AUS15 v Minister for Immigration

[2016] FCCA 2417

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUS15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2417

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal asked itself the wrong question – whether the Tribunal took into account a relevant consideration – whether the Tribunal erred in determining significant harm – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Cases cited:

SZTAL v Minister for Immigration [2016] FCAFC 69

Applicant: AUS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1386 of 2015

Judgment of: Judge Street

Hearing date: 16 September 2016

Delivered at: Sydney

Delivered on: 16 September 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file 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 $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1386 of 2015

AUS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 30 April 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country for the purpose of the Tribunal’s decision. The applicant was born in a particular town in the Puttalam district, Northern Province. The applicant travelled to Qatar in mid-2004 and returned to Sri Lanka in 2008, where he remained until his departure by boat in May 2012. The applicant arrived at Christmas Island on 20 June 2012.

The Delegate’s Decision

1. The applicant applied for protection on 23 November 2012. The applicant claimed to fear harm by reason of being perceived as an LTTE supporter. He also claimed to fear harm arising out of an alleged identification of the applicant by a person named Baba who was detained by the Sri Lankan Army and allegedly disclosed the applicant’s name as an associate allegedly involved in relation to the storing of weapons for the LTTE.

2. The applicant also claimed to fear harm by reason of being a failed asylum seeker returning from a Western country and his illegal departure from Sri Lanka. 

The Delegate’s Decision

1. The delegate found the applicant’s evidence to be severely lacking in credibility. The delegate was not satisfied that the applicant had a real chance of being persecuted for a Refugees Convention reason and found that the applicant’s fear of persecution as defined under the Refugees Convention was not well-founded. 

2. The delegate was not satisfied that there were 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 the applicant will suffer significant harm. The delegate found that the criteria under s.36(2) of the Act had not been satisfied and refused to grant the applicant’s visa on 14 August 2013.

The Tribunal’s Decision

1. On 27 August 2013, the applicant applied for review of the delegate’s decision. By letter dated 7 January 2015, the applicant was invited to attend a hearing on 26 February 2015. The applicant appeared on that date, together with his migration representative, to give evidence and present arguments. The applicant was also given an opportunity to provide further information in writing by 4 March 2015. The applicant did provide further submissions on 4 March 2015 which were identified by the Tribunal in its reasons at para.35.

2. The Tribunal identified the relevant law in an attachment to its decision that was incorporated in its reasons and identified the applicant’s claims and evidence.  In the course of identifying the applicant’s claims and evidence, the Tribunal referred to the claims advanced by the applicant in relation to being perceived as an LTTE supporter. Those claims were said to be related to information provided by Baba, who was arrested and rearrested at various times by the Sri Lankan Army.

3. The Tribunal did not accept that the authorities would visit the applicant on suspicion that he was connected with the LTTE and then not pursue their enquiries when he was not home. The Tribunal was satisfied that if the authorities had wanted to find the applicant in relation to suspected LTTE activities, they could have done so in the time between when he returned to Qatar and when he left for Australia. 

4. The Tribunal found that it was not satisfied that the authorities made any enquiries regarding the applicant. The Tribunal found that it was not satisfied that the claimed visits by the applicant of the authorities took place. The Tribunal found that the applicant’s claims that he was pursued in the past and that he would be pursued in the future on the basis of being named by a person who hid bombs for the LTTE is speculative and unfounded. The Tribunal did not accept the applicant’s claims in that regard.

5. The Tribunal did not accept that the applicant had any LTTE connections. The Tribunal was not satisfied the applicant had a profile to support a suspicion of LTTE connections and found that there was not a real chance that the applicant would be. The Tribunal noted that the applicant did not claim to be involved in any political activities and did not accept that he is or has been suspected of having links to the LTTE. 

