ASD16 v Minister for Immigration
[2016] FCCA 3091
•1 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASD16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3091 |
| Catchwords: MIGRATION – Judicial review – alleged failures to consider claim. |
| Legislation: Migration Act 1958 (Cth), s.449 |
| Cases cited: Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 BEV1 v Minister for Immigration [2016] FCA 507 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 |
| Applicant: | ASD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 742 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 10 November 2016 |
| Date of Last Submission: | 10 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 30 March 2016, amended on 28 October 2016 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
SYG 742 of 2016
| ASD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Tamil male from Sri Lanka. He is a Hindu.
The applicant’s counsel filed written submissions which contain long extracts of quotes of cases in footnotes. In his written submission counsel stated he did not make any submissions with respect to ground one. When questioned about this he indicated that ground one is not being pressed. This should have been explicitly stated in his written submissions.
The applicant pressed ground two and three set out in his amended application filed on 28 October 2016.
Ground two complains that the Tribunal fell into jurisdictional error by failing to consider integers of the applicant’s claim in the following respects:
a)Noting information from DFAT that a family member is required as guarantor for bail the Tribunal failed to consider whether or not a family member was willing and available;
b)The Tribunal failed to consider the information from DFAT that there are defects in Australia’s ability to monitor the safety of returnees which was relevant to the Tribunal’s assessment of the risk to the applicant as a returnee;
c)The Tribunal failed to consider the risks of being followed up and suffering torture in his home area.
Ground three complains that the Tribunal erred by misapplying the real chance of harm test.
Ground two
The applicant draws attention to the country information extracted at [34] of the Tribunal’s decision and in particular the last subparagraph of that extract which refers to the issue of bail and family members being required to act as guarantors. At [63] of the decision the Tribunal found that it was not satisfied with the evidence before it that the applicant would be subjected to more harsh or prolonged questioning, remand conditions or any other discriminatory or harmful treatment by authority is upon his return to Sri Lanka due to his having left Sri Lanka illegally. The Tribunal said:
I accept and give weight to the evidence about many people remanded and charged under the eye and he acted being allowed to go free even without their families being required to come and collect them.
Whilst the applicant relies on [63] the applicant did not draw attention to that sentence. It is clear in that the Tribunal after weighing the applicant’s evidence and the country information was satisfied that the applicant may not even be required to have a family member being guarantor.
For completeness on this point I observe that the applicant has not filed a transcript of the proceedings before the Tribunal.
With respect to this part of ground two the Minister relies on the decision of BEV1 v Minister for Immigration [2016] FCA 507. That decision raises similar issues to those in this case and SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175. In both those cases the Federal Court commented on Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”). SZTQS was fact specific. The facts in this case are very different and does not assist the applicant’s case.
The minister draws attention to [53] where the Tribunal records putting the country information to the applicant and went on to record at [54] that the applicant did not rebut that information but said it might be different for him because he would be suspected to have helped the LTTE. The Tribunal rejected the applicant’s contention about being imputed as having links to the LTTE. I accept the Minister’s submissions that the applicant had the opportunity to raise the issue of bail. Also most significantly it is clear that the applicant’s advisor had the DFAT February 2015 report as his advisor refers to it in his written submissions. Therefore if the issue of bail and the availability of a family member was of concern to him he had ample opportunity to raise that issue both in the written submissions made prior to the Tribunal hearing and at the Tribunal hearing itself. The applicant was aware of this issue given his representative’s written submissions which refer to the country information.
The applicant draws attention to page 193 of the Court Book which is the beginning of the applicant’s representative’s submissions dated 19 October 2015 and following. The submissions cite various sources of country information over the next several pages. The reports were prepared over a range of dates from 2012 to February 2015. It is important when considering this country information that it is not distorted by cherry picking particular sentences and not looking at the information in its context. I will not set out all of the material referred to by the applicant.
The weight to be placed on country information is a matter for the Tribunal. The applicant relied on affidavits which annexes part of the DFAT report which is referred to in the applicant’s written submissions and the Tribunal’s decision records and draws attention to [4.21] of that report which refers to thousands of asylum seekers returning to Sri Lanka since and 2009 there being relatively few allegations of torture or mistreatment. The applicant emphasises further reference in DFAT that it does not routinely monitor the situation of returnees but despite this assesses the risk of torture and mistreatment as low. The applicant complains that this was an important part of the report and that the Tribunal failed to have regard to it.
The applicant relies on the case of Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362 as an example of a jurisdictional error by reason of failing to take into account a relevant consideration.
The applicant places particular emphasis on the fact that the Tribunal is required to have regard to the DFAT report pursuant to section 499 of the Migration Act 1958 (Cth). The Minster points out that the issue of the weight that is to be placed on the country information is a matter for the Tribunal and not the Court.[1] I accept the Minister’s submissions on this point.
[1] See NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10.
It is not practicable to reproduce all of a report in a written decision and the fact that some parts and not others are extracted and referred to without more does not support a finding that the Tribunal failed to consider parts of the report it did not extract or specifically refer to. Furthermore the applicant’s agent had a copy of the report and could have drawn attention to it in written submissions.
Paragraph 66 of the decision addresses the applicant’s claim that he would be followed up and tortured on his return to his local area. The Tribunal rejected his claim as it was not satisfied that he would have a profile of interest as it rejected his evidence. I reject the applicant’s submission that the Tribunal did not properly consider this claim based on the country information. It is clear from fair reading of the decision that the Tribunal considered the applicant’s evidence and country information.
In his written submissions the Minister argues it is not a claim the applicant expressly raised or was obvious from the material. Therefore the Tribunal was not obliged to consider it.
None of the complaints made under ground two are made out.
Ground Three
The applicant submits under this ground that the Tribunal misdirected itself with respect to the real chance of harm test. It is well established by the authorities that a person can be found to be at real chance of harm even though that chance is significantly less than 50%.[2]
[2] See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
The applicant refers to the Tribunal’s phrasing in [63] to [66] and submits that the wording shows that the Tribunal misdirected itself by considering what would happen and not what may happen.
The Minister argues that the complaint made under this ground is a classic example of climbing the decision with an eye attuned for error and focusing on one sentence rather than a fair reading of the decision overall and refers to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (“Wu Shan Liang”).
The minister concedes that reading the final sentence of [66] on its own could be read as misstating the real chance test as it refers to not being satisfied that the applicant would suffer torture, rather than returning to whether or not there was a real chance he would suffer torture. The minister qualified this somewhat in his oral submissions by saying that the reference to “would” in that paragraph is referring to the subjunctive mood which is a grammatical term where a verb form is used to express a wish or a suggestion or a command. He says that the use of the word would in this context be the subjunctive mood referring to the possibility that it might occur, not a certainty.
The Tribunal discusses the real chance test at [55] and [59]. The Tribunal uses the word “would” in [63] and [64] as well as [66]. When the paragraphs are read together it is clear that the Tribunal uses the word “would” not in the absolute sense but rather in the subjunctive mood. The comments of the High Court in Wu Shan Liang are salient here. The fair reading of the Tribunal’s decision does not reveal that the Tribunal has erred in applying the real chance test.
Ground three is not made out.
In the event of being successful both counsel indicated they would seek costs in accordance with Item 3 of Part 3, Schedule 1 of the Federal Circuit Court Rules 2001 being the sum of $7,206.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 1 December 2016
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