Arn15 v Minister for Immigration

[2015] FCCA 2272

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARN15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2272

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal properly identified the risk of harm in relation to the applicant’s particular social group – whether the Tribunal failed to consider an integer of the applicant’s claims – whether the Tribunal properly invited the applicant to put forward his claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476, 499

SZNOE v Minister for Immigration and Citizenship [2012] FCA 96

Applicant: ARN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1259 of 2015

Judgment of: Judge Street

Hearing date: 21 August 2015

Date of Last Submission: 21 August 2015

Delivered at: Sydney

Delivered on: 21 August 2015

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper

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 first respondent’s costs fixed in the amount of $6400

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1259 of 2015

ARN15

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 of a decision the Tribunal made on 14 April 2015 affirming the 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. On 5 January 2015 the applicant was invited to attend the hearing on 4 February 2015 which the applicant attended and was assisted by an interpreter.

2. The applicant also provided pre-hearing submissions and post-hearing submissions which were carefully identified by the Tribunal and relevantly, the applicant claimed to fear persecution in Sri Lanka for reason of his Tamil ethnicity, imputed pro-LTTE political opinion and membership of an alleged social group of failed asylum seekers.  The grounds in the applicant are as follows:

   1. The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants’ particular social group as submitted by AAAS (p 10).

   Particulars

   The Tribunal has been procedurally unfair and failed to deal with particular social group claimed by the applicant:

   (a) failed asylum seeker from a Western country;

   (b) familial links.

   The Tribunal failed to identify the particular social group/s and deal with that claims committing jurisdictional error and I or error of law.

   Ground 2

   2. The Tribunal committed jurisdictional error by failing to comply with its obligations under s.425 of the Act and I or otherwise procedurally unfair and /or failed to ask correct questions and made findings not supported by evidence regarding the Applicant's involvement with Tamil Safety Association (RRT dee at [52]).

   Particulars

   (i) The Tribunal stated that its lack of satisfaction regarding Tamil Safety Association.

   (ii) The Applicant's activities were "occasional and subordinate".

   (iii) The Tribunal otherwise rejected the claims.

   (iv) The Tribunal made findings regarding "occasional and subordinate" volunteers which is not supported by evidence.

   (v) The Tribunal fell into error by failing to provide the applicant opportunity to explain and put his claim.

   (vi) The Tribunal committed jurisdictional error.

   Ground 3

   3. The Tribunal committed jurisdictional error by failing to comply with its obligations under s.425 of the Act and I or otherwise procedurally unfair and /or failed to ask correct questions regarding the Applicant's claim of “prolonged absence” (RRT p21 at [75]).

   Particulars

   (a) The Tribunal stated that its lack of satisfaction regarding serious or significant harm.

   (b) The Tribunal otherwise rejected the claims.

   (c) The Tribunal made findings regarding “prolonged absence” as not being satisfied.

   (d) The Tribunal fell into error by failing to provide the applicant opportunity to explain and put his claim.

   (e) The Tribunal committed jurisdictional error.

   Ground 4

   (i)The Tribunal committed jurisdictional error by failing to address complementary protection.

   Particulars

   a. The Tribunal found that the applicant does not satisfy complementary criterion.

   b. The Tribunal failed to make findings and set out tis reasons why complementary protection was not satisfied.

   c. The Tribunal thereby committed jurisdictional error.

   Ground 5

   (ii) The Tribunal engaged in jurisdictional error by failing to ask itself the right questions when addressing (RRT at (68]) whether Sri Lankan law concerning illegal departure could attract protection under the Refugees Convention.

   Particulars

   a. The Tribunal found that the applicant would be detained in substandard, crowded and uncomfortable conditions (RRT at [68]; [72]).

   b. The Tribunal failed to address whether detention in cramped and unsanitary conditions would amount to significant harm I serious harm.

   c. The Tribunal failed to address Convention nexus and proportionality.

   d. The Tribunal thereby committed jurisdictional error.

3. In relation to ground 1, it is clear that the Tribunal addressed an issue of the applicant’s familial links in relation to his fears and, in particular, his family’s involvement with the LTTE and made adverse findings to the applicant in that regard.

4. In relation to the issue of being a failed asylum seeker from a Western country, it is clear from the Tribunal’s reasons at para.21(b) that this was a claim of the applicant that the Tribunal took into account.  Paragraph 20 reads as follows:

   20. The following is a summary of the claims and information provided by the applicant in his Departmental Interview:

   a. The applicant had never had any involvement with the LTTE. He went to [Y] once when it was controlled by the LTTE, in 2006 for about two weeks. He did not know any LTTE members.

   b. Five men went to the applicant’s house to detain his father. It was after midnight. They kept his father in a van between 30 and 45 minutes. When he was released from the van he could not talk or walk properly. He had red marks on his shoulders and chest.

   c. The applicant’s father had been a part of a Tamil help or protection organisation. They helped the people affected by the war, resettling them and helping with food and housing. The father had been working with the organisation for about two years. He would go into war torn areas to help so the authorities suspected him of helping the LTTE. The applicant did not mention his father’s involvement in the organisation before because he did not know much about it at the time and has only learned more from his mother since he came to Australia.