6. The Tribunal made reference to the applicant being a failed asylum seeker and returnee and found that the applicant did not have a well-founded fear of Refugees Convention persecution on that basis. The Tribunal returned to the issue of illegal departure and found that the applicant did not have a well-founded fear of Refugees Convention persecution on the basis of his illegal departure from Sri Lanka or its consequences. The Tribunal found that the applicant did not have a well-founded fear of persecution for a Refugees Convention reason if he returns to Sri Lanka now or in the foreseeable future. The Tribunal found the applicant did not meet the criteria as a refugee.

7. The Tribunal referred to the issue of complementary protection and took into account the applicant’s claims. The Tribunal found there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Sri Lanka, there is a real risk that the applicant would suffer significant harm. The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision of the delegate.

8. Grounds 1, 2 and 4 of the application are as follows:

   Ground 1

   The Tribunal stated at [43] that “... but his evidence that he was released and rearrested in 2012 was correct, there would be no need for the claimed visit in 2008 ....”  The Tribunal asked itself incorrect question and/or failed to ask the correct question.

   Particulars

   (i) The Tribunal asked itself incorrect question as to was possible that the authorities may have been pursuing Baba.

   (ii) The Tribunal asked wrong regarding claimed visit in 2008 and basis of a wrong assumption (i.e. because the person interest - Baba was released in 2008 and rearrested in 2012).

   (iii) The Tribunal failed to ask itself correct question that visits could have taken place immediately after the release in 2008 or at any time after the release in 2008 until the rearrest in 2012.

   (iv) The Tribunal stated at [43] that “... but his evidence that he was released and rearrested in 2012 was correct, there would be no need for the claimed visit in 2008 ....”  The Tribunal committed jurisdictional error as it asked itself incorrect question and/or failed to ask the correct question.

   Ground 2

   The Tribunal failed to take into account relevant consideration and/or misapprehended the claims and/or applied the wrong test.

   Particulars

   (i) The tribunal at [48] failed to address the relevant consideration in ignoring/and not addressing specific submissions made; the relevant consideration being that problems continue for persons suspected of LTTE associations whereas the tribunal assesses the claimant as not having LTTE links.  The claims of “persons suspected of L TIE associations” was not considered.

   Ground 4

   The Tribunal erred when it found that the Applicant's detention on arrival [RRT dec, 65, 80].  The Tribunal committed jurisdictional error when it failed to deal with this claim as significant.

   Particulars

   (i) The Tribunal erred in finding that the detention/deprivation of the liberty of the Applicant did not constitute significant harm or serious harm.

   (errors in original)

9. The Court notes that Ground 3 was not pressed. 

10. In relation to Ground 1, Mr Kumar of counsel took the Court to the Tribunal’s reasons and contended that the Tribunal had misunderstood the applicant’s evidence in relation to the reference to the friend, Baba, being arrested and released. Mr Kumar of counsel submitted that the Tribunal had asked the incorrect question in relation to the applicant’s fears. It was contended that the claim was not whether the applicant was involved with the LTTE, but whether Baba was of interest to authorities because of his activities as a person affiliated with the LTTE.

11. That proposition is not supported by the nature of the claims as identified by the applicant in his statement of claims, relevantly, at paras.8-10 as follows (court book, pages 47-48):

    Problems in Sri Lanka

    8. In 2000 I needed to get my motorbike painted and I went to a painter in our area called Baba.  Baba painted my bike and our friendship developed from there.  I would speak to him on the street on the way to work as his workshop was between my home and my work place.  He was Tamil and married to a Singhalese woman.

    9. In 2003 my friend Baba was arrested by the Sri Lankan Army because he was storing landmines for the LTTE.  I heard about this from the Tamil community in Puttalam.  The community also said the person who had entrusted the landmines to Baba had been arrested.  This was also reported in our local newspaper.  I had known that Baba lived in a Singhalese area so perhaps he thought it was safer to store landmines in his area as it was less likely to be checked by the Sri Lankan Army.

