ASL15 v Minister for Immigration
[2016] FCCA 2422
•17 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASL15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2422 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal applied the incorrect test under s.91R – whether the Tribunal undertook a qualitative assessment of detention – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 476 |
| Cases cited: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 |
| Applicant: | ASL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1299 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 17 August 2016 |
| Date of Last Submission: | 17 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2016 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondents: | Ms Lucchese of Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 12 May 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1299 of 2015
| ASL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 May 2015, seeking review of the decision of the then Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 8 April 2015, which affirmed a decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Sri Lanka (CB 32). He is of Tamil ethnicity and Hindu religion (CB 32). The applicant arrived in Australia on 29 May 2012 as an “irregular maritime arrival” (CB 1 and CB 33). He applied for a protection visa on 14 September 2012 (CB 17 to CB 85), and was assisted by a registered migration agent (CB 25).
The applicant’s claims were set out in a Statutory Declaration made by him on 14 September 2012 (CB 46 to CB 48). The delegate refused the application for the visa on 25 March 2013 (CB 97). He applied for review of the delegate’s decision to the Tribunal on 5 April 2013 (CB 130). The applicant, accompanied by a representative, attended a hearing before the Tribunal on 21 August 2013 (CB 149 to CB 150). Following the hearing, the Tribunal received detailed written submissions from the applicant’s representative on 13 September 2013 (CB 153 to CB 170).
The evidence before the Court reveals that the Tribunal subsequently invited the applicant to attend a further hearing before the Tribunal on 6 March 2015, due to the amount of time that had passed since the first hearing without a decision having been made in the applicant’s case (CB 186). The applicant attended this hearing, and was again accompanied by a representative (CB 194 to CB 195). The Tribunal affirmed the decision of the Minister’s delegate on 8 April 2015.
The applicant’s claims to fear harm on return to Sri Lanka were that he feared harm from the Sri Lankan government and army because of his Tamil ethnicity, and because he would be identified as a failed asylum seeker, returning from Australia, who had breached Sri Lankan departure laws ([63] at CB 210). The applicant also claimed to fear harm from “armed people” (Tamil paramilitary groups) in his home area of Batticaloa, as well as the Sri Lankan government and army, because of his participation in his uncle’s election campaign in 2010 in his home area ([63] at CB 210).
The Tribunal accepted that the applicant’s uncle was a member of the Tamil United Liberation Front (TULF) and had been a candidate in the 2010 Batticaloa election. The Tribunal also accepted that the applicant had been verbally abused and insulted by members of the Sri Lankan army and Tamil paramilitary groups in the past, and that the applicant had departed Sri Lanka without a Sri Lankan passport, in breach of the departure laws ([64] at CB 210).
However, the Tribunal had “significant doubts about the credibility of substantial parts of the applicant’s claims” ([65] at CB 210). The evidence that the applicant gave to the Tribunal about his participation in politics was said to be “generalised and vague”, and although the applicant claimed to be a member of the political party himself, the Tribunal found that the applicant was not in fact a member of the TULF, but only assisted his uncle in his campaign because he was a member of his family. The Tribunal also found that the applicant did not cease from actively supporting the political party because of any harm or threats of harm that he or his uncle received. As a result, the Tribunal concluded that the applicant did not in the past, and would not in the future, have any real political profile as a supporter of the TULF ([68] at CB 211).
The applicant had also claimed that, following the election in 2010, he and his uncle had been targeted by Tamil paramilitaries. The Tribunal also found the applicant’s evidence to be “vague” in regard to what he claimed happened to his uncle, and to him, after the 2010 election. The Tribunal found it “highly implausible” that the applicant was unable to identify more specifically, the “armed people”, apart from stating that they were one of the Tamil paramilitary groups operating in the Eastern Province, if they had in fact kidnapped and threatened his uncle as he claimed ([69] at CB 211).
The Tribunal considered country information regarding the 2010 Batticaloa election, and put to the applicant that the TULF received only 2.45% of the votes which would indicate that his uncle would have been of “little interest to any political rivals or paramilitaries acting on their behalf” ([71] at CB 212).
As a result, the Tribunal did not accept that either the applicant or his uncle were targeted for harm by members of Tamil paramilitary groups during or since the 2010 election, or that the applicant was taken away and threatened by “Tamil paramilitaries” in April 2012 as he had claimed, or at any other time. They also did not accept that the “Tamil paramilitaries” had been to the applicant’s home looking for him or his uncle since he came to Australia ([69] at CB 211 to [72] at CB 212).
