ASA15 v Minister for Immigration

[2016] FCCA 1490

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASA15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1490

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – whether the Tribunal assessed claims – whether the Tribunal applied correct test.

Legislation:
Migration Act 1958 (Cth), s.91R

Applicant: ASA15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1046 of 2015

Judgment of: Judge Riley

Hearing date: 25 May 2016

Date of last submission: 25 May 2016

Delivered at: Melbourne

Delivered on: 25 May 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

DISMISSAL

1. The application filed on 11 May 2015 and amended on 18 May 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1046 of 2015

ASA15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal.  The applicant is unrepresented. However, his documents filed in this court indicate that he may have had some legal assistance in the past.  He filed an application on 11 May 2015 and an amended application on 18 May 2016.  The applicant has also filed an outline of written submissions.

2. The applicant is a Tamil Hindu from Udappu in Sri Lanka.  He claimed that:

   a)both of his parents died when he was young;

   b)he finished school and then worked as a fisherman;

   c)he then began working at a telecommunications shop in Udappu;

   d)when he worked at this telecommunications shop, he was sometimes questioned by the Sri Lankan Army about his customers;

   e)sometimes he was taken to an army camp and forced to do unpaid work, and sometimes he was made to squat on hot sand;

   f)he had been beaten by the Army during interrogations on at least four occasions;

   g)on occasion, he was taken at gunpoint for interrogation and beaten;

   h)when he was a fisherman, the Army sometimes took his fish, and they would let their dogs attack him;

   i)he watched propaganda videos of the Liberation Tigers of Tamil Eelam (“LTTE”) in his village two months before he left Sri Lanka; and

   j)the authorities knew he had watched the videos because his friends told them.

3. The Tribunal conducted a hearing at which the applicant gave oral evidence.  The Tribunal noted that the applicant’s claims had varied over time.  The Tribunal considered that the inconsistencies and contradictions in the applicant’s evidence over time undermined his credibility.  The Tribunal considered that the applicant was not a reliable witness, particularly in relation to his claims about the Sri Lankan Army.  The Tribunal did not accept that the applicant was ever physically mistreated by the Army or Navy or anyone else in Sri Lanka, or that he was taken to the Sri Lankan Army camp on a weekly basis for the year he worked at the telecommunication shop in Udappu.

4. The Tribunal did accept that the applicant was questioned by soldiers about his customers at the telecommunications shop.  However, the Tribunal did not accept that this involved any mistreatment of the applicant himself.  The Tribunal did accept that the applicant was once chased by a dog that had been coaxed to chase him by a soldier.  The Tribunal also accepted that, from the age of about 17, the applicant was required from time to time to perform unpaid work at the local army camp, and that, on at least one occasion, the soldiers made him squat on hot sand for a period of time.

5. The Tribunal considered that these events occurred because the applicant lived close to the army camp, because he worked at the telecommunications shop and because he was “a Tamil person in the wrong place at the wrong time”.  The Tribunal noted that the claim about the applicant watching an LTTE propaganda video was raised for the first time by the applicant’s migration agent at the end of an interview in September 2013.  The Tribunal considered that the applicant’s evidence about this matter was inconsistent, vague and unreliable.

6. The Tribunal did not accept that the authorities had ever suspected the applicant of watching or possessing such videos.  The Tribunal did not accept that the applicant had come to the adverse attention of the Sri Lankan authorities, either prior to or since his departure from Sri Lanka.  The Tribunal did not accept that the applicant faced a real chance of being perceived as an LTTE sympathiser or supporter on the basis that he was a young Tamil male from Udappu.  The Tribunal did not accept that the applicant, with his own particular attributes, would be suspected of links to the LTTE or anti-government views.

7. The Tribunal considered, at paragraph 95 of its reasons for decision, that the unpaid work the applicant had been required to perform for the Army and the questioning by the Army about the customers of the telecommunications shop was simply the result of the applicant “being a Tamil person in the wrong place at the wrong time”.  The Tribunal considered that the applicant could again come to the attention of the authorities in similar circumstances.  However, the Tribunal considered that the chance of the applicant suffering serious harm in those circumstances was remote and farfetched.

8. The Tribunal did not accept that the applicant faced future harm on account of being of Tamil ethnicity, or being a Tamil who lived in Udappu.  The Tribunal considered whether the applicant was at risk of serious harm as a failed asylum seeker.  However, the Tribunal did not accept that there was a real chance that the authorities would impute him with an adverse profile or opinion and subject him to harm for reasons of being a failed Sri Lankan asylum seeker or a failed asylum seeker from Western country or a returnee from a Western country.

9. The Tribunal also considered whether the applicant might face prosecution for unlawful departure from Sri Lanka.  The Tribunal noted that the applicant had no criminal record or involvement in people smuggling.  The Tribunal considered that the applicant might be held in remand for up to four days, but did not consider there was a real chance of the applicant suffering serious harm during that period.

10. The Tribunal considered that the loss of liberty that the applicant would suffer during any such period of remand would be the result of a law of general application, and as such, would not amount to persecution.  The Tribunal considered that the possibility of the applicant not being granted bail was remote.  The Tribunal considered that, at final hearing, the chance of the applicant receiving a custodial sentence was remote.

