ARO15 v Minister for Immigration

[2016] FCCA 799

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARO15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 799

Catchwords:
MIGRATION – Visa – protection visa – “fresh claims” – impermissible merits review – application dismissed.

Legislation:

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

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
AZAEK v Minister for Immigration and Border Protection [2014] FCA 1415

Applicant: ARO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 165 of 2015

Judgment of: Judge Heffernan

Hearing date: 23 February 2016

Date of Last Submission: 23 February 2016

Delivered at: Adelaide

Delivered on: 19 April 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application filed 8 May 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 165 of 2015

ARO15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) which affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection which refused to grant him a protection visa.

2. The applicant is self-represented and appeared before me with the assistance of an interpreter in the Sinhala and English languages.  He is a Sinhalese Catholic man in his early twenties and a citizen of Sri Lanka.  The applicant raised one ground in his application as follows:

   “The RRT erred in not giving consideration to the evidence that the Applicant being myself will suffer significant harm upon my return to my home country.  The RRT did not give consideration to the evidence provided me at the RRT.  Accordingly RRT failed to give consideration to the evidence as a matter of law.”

3. That ground has not been further particularised and no written outline of submissions has been filed by the applicant.  His oral submissions focused on his own assessment of the likelihood of harm coming to him on his return to Sri Lanka.  In this regard, he added detail not raised before the Tribunal.  He invited the Court to embark on an investigation of a fresh claim he made as to the circumstances of his leaving Sri Lanka.  I will deal with this later in these reasons.

Background

1. In presenting his claim to the Tribunal, the applicant relied on a statutory declaration dated 5 December 2012.  Briefly summarised, that declaration stated that for a period of time from 2010 he worked for a “Minister of the UNP … Ranga Bandara”[1] (‘Minister Bandara’) helping with crowd control during speeches and ensuring the Minister’s safety.  This occurred in the lead up to the Sri Lankan elections of March 2011.  When Minister Bandara lost in the elections, members of the Sri Lanka Freedom Party (‘SLFP’), who were victorious, threatened him and his friend on election night.  The assailants were armed and the applicant hid from them with his friends, spending all night in the jungle.[2]  He says that he went into hiding after election night out of fear of the SLFP.  A further incident occurred seven days or so after the election night when the applicant was followed by some men he believed to be SLFP members.  He dropped his bike and ran from them.  They chased him but he lost them and was again able to hide in the jungle before returning home.[3]  He kept a very low profile thereafter and avoided leaving home, except for work purposes.  He claimed to be in fear of further attacks by SLFP members.[4]

   [1]     Court Book (‘CB’) p 181.

   [2]     CB p 181.

   [3]     CB p 181.

   [4]     CB p 181.

2. He stated that he left Sri Lanka because of his fear that his past association with Minister Bandara would cause SLFP members to target him.  He fears persecution if he returns because of having left Sri Lanka illegally.  He cannot, he claimed, rely on the authorities to protect him because they are SLFP members.  He would not be able to relocate within Sri Lanka because the SLFP is a national organisation.  His details are known to the SLFP in Puttalam and he claims they would have ensured that all branches of the organisation have his details.  He claimed that the organisation through its members, would hold a grudge against him.[5]

   [5]     CB p 182.

3. The applicant appeared before the Tribunal via telephone.  He was represented.  He gave evidence, largely repeating claims he had made earlier when interviewed by the delegate.  The Tribunal explored with him the nature and extent of his claimed work for Minister Bandara.  Having heard his evidence, the Tribunal member put him on notice of concerns that she held with respect to some of his claims.  He and his representative were given an opportunity to discuss these during the course of a short adjournment.  They both responded to these matters when the hearing resumed.[6]

   [6]     CB p 186.

4. The Tribunal assessed the evidence and claims of the applicant against a considerable amount of country information.[7]

   [7]     CB pp 186-195.

5. The Tribunal concluded that there were, “a number of elements which give rise to serious concerns in regard to the credibility of the claims”.[8]

   [8]     CB p 196.

6. It found the delay of approximately 12 months between the election, the claimed threats to him, and his fleeing Sri Lanka weighed against the genuineness of his claims.[9]  It found he exaggerated his level of involvement with the UNP and Minister Bandara, as well as the length of time he was involved with them.[10]  It concluded that he had played minor functional roles for a limited period, but had never held a key position within the party.[11]  It rejected the suggestion that his identity and his involvement with the UNP would be known in other parts of Sri Lanka.[12]  It found the effect of his evidence to be exaggerated and in parts, internally inconsistent.[13]  This finding caused it to doubt that his claims to fear harm on his return as a result of his political opinions and history were genuine.[14]  The Tribunal considered and rejected his convention claim based on his status as a returned failed asylum seeker.[15]

   [9]     CB p 196.

