AUF15 v Minister for Immigration
[2015] FCCA 2438
•4 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUF15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2438 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal applied the correct test in relation to complementary protection – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2)(a), 36(2)(aa), 91R(1)(c), 476 |
| Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 |
| Applicant: | AUF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1360 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 4 September 2015 |
| Date of Last Submission: | 4 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Ms M Stone DLA Piper |
ORDERS
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.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $5000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1360 of 2015
| AUF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 21 April 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a national of Sri Lanka and his claims were assessed against that country.
The applicant claimed to fear harm in Sri Lanka due to his Tamil ethnicity because he worked in the north of Sri Lanka and due to his imputed political opinion and support of the LTTE based on his ethnicity, his time spent in the north, and the army’s belief that his brother was involved in the LTTE. The applicant also claimed to fear harm due to his illegal departure from Sri Lanka and as a failed asylum seeker in Australia.
The applicant was invited to appear before the Tribunal by letter dated 20 November 2014 in respect of a proposed hearing arranged for 5 February 2015 which was then rescheduled to 16 February 2015 and this invitation was notified to the applicant by letter dated 24 November 2014. The applicant appeared before the Tribunal on 16 February 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his migration agent.
The Tribunal also identified the submissions advanced on behalf of the applicant prior to the hearing by the migration agent and also after the hearing and, relevantly, the Tribunal found:
60. Accordingly, for these reasons, on the evidence before it, the Tribunal does not accept that he was a person the police, CID or military or security agencies had an adverse interest in. for any reason prior to his departure. The only relevant change in his circumstances since that time is that he departed Sri Lanka illegally by boat and entered Australia without a valid visa and claimed protection here. The Tribunal must consider whether. in his particular circumstances, individually or cumulatively. there is a real chance he would suffer persecution on return.
…
65. For these reasons, on the evidence before it, including that the conflict between the LTTE and the GoSL ended almost six years ago, and that the applicant has not before come to the adverse attention of the GoSL on suspicion of a LTTE association, having carefully considered the evidence and information before it, including the submissions of his migration agent and the information he refers to, the Tribunal considers the chances of him being imputed with a LTTE association or connection because he is a Tamil from [X], whose family members lived and worked in [Y] during the conflict, whose brother died in [Y] in about Apri12009 and whose father was interned in an IDP camp in [Z]) a for six months after the end of the conflict, who travelled to Australia by boat and claimed asylum here to be remote, and the Tribunal does not accept there is a real chance he would suffer serious harm for these reasons.
66. The Tribunal has also considered whether all of the individual factors discussed above might together-r. in combination, cause the GoSL to suspect the applicant is connected or linked to the LTTE or to be a LTTE supporter or sympathiser and impute him with pro-L TTE views and an adverse political opinion or profile. However. having carefully considered all of the evidence and information before it, including the written and oral submissions of his migration agent, the Tribunal does not accept that. in his circumstances and with his particular attributes. the GoSL would suspect he is connected or linked to the LTTE or that he is a LTTE supporter or sympathiser and impute him with pro-LTTE views and an adverse political opinion or profile, and it does not accept there is a real chance he would suffer serious harm for those reasons. In making these findings it has also considered. but does not accept that his previous travel outside Sri Lanka. in flying to and living in Qatar for about two years. would, in combination with all of the above factors and attributes, be a reason or a .contributing factor to him being given or attributed with or suspected of having a pro-LTTE adverse profile and being subjected to serious harm.
…
68. … As noted above. it does accept that he came to the attention of men associated with the Karuna group some time prior to March 2009. who made him perform unpaid work for parts of two day, and the SLA, who interrogated him on suspicion of his possible involvement in or knowledge of two security incidents. firstly in [X] in about early 2009. and then in [Y] in early 2012. and that these incidents occurred for reasons of him being a Tamil person in the wrong place at the wrong time; however. while it accepts there is a chance he could again come to the attention of the Karuna group or the SLA in similar circumstances, in light of the fact the conflict between the LTTE and the GoSL ended six years ago, the Tribunal considers the chances of similar incidents occurring in the reasonably foreseeable future to be remote, and that the chance of him suffering serious harm in that way is remote and tar-fetched and not a real chance.