11. The Tribunal, in paragraph 111 of its reasons for decision, considered the applicant’s claims cumulatively, to the extent that the Tribunal had accepted them, and considered that they did not amount to circumstances giving rise to a well-founded fear of persecution.

12. The Tribunal also considered the complementary protection provisions.  For substantially the same reasons, the Tribunal considered that there was not a real chance that the applicant would suffer significant harm if he were to return to Sri Lanka.

13. The amended application contains six grounds.  The first ground in the amended application is as follows (errors in original):

    The Tribunal has erred and fell into jurisdictional error by not assessing the applicant’s integer claims cumulatively being a Young Tamil male of hindu faith, an orphan with perceived LTTE association.

14. The Tribunal did not accept that the applicant had a perceived LTTE association.  Therefore, the Tribunal did not need to factor that matter in when considering the applicant’s claims cumulatively.

15. The Tribunal apparently did accept that the applicant was a young Tamil male of Hindu faith and an orphan.  However, the applicant did not make any express claim that he was at risk of harm because he was a young Tamil male orphan of Hindu faith.  His claims concerned alleged mistreatment by the Sri Lankan Army.  It is not apparent that the applicant was at any additional risk of harm because he was of Hindu faith, and/or an orphan.  In these circumstances, there was no need for the Tribunal to expressly consider that particular configuration of attributes.  This ground is not made out.

16. The second ground in the amended application is as follows:

    The Tribunal applied the wrong test when it said that the applicant had [a] problem because he lived close to the Army camp and worked in a communication shop and if he changed both of those things his problem might go away.

17. The Tribunal did not state that if the applicant changed both of those things his problem might go away.  On the contrary, the Tribunal expressed the view that, notwithstanding the things that had happened to the applicant in the past and could happen again if he worked in the telecommunications shop, he did not face a real chance of serious harm in the future.  Those findings are set out in paragraph 95 of the Tribunal’s reasons for decision, which is as follows:

    As noted above, [the Tribunal] does accept that [the applicant] came to the attention of the SLA and was made to perform unpaid work on numerous occasions and was questioned by the SLA about people who came [to] the shop where he worked, but that these incidents occurred for reasons of him being a Tamil person in the wrong place at the wrong time, including with regard to his work in the telecommunications shop. While it accepts there is a chance he could again come to the attention of the SLA or the CID in similar circumstances, including if he again worked in a telecommunications shop, having carefully considered the evidence and information before it, the Tribunal considers that the chance of him suffering serious harm in those circumstances is remote and far-fetched, and it does not accept that there is a real chance that he would suffer serious harm in that way or for those reasons in the reasonably foreseeable future, including if he again worked in a telecommunications shop. (emphasis added)

18. It seems to me that the findings of the Tribunal in that regard were open to it.  This ground is not made out.

19. The third ground in the amended application is as follows:

    The Tribunal has not assessed [whether] the applicant’s claim of him being set upon by a dog by the Army amounts to significant harm. (CB 235)

20. As mentioned above, the Tribunal was well aware of this claim and accepted at paragraph 76 of its reasons for decision that the applicant had once been chased by a dog at the instigation of a soldier.  However, the Tribunal incorporated its findings about that issue in paragraph 97 of its reasons for decision, where it found that the evidence did not support a claim that the applicant would face significant physical harassment or ill-treatment in the reasonably foreseeable future.  It seems to me that those findings were open to the Tribunal.  This ground is not made out.

21. The fourth ground in the amended application is as follows:

    The Tribunal has not assessed [whether] the applicant’s claim of being deprived [of] his catch by the Navy quite often amounts to serious harm.

22. In paragraph 64 of its reasons for decision, the Tribunal noted the applicant’s claim that the Army had taken his fish. However, in the following paragraphs, the Tribunal noted that the applicant’s evidence about his claims was inconsistent and contradictory.  The Tribunal, in paragraph 97 of its reasons, did not accept that the applicant faced a real chance of significant ill-treatment or economic hardship that would threaten his capacity to subsist.  That finding includes the claim about the applicant being deprived of his catch.

23. The applicant in his written submissions refers to the supplementary court book, which contains a transcript of the hearing before the Tribunal.  The applicant refers to page 12 of the transcript.  At that page, the applicant is recorded as saying the Navy took half his catch “quite often”.  This was not a finding made by the Tribunal, but a claim made by the applicant. This ground is not made out.

24. The fifth ground in the amended application is as follows:

    The Tribunal has not assessed [whether] the applicant’s claim of being forced to perform unpaid work and [being] made to squat in the hot sand amounts to persecutory treatment. ( CB 235)

25. The Tribunal accepted these two claims at paragraph 77 of its reasons for decision.  It then dealt with them in a compendious manner in paragraph 95 of its reasons for decision.  The findings there were open to the Tribunal.  This ground is not made out.

26. The sixth ground in the amended application is as follows:

    The Tribunal has not assessed the applicant’s claim[s] cumulatively.

27. That is not correct.  The Tribunal clearly considered the applicant’s claims cumulatively insofar as the Tribunal accepted them at paragraphs 111 and 122 of its reasons for decision.  This ground is not made out.

28. I am not persuaded that any of the applicant’s grounds is sustainable.  Consequently, the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 20 June 2016