   [10]    CB p 197.

   [11]    CB p 197.

   [12]    CB p 197.

   [13]    CB p 197.

   [14]    CB p 198.

   [15]    CB p 198.

7. The Tribunal considered whether there was an obligation to him as a result of Australia’s complementary protection obligations under s.36(2)(aa) of the Act and concluded that there was not.[16]

   [16]    CB p 199.

Submissions

1. In his oral submissions, the applicant sought to provide further information to this Court that he said, in effect, provided the real basis for his well-founded fear to be at risk of serious harm.

2. The primary point made by the applicant in his oral submission was that the authorities in Australia are not in a position to assess and understand the risks of harm facing a returned failed asylum seeker.  He submitted that when he returns to Sri Lanka, his life would be in danger because of the evidence that he has given in Australia.  In this submission, he was clearly referring to the information that he had provided to the delegate and the evidence that he gave to the Tribunal. 

3. He then proceeded to advise the Court of a matter he said he had not informed either the delegate or the Tribunal about.  He submitted that he feared not simply for his own safety, but for that of his father and other relatives in Sri Lanka.  His fear was based, he said, on an incident which occurred immediately prior to his departure from Sri Lanka.  I will summarise that below.  In doing so, I make it clear that I have not had regard to this new version of events, revealed for the first time from the bar table, in considering whether the Tribunal fell into jurisdictional error on the basis of the evidence and materials before it.  I have summarised it because the applicant believed it to be of vital importance to his application for judicial review and his entitlement to a protection visa.  He is unrepresented, unfamiliar with the Australian legal system, and even though these proceedings were explained to him at the outset, has probably a limited understanding of the practical differences between a merits review and judicial review.

4. The applicant submitted that he and his father were approached by a UMP member of parliament who gave them a contract to help send some people away from Sri Lanka by boat.  He told them never to mention his name.  It was implicit in his submissions that he and his father intended to make the preparations as they had agreed.  I understood the applicant to be informing the Court that he and his father were making arrangements to assist other people to leave Sri Lanka illegally by boat.  At a point where he and his father were preparing to leave, they were advised that their entire village had been surrounded by the police, and for this reason, they were not able to take out the people whose departure they had agreed to arrange.  He and his father returned to their village.  About four or five people attended the village and said they were members of the CID.  They attended with the owner of the boat.  He was caught by them and they asked him about the whereabouts of his father.  The applicant says that he denied having any knowledge about the plan to help these people leave.  The CID asked to see his house and who was involved in the plan, and they recorded everything he said.  They then took him and his father away from the village in a vehicle.  His father pleaded with them and the CID relented and released him.  Before they released him, they asked him where they would be staying.  His father was taken into custody by the CID for nine months.  The applicant submitted that he did have all of the relevant evidence to prove these claims.  He submitted that he did not tell any of these details to the Tribunal, choosing to tell the Tribunal only that his father had been in prison.  He submitted that he did not tell the Tribunal this story because he thought that “might create problems at Court”.

5. When making a brief oral reply, having heard the submissions of the first respondent, the applicant confirmed that when he referred to the CID, he was referring to the Criminal Investigation Department of the Sri Lankan Police.  He submitted that his efforts in attempting to smuggle people out of Sri Lanka by boat were not a crime because he had been ordered to do this by the Minister.  He submitted that his problem would arise if he returned to Sri Lanka and he would have to tell the authorities about the involvement of the Minister and he did not want his name mentioned.

6. The first respondent submitted that all of the claims made by the applicant before the Tribunal were properly considered by it.  It submits that the Tribunal accepted that the applicant was a member of the social group of failed asylum seekers, but that after proper consideration, which included reliance on extensive country information, it rejected that this would place him at any significant risk.  This conclusion was linked to the rejection of the applicant’s principle claims.[17]

   [17] This rejection is dealt with at CB p 198 at [89].

7. The first respondent submitted that the conclusion that the applicant would not be mistreated on return to Sri Lanka as a failed asylum seeker or because of his political opinion, was at least open to the Tribunal and not demonstrative of judicial error.  The first respondent submitted that there was a sufficient basis in the country information to support the conclusion that the treatment of returned illegal departees is as a result of a law of general application and as such is not discriminatory.

