Auf16 v Minister for Immigration
[2018] FCCA 3828
•20 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUF16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3828 |
| Catchwords: MIGRATION – Protection (class XA) visa – Administrative Appeals Tribunal – applicant claimed to fear harm because of Tamil ethnicity and imputed political opinion in support of the Liberation Tigers of Tamil Eelam (LTTE) – consideration of claims and evidence and country information – detailed and comprehensive consideration of complementary protection criterion – tribunal not obliged to put to the applicant its process of reasoning, subjective appraisals or preliminary views – tribunal’s findings open to it – application dismissed. |
| Legislation: Migration Act 1958, ss.36(2), 91R, 424A, 425 |
| Cases cited: AQP15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1103 Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152 |
| Applicant: | AUF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 711 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 December 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Mr B Petrie |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 7 April 2016 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 711 of 2016
| AUF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application for judicial review filed in this court on 7 April 2016, the applicant sought to review a decision of the Administrative Appeals Tribunal made on 23 March 2016 pursuant to which the tribunal affirmed a decision of the delegate of the minister who refused to grant the applicant a protection (class XA) visa.
In this court, the applicant relied on three grounds of review. In the first, he contended that the decision of the tribunal was affected by jurisdictional error in that the tribunal was obliged to ask the applicant certain things, the applicant said the tribunal misconstrued the meaning of s 91R of the Migration Act (“Act”) and he said the applicant failed to afford him procedural fairness. The second ground was particularised and the third ground asserted that the tribunal failed to properly consider the applicant’s contentions in respect of complementary protection criteria.
The minister disputed that any error was displayed by the reasons of the tribunal.
Synopsis
For the reasons that follow, in my judgment the tribunal made no error on any of the grounds alleged. This application for judicial review should be dismissed the applicant should pay the minister’s costs.
Short factual narration
The applicant is a citizen of Sri Lanka who arrived in Australia in August 2012 as an irregular maritime arrival. In December 2012 he applied for a protection visa. He lodged a statutory declaration made 12 December 2012 in which he set out his claims for protection. They may be summarised as follows –
a)he was a Sri Lankan national having been born in the northern province;
b)he was an ethnic Tamil;
c)his family members remain in Sri Lanka;
d)he had experienced a denial of basic human rights by reason of his Tamil ethnicity;
e)government policies had led to the confiscation of Tamil land ownership;
f)he had been questioned by the Sri Lankan Army (“SLA”) about his association with the Liberation Tigers of Tamil Eelam (“LTTE”) and, after failing to comply with a directive from the SLA to attend an army camp, the applicant was taken to a camp, interrogated and tortured;
g)following this, the applicant was further interrogated at his home and he was threatened with abduction;
h)as a result of his treatment at the hands of the SLA and on account of his fear of further potential harassment or death, the applicant organised his departure to Australia by boat;
i)the police, the Criminal Investigation Department (“CID”), the Eelam People’s Democratic Party (“EPDP”) and the SLA will arrest him and kill him on suspicion of his previous association with the LTTE;
j)the authorities will not help him if he were returned to Sri Lanka because he is a Tamil and the government is comprised mainly of Sinhalese; and
k)he will not be safe anywhere in Sri Lanka given his prior LTTE affiliation and motivations of those groups.
The applicant asserted that his family owned farming land.
By decision made by the delegate on 21 February 2014, the delegate refused the grant of the visa.
In the tribunal
On 25 February 2014 the applicant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal, for review of the delegate’s decision.
On 10 March 2016 the applicant’s agent provided submissions to the tribunal. The submissions were structured in a particular way and for ease of reference, I have set out below what the applicant’s contentions were as articulated in his submissions.
The applicant articulated his claims by reference to the following Convention grounds –
a)the applicant’s race or ethnicity as a Tamil;
b)he would be imputed with the opinion of a sympathiser or supporter of the LTTE or as someone seen to oppose the Sri Lankan government by holding Tamil separatist views or as someone with views supporting a renewal of hostilities against the government of Sri Lanka;
c)he was a member of the following social groups –
i)failed asylum seekers;
ii)failed asylum seekers who have departed Sri Lanka illegally;
iii)failed asylum seekers who have spent a lengthy period of time in a western country;
iv)Tamils who are subject to bail conditions or who are being prosecuted for a criminal offence; and
v)family members of a LTTE member.
In response to an invitation from the tribunal, the applicant appeared before the tribunal on 15 March 2016.
