ASU15 v Minister for Immigration - [2016] FCCA 715

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASU15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 715

Catchwords:
MIGRATION – Visa – protection visa – impermissible merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 36(2)(a) & (aa), 36(2A), 36(2A)(a)-(e), 65, 91R, 91R(1)(a)-(c), 91R(2), 91R(2)(a)-(f) & 476

Refugees Convention, Article 1A(2)

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22
AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193
Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant:

ASU15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 170 of 2015

Judgment of:

Judge Heffernan

Hearing date:

22 February 2016

Date of Last Submission:

22 February 2016

Delivered at:

Adelaide

Delivered on:

19 April 2016

REPRESENTATION

The Applicant:

In person with an interpreter

Counsel for the Respondents:

Mr K Tredrea

Solicitors for the Respondents:

Sparke Helmore Lawyers

ORDERS

The Application filed 13 May 2015 is dismissed.
The name of the second respondent is amended to read, ‘The Administrative Appeals Tribunal’.
The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND AND EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 170 of 2015

ASU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) for the issue of constitutional writs against a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 17 April 2015. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa under s.65 of the Act.
The applicant raises a single ground of application as follows:
“The RRT erred in not giving consideration to the evidence provided to the effect that the Applicant will be harmed upon his return and the authorities of the Applicant’s home country will arrest and detain the Applicant and torture and/or imprison him being a failed asylum seeker. The tribunal has not given consideration to the evidence provided. Accordingly the tribunal erred as a matter of law.”
That ground can be broken down into two parts:
a)A failure to give consideration to an aspect or aspects of the applicant’s claims; and
b)Specifically, a failure to give consideration to his status as a failed asylum seeker and the possibility that as such, he might be subjected to serious or significant harm if he were to be returned to Sri Lanka.
The applicant appeared unrepresented before me with the assistance of an interpreter in the Sinhala and English languages. He made oral submissions which I will summarise later in these reasons. Those submissions did not add a significantly greater degree of particularity to his written grounds of application.

Background

The applicant is a Sri Lankan citizen born in 1992.[1] He is of Sinhalese ethnicity and a Catholic. He is married with one child and was formerly employed as a stonemason in Sri Lanka.
[1] Court Book (‘CB’) p 206.
He claims to be an actively practicing Catholic to the extent of having been involved in the maintenance and repair of churches in his region of Puttalam.[2]
[2] CB p 207.
He left Sri Lanka by boat in July 2012 arriving on Christmas Island approximately two weeks later as an unauthorised maritime arrival.[3]
[3] CB p 208.
He claimed that tensions had simmered between Buddhist and Catholics in his community for some time.[4] His problems began, so he said, when his church group tried to erect a holy statue in the centre of Mahawewa (‘the Mahawewa incident’). Members of the Buddhist community apparently took exception to this. On the day of the incident, his group, comprising approximately 50 people, was set upon by an angry Buddhist crowd of approximately 500 people.[5] The applicant claimed, in a statutory declaration, to have been injured during this incident and required two days of hospital treatment for a leg wound. The applicant claims to have gone into hiding after these events. He said that he could not work as a stonemason in his own district and says that he received death threats via his mobile phone.
[4] CB p 208.
[5] CB p 208.
He claims to fear that police would side in future with the Buddhist community and fail to protect him. This fear was heightened, he said, by the fact that his family had a long association with the United National Party (‘UNP’), a fact which would make it even less likely for police to protect him.[6] It was for these reasons that he fled Sri Lanka and to return there would expose him to the risk of death or serious injury at the hands of militant Buddhists. He also held fears for his safety at the hands of the authorities as a returned failed asylum seeker.[7] Relocation within Sri Lanka was not practicable for him because he would be required to “register” wherever he went and, “the authorities would look for me and if they find me, they would torture or kill me”.[8]
[6]     CB pp 208-209.
[7]     CB p 209.
[8]     CB p 209.
A period of five years elapsed between the Mahawewa incident and the applicant’s departure from Sri Lanka.