As stated above, the Tribunal did accept that the applicant had been verbally abused and insulted by members of the Sri Lankan army in his home area, but doubted the credibility of his claims of recent physical harm and of being forced to do labouring work for the army. The Tribunal’s concerns about the credibility of these claims arose from what it found to be inconsistencies in the applicant’s own claims as between his statement in his application and subsequent evidence before the Tribunal, and further inconsistencies with relevant country information to which it had regard. These inconsistencies led the Tribunal to conclude that he had not suffered harm, including being forced to work as a labourer or beaten, by virtue of his Tamil ethnicity, at the hands of the army since 2009 as he had claimed ([73] at CB 212 to [74] at CB 212).
The Tribunal then considered the applicant’s claim on the basis of his Tamil ethnicity. The Tribunal accepted there is some degree of harassment and discrimination toward Tamils on account of their ethnicity. In the context of s.36(2)(a) of the Act, the Tribunal did not accept that such harassment and discrimination amounted to “serious harm” under s.91R of Act. The Tribunal considered country information, and concluded that Tamils, including Tamils in northern Sri Lanka do not face a real chance of suffering “serious harm” solely on account of their ethnicity ([77] at CB 213).
Based on country information, the Tribunal found that it is only Tamils with a history of actively supporting, or of being involved with, the Liberation Tigers of Tamil Eelam (LTTE) that continue to face a real chance of serious harm in Sri Lanka ([78] at CB 213). The Tribunal also found that young Tamil men will not be imputed as being a supporter or to be involved with the LTTE, solely on account of their ethnicity ([77] at CB 213).
Taking into account that the applicant had said that he and his family had not, and do not, have any connections with the LTTE, the Tribunal concluded that the applicant would not face a real risk of serious harm at the hands of the Sri Lankan government or army solely on account of him being a Tamil or a young Tamil man from eastern Sri Lanka ([80] at CB 213 to [81] at CB 214).
Based on the Tribunal’s finding that the applicant only helped his uncle in his election campaign because he was a member of his family (see [8] above), the Tribunal was subsequently not satisfied that the applicant held any political opinion that he would seek to express on return to Sri Lanka. As a result, the Tribunal found he would not face a real chance of suffering serious harm because of a political opinion in support of TULF, or any other political opinion ([82] at CB 214).
The Tribunal considered country information that showed that it was only “active anti-government critics” or “high profile political figures” that face a risk of being targeted for harm. The Tribunal did not accept that the applicant was a prominent political activist in support of TULF, or that he would be imputed with such political opinion because of the assistance he had provided his uncle in the 2010 Batticaloa election campaign. This led the Tribunal to conclude that the applicant did not face a real risk of suffering serious harm by virtue of any imputed political opinion, or as a member of a particular social group, that is, as a member of his uncle’s family ([83] at CB 214).
The Tribunal also concluded on the basis of country information that the applicant would not be imputed with a pro-LTTE or anti‑Sri Lankan government political opinion because of his Tamil ethnicity, because he is a young Tamil male or because of his profile as a Tamil from eastern Sri Lanka ([84] at CB 214).
The Tribunal also considered the applicant’s claim as a returnee, or failed asylum seeker. The Tribunal had regard to country information from the applicant’s representatives’ submissions to the Tribunal, and country information provided by the Australian Department of Foreign Affairs and Trade (DFAT Country Information Report Sri Lanka, 16 February 2015). The Tribunal found that failed Tamil asylum seekers are being targeted by the Sri Lankan authorities, but only as a “result of perceived or actual links with the LTTE or opposition of the current Sri Lankan government” ([85] at CB 214).
Since the applicant had told the Tribunal that neither he nor his family had ever been supporters of the LTTE, the Tribunal concluded that the applicant would not be imputed with any adverse political opinion by the Sri Lankan authorities only because he is a failed asylum seeker ([87] at CB 213). The Tribunal also went on to conclude that the applicant would not be perceived to be or as having been, pro-LTTE in this context because he is a young Tamil male from eastern Sri Lanka, as a failed asylum seeker or for any other reason ([88] at CB 215). Therefore, he did not face a real chance of serious harm because of any actual or imputed political opinion, or by reason of being a member of the particular social group “failed asylum seekers” for the same reasons ([88] – [89] at CB 215).
