Ate16 v Minister for Immigration

[2018] FCCA 3242

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATE16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3242

Catchwords:

MIGRATION – Application for judicial review – Protection (Class XA) visa – whether the Tribunal made a legal error – whether the Tribunal denied Applicant procedural fairness – no error apparent – procedurally fair – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: ATE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 671 of 2016

Judgment of: Judge McNab

Hearing date: 11 July 2018

Date of Last Submission: 11 July 2018

Delivered at: Melbourne

Delivered on: 9 November 2018

REPRESENTATION

Applicant in person

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 4 April 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 671 of 2016

ATE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court by way of an application for judicial review filed 4 April 2016. The application seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) which affirmed a decision of a delegate of the First Respondent to refuse a grant of Protection (Class XA) visa (‘Visa’) to the Applicant.

Background

1. The representatives of the First Respondent have accurately summarised the circumstances of the matter and [4] – [28] of their submissions are provided below with citations omitted.

2. The Applicant, a citizen of Sri Lanka, arrived in Australia on

   
   

   19 July 2012 as an irregular maritime arrival.

3. On 15 January 2013, the Applicant applied for the Visa. The Applicant’s claims to protection were set out in a statutory declaration accompanying his Visa application dated 13 January 2013. The Applicant claimed to fear harm on return to Sri Lanka on the basis of his Tamil ethnicity and his dark skin, an imputed association with the Liberation Tigers of Tamil Elam, and as a failed asylum seeker (LTTE). He claimed that his father had been abducted when he was three, and never seen again. He claimed that his mother had been kidnapped by the Sri Lankan army when he was a child. He described having been apprehended for three days and beaten by the Sri Lankan CID in mid-2005, and that his cousin’s husband Mariadas had been arrested and killed by the CID as a presumed LTTE supporter in 2006. He claimed to have fled Sri Lanka to India in August 2006, and Qatar in 2008, in both cases returning to Sri Lanka without incident.

4. The Applicant attended an interview before the delegate on

   
   

   17 October 2013, at which he raised a new claim that shortly before his departure for Qatar he had been detained by the CID for two hours, and that the CID had subsequently come looking for him at his lodgings. The Applicant also claimed to have been involved with the Tamil National Alliance (TNA); a claim raised in his entry interview but omitted from his statutory declaration of 13 January 2013.

5. On 24 October 2013, his representative lodged submissions with the delegate together with a further statutory declaration of the Applicant dated 24 October 2013. The submissions claimed that the Applicant would face harm on return to Sri Lanka on the basis of:

   a)his Tamil ethnicity;

   b)his membership of particular social groups comprising “young Tamil males”, “young Tamil males from Eastern Province”, “young Tamil males from Trincomalee”, “immediate family member of his mother”, “immediate family member of his father”, “family member of his cousin’s husband Mariadas”, “members of the TNA”, “youth group leaders in the TNA”, “campaigners for the TNA” and “Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully”, and

   c)an imputed political opinion in support of the LTTE, arising from the above matters, his previous arrest, detention and torture, and his work for the LTTE.

6. On 30 October 2013, the delegate wrote to the Applicant’s representatives seeking further comment on further specified matters. On 7 March 2014, the Applicant’s representatives provided further submissions, country information, a statutory declaration sworn by the Applicant on 5 March 2014, and evidence regarding the Applicant’s health. On 12 March 2018 the Applicant’s representatives submitted a translated news report and extract from the Information Book of Uppuveli Police Station dated 17 June 2005 regarding the Applicant’s claimed arrest.

Decision of the delegate

1. On 17 July 2014, the delegate refused to grant the Visa. The delegate found it plausible that the Applicant had been previously detained, but did not find the Applicant’s central claims to be credible and was not satisfied that the Applicant held a profile that would attract adverse attention from the Sri Lankan authorities upon return to Sri Lanka. The delegate accepted that the Applicant had committed an offence under the Immigration and Emigration Act 1948 (‘IEA’) due to his illegal departure from Sri Lanka, but found that there was only a remote chance of the Applicant receiving a jail sentence upon his return and/or suffering ill treatment as a result. The delegate was therefore not satisfied that the Applicant met the criteria for the grant of the Visa at ss 36(2)(a) and 36(2)(aa) of the Act.

Tribunal's proceedings

1. On 30 July 2014, the Applicant applied to the Tribunal for review of the delegate’s decision.

2. On 22 December 2015, the Tribunal invited the Applicant to attend a hearing before it on 25 February 2016.

3. On 24 February 2016, the Applicant’s representatives provided submissions, and a medical certificate dated 22 February 2016. The submissions claimed that on the Applicant’s return to Sri Lanka from India in 2008 he had in fact been detained, but had left the airport despite instructions to the contrary. The submissions also claimed that three generalised round ups of Tamil males by the Sri Lankan army in 2012 referred to in his 13 January 2013 statutory declaration had actually involved the Sri Lankan army enquiring after him specifically. It was further claimed that the TNA had specific links to the LTTE which had been overlooked by the delegate. The medical certificate indicated that the Applicant bore scars on his arms consistent with his reports of cigarette burns.