On 23 March 2016 the tribunal affirmed the delegate’s decision. Among the more important observations of the tribunal were the following –
a)at paragraph 14 of its reasons the tribunal accepted the applicant’s evidence regarding his identity and ethnicity but at paragraph 16 of its reasons the tribunal expressed its concerns regarding the applicant’s credibility due to inconsistences in his evidence and the making of new claims during the course of the hearing;
b)between paragraphs 17 and 21 of its reasons the tribunal pointed out significant inconsistencies between the applicant’s statutory declaration attached to his visa application and the evidence provided at the hearing regarding the timing of his first contact with the SLA and, based on inconsistencies mentioned above, the tribunal found that the applicant was not a credible witness and as such was not satisfied that he was abducted, questioned or taken to an SLA camp;
c)for the same reasons, at paragraph 22 of its reasons the tribunal did not accept that the applicant was tortured or threatened by the SLA with abduction nor did the tribunal accept that there were any visits to the applicant’s home by the SLA asking about his whereabouts or that the applicant ever went into hiding and the tribunal did not accept that the applicant’s father was taken to the army camp and questioned (observing that this particular claim was raised for the first time during the tribunal hearing);
d)at paragraph 23 of its reasons the tribunal said it did not accept that the applicant was ever of any interest to the authorities and did not accept that the authorities came looking for him after his departure from the country;
e)at paragraph 24 of its reasons the tribunal found that as the applicant was never a person of interest to the authorities in Sri Lanka he did not face a real chance of serious harm if he returned, including being detained indefinitely and tortured due to his suspected links to the LTTE or for reasons of a real or imputed political opinion as a sympathiser or supporter of the LTTE or as someone seen to oppose the Sri Lankan government by holding Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka;
f)at paragraph 25 of its reasons the tribunal referred to the applicant’s claim in his written submission that he feared harm due to having family members in the LTTE but the tribunal said that the applicant had provided no evidence, including during the hearing, to suggest that he had a family member who was involved in the LTTE and consequently the tribunal put that information to the applicant for his comment, at which point the applicant said that his cousin was in the LTTE;
g)at paragraph 26 of its reasons the tribunal was critical of the applicant for raising the claim about his cousin being in the LTTE during the hearing for the first time and consequently found the claim was not credible;
h)at paragraph 29 of its reasons the tribunal found that, based on independent country information, the applicant did not fall within any of the profiles identified by the UNHCR as being at risk of serious harm, the tribunal said that the applicant said he did not have any involvement or association with the LTTE and the tribunal referred to its earlier finding that the applicant did not have any family members who were members of the LTTE;
i)at paragraph 34 of its reasons the tribunal found that, contrary to the applicant’s claims, the Sri Lankan government had actually returned large portions of land previously confiscated and therefore the tribunal did not accept that any former policy of land confiscation was a continuing policy;
j)also at paragraph 34 of its reasons the tribunal observed that there was nothing to suggest that the applicant’s family’s land had been appropriated;
k)the tribunal put to the applicant a report of DFAT dated 18 December 2015 which, according to the tribunal at paragraph 40 of its reasons, disclosed that returnees to Sri Lanka are granted bail on personal surety in most instances immediately by a magistrate or that returnees may be required to have a family member act as a guarantor (there was no suggestion that a financial guarantor would be required);
l)between paragraphs 35 and 39 and at paragraph 44 of its reasons the tribunal was satisfied that, based on country information, the applicant did not face a serious risk of harm by torture or otherwise as a failed asylum seeker;
m)at paragraph 47 of its reasons the tribunal accepted that there may be a chance that the applicant would be followed up by police if he were to return to Sri Lanka and be required to complete certain administrative requirements upon return but it did not accept that this constituted serious harm;
n)at paragraphs 48 and 49 of its reasons the tribunal was critical of the applicant for not raising, prior to the tribunal hearing, a claim that he was not able to practise his Hindu faith in the past in Sri Lanka and therefore the tribunal did not accept the applicant’s claim that he was unable to practise his faith in Sri Lanka and furthermore at paragraph 50 of its reasons the tribunal relied on country information to the effect that there was little official discrimination in Sri Lanka on the basis of religion;
o)considering the applicant’s claims individually and cumulatively, at paragraph 51 of its reasons the tribunal did not accept that the applicant faced a real chance of being persecuted by the army, the CID, the police, the EPDP, the prevention of terrorism group, or any other authorities or anyone else because of his Tamil ethnicity, or as a young Tamil male from the north, or because of his real or imputed political opinion as a sympathiser or supporter of the LTTE or as someone seen to oppose the Sri Lankan government by holding Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka or his Hindu religion; and
p)the tribunal also found at paragraph 61 of its reasons that the applicant did not satisfy the complementary protection criterion, observing that –
i)on the basis of independent country information, at paragraph 55 of its reasons the tribunal did not accept that there was a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity, an imputed political opinion, or his membership of a particular social group of young Tamil males from the North or any combination of these factors; and
ii)while the tribunal accepted at paragraph 56 of its reasons that the applicant would likely face arrest on charges of leaving the country illegally, be detained briefly prior to being released on bail and would face a penalty, the tribunal found on the basis of independent country information that the applicant would not face a real risk of being significantly harmed during this process.