Tribunal hearing and decision

The applicant and his representative appeared before the Tribunal by telephone. He gave evidence and reiterated his claims about the extent of his involvement with the church and the Mahawewa incident. He added some specific detail about threats made to him in the days following the Mahawewa incident.[9] He was not able to explain why he had not simply changed his mobile phone number as a way of avoiding the threatening phone calls. He asserted that if he returned to Sri Lanka, he would be imprisoned for “several months”.[10]
[9] CB p 215.
[10] CB p 216.
The Tribunal member outlined several areas of concern that she had with the applicant’s evidence and claims, and allowed a short adjournment to enable his representative to take instructions and make further submissions. They took advantage of this opportunity and made some submissions in response to those concerns.[11]
[11] CB p 216.
In considering the application for review, the Tribunal took into account a large amount of country information. This information was derived from sources including: media reports; Department of Foreign Affairs and Trade (DFAT) material; a report from the United States Department of State (USDOS); United Kingdom Home Office Report; and, material from the United Nations High Commission for Refugees (UNHCR). The topics addressed in that information included the political situation in Sri Lanka, religious discrimination, police protection for Christians, and the status and treatment of returned failed asylum seekers.[12]
[12] CB pp 216-227.
The Tribunal found that aspects of the applicant’s claims lacked credibility. Particular concerns were the delay between the Mahawewa incident and his departure from Sri Lanka, and the extent of his involvement with both the church and that incident.[13] The Tribunal found the applicant had exaggerated his involvement with the church and the Mahawewa incident and, importantly, the genuineness of his claimed fear of the Buddhist community and the inevitable indifference of the police.[14] The Tribunal did not accept that the political affiliations of the applicant and his family would be an obstacle in seeking police assistance if required, and noted the apparent growing strength and influence of the UNP in Sri Lankan politics.[15]
[13]    CB p 227.
[14]    CB pp 229-230.
[15]    CB p 230.
The Tribunal considered the failed asylum seeker claim and, on the basis of the country information before it, concluded that there was not a real chance that he would be persecuted on his return to Sri Lanka for reasons either of his illegal departure or as a returned failed asylum seeker.[16]
[16] CB p 230.
Having considered his claims in total, it concluded that he was not a refugee because he did not satisfy the criteria of s.36(2)(a) of the Act.
Complementary protection obligations were dealt with by the Tribunal member who specifically addressed the definition of ‘significant harm’ under s.36(2A) of the Act. She concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia, there was a real risk that he would suffer significant harm.[17]
[17] CB p 231.

Submissions

The applicant submitted that he had told the Tribunal the truth and that he was in the best position to know about the potential risks to him should he be required to return to Sri Lanka. He acknowledged that he could not submit that there was no reasonable basis on which the Tribunal could reject his evidence, but maintained he had been truthful. He was not able to identify a specific part of his claim which he said the Tribunal had failed to properly consider, but he believed that the religious issues he raised should have been given more weight.
The first respondent submitted that complaints made by the applicant about the outcome of the Tribunal hearing and factual findings made, without more, could not properly be regarded as establishing jurisdictional error.
To the extent that the applicant emphasised in his oral submissions, the risk to him of torture and harm at the hands of authorities if he returned to Sri Lanka, this was, so the first respondent submitted, simply a complaint about the strength of, and weight accorded to, the country information. For that reason, it was a complaint on the merits and must fail.
The first respondent properly submitted that there was no requirement for the Tribunal to accept the applicant’s claims at face value. The findings as to both credit and the inherent implausibilities of some aspects of the applicant’s claim were clearly open to it. It submitted that the consideration of the failed asylum seeker aspect of the applicant’s claim amounted to a qualitative assessment of the requirements of s.91R(1)(a)-(c), as discussed in Minister for Immigration and Border Protection v WZAPN[18]. It submitted that in any event, the laws relating to returned failed asylum seekers would arise as a result of the domestic laws of Sri Lanka related to illegal departure, that these were laws of general application and could not be said to be discriminatory. Any consequences to the applicant would not be visited upon him by reason of any convention based grounds.
[18] [2015] HCA 22 at [35].
Similarly, the first respondent said that consideration of the complementary protection provision contained in s.36(2)(aa) of the Act did not disclose any error of principle.
For these reasons, the first respondent says that the application should be dismissed.
The first respondent addressed an observation made by the applicant that he had expected to attend today with a lawyer. It submitted that this was not a request for an adjournment. In any event, there was no information before the Court as to the applicant’s prospects of obtaining legal representation, whether he had made any attempts to do so, or why, given the approximately seven months since the matter came before the Registrar, he had not already done so.