4. On 25 February 2016, the Applicant attended the hearing before the Tribunal with the assistance of his representative and a Tamil interpreter. Following the hearing, the Applicant was provided with time to provide country information raised at hearing, but did not do so.

5. On 4 March 2016, the Applicant’s representative submitted a mental health assessment report prepared by Foundation House on 5 May 2014 indicating that the Applicant had significant anxiety and depression symptoms, and that he met the criteria for Post- Traumatic Stress Disorder and Major Depressive Disorder.

6. On 10 March 2016, the Tribunal affirmed the delegate’s decision.

Tribunal decision

1. The Tribunal noted the Applicant’s mental health concerns and found that the Applicant was able to provide evidence and respond to questions in an appropriate manner.

2. The Tribunal found that there were a series of issues with the Applicant’s evidence, and that in two instances he had deliberately changed his evidence to create an impression of greater interest in him by the authorities, and in a third he had sought to downplay his interaction with the authorities. Firstly, the Tribunal found the Applicant’s evidence about his interaction with immigration authorities on his return to Sri Lanka in June 2008 to be contradictory. Secondly, the Tribunal found the Applicant’s evidence about the ‘round ups’ of Tamil males in 2012 (subsequently claimed to be enquiries about the Applicant specifically) to have evolved. Thirdly, the Tribunal noted that the Applicant’s evidence in relation to the timing and how he renewed his driver’s license in 2012 was not consistent with country information, and contradicted the Applicant’s evidence that he remained a person of interest on return to Sri Lanka in late 2011.

3. In relation to the Applicant’s claims arising from his family associations, the Tribunal found that “passage of time and the lack of interest in the Applicant for this reason when he was [subsequently] detained” demonstrated that the authorities were not interested in the Applicant for this reason. The Tribunal accepted that the Applicant’s cousin’s husband Mariadas had been killed, but found that 10 years had subsequently passed, and that “from the authorities’ own activities it appears that they have not associated Mariadas with the Applicant or questioned or harmed him in the past because of this relationship”. The Tribunal did not accept that the Applicant would be harmed for this reason.

4. In relation to the Applicant’s claim to fear harm by reason of his association with the TNA, the Tribunal accepted that there had been some connection between the TNA and LTTE, but found, on the basis of country information (discussed with the Applicant at the hearing, that the political situation in Sri Lanka had improved), and that the TNA is now a credible and popular party in government. The Tribunal did not accept that the Applicant faced any risk of harm by reason of his past association with the TNA.

5. The Tribunal accepted that the Applicant was detained and harmed in 2005 following a bombing, but noted that he had in fact been released, had not been subsequently sought or detained in relation to the relevant incident, and found that the authorities did not have any further interest in the Applicant in relation to this incident.

6. The Tribunal accepted the Applicant’s description of Colombo in 2008 as “tense”, against the backdrop of the government’s final offensive against the LTTE at the time and bombings in the city. The Tribunal accepted that it was plausible in the context of heightened security at the time that the Applicant, as a Tamil, had been briefly detained and that the police had subsequently sought him at his lodgings. However, the Tribunal did not consider that the authorities had any particular interest in the Applicant, and that their interest arose because he was a Tamil from outside Colombo at a time of heightened security. The Tribunal noted that the Applicant had returned to Sri Lanka in 2011 (on the same passport he had departed on in 2008), without issue, and that his driver’s licence had been reissued in 2012, again without issue.

7. The Tribunal considered the Applicant’s evidence regarding “round ups” in 2012, but had concerns about the Applicant’s claims as a result of discrepancies in his evidence, and did not accept that the Applicant was in hiding in 2011 and 2012. The Tribunal noted that it was not aware of any country information indicating that round ups of young Tamil men was still occurring in 2016, and did not accept that the Applicant would be included in any questioning. The Tribunal did not accept that the authorities had sought the Applicant after his departure for Australia, and did not accept that the authorities had any interest in the Applicant. The Tribunal considered the then situation in Sri Lanka, and found that it did not consider the Applicant would be harmed upon his return.

8. The Tribunal had regard to the evidence concerning the Applicant’s health concerns, and found that the Applicant’s own perception of his health, confirmed by the most recent medical report, did not demonstrate a need for mental health treatment, and found that the Applicant did not face harm for this reason. On the basis of the Applicant’s own evidence that he had been employed in manual labour, the Tribunal also found the Applicant did not face harm for that reason either.

9. The Tribunal considered whether the Applicant would face harm on return as a result of his background (as a Tamil, young Tamil male from the East, Tamil male form the East with an imputed anti-government pro LTTE opinion, dark skinned Tamil and/or Tamil with scars) and, having regard to country information including the UNHCR’s risk profiles for Sri Lanka, did not accept that anything in the Applicant’s background would lead to an imputed anti-government opinion, and did not accept that the Applicant was a person whom the authorities would be interested in for his opinion. The Tribunal did not accept that the Applicant faced a real chance of serious harm by reason of his race, membership of any of the particular social groups identified, or any imputed political opinion. Based on its consideration of the evidence, the Tribunal did not accept that the Applicant faced a real risk of significant harm either.