In this court
In this court the applicant advanced claims as follows (with errors in the original) –
1. The decision of the Administrative Appeals Tribunal (Refugee Division) is affected by jurisdictional error.
Particulars
a. The tribunal was obligated to ask the applicant why he had said his aunt's daughter had connections to the LTTE, when his adviser had previously stated it was his father who had connections to the LTTE. The applicant should have been given the opportunity to explain the discrepancy, as familial connections was an very relevant consideration for the tribunal to consider.
b. The tribunal has misconstrued the meaning of s91R of the Act, and/or by failing to take into account the Sinhalisation of the north.
2. The Tribunal failed to accord the applicant procedural fairness as required by s.425(1) of the Act.
Particulars
a. The Tribunal’s conclusion or assumption that the Applicant or his family or someone else would be able and willing to provide the guarantee required for the Applicant’s bail was ‘adverse’ to the Applicant and was ‘not open on the known material.’
b. The Tribunal did not give the Applicant 'the opportunity of ascertaining' that issue or the opportunity 'to be informed of the nature and content of adverse material' in relation to that issue:
c. The issue of whether a family member would act as a guarantor for the Applicant was a ‘crucial link’ in the Tribunal's chain of reasoning, which the Tribunal had to identify to the Applicant in order to comply with s.425.
3. The Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm.
The applicant appeared with the assistance of an interpreter before me on 7 December 2018. I asked the applicant several times in different ways what he said the tribunal did wrong in this case. The interpreter faithfully put the questions that I asked the applicant to the applicant in his native language but the answers appeared to be unresponsive. As best as I was able to tell, he responded to the effect that at this precise moment in Sri Lanka major problems exist and that if he were returned he would face serious consequences.
I asked him to tell him what he said the tribunal did wrong in its consideration of those claims. He said that he made no complaint about what the tribunal did in this case.
Ordinarily, that would spell the end of his application because he was conveying that the tribunal made no error, let alone a jurisdictional error. However, the minister addressed the three grounds that the applicant asserted. For convenience, it is useful to record the contentions advanced by the minister in response to the grounds pressed by the applicant. Importantly, the applicant today said nothing about the grounds that he collected together in his application for judicial review. To the contrary, he conceded that the tribunal did nothing wrong in its treatment of the applicant’s case.
Ground one
By ground one the applicant alleged that the tribunal erred by –
a)failing to ask him why he believed his aunt’s daughter had LTTE connections; and
b)misconstruing s 91R of the Act by failing to consider the “Sinhalisation of the north” (the applicant’s words).
As to ground 1(a), contrary to the applicant’s allegation, the tribunal put to the applicant whether a member of his family was a member of the LTTE. The applicant was therefore provided with the opportunity to give evidence in respect of that issue.[1] The tribunal is under no obligation to identify the significance of the questions it puts to an applicant or the ultimate matter in issue to which those questions go. The tribunal is not required therefore to descend into all the underlying factual matters of each issue when meeting its obligations under s 425 of the Act.[2]
[1] Court book (filed on 14 September 2016) 185-86 [25]‑[26]
[2] Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]‑[89] per Emmett, Weinberg and Lander JJ
To the extent the applicant alleged a breach of s 424A of the Act, the tribunal was under no obligation to put to the applicant its thought processes, subjective appraisals or preliminary views, including any views it may have had regarding the credibility of the applicant’s claims.[3]
[3] SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ
Moreover, the tribunal’s rejection of the applicant’s claim that he had a family member in the LTTE was open to it given the applicant’s delay in raising the claim as well as the inconsistent nature of the applicant’s evidence.[4]
[4] CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
In relation to ground 1(b), the applicant provided no particulars of how the tribunal misconstrued s 91R of the Act. That provision (prior to its repeal) defined ‘persecution’ for the purposes of s 36(2). The tribunal considered between paragraphs 31 and 34 of its reasons the claim regarding the alleged “Sinhalisation of the north” (the applicant’s words) and ultimately found at paragraph 34 of its reasons that this policy had not continued following the election of President Siresena of Sri Lanka. The tribunal also found that this policy did not constitute serious harm in the first place.
