ATV15 v Minister for Immigration

[2015] FCCA 2179

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2179

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 476

WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22

Applicant: ATV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1340 of 2015

Judgment of: Judge Street

Hearing date: 12 August 2015

Date of Last Submission: 12 August 2015

Delivered at: Sydney

Delivered on: 12 August 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr M Glavac
Clayton Utz

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 costs of the First Respondent fixed in the amount of $6825

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1340 of 2015

ATV15

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 in respect of a decision of the Tribunal made on 27 April 2015 affirming the 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 are assessed against that country.  On 11 June 2015, the Court made orders to permit the applicant to file an amended application, further affidavit evidence and submissions.  No such documents were filed.  The grounds on the application are as follows:

   I. The RRT erred in law, and the error is a jurisdictional error, in that it failed to discern a Convention nexus in this case.

   Particulars

   The central claim of the Applicant was that he was a young Tamil from the north who feared persecution in Sri Lanka.

   RRT accepted that the Applicant was detained, questioned and subject to limited mistreatment in January 2008.

   It is unclear what the RRT meant by subject to limited mistreatment.

   The Applicant claimed the following: RRT Decision paragraph 18

   The Applicant called his parents that evening, went the next day to the Sri Lankan Army Camp and was taken to a house by Sri Lankan army officers. He was tied to a chair and began to cry. HE was yelled at, told to tell the truth, and told he would be shot at if he did not. HE was slapped on the back of the head and a gun was pointed at his chest: he was also punched in the stomach (though he h did not claim to require any medical treatment on release, the tribunal accepts this was clearly traumatic for the then 15-16 year old applicant). However he denied any LTTE involvement and his father eventually claimed to negotiate applicant's release. His father was made to remain outside until the Sri Lankan Army had finished questioning the Applicant.

   The RRT took an irrelevant consideration into account by making a qualitative and or /quantitative assessment of the above mistreatment suffered by the Applicant.

   RRT did not discern that Applicant was imputed with the LITE political opinion and as such suffered mistreatment.

   Applicant will suffer mistreatment in future as he had been mistreated in the past.

2. The applicant claims to persecution were based on imputed political opinion as a supporter of the LTTE and/or his ethnicity as a Tamil from the north, and/or membership of a particular social group, either as a failed asylum seeker who illegally left Sri Lanka on more than one occasion, or as a young Tamil male from a particular location.  The applicant also raised, in a statement accompanying his application, a fear from the Sinhalese population in relation to his Tamil ethnicity. 

3. I accept the first respondent’s submission that each of these claims was dealt with by the Tribunal, and relevantly, the claim relating to Sinhalese harming the applicant because of his ethnicity as a Tamil. On a fair reading of the Tribunal’s decision as a whole without an eye to error that claim was dealt with in paras.33 and 34 of the Tribunal’s reasons.  In relation to the grounds raised by the applicant, relevantly the Tribunal referred to an incident that occurred in 2008 and found as follows:

   15. At the Tribunal hearing, the applicant said (and the Tribunal accepts) that he was around 15-16 years of age when this incident occurred and that it was distressing for a young person. He said he was detained in the morning and released at night. Of the other persons detained, all were released but four. However, he also explained that both his older brothers continue to live in the [X] District in Sri Lanka and that one brother is an air conditioning mechanic and the other brother drives a rickshaw and owns a ‘CD’ shop. Further, when asked at the commencement of the hearing, the applicant explained that he is able to contact his family regularly in Sri Lanka, and no information was put to the Tribunal that the applicant’s brothers were ever harmed in Sri Lanka.

   …

   23. The Tribunal makes the following findings:

   …

   ·The Tribunal accepts the applicant was detained, questioned and subject to limited mistreatment, for a few hours in January 2008

   …

4. The applicant submitted that the Tribunal has not carefully considered the issues and the problems the applicant would face if he returned to Sri Lanka.  The applicant submitted that if he returned to Sri Lanka, he would face grave problems.  The applicant also referred to incidents each of which he agreed was summarised from the Tribunal’s reasons.

5. There was nothing said by the applicant that identified any jurisdictional error in a review conducted by the Tribunal.  The criticism advanced in the application of an alleged failure by the Tribunal to discern a Convention nexus is without substance, and it is clear that the Tribunal correctly identified the criteria the applicant must meet in order to be a subject of a protection obligation by Australia.  The adverse finding by the Tribunal does not disclose any jurisdictional error.  It is clear that the Tribunal dealt with the applicant’s fear of being a young Tamil from the north, and it is clear that the Tribunal addressed the incident that occurred in 2008.  It was appropriate for the Tribunal to address the gravity of the incident that occurred in 2008, and there is nothing unreasonable or irrational with the Tribunal’s finding that that incident was of a kind that only involved limited mistreatment.