10. The Tribunal considered the Applicant’s claims that he would face harm on return as a failed asylum seeker and that persons would take advantage of him for that reason. The Tribunal had regard to country information discussed with the Applicant at hearing, and found, in light of the Applicant’s profile and evidence that he had no outstanding criminal charges or involvement in people smuggling, that he was not a person of interest to the authorities, and would not be subject to any detention or interrogation on arrival in Sri Lanka beyond the standard procedures. The Tribunal accepted that the Applicant would be assumed to be a failed asylum seeker, but not that he would be imputed as having a pro-LTTE or anti-government opinion as a result. The Tribunal did not accept that any questioning or monitoring to which he would be subject on his return would amount to harm. The Tribunal found his claim that he would be targeted by corrupt officials to be speculative, and found that the Applicant did not have a well-founded fear of persecution for these reasons. On the basis of its antecedent findings, the Tribunal did not accept that the Applicant faced a real risk of significant harm as a failed asylum seeker.

11. The Tribunal accepted that the Applicant departed Sri Lanka illegally and would be charged under the IEA when he returned. The Tribunal found, on the basis of country information put to the Applicant and his own evidence, that it was likely that a fine would be imposed on the Applicant which he would have the financial capacity to pay, and that a family member would provide surety to bail him out on personal bail. The Tribunal found that the IEA applies generally to those who breach its provisions and that it is not discriminatory on its face, intent or application. It found further that the Applicant was likely to be briefly remanded pending charges under the IEA, but that it would not constitute systematic and discriminatory conduct per s.91R(1)(c) of the Act, and that the imposition of these penalties did not constitute serious or significant harm.

12. The Tribunal had regard to the Applicant’s claim that he would be harmed in prison on remand, as he had been harmed previously. The Tribunal did not accept that the Applicant would be held for an extended period, and found that although there is overcrowding and generally poor conditions in prisons in Sri Lanka, there is no intention on the part of the authorities to inflict harm in this regard. The Tribunal found it remote that the Applicant would face any form of significant harm in prison, and that any such harm would in any case comprise a risk to the population generally and thus would not comprise significant harm pursuant to s.36(2B)(c) of the Act.

13. Having regard to the circumstances, individually and cumulatively, the Tribunal found that the Applicant did not have a well-founded fear of persecution for a convention reason or that there was a real risk that he will suffer significant harm on return to Sri Lanka. The Tribunal consequently found that the Applicant did not satisfy ss 36(2)(a) or

    
    

    ss 36(2)(aa) of the Act.

Grounds of review

1. The Applicant’s grounds of review are as follows:

   1.The decision of the Tribunal:

   (a)is affected by an error of law; and

   (b)denied the Applicant procedural fairness.

   2.I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.

Consideration

1. The grounds of review put forward by the Applicant are not particularised and do not point to any particular alleged error of law or denial of procedural fairness committed by the Tribunal. Having regard to the decision of the Tribunal, it cannot be said that the Tribunal made any discernible error. As outlined by the First Respondent, the Tribunal:

   a)identified the relevant law and policy applying to the Tribunal’s consideration of the review;[1]

   b)had regard to the Applicant’s statutory declarations and submissions[2] and

   c)considered in detail the claims and evidence put forward by the Applicant.[3]

   [1] Court Book 264 – 266 [4] – [18].

   [2] Ibid 266 – 276 [19] – [30].

   [3] Ibid 281 – 292 [52] – [118].

2. The conclusions made by the Tribunal upon consideration of the Applicant’s claims and evidence were open to it on the material before it. There is nothing before the Court which suggests that the Tribunal committed any legal error.

3. In regards to procedural fairness, the Tribunal complied with its obligations under ss 425 and 425A. The Applicant was able to attend the hearing, make arguments and give evidence with his migration agent and a Tamil interpreter present. The Tribunal was aware of mental health issues raised by the Applicant and gave him breaks during the hearing accordingly. It noted that the Applicant and his agent did not raise any concerns during the hearing and he did not appear unable to give evidence or present arguments.[4] There was no breach of s 424A of the Act as there was no ‘information’ that was required to be put to the Applicant as meant in that section. There does not appear to be any basis for inferring that the Tribunal denied the Applicant procedural fairness.

   [4] Court Book 277 [38].

4. The Applicant’s final ground is not a proper ground of judicial review. The Applicant has had some time to seek legal representation, especially as this matter was originally scheduled to be heard in April 2018. This is not a basis on which the proceeding can be further delayed or the decision of the Tribunal can be quashed.

Conclusion

1. For the reasons given above, the application filed 4 April 2016 is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  9 November 2018