ATS15 v Minister for Immigration

[2015] FCCA 2421

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2421

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – protection visa – whether the applicant has a satisfactory explanation for the delay in filing application – whether the applicant has a sufficiently arguable case to warrant an extension of time – Tribunal made adverse credit findings against applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 425, 476, 477

Applicant: ATS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1364 of 2015

Judgment of: Judge Street

Hearing date: 3 September 2015

Date of Last Submission: 3 September 2015

Delivered at: Sydney

Delivered on: 3 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms M Stone
DLA Piper

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 for an extension of time under s.477 of the Migration Act 1958 is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1364 of 2015

ATS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 13 April 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant requires an extension of time under s.477, which generally requires a satisfactory explanation for the delay in filing of the application in this court, as well as the existence of sufficiently arguable grounds to warrant an extension of time in the interests of the administration of justice.

2. The Court made orders on 2 July 2015 to permit the applicant to file an amended application and any further affidavit evidence or submissions and no such documents were filed. Nonetheless, from the bar table, the applicant has explained that the decision was sent to his legal representative and that there was delay in his notification of the decision from his legal representative. Whilst that explanation is not on oath, the Court would regard that as a satisfactory explanation in the circumstances of this case if the other requirement in respect of an extension of time under s.477 was satisfied. The grounds of the application are as follows:

   1. The Tribunal erred by not putting all adverse material to the applicant for comment and thereby denied him a fair hearing as required by s425 of the Act.

   Particulars

   a) The applicant appeared before the Tribunal for a hearing on 16 January 2015; and

   b) The Tribunal based a number of findings on a DFAT Country Report – Sri Lanka, 16 February 2015 which post-dates the hearing at footnotes 3 and 4 and paragraphs 36-37, 39-40, 49 and 52.

3. The applicant was found to be a national of Sri Lanka, and his claims were assessed against that country as the receiving country.  The applicant was invited by letter dated 25 November 2014 to appear before the Tribunal on 16 January 2015, and the applicant attended to give evidence and present arguments on that occasion and was assisted by an interpreter as well as having a representative present at the hearing.  The Tribunal identified the receipt of written submissions prior to the hearing dated 15 January 2015, as well as written submissions received after the hearing dated 23 January 2015. 

4. The Tribunal identified the applicant’s claims and evidence and particularly that he was a Tamil and a Christian, and his fears in relation to an imputed political opinion and involvement with the LTTE as well as returning to Sri Lanka as a failed asylum seeker.  The applicant had left Sri Lanka legally on 14 December 2011 using his genuine Sri Lankan passport, and travelled to Kuala Lumpur, Malaysia.  The Tribunal found that the applicant was not a person who had illegally departed Sri Lanka and did not accept that there was a real risk that the applicant would be arrested and charged under the Immigrants and Emigrants Act 1949 (Sri Lanka), and found that the applicant was likely to be processed at the airport.  The Tribunal said:

   Given the applicant left Sri Lanka legally, the Tribunal finds the chance he will be arrested and charged with illegal departure under the Immigration and Emigration Act on return to Sri Lanka is remote.

5. The Tribunal identified that it had concerns as to whether the applicant was telling the truth, and in relation to the applicant’s credibility, the Tribunal noted that it was not satisfied that the applicant had told the truth in relation to critical aspects of his claims and expressly found that he is not a witness of truth.  It was in those circumstances the Tribunal made the following relevant findings:

   46. The tribunal has also considered the applicant’s personal circumstances individually and cumulatively, and on the evidence before it the tribunal does not accept there is a real chance the applicant would be persecuted or suffer any harm because of his association with this cousin [X], and/or because he is a Tamil, a young Tamil male, a young Tamil male from a particular part of Sri Lanka, and/or because of any political opinion or imputed political opinion (links to the LTTE), and/or because of being perceived as being opposed to the Sri Lankan government.