Consideration

This Court does not have a general role in reviewing any findings of fact made by a Tribunal.[19] To the extent that the Tribunal did not accept aspects of the claims made by the applicant, or made findings of credit against him, this was entirely within its own domain.[20] In this case, the Tribunal made adverse credibility findings based on the applicant’s delay in leaving Sri Lanka, inconsistency surrounding his account of the Mahawewa incident, and exaggerations as to the extent of his involvement with the church and politics. These findings were all open on the evidence before the Tribunal. There was nothing unreasonable in the relevant legal sense, irrational or illogical in either the approach taken by the Tribunal in considering this evidence, or the findings that it made. It is not for this Court to substitute its own view of the facts or credit worthiness of the applicant for that of the Tribunal. The applicant’s complaint to this Court amounts to a compliant about the outcome of the hearing and it is clearly an invitation to undertake a merits review which is not permissible.
[19] AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [38].
[20] Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at [423].
The observations of the Full Court of the Federal Court are appropriate to this matter:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[21]
[21] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].
As I have noted above, the applicant did not point to any specific aspect of his claims, or any body of evidence or claim, that he alleged the Tribunal had failed to properly consider. On the face of the Tribunal decision record, it appears that it gave a close and thorough consideration to the matters raised before it.
With respect to the complaint that the Tribunal did not give proper consideration to implications of his status as a failed asylum seeker, I reject this argument. I note that the applicant did not point to any way in which he said the Tribunal had misapplied or misinterpreted the requirements of s.36(2)(a). The Tribunal set out the legislative scheme in detail.[22] This included the elements of the Refugee Convention definition of ‘refugee’ and the implications of the s.91R definition as to ‘persecution’ including the examples of ‘serious harm’ set out in s.91R(2)(a)-(f).[23]
[22] CB pp 204-205.
[23] CB p 205 at [10].
In considering the claims of the applicant, the Tribunal undertook the necessary “qualitative assessment”.[24]
[24] See WZAPN at [41].
There is no error demonstrated in the manner in which the Tribunal considered the failed asylum seeker claim, and whether or not that brought the applicant within the terms of s.36(2)(a) of the Act.
With respect to the question of complementary protection obligations, the Tribunal gave a thorough consideration to this and applied the legislation correctly. The complementary protection obligations are dealt with in s.36(2)(aa) of the Act which states as follows:
“(2)A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or”
Significant harm is defined in s.36(2A) as follows:
“(2A) A non‑citizen will suffer significant harm if:
(a)the non‑citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non‑citizen; or
(c)the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non‑citizen will be subjected to degrading treatment or punishment.”
I am not satisfied that there were any jurisdictional errors demonstrated by a failure on the part of the Tribunal to properly consider whether complementary protection obligations were owed to the applicant. The Tribunal specifically referred to the definition of significant harm in s.36(2A) of the Act.[25] It considered the fact that the applicant would be likely to be prosecuted as an illegal departee, the possibility of detention for up to a fortnight, and the likely conditions in Sri Lankan prisons.[26] It concluded that any period of hardship was likely to be brief but that this would not be as a result of “intent or discrimination”.[27] It specifically concluded that the applicant was not at risk of experiencing significant harm as described in s.36(2A)(a)-(e).[28] The Tribunal made a finding that any consequence to the applicant would be as a result of a law of general application. As I have noted at [17] above, the Tribunal made its finding by specific reference to the wording of s.36(2)(aa) of the Act.[29]
[25] CP p 231 at [125].
[26]    CB p 231.
[27]    CB p 231.
[28]    CB p 231 at [126]
[29] CB p 231 at [129].
The applicant claimed in his oral submissions that the Tribunal should have placed more weight on the religious aspect of his claim. I reject this submission. The question of the weight to be accorded to any piece of evidence is clearly an aspect of the fact finding function of the Tribunal. It is not the role of this Court to second-guess the Tribunal as to the degree of weight to be accorded to any aspect of the evidence.[30]
[30] Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Finally, I will deal briefly with the comment made by the applicant during the course of his oral submissions that he had expected to appear before this Court with a lawyer. He did not make an application for an adjournment. He did not provide the Court with any information as to efforts he had made to obtain legal representation, or any plans he had presently on foot to do so. A period of many months has elapsed since his application to this Court and the making of orders by the Registrar in July 2015. I take the view that the applicant has had sufficient opportunity to attempt to obtain legal representation. I understood his comment in this regard to be an expression of frustration with the legal process in which he has become involved, rather than a request for an adjournment based on a considered plan to obtain legal advice.
For the above reasons, I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-six paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 19 April 2016