunal does not consider that the applicant faced any difficulties arising from his involvement with the JVP, including while going north on some occasion to see what was happening. The Tribunal finds that the applicant has never been threatened or harmed arising out of his family’s involvement with the JVP, and the death of an uncle in the 1970s is not a reason for the applicant to fear being harmed now or in the reasonably foreseeable future.

    35. The Tribunal finds that the applicant does not have a real chance of serious harm arising from his involvement with the JVP, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution arising from his involvement with the JVP.

    …

    40. Asked directly by the Tribunal, the applicant could not recall any slogans or pictures on the posters. The Tribunal noted the report that the applicant had provided stated specifically that:

    A ‘Party for Us’ announced the new party in a poster and social media campaign in the weeks leading up the Convention, showcasing images of the poor and exploited – of different classes, occupations and ethnicities, who are unrepresented in the present political system.

    …

    43. The Tribunal asked if the applicant had ever personally been threatened, attacked or harmed because of his involvement with [P]. The applicant stated he had not been. The Tribunal has placed some weight on this admission.

    …

    45. While the Tribunal accepts that there is the opportunity to draw new information through the interview, hearing and submission writing process, or provide greater depth and detail about particular claims, the Tribunal is extremely concerned by the absence of this information about threats to his family in the original statement of the applicant. The applicant has not provided information about what he claims to be the most recent event that has affected him or his family, either the stoning or the phone calls. He has raised issues of his uncle and friends of his father, who had difficulties in the 1970s. The Tribunal considers that incidents such as threatening telephone calls, or stones thrown at a house, where no other act of violence has taken place in the applicant’s lifetime, would be recalled and referenced by the applicant in the first instance, they would not be overlooked in the preparation of his statement. As claimed by the applicant, this is the only threatening act that had ever occurred to him and his immediate family. While the applicant has stated his memory is not that good, the Tribunal does not accept that the only actual act of violence that has occurred to the applicant’s family would be forgotten or left out by the applicant, to be detailed at a later date, or was so common as to not warrant mention in his statement. The Tribunal considers that the absence of this information is because it did not occur, and the applicant has raised it at a later stage to provide some limited information about there being a threat to him or his family. The Tribunal does not accept that this stoning event or threatening phone calls occurred.

    …

    49. The Tribunal does not accept that the applicant, involved with a minor party that is [P] in his home village, will be harmed because of his involvement with [P]. His past involvement with politics is instructive, he has been involved in electoral campaigns in his local area for the JVP, a like-minded left wing minor political party in 2006 and 2011, and he did not have any difficulty or issue arising from such involvement. This included claiming to represent the people who did not have a voice, and raising issues of corruption in the political elite. He was not harmed for these activities, and given that the Tribunal has not accepted that in 2012 the applicant’s family had any difficulties in Sri Lanka, his family has not suffered because of his political involvement. The Tribunal does not accept that simply because he supports a minor political party in his village, that is not the UNP or the UPFA, he will be harmed. The Tribunal does not accept that members or supporters of larger parties would be concerned with the activities of the applicant in support of his party, given the very limited support it has in the area, as taken from the most recent Council and Provincial elections. The Tribunal does not accept that the applicant would be targeted because of his political activities in his home area.

    …

    51. The Tribunal asked the applicant if there would be any difficulties arising from his leaving the JVP to join [P]. The applicant stated he had no fears from the JVP. Later in the hearing he stated that he had broken his promise to the party by leaving. The Tribunal asked if he would face any harm because of leaving the JVP. The applicant said he would not. The Tribunal finds that the applicant does not have a real chance of serious harm or a real risk of significant harm arising from his leaving the JVP and joining the FSP.

    52. The Tribunal does not accept that the applicant, on return to Sri Lanka, and involving himself in further political activities, would face any difficulty arising from these activities. Again, the Tribunal notes that the applicant has been able to be politically active without incident during times when he states there was significant concerns for individuals opposing the political system, and the Tribunal does not accept that the applicant would be harmed in the present political system for his political beliefs. The Tribunal does not accept that the applicant, a minor politically active individual, from a very minor political party, would be targeted for harm in Sri Lanka, now or in the reasonably foreseeable future.

    …

    54. The Tribunal considers that this submission is highly speculative and not a prospect of harm that the applicant actually faces. The applicant resided in Sri Lanka and was involved in politics in a limited manner, including supporting parties that raised the issue of corruption in the political elite or the authorities generally. He was not approached or targeted by anyone because of his involvement with these political parties. The Tribunal considers that the prospect of the applicant being targeted in the future for this reason is remote, and one that cannot be described as a real chance of occurring.

    55. The Tribunal finds that the applicant does not have a real chance of serious harm arising from his involvement with [P], now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

    56. The Tribunal finds that the applicant does not have a real chance of serious harm arising fromhis political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this Contention reason, now or in the reasonably foreseeable future.