8. With respect to the complementary protection obligations, the first respondent said that these were adequately dealt with by the Tribunal which considered the potential for remand and/or detention should the applicant return.  It submitted that given the adverse credibility finding made as to the nature and extent of the applicant’s involvement with the UNP and Minister Bandara, no further consideration was required than that given to this question by the Tribunal.  It submitted that beyond the claim based on the involvement with the UNP, there was no other claim or evidence that could have potentially given rise to any other complementary protection issues.

9. With respect to the fresh claim advanced before this Court, the first respondent submitted that this was simply a claim to have committed a criminal offence.  It submitted that this information was no more relevant to a protection claim, than an applicant who feared the consequences of stealing a motor vehicle, and as a result having come to the attention of the local police.

Consideration

1. I have treated the applicant’s grounds of application as a complaint both of a failure on the part of the Tribunal to take a relevant matter into account, as well as a complaint alleging that the Tribunal had disbelieved aspects of his evidence.  The tenor of the oral submissions about the Tribunal decision suggests that the applicant was mainly expressing his dissatisfaction about the outcome of his hearing, rather than the process.  Such a complaint is not uncommon in matters of this kind.  The role of this Court in an application of this kind is not to conduct a fact finding exercise, or to re-visit the merits of the case and substitute its own view of the facts for those of the Tribunal.  This principle was stated by the Full Court of the Federal Court in the following terms:

   “… The appellants took exception to a number of findings of the Tribunal.  In many cases, those exceptions were purely on the basis that the appellants disagree with the findings.  In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.  As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.  Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[18]

   [18]    NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].

2. The applicant was very dissatisfied with the outcome of his Tribunal hearing.  That dissatisfaction, however keenly felt, does not of itself form a proper basis for a finding of jurisdictional error on the part of the Tribunal.  In this matter, each of the claims advanced by the applicant appear to have been considered by the Tribunal.  In significant respects many of them were rejected by it because of implausibilities or inconsistencies.  The finding made by the Tribunal with respect to the limited degree of involvement that the applicant had with the UNP and Minister were open to it on the materials available.  A necessary part of the fact finding function of the Tribunal was a proper assessment of the evidence and claims made by the applicant so that it could consider the weight, if any, to give to them.  An assessment of his credit was critical to this process.  This was entirely the function of the primary decision maker.[19]

   [19]    Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

3. Of course even given the statements of principle above, an extremely illogical or irrational approach to or finding on factual matters, including credibility, might be a jurisdictional error in its own right, even though it did not amount to an error of law.[20]  The decision reached by the Tribunal in this matter is not such a case.  It cannot be said that any of the findings made by the Tribunal were affected by unreasonableness in the relevant legal sense, illogicality or irrationality.  The findings were open to it on the materials presented.

   [20]    Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.

4. I turn to the “fresh claims” made by the applicant in the course of his oral submissions.  In making this submission, the applicant was seeking to have this Court make its own evaluation of his claims in light of new material.  That is not the role of this Court.  It was a simple case of inviting the Court to undertake a merits based review.  Even if the matters raised by the applicant are factually correct, it can hardly have been an error for the Tribunal to fail to take them into account.  It was simply never informed of those facts.  Whatever the reason for the applicant not raising these matters until now, nothing he said could possibly establish jurisdictional error on the part of the Tribunal.  The applicant sought a merits review before the Tribunal and this was given to him.  He was represented before the Tribunal and had the opportunity to take advice (on this aspect of his history) at that time if he chose to do so.  There is nothing in the material before me to suggest the Tribunal failed in any way to accord the applicant procedural fairness or to perform its primary function of conducting a review.  It would be inconsistent with authority[21] for me to receive fresh evidence with a view to embarking on a fact-finding mission.

   [21]    See for example, NAHI, op cit.

5. In considering the question of complementary protection obligations that might arise from the applicant’s claim, the Tribunal undertook the assessment that it was required to take. It referred specifically to the complementary protection provisions and included the terms of s.36(2A) definition of significant harm in its reasons.[22] It applied the terms of s.36(2)(aa) and 36(2)(a) of the Act to the claims made by the applicant and the country information it had received. It cannot be said that the Tribunal did not properly consider the question of complementary protection obligations that might be owed to the applicant, either on the basis of his substantive claim, or his claims as a failed asylum seeker.[23]

   [22] CB p 199 at [100].

   [23]    AZAEK v Minister for Immigration and Border Protection [2014] FCA 1415 at [28]-[31].

6. For these reasons I dismiss the application.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 19 April 2016