The Tribunal then considered that in light of available country information, on his return to Sri Lanka, the applicant may be detained for questioning by Sri Lankan authorities, that is, the Criminal Investigation Department and potentially the State Intelligence Service, at the airport on his return to Sri Lanka, because he would be identified as an individual being returned to Sri Lanka from Australia as a failed asylum seeker ([90] at CB 215). The Tribunal found that “the deprivation of [the] applicant’s liberty for the purposes of questioning [would] be the result of the operation of a law of general application that is not on its face discriminatory” ([91] at CB 215).
The Tribunal also found that available country information also indicated that these laws were not applied in a discriminatory fashion. As a result, the Tribunal was not satisfied that the deprivation of liberty, that is, detaining individuals for questioning, arising from the operation of the laws of general application, involved systematic and discriminatory conduct within the terms of s.91R(1)(c) of the Act, and therefore, was not “persecution for a Convention reason” ([91] at CB 215).
In the context of whether the applicant may suffer another form of “serious harm” during questioning, other than the deprivation of liberty, the Tribunal accepted that “there are reports” of some failed asylum seekers being harmed during their detention and questioning by Sri Lankan security forces on their return to Sri Lanka. However, due to the Tribunal’s previous findings that the applicant would not be identified as a person of interest, it did not accept that the applicant faced a real chance of serious harm during detention and questioning for any reason ([92] at CB 215 to CB 216).
On the Tribunal’s account of what occurred at the hearing, and noting that it is the only account that is in evidence before the Court, the Tribunal had previously put to the applicant that country information indicated that individuals who had left Sri Lanka in breach of Sri Lankan departure laws were being charged with breach of those laws and held on remand until being released on bail. The Tribunal also put to the applicant that only people suspected of being involved in people smuggling, or convicted of a criminal offence or those who had breached bail terms previously, appeared not be granted bail. In reply, the applicant stated that none of those circumstances applied to him ([45] at CB 207).
The Tribunal also reported that it put to the applicant, that country information suggested, that bail would be granted without the requirement of security if a family member nominated themselves as a personal guarantor for the release. When asked whether his parents or an adult sibling would be able to do this, the applicant stated that he did not know ([46] at CB 207).
The Tribunal found that the ([93] at CB 216):
“Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees”.
The Tribunal accepted that in light of the fact that the applicant left Sri Lanka without a Sri Lankan passport, and other than from a port of lawful departure, it was “likely” that he would be charged with a breach of those laws ([94] at CB 216). However, country information indicated that returnees were brought before a Magistrate within a few days and, as mentioned previously, no security for bail is required when a family member acts as a personal guarantor ([95] at CB 216 and see [25] above). The Tribunal did not accept that members of his family would not stand as a guarantor for the applicant’s release ([96] at CB 216).
The Tribunal also referred to country information provided by the Australian Department of Foreign Affairs and Trade, to consider what the outcome was likely to be, of the applicant being charged with a breach of the Sri Lankan departure laws. The Tribunal referred to country information that indicated that convictions for breaches of the laws resulted in fines and not in sentences of imprisonment ([97] at CB 216 to CB 217). The Tribunal concluded that the applicant “is likely to be charged with breach of the Sri Lankan departure laws and placed on remand on his return”, but that the chance of him not being granted bail on return was “extremely remote” given the findings that it had made in relation to the applicant’s claimed political profile ([99] at CB 217).
The Tribunal also found that the chance that the applicant would spend more than a “few days” in prison was remote ([100] at CB 217). Further, the Tribunal did not accept that the applicant would be a target for torture or assault whilst in prison, as he did not have a pro-LTTE or anti-government profile ([101] at CB 217). As a result, the Tribunal was not satisfied that the applicant faced a real chance of suffering harm because he is a young male Tamil, or at risk of being treated worse than other non-Tamil prisoners while he is held on remand for a “few days” after his return to Sri Lanka ([101] at CB 217).
The Tribunal, therefore, concluded that the applicant did not satisfy the criterion for the grant of the visa set out at section 36(2)(a) of the Act. That is, the Tribunal found the applicant would not face serious harm such as to amount to persecution for any of the reasons that he had claimed and, therefore, found that any such claim of fear was not well-founded ([104] to [106] at CB 218). The Tribunal then separately turned to consider the criterion at s.36(2)(aa) of the Act for the grant of the visa, that is, what is generally described as the complementary protection criterion ([107] at CB 218 to [117] at CB 220).
Although the Tribunal focused separately on that criterion, in part it drew on findings of fact that it had expressed earlier in its decision record. I note that there is no legal error in the Tribunal relying on earlier express findings of fact in the way that the Tribunal has done in this case (SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774).