   d. Someone who was associated with the organisation the applicant’s father worked with was shot and killed in September 2006. This was his classmate’s father.

   e. The applicant and his friend, [X], also worked for the organisation. His friend is in CID custody. His friend told the CID that the applicant worked with him. The CID told the applicant’s mother his father involved was in such activity and now it is followed up by his son. The applicant doesn’t know when [X] was arrested.

   f. The applicant started working for the Tamil helping organisation while he was studying for his A-levels in mid-2010. He would do activities for them about once a week or fortnight. He and his friend would collect goods and deliver them in [Y] and [Z]. They would also speak with and counsel people.

   g. In August 2011 five men in a van went to the applicant’s home and asked for him.

   h. The applicant could not constantly work in Sri Lanka because the CID required him to be home when they visited

   i. The applicant’s mother decided to send the applicant out of Sri Lanka in about January 2012.

   j. In December 2012 the CID went to the applicant’s home to ask for the applicant. They knew his father was dead. They accused his father of being part of the LTTE and said the son was now doing the father’s duties.

5. The Tribunal also repeated this claim at the end of para.27 and recurring to the pre-hearing submissions and the applicant’s claims relevantly:

   and potentially failed Tamil asylum-seeker from a western country.

6. To the extent that ground 1 seeks to advance that the Tribunal had to make findings about a particular social group, I accept the first respondent’s submission for the reasons given in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] that it was not necessary for the Tribunal to consider whether the particular social group of which the applicant claimed to be a member is a social group for the purpose of the Act. I accept the first respondent’s submission that the claim of the applicant being a failed asylum seeker for a Western country was the subject of deliberation and findings by the Tribunal relevantly as follows:

   61. The applicant has not claimed any mistreatment, or actual threat of mistreatment, from the Sri Lankan authorities as a Tamil. He did express a concern that the authorities do not like Tamils going to Australia however there is no indication this would result in any serious harm or significant harm to the applicant. The problems the applicant’s departure may cause are discussed further below.

   62. On the evidence available to it the Tribunal is not satisfied there is a real risk or chance of the applicant facing serious or significant harm in Sri Lanka because of his Tamil ethnicity.

   …

   73. On the information before it the Tribunal is satisfied the Sri Lankan departure laws are applied, regardless of ethnicity and political affiliation, to all persons who are returnees. On the available country information the Tribunal is satisfied that the only differentiation made in the application of the laws is to more harshly deal with those suspected of facilitating people-smuggling. There is no evidence or information to indicate the applicant would be suspected of facilitating people-smuggling and the Tribunal is satisfied there is no risk of this happening. The Tribunal is not satisfied that application of the I&EA laws to the applicant involves systematic or discriminatory conduct as required under s.91R(1)(c) of the Act.

   74. The applicant’s Agent submitted the risk of harm to the applicant on return would be particular because of his prolonged absence from Sri Lanka. The Agent did not provide a basis or reason for the submission that prolonged absence creates a particular risk to the applicant on return. The Tribunal has not located any information or indication that Tamils, or Tamils who depart Sri Lanka unlawfully, who remain outside of Sri Lanka for an extended period of time are harmed for this reason on return. On the information before it the Tribunal is not satisfied there is a risk of harm to the applicant because he has remained outside of Sri Lanka since May 2012.

   75. The applicant’s Agent submitted the risk of harm to the applicant on return would be particular also because of his father’s adverse profile. The Tribunal has accepted the applicant’s father had an adverse profile with the Sri Lankan authorities and that it is possible he was suspected of involvement with the LTTE. However the Tribunal considers that the applicant himself has not given the Sri Lankan authorities any reason to suspect him of any link to the LTTE. The applicant has lived openly in his village in Sri Lanka, mostly as a student, then for a brief period as shop employee. The Tribunal considers there is nothing about the applicant’s actual activities or profile that would cause the authorities to target him on return to Sri Lanka. The Tribunal is not satisfied that the applicant as someone who departed Sri Lanka unlawfully, would attract any increased adverse attention because his of his father’s past problems or profile. The Tribunal is not satisfied these factors combined lead to a risk of any serious or significant harm to the applicant on return.

   76. The Tribunal is not satisfied there is a real chance of serious harm to the applicant in Sri Lanka for one or more of the Convention grounds for, or arising out of, his unlawful departure from Sri Lanka.

7. Mr Kumar of counsel sought to advance that there was not express language used reflecting the Tribunal addressing the integer of the applicant being a failed asylum seeker as a field of persecution.  The Tribunal’s reasons are to be read as a whole and without a keen eye for error.  I accept the first respondent’s submission that, on a fair reading of the Tribunal’s reasons, it is clear that the particular integer of being a failed asylum seeker was squarely the subject of deliberation and adverse finding in the paragraphs referred to above.  In particular, I accept the first respondent’s submissions that that the reference:

   61. …that the authorities do not like Tamils going to Australia

   is a reference that can only be applicable to the Tribunal dealing with the integer of the applicant being a failed asylum seeker.  Moreover, I accept the first respondent’s submission that in that regard, the reference to Australia was clearly dealing with the concept of being a failed asylum seeker from a western country.  In my opinion, on a fair reading of the Tribunal’s decision, the integer of being a failed asylum seeker was dealt with and the subject of findings adverse to the applicant in paras.61 and 62.  I accept the further submission of the first respondent that the reference to prolonged absence from Sri Lanka in para.74 can again only be a reference to the claim or integer of being a failed asylum seeker. 