6. The applicant submitted that the treatment was cruel treatment.  However, this was a matter for the Tribunal to determine, and there is no jurisdictional error disclosed by reason of the Tribunal’s finding in relation to the 2008 incident.  To the extent relevant, it cannot be said that the adverse finding by the Tribunal in this regard lacks an evident and intelligible justification.  Insofar as there is a criticism advanced that the incident involved a qualitative assessment, I accept the first respondent’s submission that it was appropriate for the Tribunal to determine the gravity of that incident, and as such, there was no jurisdictional error in the reasoning of the Tribunal concerning that limited mistreatment.

7. I also accept the first respondent’s submission that to the extent that the application was advancing a ground of a kind based on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, that decision has been overruled and the application fails to disclose any jurisdictional error on that basis (see Minister for Immigration and Border Protection v WZAPN [2015] HCA 22). I note that s.91R was repealed on 17 April 2015, and that the repeal in that regard, under the transitional provisions having been made under Part 2, was one that applies only in relation to an application for protection that is made on or after the day of the commencement of operation. In these circumstances, s.91R continued to apply to the application the subject of these proceedings. I accept the first respondent’s submission that the considerations raised by s.91R was a further basis upon which it was appropriate and open to the Tribunal to make the finding in relation to whether there was mistreatment. It was a matter for the Tribunal to determine the gravity of that mistreatment, and there is no jurisdictional error disclosed by the grounds of the application.

8. Relevantly, the Tribunal found in relation to the applicant’s ethnicity:

   37. Importantly, I am not satisfied the applicant has a real chance of persecution for this reason should he return to Sri Lanka.

   38. The applicant said he departed Sri Lanka (around April 2011) and travelled to Africa; and he remained in Benin for approximately one year (in 2011 ). He hoped to eventually travel to Canada (as had been agreed by his people smuggler). However, the applicant was deported from Benin to Sri Lanka on 14 June 2012, with the assistance of IOM.  He then ‘fled’ to Australia on 28 June 2012. The applicant also claimed he was assisted in his return from Benin by the ‘Canadian embassy’ and that he had a passport and that IOM assisted with his flight. 

   39. Upon his arrival at the airport in Sri Lanka (when deported from Benin), the authorities ‘had a list’ and the applicant’s name was one of the few marked with a red line.  The applicant was ‘pulled aside’ and interrogated by ‘high-level CID persons’ (for about two hours ) about his journey and whether he had received any training in Africa (including in weapons).  The applicant was then handed to another security group and interrogated again.  Eventually, with the assistance of IOM, he was released from the airport but told he had to remain in his family home as there would be further investigations.

   40. The applicant previously had stated the  LTTE were stationed in [Y] (during the war) and as he had lived there (for a short time as an infant) and as a young Tamil male, he would be suspected of being or supporting the LTTE. After returning from Africa, he believed he was suspected of travelling to Africa “for the purposes of warfare training to support the LTTE”. However, the Department delegate noted the applicant was questioned at the Sri Lankan airport briefly (on return from Benin), then released without charge.  Be that as it may, by migration agent’s email/letter of 13 December 2013,   it was claimed the applicant fears the CID, SLA and other associated paramilitary groups. It was also claimed the applicant fears harm due to his imputed political opinion. 

   41. The Department delegate noted the LTTE had been defeated well before the applicant’s 2011 departure to Africa; and the country information indicated that (for instance) ‘hundreds of Tamil asylum seekers’ were held in facilities in Togo (which borders Benin), and they had gradually been returned to Sri Lanka.  The country information considered by the Tribunal also included: 

   The BHC went on with regards to the issue of having spent time in IDP camps:

   ‘A spokesperson for the Swiss Embassy said this [if an individual has spent time in IDP camps, it] was not a problem….[and when asked, would there be problems for an indivual [sic] who has spent time in IDP camps]:‘a caseworker in Sri Lanka said they did not think so. Many of their returnees from West Africa had spent time in [Z] Farm and had no problems on arrival. 

