ASK15 v Minister for Immigration

[2015] FCCA 2224

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2224

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugee Division) – Protection (Class XA) visa – whether the Tribunal failed to put adverse information to the applicant – whether the Tribunal’s findings were illogical – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 476

Applicant: ASK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1298 of 2015

Judgment of: Judge Street

Hearing date: 17 August 2015

Date of Last Submission: 17 August 2015

Delivered at: Sydney

Delivered on: 17 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms S Burnett
Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1298 of 2015

ASK15

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 in respect of a decision of the Tribunal made on 17 April 2015 affirming a 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.  The applicant was found to have left Sri Lanka legally via Malaysia, travelling to Indonesia.  The applicant had earlier left Sri Lanka to travel to India. 

2. The applicant was invited to attend a hearing by letter on 20 February 2015 to take place on 31 March 2015, which the applicant attended and gave evidence and presented arguments, together with the assistance of an interpreter and represented by a migration agent.  The application identifies the following grounds:

   1. The RR T made an error when deciding that "cruel or inhumane treatment or punishment'' would not be "intentionally inflicted" upon me if I was placed in jail on remand for up to 2 weeks on my return to Sri Lanka.

   2. The RRT accepted that the jails were subject to overcrowding and poor conditions; and the RRT accepted that I have scarring that can draw adverse attention.

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

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

   5. I intend listening to the RRT hearing audio to find out as to whether the RRT has made any other errors in reviewing my Protection Visa. I wish to seek legal assistance from the legal assistance scheme from the list of lawyers will be given to me by this Court (numbering added)

3. For the detailed reasons given by the Tribunal, the Tribunal did not find the applicant's claim for protection to be credible. 

4. The Tribunal identified that the applicant claimed to fear harm by reason of his Tamil ethnicity, his older brother’s actual or suspected membership of the LTTE and his disappearance from Sri Lanka, the disappearance of his younger brother, the persecution by the Sri Lankan Army Forces, the applicant’s membership of a particular social group, being failed asylum seekers, and the applicant’s assertion that he would be subjected to significant harm. 

5. Relevantly, the Tribunal made express findings about the applicant having left Sri Lanka legally in paras.96 to 100.  The Tribunal did not accept that the applicant would be exposed to treatment in the nature of significant harm by reason of being a failed asylum seeker, and relevantly found:

   102. The Tribunal has taken into account the history of the applicant and his relatives, including his older brother, younger brother, wife, sister and father, but does not consider that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm upon his return to Sri Lanka, including upon return to his home area. 

   103. In making the above findings, the Tribunal has taken into account the submissions made about the applicant’s claims and the assessment of credibility, country information provided in support of the submissions, and the documents provided.  The Tribunal has to consider the applicant’s particular circumstances.  In this case, the Tribunal did not find the applicant’s evidence about his claims for protection to be credible.  The letter from the [X] parish priest is in general terms.  It refers to no specific incidents relating to the applicant. The Tribunal gives that letter no weight. While there is country information about mistreatment of Tamils in Sri Lanka, including in the north, the applicant’s history as found by the Tribunal does not support a finding that he has a profile such that there is a real chance that he will suffer serious harm or that there is a real risk that he will suffer significant harm if he returns to Sri Lanka. 

   104. For those reasons, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm from the Sri Lankan armed forces, CID or military  police, EPDP, or any other Sri Lankan authority, because of one or more of his Tamil ethnicity, that he was in an LTTE area during displacement, he was a former resident of north Sri Lanka, his imputed political opinion as pro-LTTE or anti-government, because of his older brother’s actual or suspected membership of the LTTE and his disappearance from Sri Lanka in 2006, or the disappearance of his younger brother from Sri Lanka, or that he escaped “their” custody and has sought asylum;  or the applicant’s membership of a particular social group, failed Tamil asylum seekers from a western country, or relatives of former LTTE members.

   105. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future for a Convention reason if he returns to Sri Lanka.  He does not have a well-founded fear of persecution for a Convention reason.

   106. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   107. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

   108. Because the Tribunal does not accept that the applicant’s claims for protection are credible, the Tribunal does not accept that there is a real risk that the applicant will suffer significant harm, from any Sri Lankan authority, including the armed forces, military, CID, police or EPDP.   Significant harm includes the death penalty being carried out on him, being arbitrarily deprived of his life; being subjected to torture, or to cruel or inhuman treatment or punishment; or degrading treatment or punishment.  

   109. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. 

   110. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

6. In relation to ground 1, it is clear that the Tribunal made an adverse finding of fact as to whether the applicant would be exposed to cruel or inhumane treatment or punishment, and it is clear from the Tribunal’s reasons that there was a logical basis for that finding and it cannot be said to lack in evident and intelligible justification.  There was no finding of the kind alleged in ground 1 that the applicant would be placed on remand for two weeks.  Nothing in ground 1 discloses any jurisdictional error. 

7. In relation to ground 2, there was no finding in this case that the applicant had left Sri Lanka illegally and no finding that he would be placed in jail and, in light of the finding that he had left Sri Lanka legally, there is no error in the reasoning of the Tribunal as alleged in paragraph 2. 

8. In relation to ground 3, no information is identified as information of a kind that enlivened the obligation under s.424A and, for that reason alone, the third ground fails to make out any jurisdictional error. No transcript has been tendered to make out any breach of s.424AA. Ground is without substance and fails to disclose any jurisdictional error.

9. The ground 4 appears to be in substance a repetition of the third ground and, to the extent that it asserts an obligation under s.424A, for the reasons I have given, there is no obligation enlivened in this case and no information was identified in support of the ground 4. I find that ground 4 fails to make out any jurisdictional error.

10. Ground 5 does not identify any matter that gives rise to any jurisdictional error. 

11. From the bar table, the applicant said he could not go back and that his wife and father were in Indonesia.  He said he would be put in jail and that there was no one who would get him out.  None of the matters raised by the applicant identify any jurisdictional error.  The applicant orally sought an adjournment, identifying that one week ago he had spoken to a Mr Karp of counsel. 

12. No evidence was put on to explain what steps, if any, the applicant had been taking from the time of filing of the application on 12 May 2015 up until a week ago in relation to obtaining legal representation.  Further, no notice was given by the applicant, prior to the oral application today, of any suggestion of a need for an adjournment.  The adjournment was opposed by the first respondent.  It was suggested by the applicant that the Court book had been served late.  The first respondent tendered a letter dated 2 July 2015 that shows that the Court book was served within the timetable of the orders made on 18 June 2015.  The applicant confirmed that he had been in Court at the time of the orders made on 18 June 2015 and was given a copy of those orders. 

13. The applicant has filed no affidavit, amended application or submissions in response to the orders made on 18 June 2015.  For the reasons earlier given, the application is clearly doomed to failure as it does not disclose any jurisdictional error.  In these circumstances, there would be no utility in granting an adjournment.  I am satisfied that an adjournment would only unnecessarily increase the cost to the parties and utilise limited Court time.  I also find that the applicant’s explanation for the delay in seeking to obtain any legal representation was inadequate in circumstances where the matter was commenced on 12 May 2015 and orders were made on 18 June 2015 fixing the matter for hearing in respect of which the applicant was in attendance at the time those orders were made.  

14. I am satisfied that there would be no utility in granting any adjournment, and it was for these reasons the application for an adjournment was refused.  The application fails to disclose any jurisdictional error.  The application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 20 August 2015