Ary15 v Minister for Immigration

[2015] FCCA 3145

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARY15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3145

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – Status – refugee status – refusal – application dismissed – applicant pay respondent’s costs.

Legislation: 

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

Applicant: ARY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 404 of 2015

Judgment of: Judge Vasta

Hearing date: 26 October 2015

Date of Last Submission: 26 October 2015

Delivered at: Brisbane

Delivered on: 26 October 2015

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

1. That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.

2. That the Application filed 11 May 2015 be dismissed.

3. That the Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 404 of 2015

ARY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. By application filed on 11 May 2015, the Applicant, ARY15, comes to this Court seeking orders that would remit this matter back to the Administrative Appeals Tribunal because of jurisdictional errors made by the then Refugee Review Tribunal in hearing of his matter. 

2. The short version of the facts are that the Applicant is a citizen of Sri Lanka.  He says that he fears being abducted or killed if he is returned to Sri Lanka because of his Tamil background. 

3. He gives particulars of that, claiming that his cousin was arrested and detained in 2007 on suspicion of The Liberation Tigers of Tamil Eelam (“LTTE”) activities, but was later released and cleared.  He said, however, the Criminal Investigation Department (“CID”) still threatened to kill the cousin and so he, the Applicant, with, it would seem, his family, hid the cousin in their house until he was able to flee to Australia in 2008.  It seems from the evidence that the cousin was able to come here in 2008 and, shortly afterwards, was given a protection visa and is living in this country under that visa. 

4. The Applicant claims that after the cousin left, the CID continued to question him and his family about his cousin’s whereabouts and tried to get him to force his cousin to return to Sri Lanka. The Applicant claims that they questioned his family about the cousin’s whereabouts and that the Applicant himself was questioned in May 2011 and March 2012. 

5. He said that after that latter questioning, he had heard that three Tamils near his home were abducted and were not heard from again.  It would seem then that the Applicant arrived in Australia on 25 July 2012 as an unauthorised maritime arrival. 

6. On 22 August 2012, the Applicant was permitted to make an application for the protection visa.  This application was received by the Department on 26 November 2012.  It seems that the Applicant had his application assessed by a delegate of the Minister who, on 21 October 2013, refused to grant the application for the visa.  Two days later, the Applicant lodged an application for review to the then Refugee Review Tribunal and he was represented throughout the proceedings by a registered migration agent. 

7. The matter was set down for the hearing before the Tribunal and the Applicant had returned the response to the hearing invitation by 17 March 2015.  The hearing took place on 10 April 2015.  The Applicant attended and was assisted by a Tamil interpreter.  His representative appeared by telephone.  Seven days later, the Tribunal decided to affirm the decision not to grant the Applicant a visa. 

Ground One

1. The Applicant has brought this application on two grounds, even though one of those is really, in effect, a separate ground. The grounds of his application are as follows:

   “Ground one

   The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.

   Particulars

   The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.”

2. When one looks at the decision by the Tribunal, one can see that the Tribunal did look at the complementary protection aspect.  The Tribunal, in looking at that aspect, gave its reasons from paragraphs 69 through to 71.  In particular, the Tribunal looked at the aspect of illegal departure.  At paragraph 73, the Tribunal said:

   “In considering the situation for the applicant upon his return, having regard to the fact that the applicant is likely to be questioned at the airport, possibly detained for a brief period in a remand centre and fined, the Tribunal has had regard to the definition of “significant harm” in section 36(2A). It requires that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment”

3. The Tribunal then looked at country information.  The country information was that returnees are not mistreated. 

4. The Tribunal did not accept that simply being questioned at the airport, being charged and then bailed and asked to pay a fine, or held on remand, constitutes significant harm.  The Tribunal did not accept that the Applicant would suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in those circumstances. 

5. The Tribunal found that the Applicant will be able to pay the fine, even the maximum amount of 50,000.00 rupees, and it would not constitute significant harm.  The Tribunal also accepted that the Applicant may be remanded in conditions which are cramped, uncomfortable and unsanitary, but the Tribunal does not accept that spending up to a fortnight in such conditions amounts to significant harm as defined in the complementary protection provisions. 

6. The Tribunal did not accept that such treatment was intentional as required by the law in Australia.  The Tribunal did not accept, on the evidence before it, that pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is intentionally inflicted on prisoners as required by the definition of cruel or inhuman treatment or punishment.  Neither did the Tribunal accept that overcrowding and other problems are intended to cause extreme humiliation as required by the definition of degrading treatment or punishment. 

7. The Tribunal was not satisfied that during any questioning at the airport, bail conditions, possible detention on remand, prison conditions or subsequent contact or monitoring visit that there is a real risk that the Applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. 

8. The Tribunal found that there is no real risk that the Applicant will suffer a significant harm.  Therefore, the Tribunal did not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that he would suffer significant harms in terms of the complementary provisions. 

9. So when one then looks at the ground that the Applicant speaks of, it is clear that the Tribunal did, in fact, consider, in full, the complementary protection obligations that Australia owed, and did consider the “degrading” conditions that he may be subjected to if he had to spend a period of time in remand.  In this hearing, it simply was a bold assertion by the Applicant that he would suffer these indignities. 

10. The problem for the Applicant is that he has not been in Sri Lanka since July 2012.  The country information, that the Tribunal has, is far more up to date than what the Applicant remembers and there have been a number of reports done by international agencies, as the Tribunal noted, that speak of what the conditions now are.  There is a lack of evidence to show that there has been any error in the reasoning of the Tribunal.

11. Therefore, I do not find that ground one has been made out. 

Ground Two

1. Ground Two is stated as follows:

   “Ground two

   The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424A and 424AA.