8. Mr Kumar of counsel on behalf of the applicant did not suggest there was any other claim to which that concept of prolonged absence could relate.  Even if, contrary to the views I have expressed, the integer was not fully and completely dealt with by para.61 and 62, I accept the first respondent’s submissions that when paras.61 and 62 are read with paras.74, 75 and 76, the Tribunal, on any view, has properly addressed the integer of the applicant being a failed asylum seeker.  For these reasons, there is no substance in relation to ground 1 of the amended application.

9. In relation to ground 2, Mr Kumar of counsel put the proposition that para.52 is a finding unsupported by evidence.  Paragraph 52 is as follows:

   52. Given the openness of the organisation and the authorities’ awareness of it the Tribunal also cannot understand why the authorities would take an adverse interest in the applicant whose activities were occasional and subordinate, without taking any apparent action against the ‘seniors’ who managed the operations of the organisation, and took no apparent steps to hide their involvement, which had an often openly public context. When this was put to the applicant he merely stated he did not know if anything happened to the seniors without directly addressing the issue.

10. It is clear that the reference to “openness” in para.52 was a reference to evidence given by the applicant identified in para.50, which is as follows:

    50. The Tribunal has further credibility concerns with the applicant’s claim the authorities had an adverse interest in his work with the organisation given his evidence it was operating openly in the time the applicant was involved with it, with deliveries passing through military checkpoints and military checking, and full disclosure of its activities. The deliveries of food, clothing and cooking utensils to the Jaffna areas were known and checked by the military with no suspicions or concerns being raised and no challenges or attempts or threats to interfere with the deliveries. The Tribunal considers it implausible the CID would take any action against the applicant in such circumstances.

11. Further, it is clear that para.52 was part of the fact finding and reasoning process based on the identified evidence by the Tribunal for the finding in para.53 and 54 as follows:

    53. For the reasons set out above the Tribunal finds the applicant’s claim he was involved in a Tamil aid organisation and attracted the CID’s adverse interest for this reason to be a fabrication. The Tribunal does not accept the CID have been to his mother’s home to enquire about the applicant.

    54. Given the Tribunal’s findings it follows that the Tribunal does not accept that the CID suspect the applicant of being associated with the LTTE because of his involvement in a Tamil aid organisation. It also follows that the Tribunal does not find it credible the applicant’s friend informed the CID of the applicant’s involvement in the Tamil aid organisation.

12. The proposition that the Tribunal made findings in para.52 unsupported by evidence is without substance. 

13. It is clear in relation to para.52 that there was an evident and intelligible justification for the findings being made as identified above. It is clear that there was a logical basis on the evidence for the findings in respect of which para.52 was part of the reasoning process. Mr Kumar of counsel accepted that the invitation sent to the applicant to attend the hearing complied with the obligations under s.425. There was no other argument developed in support of ground 2 to identify any contravention of s.425 of the Act. To the extent that the applicant seeks to criticise the reasoning in para.52 as being a finding in respect of the applicant’s occasional insubordinate activities this was a matter for the Tribunal to determine. The findings in paragraph 52 were findings that were open on the material before the Tribunal, and ground 2 fails to make out any jurisdictional error.

14. In relation to ground 3, Mr Kumar of counsel identified that the substance of this ground overlapped with ground 2 and there was no additional argument developed in relation to the finding in para.75, referred to above.  I am satisfied that the findings in para.75 cannot be said to lack an evident and intelligible justification. I am satisfied that there was an evidentiary foundation for the findings in para.75.  There is no substance in relation to ground 3.

15. In relation to ground 4, it is clear that the Tribunal was alive to the obligation to determine whether the applicant met the complementary criteria which was summarised in paras.15 to 17 of the Tribunal’s reasons.  It is clear that the Tribunal was taking into account the making of findings in relation to complementary protection when it used the language of significant harm in paras.61, 65 and 75.  I accept in the first respondent’s submission that, in addition to the paragraphs I have mentioned, the Tribunal made findings relating to complementary protection in paras.77 to 80 as well as para.82.  In these circumstances, there is no substance in ground 4 of the amended application.

16. In relation to ground 5, there is no substance in the contention that the Tribunal failed to apply the correct test in addressing the issue of complementary protection. Ground 5 has no substance and constituted an impermissible challenge to the adverse findings of fact by the Tribunal. This is not a case where it could be said that there was a failure to engage with the requirements of s.499 and the PAM3 Refugee and Humanitarian – Complementary Protection Guidelines. 

17. In my opinion, there is no error on a fair reading of the Tribunal’s decision in relation to the application of s.5(1) as informed by the said guidelines, which, as I have said in this case, it is clear the Tribunal took into account.  The amended application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 August 2015