ATH15 v Minister for Immigration

[2016] FCCA 837

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATH15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 837

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

Legislation:

Migration Act 1958 (Cth), ss.32, 36(2)(a), 36(2)(aa), 36(2A), 65 & 476

Attorney General (NSW) v Quin (1989-1990) 170 CLR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: ATH15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 174 of 2015

Judgment of: Judge Heffernan

Hearing date: 23 February 2016

Date of Last Submission: 23 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

1. The Application filed 14 May 2016 is dismissed.

2. The name of the second respondent is amended to read ‘Administrative Appeals Tribunal’.

3. 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 174 of 2015

ATH15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) in relation to a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 20 April 2015. That decision affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection refusing to grant the applicant a protection visa under s.65 of the Act.

2. The written application raises one ground for review as follows:

   “The RRT erred in not giving consideration to the evidence provided by the Applicant to the effect that the Applicant will be harmed upon his return to his home country.  The Applicant also provided evidence that 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 has erred as a matter of law.”

3. In support of his application, the applicant filed an affidavit dated 14 May 2015.  That affidavit provides no further particularity but claims that the Tribunal failed to take account of his “individual circumstances in his home country”.

4. The applicant appeared before this Court unrepresented but with the assistance of an interpreter in the Sinhala and English languages.

Background

1. The applicant is a Sri Lankan citizen of Sinhalese ethnicity and a Roman Catholic.  He arrived in Australia in August 2012 as an unauthorised maritime arrival.  He claimed to the Tribunal to fear persecution for three reasons.  Firstly, he is a member of the United National Party (‘UNP’).  Secondly, he had an affair with the wife of a powerful criminal (‘Wasantha’) who had sworn revenge against him.  Finally, he claimed to fear serious harm and a lack of police protection if he were to return to Sri Lanka.  He fears serious harm on return to Sri Lanka because of both his involvement with the UNP, revenge from the jealous husband, and as a consequence of his illegal departure as a failed asylum seeker.  He told the Tribunal that as an ethnic Sinhalese the authorities will assume that he had been involved in people smuggling and for that reason, he will receive a harsher penalty.[1]

   [1]     Court Book (‘CB’) p 206.

Tribunal hearing and decision

1. The applicant appeared before the Tribunal on 6 February 2015 with his migration agent and assisted by an interpreter.

2. The Tribunal took account of the contents of the applicant’s application for a protection visa[2] and a statutory declaration made by him on 5 December 2012.  The contents of that declaration were set out verbatim in the Tribunal Decision Record.[3]  The Decision Record acknowledges receipt of the detailed written submission from the applicant’s representative dated 5 February 2015.  It summarised, albeit briefly, the import of those submissions.[4]

   [2]     CB p 206.

   [3]     CB pp 206-210.

   [4]     CB p 211 at [39]-[40].

3. The submissions made by the representative for the applicant were summarised at length.  Those submissions dealt with the credit findings made by the delegate and the entry interview conducted with the applicant.[5]

   [5]     CB pp 211-214.

4. The Decision Record summarises the evidence given by the applicant as to his illicit affair and his fear of harm at the hands of Wasantha and his associates.  It also considered the applicant’s claims based on his involvement with the UNP and an incident in 2011 in which the windows of his home were apparently broken.[6]  The Tribunal member told the applicant and his representative of the concerns she had with respect to certain aspects of his claims.  She allowed an adjournment for them to confer.  It is apparent that the applicant and his representative addressed those concerns in some detail after the adjournment.[7]  There does not appear to have been any request made on behalf of the applicant for a further opportunity to address these concerns, or to provide further written information to the Tribunal. 

   [6]     CB p 216.

   [7]     CB p 217.

5. The Tribunal took into account a substantial amount of country information, including media reports, a DFAT report, an Amnesty International Report, and the United Kingdom Country of Origin Report on Sri Lanka.  This was considered in light of the United Nations High Commission for Refugees eligibility guidelines for assessing international protection needs of asylum seekers from Sri Lanka.[8]

   [8]     CB pp 217-226.

6. The treatment of returnees and failed asylum seekers was specifically addressed in the country information.

7. The Tribunal found that there was not a real chance that the applicant would be mistreated for reasons of his political opinion, or membership of a particular social group, if he returned to Sri Lanka now, or in the reasonably foreseeable future.  It did not accept that there was a real chance that he would be persecuted on return to Sri Lanka as a failed asylum seeker having left illegally.[9] For those reasons, the Tribunal found that the applicant’s claims did not meet the criteria of s.36(2)(a) and that he was not a refugee.

   [9]     CB p 231.

8. With respect to the Wasantha issue, the Tribunal accepted that the applicant had had an extra-marital affair with the wife of Wasantha, but did not accept that Wasantha had strong political connections.

9. Significantly, the Tribunal found that the persecution feared by the applicant at the hands of Wasantha was essentially a matter of a personal vendetta and not of a kind that attracted protection obligations under the Refugees Convention.[10]

   [10]   CB p 227.

10. The Tribunal made a number of findings as to the credibility of the applicant, that in effect concluded he had exaggerated his claims.  It did not accept that he had the level of involvement with the UNP that he portrayed during the hearing.  It found that many of his claims were internally inconsistent and had changed over time.[11]  Another significant finding by the Tribunal was that a delay of at least one year between the last of the incidents in March 2011 (which the applicant attributed to political persecution) and his eventual departure from Sri Lanka was inconsistent with his claims to be in fear for his safety.  It was not prepared to accept that he was as he claimed, in hiding from Wasantha between 2004 and 2010.[12]

    [11]   CB p 229.