   Particulars

   The Respondent did not raise /or put to me in writing part of parts of the adverse decision for me to comment in writing.

   …”

2. The provisions of s.424A and 424AA of the Migration Act 1958 (Cth), are provisions that are meant to ensure that there has been fairness afforded to the Applicant, in that if there is any evidence that appears, on the record, to the Tribunal as being evidence particular to the Applicant, that would, without further explanation, militate towards the Tribunal affirming the decision being reviewed then the Tribunal must put that to the Applicant. Given that this was a hearing then any such information should have been put to him verbally pursuant to s.424AA.

3. What is clear when one does go through the decision is that there is very little in the material that was of such a nature.  As was pointed out by the solicitor for the Respondent, it would seem paragraph 20 of the reasons may have been the only such information.  In that paragraph it says this:

   “…While the applicant claimed at hearing he helped hide the cousin by taking him on his bike to other places to hide when the authorities were looking for him, he did not mention this in his statement or at interview…” 

4. This was put to the Applicant pursuant to s.424AA. The Tribunal further said:

   “…The applicant said he had told his claims but not in detail and the events were true.” 

5. The Tribunal went on to say that they considered that actually taking his cousin on a bike and hiding him is a key detail of the claim which it is reasonable to expect that would have been mentioned in his claims to start with. 

6. The last part of what I have just said is a conclusion that the Tribunal is permitted to make.  The fact is that the Tribunal did put to the Applicant something that was such that, if there weren’t any answer, would allow or militate the Tribunal towards affirming the decision. 

7. They did put that matter to the Applicant.  He gave an answer.  The answer was not accepted. The statement by the Tribunal that “it considers actually taking his cousin on a bike and hiding him being a key detail of the claim which is reasonable to expect it would have been mentioned in the claims” is a conclusion that the Tribunal was allowed to make because of the fact that it had put the contrary to the Applicant. 

8. Apart from that, there does not seem to be any other matters which were of the same character. Certainly there were a lot of matters where the Tribunal found that bits of evidence did not favour the Applicant and especially when that was considered against country information. But none of those matters, on my review of the decision, were such that would have meant that the Tribunal had the obligation under s.424AA to put to the Applicant.

9. In fact the Applicant was asked by me, a number of times, what matters could have been or should have been put to him. He could not think of anything except for the fact of country information that said that there are many documents from Sri Lanka that are fraudulently created and he said that that wasn’t put to him. But it seems, on my reading of the report that certainly was put to him even though, as I say, that was not something that needed to be put to him pursuant to s.424AA.

10. So therefore on my view, looking at the whole of the decision, there is nothing in that ground. 

11. Now, whilst this was not a ground of the application it was probably the part of the grounds that took up the most time in this application.  That was a statement by the Applicant that:

    “My center claim for protection visa includes my cousin's suspected political profile. My cousin is in Australia and the RRT should have invited him for a hearing to provide evidence, as a witness, to assess as to whether I am credible in respect of my protection visa. I have attached herewith the proof of my cousin's adverse experience of persecution in Sri Lanka. The RRT failed to consider complementary protection obligations Australia owed to me.”

12. As I said at the beginning, the aspect that the Applicant wished to agitate before the Tribunal was that he was, in effect, going to be coming to the adverse attention of the authorities simply because he had helped his cousin.  The Applicant claims that the RRT should have called his cousin simply to say that all the persecution that he, the Applicant, had suffered was, in fact, because of him (the cousin). 

13. However, it does seem as though any so called persecution occurred after the cousin left Sri Lanka.  So whilst the cousin may have been able to affirm all of his experiences none of that would have assisted the Applicant. 

14. The fact is that the Tribunal did accept that the cousin had been the driver, had picked up dead bodies and returned them to their homes, had been detained for up to 10 months, was released without charge and then some months after that did make his way to Australia where he now has a protection visa. 

15. The only aspect of the application relating to the cousin was that the Tribunal did not accept that the family had to hide the cousin for those months between his release and his eventual escape to Australia. 

16. When one had a look at what it was that the Tribunal had said, it would only have assisted in the fact finding matters as to what the Applicant’s position was vis-à-vis his cousin.  Even assuming that the cousin had been able to come and give evidence and such evidence was that he was hiding for all that time until he escaped and that the Applicant helped him, that would not have, in my view, affected the ultimate question as to whether the decision maker or Tribunal was satisfied that the Applicant was owed complimentary protection by Australia. 

17. Even if such a thing had happened, one has to look at what was the possibility or probabilities of the Applicant facing harm if he were returned to Sri Lanka and I’ve already gone through what the Tribunal has said about that. 

18. The proper way to approach the question as to whether this aspect amounts to a jurisdictional error, is to assume that the evidence is that the cousin was hidden by the Applicant all that time. If one assumes that, does this mean that there was insufficient evidence for the Tribunal to be satisfied that the Applicant did not meet the complimentary protection criteria? 

19. In my view there was certainly sufficient evidence for that view to still be the open view.  If that be the case then it seems to me that there was no reason for the Tribunal to have called the cousin.  Even if it were an error not to have called the cousin, however one comes to that view, it was not such that it is a jurisdictional error. 

20. Having looked at the matter as a whole, I do not see that this aspect of the matter shows that the Tribunal has fallen into jurisdictional error.  Having a look at the matter as a whole, as I do because ARY15 is unrepresented, I cannot see that there is any jurisdictional error made out. 

21. In those circumstances I refuse the application.  I order that the Applicant pay the respondent’s costs fixed in the sum of $5,800.00 and if I haven’t done so already I order that the name of the Second Respondent be amended to read Administrative Appeals Tribunal. 

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  25 November 2015