   42. The applicant had not been detained on return. However, when asked why he thought he may be of interest to the Sri Lankan authorities, the applicant said some Tamils who had been detained in Africa, had been ‘beaten by the African police on the instructions of the Sri Lankan authorities.’ The applicant was unsure which African country this may have occurred in but he was not subject to any such abuse. When asked again why he feared he may be harmed for travelling to Africa, he said that some of the people he resided with in Benin were former LTTE cadres; that on his return to Sri Lanka he was told (words to the effect) not to illegally depart Sri Lanka again; two of the persons who returned to Sri Lanka with the applicant were detained; and he was suspected of having travelled to Benin to receive weapons training and the Sri Lankan authorities were concerned about any re-emergence of Tamil separatism; and the applicant claimed that his decision to leave Sri Lanka (for Australia) after two weeks was evidence of the ‘intensity of his situation’; and that he did not wish to be punished for a crime he did not commit.

   43. However, the applicant also explained that of the approximately 250 persons arrested in Benin (or elsewhere in West Africa), some of the 50-60 returned with him had been returned voluntarily to Sri Lanka (though some had been returned involuntarily), and all the others had been sent to safe third countries. The applicant said that he was one of the people who was arrested in Benin (a signatory to the Protocol), and he was one of the persons involuntarily returned to Sri Lanka (with the assistance of the IOM).

   44. Based on the information before the Tribunal, it is plausible the applicant could have been identified (on his involuntary return to Sri Lanka in 2012), as a person who the authorities wished to speak to. However, I am also satisfied he was never seriously harmed in Sri Lanka (though I accept he was seriously intimidated prior to the cessation of hostilities), and I am satisfied that neither him nor any family member were seriously suspected of LTTE involvement. Further, he was released without charge on his return to Sri Lanka (though I accept that an IOM person was present – though not necessarily in the room when he was interviewed by the authorities). Be that as it may, 2 other persons were not released immediately, on arrival in Sri Lanka, and the fact of the applicant’s fairly immediate release (after a couple of hours questioning), is an indication of a lack of any real adverse interest in him by the Sri Lankan authorities.

   45. Further, even though I am positively satisfied the applicant is not suspected of being associated with the LTTE, or part of any re-emerging Tamil separatism, it is plausible the applicant would have been interviewed on return to Sri Lanka for the purposes of gathering intelligence from him. The Tribunal has also accepted the applicant has been previously questioned in Sri Lanka and that his family (on one occasion with the assistance of other villagers) had always been able to arrange for his release (fairly immediately and mainly unharmed). Therefore, I do not accept the mere fact the applicant was allegedly asked to remain at his family home indicates he was of any real interest to the authorities. If the Sri Lankan authorities did wish to speak to him, I am satisfied it related to gathering information rather than any adverse interest in him. If he was of any real interest, I am satisfied he would not have been released.

   46. For these reasons, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm, for reason of having travelled to, and been returned from, Benin in Africa.

   …

   49. … However, I am not satisfied the applicant has a sufficient profile that would warrant ongoing enquiries to be made about him and have therefore rejected the claim about enquiries being made about him in 2014 by the Sri Lankan authorities (or anyone else) as false. Be that as it may, if his wife was asked about him in 2012 (as was also claimed), then it is apparent the Sri Lankan authorities were aware of her location and if the applicant was of any real interest to the authorities, then he could have been easily located at his wife’s parent’s home (where his wife resided when he returned to Sri Lanka in June 2012; and where his wife still resides).

   50. Accordingly, I am not satisfied the applicant has a real chance of suffering serious harm for reason of (for instance), not complying with the direction to reside at his own family home on return to Sri Lanka in 2012; or for reason of any further limited enquiries about his whereabouts, for a very brief period after his return to Sri Lanka in June 2012.

   …

   54. … However, I am not satisfied that an essential and significant reason for any prosecution of the present applicant for having breached Sri Lanka’s departure laws, is for a Refugees Convention. That is because I am not satisfied he has a profile that would bring him to the adverse attention of the authorities on return (for a Refugees Convention reason). …

   …

   57. … The Tribunal is not satisfied (for instance) the applicant falls within any of the material risk profiles (including those provided by UNHCR  - discussed elsewhere) and is not satisfied his situation would be exacerbated on return for reason of any of the accepted claims. However, and though I am sufficiently satisfied of my immediately above finding, even if he was subject to a brief period in detention (in order to investigate his claimed identity), given the Tribunal’s satisfaction about his lack of any material profile, I am not satisfied the present applicant would be detained (for questioning) beyond a few hours (while his identity was being established). I am satisfied the applicant, like most persons, would also be granted bail on personal recognisance immediately by the magistrate.

   58. The Tribunal therefore does not accept the applicant has a real chance of being subject to serious harm for this reason should he return to Sri Lanka.