69. The Tribunal has considered but does not accept that his evidence supports his claims to face future harm on account of his Tamil ethnicity or for being a Tamil from [X]. The available information does not indicate that there is a real chance that in the reasonably foreseeable future he would be subjected to significant physical harassment or ill-treatment, nor have his life or liberty threatened, or denied access to basic services or the capacity to earn a livelihood or suffer economic hardship that would threaten his capacity to subsist, or any other type or kind of harm which could be characterised as serious harm, for reasons of his Tamil ethnicity or for being a Tamil male from [X]. In the applicant's circumstances, the Tribunal does not accept that being of Tamil ethnicity or being a Tamil from [X], singularly or cumulatively, would be reasons why there is a real chance of him suffering serious harm from the GoSL or any other group if he returns to Sri Lanka now or in the reasonably foreseeable future.
…
72. … However. as the Tribunal does not accept that the applicant was previously, or is currently, a person the police or the CID or other GoSL authority had or has an adverse interest in. on the evidence and information before it. it does not accept there is a real chance those inquiries would lead to him suffering any harm or that he would be subjected to harm during the interview process or while being processed at the airport.
73. … For these reasons. although it accepts he would be questioned by the CID on return to [X], having carefully considered the evidence and information before it. the Tribunal does not accept that, in his particular circumstances. including that he is a Tamil from [X] who travelled to Australia by boat and claimed asylum here, there is a real chance the CID would subject him to serious harm on return to [X], for any of the reasons claimed.
…
76. The Tribunal has carefully considered the applicant's evidence and the various written and oral submissions of his agent regarding this claim, as well as the independent information that was before the Department and that is before the Tribunal. Having considered that evidence and information, the Tribunal does not accept there is a real chance that, in the reasonably foreseeable future, the GoSL or any other person or group would impute him with an adverse profile or opinion and subject him to harm for reasons of being a failed Sri Lankan asylum seeker or a failed asylum seeker from a western country or a returnee from a western country. In making these findings it has also considered, but does not accept. that his previous travel outside Sri Lanka, in flying to and living in Qatar for about two years, would, in combination with all of the above t3.ctors and attributes, be a reason or a contributing factor to him being given or attributed with or suspected of having an adverse profile and being subjected to serious harm.
…
82. The Tribunal has carefully considered the applicant's evidence and his agent's written and oral submissions; however, the Tribunal considers that the weight of independent information before it indicates that. in his circumstances, as a first time offender with no criminal record and with no involvement in people smuggling. who is not of adverse interest to the authorities the chance of him being given a custodial sentence is remote, and accordingly the Tribunal does not accept that there is a real chance the applicant would be imprisoned or that he would be mistreated or would suffer serious harm while in prison.
83. For all of these reasons the Tribunal does not accept that there is a real chance the applicant would suffer persecution through being charged and prosecuted under the Immigrants and Emigrants Act of 2006 for his illegal departure.
84. The Tribunal has also considered whether the combination of each of the individual claims raised by the applicant and his agent would together create a real chance of him being subjected to serious harm in Sri Lanka in the reasonably foreseeable future. The Tribunal has considered whether the combination of him being a Tamil from [X] whose family members lived and worked in [Y] during the conflict. whose brother died in [Y] in about April 2009 and whose father was interned in an IDP camp in [A] for six months after the end of the conflict, who departed the country without the knowledge of the authorities and travelled to Australia by boat and was refused asylum in Australia, would cumulatively, attract the adverse attention of the GoSL or any other group if he returns in the reasonably foreseeable future. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor. the Tribunal does not accept that there is a real chance the applicant would face persecution for these reasons if he returns in the reasonably foreseeable future. In making these findings it has also considered, but does not accept, that his previous travel outside Sri Lanka, in flying to and living in Qatar for about two years, would, in combination with all of the above factors and attributes, be a reason or a contributing factor to him being given or attributed with or suspected of having an adverse profile and being subjected to serious harm.
Summary of refugee claims
85. On the basis of the above findings, and having considered the applicant's claims individually and cumulatively, the Tribunal does not accept that there is a real chance the applicant would suffer persecution for a Convention reason if he returns to Sri Lanka now or in the reasonably foreseeable future. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Sri Lanka.