    [12]   CB p 230.

11. The Tribunal considered as a separate matter, the question of complementary protection obligations.  It concluded that considering his claims as a whole, there was not a real risk of significant harm to the applicant.  It found that the legal process to which the applicant was likely to be subjected on his return to Sri Lanka as an illegal departee would be as a consequence of a law of general application.[13] In that context, the Tribunal considered, and specifically included in its Decision Record, the terms of s.36(2A) of the Act which describes ‘significant harm’. It had regard to that definition in reaching its conclusion that the applicant would not be subjected to risk of significant harm of the kind identified in s.36(2A). The Tribunal gave consideration to the applicant’s claims of harm from Wasantha in the context of the complementary protection obligations. It concluded that there was no real risk of significant harm to the applicant at the hands of either Wasantha or his relatives.[14]

    [13]   CB p 231.

    [14]   CB p 232.

Submissions of applicant

1. The applicant made brief oral submissions.  He requested that I reconsider this matter on the basis of evidence that he could possibly obtain from people who have returned to Sri Lanka.  He said that he had not had sufficient time to get that information from Sri Lanka.  He submitted that he had received death threats when he was in Sri Lanka and this had not been properly considered.  He complained that the Tribunal did not consider the implications for him should he be taken into police custody.  He acknowledged that he had attended at the Tribunal hearing with a migration agent and that he had had an opportunity to give evidence.

Submissions of first respondent

1. The first respondent submitted that if the information that the applicant wished to obtain from Sri Lanka post-dated the Tribunal hearing, then it could not be relevant in the sense of establishing jurisdictional error on the part of the Tribunal.  This is for the obvious reason that the material was not before the Tribunal and it can hardly be criticised for failing to have taken it into account.  If the material which the applicant was referring to was material that was in existence prior to the Tribunal hearing, then the first respondent submits that the applicant was represented at that hearing and it was incumbent on him, or his representative, to produce that material to the Tribunal.  Very detailed written submissions were made on the applicant’s behalf by his migration agent prior to the hearing.[15]  The applicant had the opportunity to put such material as he believed to be relevant before the Tribunal through his migration agent. 

   [15]   CB pp 163-195.

2. The first respondent submits that the claim to be at risk of revenge from a jealous husband, is not a matter that has the necessary convention nexus required for the applicant to establish that he is a refugee.  It submits that the claims with respect to the UNP were properly considered.  The complementary protection obligations were properly considered as a separate and specific matter.  For those reasons, it says that the application should be dismissed.

Consideration

1. The applicant is clearly displeased with the outcome of the Tribunal hearing and disagrees with the findings which he regards as unfair.  However, as Brennan J has held:

   “If the Courts were to assume a jurisdiction to review administrative acts or decisions which are ‘unfair’ in the opinion of the Court – not the product of procedural unfairness, but unfair on the merits – the Courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ.”[16]

   [16]   Attorney General (NSW) v Quin (1989-1990) 170 CLR 1 at p 37.

2. The proper role of this Court is confined to a consideration of whether what the Tribunal did was within its power.  It is for this reason that I cannot simply accede to the applicant’s request made during his oral submissions to “reconsider” his matter.  Nor can I engage in a process whereby the applicant makes further enquiries as to fresh evidential matters which might support his contention that he was at risk of harm should he return to Sri Lanka.  That would also amount to an impermissible merits review.[17]

   [17]   NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

3. The ground raised by the applicant is worded in terms of a failure to consider relevant evidence.  There is of course, a difference between a failure to consider a relevant matter and the applicant being dissatisfied with the conclusion reached by the Tribunal having considered a matter.  The question of the weight to be accorded to the claims made by the applicant was entirely a matter for the Tribunal to decide.[18]  The same applies for the assessment of the credit of the applicant himself.[19]

   [18]   Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

   [19]   Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407.

4. This is not a case of failure to consider relevant evidence provided by the applicant.  The Wasantha issue, the UNP issuem, and the illegal departee/failed asylum seeker issues were all considered in detail by the Tribunal.

5. With respect to the Wasantha issue, I accept the submission of the first respondent that it was not a matter that brought the applicant within the terms of s.32 of the Act.

6. The claims made to the Tribunal as to the UNP issue were properly considered and the findings made were at least open to the Tribunal.

7. The question of complementary protection obligations was considered as a discreet and separate matter to the convention based claim. Under the Act this country has protection obligations to a person if the Minister is satisfied there are substantial grounds for believing that the person is at real risk of sustaining ‘significant harm’ as a necessary and foreseeable consequence of being removed from Australia to a receiving country.[20] I am satisfied that the Tribunal did consider the claims made by the applicant in the context of the complementary protection obligations. As I have noted, it did so by specific reference to the criteria in s.36(2A) of the Act. It is not apparent to me that there was any error of principle in the approach taken by the Tribunal.

   [20] Section 36(2)(aa) of the Act.

8. Having considered the individual findings and the decision of the Tribunal taken as a whole, there was nothing unreasonable in the relevant legal sense[21] about the decision.  There was nothing illogical or irrational about any material finding of fact or the approach taken by the Tribunal to its fact finding task.

   [21]   Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

9. The applicant has not established that the decision of the Tribunal was affected by jurisdictional error.

10. I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date: 19 April 2016