ASR15 v Minister for Immigration

[2015] FCCA 2222

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASR15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2222

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 failed to have regard to relevant material – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476, 499

Applicant: ASR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1305 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 Respondents: Ms R Krishnan
Australian Government Solicitors

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document 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 $4900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1305 of 2015

ASR15

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 (Cth) in respect of a decision of the Tribunal made on 28 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 by flying to Malaysia, referred to in paras.51 and 60. The applicant appeared before the Tribunal to give evidence in response to an invitation send on 2 December 2014 which complied with the statutory requirements, and the applicant appeared before the Tribunal on 12 February 2015 assisted by an interpreter and represented by his registered migration agent.

2. The Tribunal properly identified the applicant’s claimed fears of harm due to his Tamil ethnicity, being a supporter of the TNA, his opposition to the Karuna group, being a failed asylum seeker and an imputed political opinion in support of the Tamil LTTE.  It is clear from the findings of the Tribunal that the applicant gave inconsistent explanations for events that occurred in relation to the contemporaneous records that he provided to the Tribunal as well as inconsistent assertions from the interview that he gave. 

3. That interview was the subject of compliance with s.424AA, and the Tribunal expressly recorded the applicant confirming he understood what the information was, why it was relevant and what the consequences were of the Tribunal relying on that information. The other information taken into account by the Tribunal was country information, consistent with its obligation under s.499 of the Migration Act and/or information provided by the applicant, none of which enlivened any obligation under s.424A. The applicant identified two grounds as follows:

   1. RRT decision is unsupported by any evidence

   2. RRT did not fully deal with my problems

4. The adverse findings in respect of the applicant’s credit were the subject of detailed reasons by the Tribunal, relevantly at para.51, and the Tribunal identified the country information and  the evidence of the applicant that supported the findings made. Those findings has a logical foundation. There is no substance in relation to ground 1 of the application. 

5. In relation to ground 2 it is clear that the Tribunal properly identified the claims of the applicant as referred to above and found that the applicant had fabricated the claims of being of adverse interest to the LTTE.  In paras.52, 53, 54 and 55 the Tribunal considered the applicant’s ethnicity and rejected the applicant’s claim in that regard.  In paras.59 and 60, the Tribunal considered the applicant’s claim of being a failed asylum seeker and a supporter of the TNA, giving rise to the findings in paras. 60 to 63 as follows:

   60. I accept that on return to Sri Lanka the applicant would be doing so as a failed asylum seeker and that this is from a western country. He did not depart Sri Lanka illegally. I have considered the applicant’s advisor’s submissions on these matters, particularly as noted in their submission dated 5 February 2015. I give particular weight to DFAT reporting to the effect that there is no information that failed asylum seekers are targeted in Sri Lanka on the basis of their having sought asylum overseas or in Australia. I do not accept as reasonable to believe he would face any adverse consequence on return for these matters. I do not accept he would be arrested or detained for offences such as illegal departure.

   61. Overall, I find that the applicant’s fear of harm on return to Sri Lanka in the reasonably foreseeable future is not well founded. I find that there is not a real chance he will suffer serious harm amounting to persecution.

   62. Overall, I am satisfied that the applicant does not have a well-founded fear of persecution for reasons of a Convention ground.

   63. For the reasons given above, 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).

6. The Tribunal turned to the issue of complementary protection and, having found that the applicant was not a credible witness and had exaggerated and fabricated his claims, made an adverse finding that the applicant was not a person in respect of whom Australia had a protection obligation and that the criteria under s.36(2)(a) and s.36(2)(aa) were not met. Ground 2 fails to disclose any jurisdictional error.

7. The applicant filed written submissions which were in substance an expansion of the grounds identified in the application.  The first ground was that the findings were not supported by the evidence, and in that regard there were three criticisms referring to adverse credibility findings, the finding on the claimed fear of harm on the grounds of ethnicity and the finding on the applicant not being an illegal departee.  In relation to the first it is clear that the Tribunal gave detailed reasons for the adverse credibility findings, which were open on the material and cannot be said to lack an evident and intelligible justification.  It is also clear that the Tribunal gave detailed reasons for rejecting the applicant’s claimed fear of harm on the grounds of ethnicity, and that finding cannot be said to lack an evident and intelligible justification. 

8. In relation to the assertion advanced in submissions that the applicant was an illegal departee, that finding was open on the evidence and had a logical foundation as identified by the Tribunal in para.23 and in para.60.  Moreover it is clear that this was not a claim that was raised in the written submissions advanced on behalf of the applicant, which written submissions were detailed and carefully identified by the Tribunal both prior to the hearing and after the hearing, relevantly in paras.23, 25, 27, 28 and 29. 

9. Being an alleged illegal departee was not an integer of the applicant’s claimed fear of harm and was not a matter which the Tribunal was required to assess or which arose on the material before the Tribunal.  There is no substance in relation to the applicant’s submissions advancing alleged error on the basis that there was no evidence or  support for the findings made.  The findings to which I have referred cannot be said to lack an evident and intelligible justification and have a clear logical basis identified in the reasons of the Tribunal. 

10. To the extent that it is advanced in the written submissions that there was no logical basis for the adverse findings, for the reasons given, that assertion lacks substance.  In relation to the generalised allegation of having failed to have regard to relevant information, there is no relevant information identified that it is alleged the Tribunal failed to have regard to consistent with its obligation.  There is no substance in this alleged ground of jurisdictional error.  To the extent that the applicant refers to material coming into existence after the hearing of the Tribunal, that is not material that could give rise to any jurisdictional error. 

11. To the extent that the applicant advances that it was unlawful for the Tribunal to take into account country information, that is inconsistent with s.499 of the Migration Act.  To the extent that it is asserted that the Tribunal fell into error by failing to consider the relevant country information or the applicant’s political profile, it is clear that the Tribunal carefully identified the alleged profile of the applicant, took into account what the Tribunal decided was the relevant country information and rejected the applicant’s evidence. 

12. In relation to the country information, it was a matter for the Tribunal to determine what weight to give that country information.  It is clear that the Tribunal took into account the applicant’s submissions and country information as earlier identified.  There is no jurisdictional error made out of a kind that the Tribunal failed to consider the applicant’s claims or the applicant’s profile or country information. 

13. To the extent that jurisdictional error was asserted because of the Tribunal failing to have regard to all the material, there is no identification of any material before the Tribunal to which the Tribunal did not give regard.  It is clear that the Tribunal dealt with the integers of the applicant’s claims, and no jurisdictional error is disclosed by this allegation. 

14. In relation to the assertion that the applicant was denied procedural fairness, it is clear that the Tribunal complied with its statutory obligation in relation to inviting the applicant to attend the hearing and that the applicant had a genuine hearing and that in relation to the only information being the interview that fell within s.424A, that was squarely put to the applicant in compliance with s.424AA. There is no other information than that provided by the applicant or country information that the Tribunal takes into account in its reasoning. Accordingly there is no information identified that enlivened the obligation under s.424A. The Tribunal complied with its statutory obligations under s.424A and s.424AA.

15. There is no substance in the assertion of a denial of procedural fairness or that the Tribunal fell into jurisdictional error in this regard.  From the bar table the applicant purported to maintain that the country information was not reliable and in some way reflected an allegation of conspiracy or other grounds for unreliability.  It was a matter for the Tribunal to determine what weight to give the country information, and there is no substance in the submissions made orally by the applicant in this regard.  To the extent that the applicant maintained that the Tribunal had not gone through his claims, no other claim was identified, and there was no substance in this submission.  The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 20 August 2015