   …

   48. …The applicant told the tribunal he is not really concerned about the processes at the airport and his main problem is not being returned as a failed asylum seeker, it is what he is going to face because of the problem he had before he departed Sri Lanka. The applicant told the tribunal these procedures, even if he is put in jail, he would have to be released, but once he is released the past problems will start and he does not know if he will be alive after that.

   …

   51. The tribunal does not accept the applicant left Sri Lanka illegally or that he will be viewed as assisting people smugglers. …

   …

   54. …The tribunal does not accept that applicant has a profile that would attract the adverse attention of the CID or Sri Lankan security forces or authorities at the airport.

   …

   59. On the evidence before it the tribunal does not accept the submission that there are sufficient reasons to conclude the applicant is likely to be exposed to extended periods of pre-trial dentition due to several factors including the fact he claimed asylum in Australia and was targeted in the past on account of imputed political opinion. As noted above the tribunal does not accept the applicant was targeted in the past on account of imputed political opinion. The tribunal is not satisfied there is a real risk the applicant would suffer persecution, as outlined in s.91R(1), on return to Sri Lanka because he is a failed asylum seeker returning to Sri Lanka from Australia.

   Conclusion

   60. The tribunal has considered the applicant’s personal circumstances individually and cumulatively, and on the evidence before it the tribunal does not accept there is a real chance the applicant would be persecuted or suffer any harm because of his association with this cousin [X], and/or because he is a Tamil, a young Tamil male, a young Tamil male from a particular part of Sri Lanka, and/or because of any political opinion or imputed political opinion (links to the LTTE), and/or because of being perceived as being opposed to the Sri Lankan government. The tribunal does not accept there is a real chance the applicant will suffer persecution because he is a failed asylum seeker returning to Sri Lanka from Australia.

   61. Therefore, the tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.

6. The Tribunal turned to the issue of complementary protection and relevantly found:

   63. For the reasons noted above the tribunal does not accept that there is a real risk the applicant will suffer significant harm from the authorities for leaving Sri Lanka illegally. The tribunal does not accept that he is of any adverse interest to the CID or the Sir Lankan security forces or authorities. The tribunal does not accept, for reasons given above, that there is a real risk the applicant will suffer significant harm by the CID, Sri Lankan government or authorities, or anyone else on return to Sri Lanka for any of the reasons claimed.

   64. The tribunal accepts that there is a real risk the applicant may be held at the airport in Sri Lanka for a number of hours while checks and investigations are undertaken. The tribunal accepts the DFAT Country Report assessment that detainees are not subject to mistreatment during their processing at the airport. For the reasons discussed above the tribunal is not satisfied there is a real risk that on return to Sri Lanka, the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subject to torture, or cruel or inhuman treatment or punishment; or subject to degrading treatment or punishment as defined in ss.36(2a) and 5 of the Act.

   65. Therefore, having considered the applicant’s circumstances individually and cumulatively, for the reasons set out above, the tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.

7. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation, and that the criteria under ss.36(2)(a) and 36(2)(aa) had not been met. In relation to the ground raised by the application, it’s clear that the applicant was invited to appear and did appear before the Tribunal, consistent with the statutory regime, and had a genuine hearing. No information said to fall within s.424A is identified other than a reference to country information, and that is information that falls within s.424A(3)(a). There is no sufficiently arguable case of jurisdictional error as identified in ground 1, and nothing in the particulars that supports a sufficiently arguable case of contravention of ss.425 or 424A.

8. To the extent that there is a reference to DFAT country reports that postdate the hearing, I accept the first respondent’s submission that it is clear this is a reference to an earlier DFAT country report dated 3 October 2014, and that it is apparent that report was discussed with the applicant at the hearing, and that there is no information in the updated version of the report that was relied upon by the Tribunal and no unfairness to the applicant arising from the reference to that later material in these circumstances.  I accept the first respondent’s submission that there was nothing in the content of the report dated 16 February 2015 that was a dispositive issue in the review in this case.

9. In these circumstances, I am not satisfied that there is a sufficiently arguable ground of jurisdictional error to warrant an extension of time in the interests of the administration of justice. The application for an extension of time under s.477 is dismissed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 September 2015