AUG15 v Minister for Immigration

[2017] FCCA 697

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUG15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 697

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2A).

Applicant: AUG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1118 of 2015

Judgment of: Judge Riethmuller

Hearing date: 27 March 2017

Date of Last Submission: 27 March 2017

Delivered at: Melbourne

Delivered on: 27 March 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1118 of 2015

AUG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) as it was then called.  The Tribunal decision was made on 14 April 2015.  The applicant has also applied for an extension of time to bring the current application, however, this application was made within time and therefore the applicant does not need an extension of time.

2. The applicant is a citizen of Sri Lanka who applied for a protection visa on 26 November 2012.  On 3 October 2013 a delegate of the First Respondent refused to grant him a visa.  On 21 October 2013 he applied to the Tribunal for a review of the decision.

3. The applicant attended before the Tribunal in April 2015 to present arguments and give evidence.  The Tribunal then affirmed the delegate’s decision not to grant him a visa. 

4. Before the Tribunal, the applicant claimed to fear harm from Sri Lankan authorities due to what he said was his father’s suspected involvement in the Liberation Tigers of Tamil Eelam (“the LTTE”).  The applicant’s evidence is summarised in paragraphs [4] to [15] of the Tribunal’s decision, including various details of incidents that he relied upon in claims to have been harmed by the authorities.  The applicant also claimed to fear harm on return to Sri Lanka as being a failed asylum seeker due to his illegal departure.

5. The Tribunal made adverse credibility findings about the applicant, saying in its decision:

   54. The tribunal has not accepted that he has been questioned or detained or that anyone is looking for him or suspects he is LTTE.

   55. The tribunal does not accept he us under suspicion because of his father, as his father disappeared in 2001 when he was a child.  Further, if he were suspected of LTTE he would have been rounded up at the end of the civil war and sent to rehabilitation camps.

   56. Further the LTTE are a spent force.  While the tribunal acknowledges there was some activity by authorities in 2012 when suspects were detained this was in Eastern provinces but the applicant lives in North western province.  The tribunal does not accept the applicant was involved in or suspected of reviving the movement of LTTE as the tribunal has found the applicant has fabricated his claims.

6. Considering the matter as a whole, the Tribunal concluded:

   63. Based on the evidence before it, the tribunal is not satisfied that there is a real chance of serious harm, including any denial of access to health and education, or the ability to subsist, or any denial or social or economic rights, as a result of the applicant’s ethnicity (being a Tamil male, a male Tamil from the East or North) and/or political association or any other reason, in the reasonably foreseeable future.  The tribunal does not accept the applicant faces a real chance of suffering mistreatment or discrimination that would constitute serious harm for the purposes of s91R(1)(b) having regard to the guidance provided by the example as set out in s.91R(2) upon return to Sri Lanka.  The tribunal has considered the harm the applicant faces a real chance of suffering, including the harm feared as a returnee discussed below, cumulatively, and is not satisfied he faces a real chance of suffering discrimination and mistreatment that would amount to serious harm.

7. As a result, the Tribunal found the applicant was not owed protection obligations under the Convention and in paragraph [93] also found that there was no obligations for complementary protection under sections 36(2A) of the Migration Act 1958. 

8. In this case, the applicant’s grounds for judicial review in the application filed in May 2015 are:

   1. The decision of the Tribunal:

   (a) is affected by an error of law, and

   (b) denied the applicant procedural fairness.

   2. The Applicant is currently seeking a legal merits assessment from Victoria Legal Aid.

9. The applicant was not able to articulate any complaint about the legal tests applied by the Tribunal, nor any complaint with respect to procedural fairness. The applicant quite frankly said that he filed the application to delay his return to Sri Lanka.

10. There appears to me to be nothing of substance in this judicial review application proceeding. In the circumstances I dismiss the application.

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

Date: 7 April 2017