It was in those circumstances, the Tribunal turned to the issue of complementary protection and relevantly found:
91. With regard to him being prosecuted for breach of the Immigrants and Emigrants Act of 2006 the Tribunal has considered whether through the application and operation of that law and process there are substantial grounds for believing there is a real risk he will suffer significant harm. In light of its earlier reasons with regard to there not being a real chance he would suffer harm during the interview process in relation to his return or during the period of remand. which on the evidence before it the Tribunal considers will be up to four days, the Tribunal considers there are no substantial grounds for believing there is a real risk he will suffer significant harm on that basis. The Tribunal has considered whether spending four days and nights in a remand cell with conditions that fall below international standards could constitute 'torture· or 'cruel or inhuman treatment or punishment' or 'degrading treatment or punishment' as defined in the Act and discussed in Appendix 1, and has had regard to the considerations concerning prison conditions in PAM3. However. on the evidence before it, the Tribunal is not satisfied that there are substantial grounds to consider there is a real risk that being in overcrowded, dark unclean and cramped conditions for four days and nights would, in the applicant's particular circumstances and with his attributes, cause him severe pain or suffering, or pain or suffering that could reasonably be regarded as 'cruel or inhuman treatment or punishment' which is inconsistent with Article 7 of the ICCPR; or cause him extreme humiliation that constitutes 'degrading treatment or punishment' which is inconsistent with Article 7 of the ICCPR; or cause him 'severe pain or suffering· that could be characterised as 'torture'. The Tribunal does not accept that being in a remand cell in those circumstances would cause the applicant in his particular circumstances and with his attributes to suffer harm, whether physical or mental pain or suffering or humiliation which could constitute significant harm within the meaning ofs.5(1) of the Act.
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95. Having considered the applicant's circumstances singularly and on a cumulative basis, the Tribunal finds there are no substantial grounds for believing that. as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. In making this finding it has also considered but does not accept that his previous travel outside Sri Lanka, in flying to and living in Qatar for about two years, would, in combination with all of the above factors and attributes be a reason or a contributing factor to him being given or attributed with or suspected of having an adverse profile.
It was in those circumstances, the Tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations and that the applicant did not satisfy the criterion under s.36(2)(a) or s.36(2)(aa). The application identifies the following grounds:
GROUND ONE:
That the Tribunal erred in failing to apply the reasoning of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947- namely that having found that the Applicant would be processed at the airport, questioned, and being held on remand for a few days, the Tribunal failed to find that this would amount to serious harm under section 91R (2) of the Migration Act..
GROUND TWO:
The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
Particulars
a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka[79]
b. The Tribunal found that prison conditions in Sri Lanka that "conditions of the remand cell he might be kept in would cause him to suffer discomfort and irritation".
b. The Tribunal erred in holding that poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.
This was a case where the Tribunal found any loss of liberty by the applicant whilst on remand was as a result of a law of general application applied in a non-discriminatory way which was therefore excluded from the definition of “serious harm” by s.91R(1)(c) of the Act. I accept the first respondent’s submission that ground 1 cannot succeed in light of the decision of the High Court in the Minister for Immigration and Border Protection v WZAPN [2015] HCA 22.
Ground 1 fails to make out any jurisdictional error. In relation to ground 2, the matters particularised do not identify any misconstruction or misapplication of s.5 or s.36(2)(a) of the Act. Moreover, it is clear that the Tribunal in this case complied with the ministerial direction number 56 and took into account PAM3 as identified in paras.86 and 91 of the Tribunal’s reasons as well as being identified in para.99. It is clear that there was a real intellectual engagement with the PAM3 in relation to the conditions that the applicant would be exposed to, and ground 3 is in substance an impermissible challenge to the adverse finding of fact that was open on the material before the Tribunal. There is no substance in relation to ground 3.
This is a case where the Court made an order on 2 July 2015 providing an opportunity for the applicant to amend the application, file further affidavit evidence or put on submissions. No such documents were filed. Nothing was said by the applicant from the bar table to identify any basis upon which jurisdictional error could be made out. The application 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
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