   …

   61. For all the reasons set out herein, the Tribunal is not satisfied the applicant has any kind of profile that would give rise to a real chance of him being harmed in Sri Lanka. Be that as it may, as a repeat offender, and based on the country information cited herein, I accept the applicant may be subject to specific bail conditions and/or an increased fine. However, based on the claims I accept, the applicant is not part of any stated UNHCR risk profile, and nor does he have a profile that would render him of more interest to the Sri Lankan authorities (or anyone else), than numerous other persons (including repeat offenders) who have been involuntarily returned to Sri Lanka in recent years. Further, the country information also indicates that fines for illegal departure from Sri Lanka, may be paid in instalments. 

   62. The Tribunal therefore does not accept the applicant has a real chance of being subject to serious harm for this reason should he return to Sri Lanka.

   …

   64. …Based on the accepted evidence, the Tribunal is not satisfied the present applicant has (or had) a political or other profile such that he would have a real chance of coming to the adverse attention of the Sri Lankan authorities (or anyone else) should he return. Neither am I satisfied he would be imputed with such a profile. Further, based on the country information considered, I am not satisfied the applicant having illegally departed Sri Lanka in mid-2012, and travelled to Australia where he has resided for over almost 3 years, would mean he has a real chance of being harmed for reason of being suspected as part of the overseas Tamil diaspora who continue to support the LTTE or Tamil separatism. Further, nothing he claimed to have done in Australia would suggest he would be harmed on return. Based on the evidence accepted herein, neither is the Tribunal satisfied the applicant’s family were ever seriously suspected of supporting the LTTE.

   65. The Tribunal is therefore not satisfied the applicant has a real chance of being persecuted for this reason in Sri Lanka.

   …

   68. The Tribunal understands these are not exhaustive and each case needs to be considered according to its merits. However, based on the accepted claims, the applicant does not appear to fall within any of the above risk profiles. At any rate, regarding the claim of failed asylum seeker, the country information stated:

   Torture or mistreatment of returnees

   4.20 DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka. Verifying these allegations is complicated by the fact that many have been made anonymously, often to third parties.

   and as stated above:

   4.21 However, there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment … Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. This was due mostly to the greater exposure these returnees will have to authorities on their return which generally includes extended periods of pre-trial detention.  It is too early to make an assessment as to whether this will change under the Sirisena government.

   …

   72. The Tribunal has discussed the applicant’s illegal departure from Sri Lanka, above. However, the main focus of the Sri Lankan authorities on return appears to be whether a person is suspected of being an ongoing threat to the Sri Lankan regime. Given the Tribunal’s findings as to the applicant’s lack of any material profile, I am not satisfied he has a real chance of being suspected of being an ongoing threat. Neither am I satisfied his political or other convictions, how-so-ever described, would cause him to be a threat. Based on the evidence before me, I am not satisfied the present applicant has a real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker, in the reasonably foreseeable future.

   73. Finally, even considering those of the applicant’s claims that I have accepted cumulatively, I remain not satisfied he is a person in respect of whom Australia has protection obligations.

   74. For the reasons given above, the Tribunal is therefore not satisfied 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) or (b) of the Migration Act.

1. The Tribunal also addressed the issue of complementary protection and relevantly found:

   79. …Be that as it may, and for the reasons set out above, the Tribunal is not satisfied there is a real chance (real risk), the applicant would be subject to a custodial sentence in Sri Lanka (including for having exited unlawfully on two occasions). Given his (lack of any material) profile, I am not satisfied the present applicant would be detained (for questioning) beyond a few hours (while his identity was being established). I am also satisfied the applicant would be granted bail on personal recognisance immediately by a magistrate.

   80. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is also not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Sri Lanka.

   81. Next, and again based on the accepted facts and the country information in the sources cited herein, I am not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment). If he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment  - and none of the country information in the sources cited herein, has satisfied me the ‘possible harassment’ that a person with the applicant’s lack of profile may suffer, would constitute significant harm. Next, and for the same reasons, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture). Again, if he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment.

   82. Finally, none of the country information in the sources cited herein, have satisfied me the applicant has a real risk of suffering arbitrary deprivation of life in a Sri Lanka.

   83. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied me the applicant has a real risk of significant harm for any other reason in Sri Lanka.

   84. Accordingly, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal, there is a real risk that he will suffer significant harm if returned to Sri Lanka.

2. I accept that the first respondent’s submission that the grounds of the application are in substance an impermissible challenge to the merits of the applicant’s claims and that the application discloses no jurisdictional error.  The applicant is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 19 August 2015