    57. Further, based on the findings on the evidence before it as detailed above, and having determined that the applicant does not face a real chance of the applicant being harmed for this reason, the Tribunal further finds that the applicant does not face a real risk of significant harm for this reason.

    …

    64. …The Tribunal does not accept that the applicant will be harmed on return through the airport because he has been politically active in the past for minor political parties. The Tribunal finds that the applicant is not wanted by the Sri Lankan authorities and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. The Tribunal finds that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka.

    65. The Tribunal accepts the Sri Lankan authorities will assume the applicant has sought asylum in Australia, having regard to his unlawful departure by boat and the context and circumstances in which he would likely be returned. The Tribunal does not accept, given the confidentiality of the process, that his individual claims will be known. Having regard to the evidence and country information before it, the Tribunal does not accept the authorities will be concerned by the applicant's imputed asylum claim such that there is any real chance any state-actor will be motivated to harm him at any stage of the re-entry and return process, or the charge, remand and bail process, or in the process of imposing legal penalties for his illegal departure, for this reason because of his residence in a western country, seeking asylum in a Western country, either individually or cumulatively.

    …

    67. The Tribunal is not willing to extrapolate from these reports a real chance of such harm to the applicant as a minor Sinhalese political activist (and/or) failed asylum seeker, having regard to his circumstances. The Tribunal does not accept that the weight of the evidence before it supports the view that there is any real chance the government will detain, harm, torture or kill the applicant personally due to any assumption that he has criticised the government in the course of seeking asylum, or otherwise arising for seeking asylum. For reasons outlined elsewhere above, the Tribunal has found there is no real chance the applicant, in his circumstances, will be harmed because of his previous political activity for the JVP or FSP.

    68. …Having regard to the cumulative accepted evidence, the Tribunal does not accept the applicant will be of adverse interest to the authorities on return to his home area. The Tribunal does not accept the applicant’s submission that the authorities would wait a period of time before seeking to harm him; the Tribunal does not accept that there is any reason for the authorities to want to harm him.

    69. Were the applicant to be questioned or monitored briefly at the airport or in his home region by the authorities due to his illegal departure, the Tribunal does not accept this itself amounts to harm or serious harm to him. The Tribunal does not accept that the applicant would be of ongoing or recurrent interest, or that he would face a real chance of serious harm in this context. The Tribunal does not find the weight of evidence before it supports that view.

    70. The Tribunal has considered country information provided, including from Amnesty International and Human Rights Watch, which indicates that they (and other credible global rights groups) are monitoring and assessing the situation of returnee failed asylum seekers to Sri Lanka, and the Tribunal does not accept that reporting as suggesting more than isolated and profile-specific instances of detention, torture or harm to returnees.

    71. For these reasons the Tribunal finds the applicant faces no real chance of serious harm as a returning failed asylum seeker from Australia (or the West or overseas) - regardless of whether seeking asylum is conceived of either as an imputed political opinion, or as an identifying characteristic of any particular social group, in any combination with other characteristics of being a man of adverse political opinion or illegal departure.

    72. Having determined that the applicant does not face a real chance of the applicant being harmed for this reason, the Tribunal further finds that the applicant does not face a real risk of significant harm for this reason.

    …

    81. The Tribunal finds the chances very remote that the applicant will be sentenced to any term of imprisonment due to his illegal departure. The Tribunal accepts that the applicant will face a financial penalty as prescribed under the Act. The Tribunal considers that the applicant will be able to pay the lawful financial penalty imposed for his illegal departure. The Tribunal finds that the applicant would pay any financial penalty imposed under Sri Lankan law for his illegal departure, or therefore, that there is any real chance or real risk he will face serious or significant harm in the reasonably foreseeable future deriving from any legal penalty being imposed.

    …

    85. …The Tribunal finds that the applicant does not face a real risk of significant harm while detained on remand.

    86. In these circumstances, the Tribunal finds the applicant faces no real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances.

    …

    88. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka arising from his political opinion, or as a member of a particular social group of either failed asylum seekers or returnees from a Western country or persons who left Sri Lanka illegally.

    89. The Tribunal further finds that the applicant’s political opinion and involvement, his status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka, does not give rise to substantial grounds for believing that there is a real risk he will suffer significant harm upon being removed from Australia to Sri Lanka.

    90. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka for a Convention based reason, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention based reason.

    91. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have substantial grounds for believing that there is a real risk he will suffer significant harm upon being removed from Australia to Sri Lanka.

1. It was in these circumstances the Tribunal concluded the applicant did not satisfy their criterion under s.36(2)(a) or s.36(2)(aa) and that the applicant was not a person to whom Australia owed the protection obligation. The adverse findings by the Tribunal were open and the application fails to disclose any jurisdictional error. The application is dismissed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 19 August 2015