Application Before the Court
The application to the Court contains one ground in the following terms:
“The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act
Particulars
By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 at (30) and (45)”
On 4 June 2015, a Registrar of this Court made orders by consent of both parties that set the matter down for final hearing. By Order 11, that final hearing was to take place on 8 August 2016 before another Judge of this Court. The matter was subsequently transferred to my docket and the hearing was relisted for today. The applicant appeared in person. He was assisted by an interpreter in the Tamil language. The Minister was represented by a solicitor. The Minister has also provided written submissions in this matter filed on 10 August 2015.
Consideration
The applicant confirmed that the sole ground of the application had been drafted with the assistance of a friend. When I explained to the applicant that since the handing down of the decision in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 in the Federal Court, the Minister had been successful in an appeal of that judgment before the High Court of Australia.
I explained to the applicant that the essence of his ground relies on the reasoning by the Federal Court. That reasoning was found by the High Court to be incorrect. The applicant then said that he wanted more time from the Court to provide further evidence. He explained that these would be letters from Sri Lanka. I understood this to be a request for an adjournment. I refused the adjournment. The documents from Sri Lanka were directed to the applicant’s claims for protection, not to the issue of whether there was jurisdictional error in the Tribunal’s decision. In any event, the applicant has had over a year to provide evidence in support of his application to the Court.
It is important to note that the orders made by the Registrar setting out, in effect, the timetable by which the parties had opportunities to file relevant material in this matter was well over a year ago. Further, the High Court’s judgment in Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 254 CLR 610, while it post-dated the date of the applicant’s application to the Court, nonetheless was also handed down over a year ago.
Despite the opportunity to do so, the applicant has done nothing to prosecute his case since the time of the making of his application to the Court. In effect, therefore, he simply relies on the sole ground of the application that had been prepared with the assistance of his friend.
There are two, separate and independent reasons, for finding that the ground is not made out. First, as stated previously, the applicant’s ground relies solely on the reasoning of the Federal Court in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947.
The High Court held that that reasoning was incorrect. I note also at [19] of the Minister’s written submissions a number of Full Federal Court authorities to the same effect (SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41). These authorities provide the complete answer to the applicant’s ground.
In essence, the High Court found that a decision maker, in this case the Tribunal, will not fall into jurisdictional error in conducting a qualitative assessment of whether the risk of the loss of liberty as contemplated in s.91R(2) of the Act constitutes serious harm for the purposes of s.91R. Therefore, to the extent that the applicant’s ground asserts error on the part of the Tribunal in this regard, that assertion cannot, in light of the High Court authority and the other Federal Court authorities, be made out.
Second, independent of the reasoning which the applicant’s ground seeks to impugn, the Tribunal found that being held on remand on return to Sri Lanka, that is, the applicant’s loss of liberty as a result of his illegal departure, would not amount to persecution because such detention would be the result of the non-discriminatory application of a law of general application ([103] at CB 217 to CB 218).
Even if the reasoning of Justice North in WZAPN v Minister for Immigration and Border Protection & Anor [2014] FCA 947 were to otherwise apply in this case (for the reasons I have explained it does not), there is a second separate independent basis to find no jurisdictional error is revealed in the Tribunal’s decision in the way claimed by the applicant.
Even though there was only one ground in the application to the Court, I have looked at the entirety of the Tribunal’s decision record and have referred to earlier above, at some considerable length, the claims, and the findings made by the Tribunal, to satisfy myself that there was no other arguable case to say that any other jurisdictional error was apparent on the evidence before the Court.
I cannot see that the Tribunal fell into any jurisdictional error. The Tribunal considered all of the applicant’s claims as expressly made or clearly arising from what the applicant had presented.
The applicant was invited to a hearing before the Tribunal on two occasions. There is nothing before the Court to indicate that these were anything other than meaningful opportunities for the applicant to give his evidence and make his arguments. The Tribunal had specific regard to written submissions made on the applicant’s behalf by his representative. On the evidence, the applicant was given the opportunity to address the issues determinative of the review.
The Tribunal accepted some of the applicant’s claims but it did not accept other important aspects of the applicant’s claims. This included, as mentioned previously, the credibility of some of those claims. The Tribunal’s findings, including its findings on credibility, were all reasonably open to it on what was before it. The Tribunal gave reasons for its findings probative of the material that was before it.
Conclusion
In all of these circumstances, no jurisdictional error is revealed. It is appropriate therefore that the application to the court be dismissed and I will make that order accordingly.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 16 September 2016
8
2