Ground one was devoid of merit. I reject it.
Ground two
The applicant contended that the tribunal failed to comply with s 425(1) of the Act by reason the tribunal’s alleged failure to put to the applicant the issue of whether one of the applicant’s family members could guarantee the applicant’s bail, which the applicant submitted was a crucial link in the tribunal’s chain of reasoning.
Section 425 of the Act imposes a requirement on the tribunal to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.[5] But as the High Court emphasised in SZBEL,[6] the duty created by s 425 does not extend to a requirement for the tribunal to provide a running commentary. A distinction exists between drawing to an applicant’s attention an ‘issue’ which is of importance as opposed to a factual finding which may be made in relation to that issue. A further qualification upon the obligations imposed by s 425 was the one identified in Applicant A125,[7] referred to above.
[5] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591‑592, cited with approval in SZBEL v Minister for Immigration and Citizenship (2006) 228 CLR 152, [29] and [32]
[6] SZBEL at [48]
[7] Applicant A125 at [88]-[89]
At paragraph 56 of its reasons the tribunal found that the applicant would likely face arrest on charges of leaving the country illegally and that he may be detained briefly before being released on bail. The tribunal also found at paragraph 57 that the applicant or his family would have the means to pay any fine which may be imposed on him for departing the country illegally. Those findings were open to the tribunal.
There was no suggestion in the tribunal’s reasons that it made a finding to the effect that a financial surety would be required in order to procure the applicant’s release on bail.
Those findings were open to the tribunal on the known material. That material included –
a)the applicant’s submission that the standard procedure provided for persons to be released on bail; and
b)evidence given by the applicant that his family owned a farm on which the applicant was previously employed in which context it may be readily inferred that the applicant’s family had financial means (even if limited) leading to the tribunal’s finding at paragraph 34 of its reasons that there was nothing to suggest that the land had been confiscated.
Further, the tribunal at paragraph 40 of its reasons expressly drew those matters to the applicant’s attention by putting to him the DFAT report of 18 December 2015. It is apparent from the tribunal’s reasons at paragraph 40 that the conclusions the tribunal expressed at paragraphs 56 and 57 of its reasons drew upon the content of that report.
It seemed to me that no error of the kind identified in Minister for Immigration and Border Protection v SZTQS[8] arose. Rather, on the particular facts of this case, the tribunal was entitled to make the findings it did without further raising any issues with the applicant regarding whether any of his family members would act as guarantors in respect of the provision of bail.[9]
[8] [2015] FCA 1069
[9] SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404, 426; AQP15 v Minister for Immigration and Border Protection (No 2) [2018] FCA 1103, [28]‑[65]
Alternatively, it was put that if I detected error on the part of the tribunal with respect to ground two, I should not in any event exercise my discretion to remit the matter to the tribunal. That was because the tribunal’s rejection of the applicant’s claim rested on two separate and independent findings.[10]
[10] VBAP of 2002 v Minister for Immigration and Multicultural Affairs [2005] FCA 965, [33]; SZYRB v Minister for Immigration and Citizenship [2007] HCA 26, [29], [88]‑[90]
The tribunal found at paragraph 58 of its reasons that any consequences the applicant may face for departing the country illegally would not constitute significant harm for the purposes of s 36(2)(aa) because there was no evidence of any intention on the part of the authorities to inflict pain, suffering or extreme humiliation on the applicant.[11]
[11] SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936
Those findings were unconnected with the tribunal’s consideration of the circumstances in which the applicant may be released on bail.
Ground two is dismissed.
Ground three
By ground three the applicant contended that the tribunal did not properly consider the alternative criterion in s 36(2)(aa), being the complementary protection criterion.
No particulars were given in respect of that ground. In any event, the tribunal’s consideration of the complementary protection criterion was detailed and comprehensive. There was no basis for impugning that aspect of the tribunal's decision especially in the absence of particulars of the allegation.
Ground three is dismissed.
Conclusion
For those reasons, this application for judicial review must be dismissed. The applicant must pay the minister’s costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 20 December 2018
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