    10. From 2003 to April 2012 Baba was detained by the Sri Lankan Army.  During this time he was tortured and beaten and under duress he disclosed the names of his friends and associates, including my name.  I was not involved in storing weapons for the LTTE.

12. It is apparent that the Tribunal correctly understood the applicant’s association with Baba and the disclosure of information by Baba as being the applicant’s explanation for visits by the authorities. This is supported by what appears at page 85 to 86 of the court book in the applicant’s submissions dated 10 April 2013, which relevantly are as follows:

    [The applicant] faces a real chance of serious harm from the Sri Lankan Army on account of his imputed political opinion.  In 2003 [the applicant’s] friend, Baba, was arrested and detained by the Sri Lankan Army on account of storing landmines for the LTTE.  In April 2012 Baba was released and in May 2012 he was recaptured by the Sri Lankan Army and given a life sentence.  The Sri Lankan Army visited [the applicant’s] home in February 2004, May 2004, May 2008, May 2012 and February 2013.  We submit that the common thread tying together these visits is [the applicant’s] connection to a known LTTE affiliate.  We will address the relevance of each visit below.

    In February 2004, shortly after Baba’s arrest, officers from the Sri Lankan Army visited [the applicant’s] home.  During the visit, the officers specifically asked [the applicant’s] mother if he knew Baba.  The Sri Lankan Army visited [the applicant’s] home again in May 2004 asking about his whereabouts.  We submit that these visits from the Sri Lankan Army indicate that [the applicant] is of interest to them on account of his association with a known LTTE affiliate.  [The applicant] believes after Baba was detained, under duress, he disclosed the names of his associates and friends.  We submit that the visits from the Sri Lankan Army clearly coincide with key events in the investigation of a man known to be affiliated with the LTTE.

    Fearing harm from the Sri Lankan authorities, [the applicant] sought the assistance of an agent to assist in his departure from Sri Lanka.  In 2004 [the applicant] fled to Qatar and remained there for 4 years.  In 2008 [the applicant] returned to Sri Lanka.  Shortly after his return to Sri Lanka, the Sri Lankan Army visited is his home.  We submit that it is highly probable that the authorities were making enquiries about [the applicant] in relation to his association with Baba, a known LTTE affiliate, as [the applicant’s] prolonged absence from the country would have arouse the suspicions of the authorities as this would likely be seen as a means of evading questioning or harm from the authorities.

    In April 2012 Baba was released by the Sri Lankan Army and in May 2012 he was recaptured by them.  In the same month Baba was given a life sentence.  In May 2012 the Sri Lankan Army came to the home of [the applicant] and asked about him.  [The applicant] is unsure of the exact date, however he maintains that it was in the same month as Baba’s rearrest and in the same month that he fled Sri Lanka (he fled Sri Lanka on 31 May 2012).  [The applicant] made arrangements to flee the country as he feared the re-arrest of Baba had reopened Baba’s case and [he] would be actively sought by the authorities.

13. I do not accept that the Tribunal asked itself the incorrect question.  The Tribunal in para.43 was dealing with the applicant’s claims and fears, specifically commencing at para.1 through to para.44. The Tribunal’s reasons are not to be read with a keen eye for error and are to be read as a whole. I reject the submission that the Tribunal asked itself the incorrect question. I reject the proposition that the Tribunal failed to ask the correct question. 

14. Ground 1 is in substance an impermissible challenge to the adverse findings of fact made by the Tribunal that were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. 

15. In relation to Ground 2, the Tribunal relevantly found that the applicant did not have any LTTE links. That was an adverse finding that was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The criticism advanced by Mr Kumar of counsel in relation to the finding made by the Tribunal in para.48 was to the effect that the Tribunal did not properly consider Baba’s links to the LTTE. The fear being advanced by the applicant was the applicant’s fear of association by reason of the information provided and friendship with Mr Baba. It is apparent from the Tribunal’s reasons that it addressed that claim and made adverse findings that were open in that regard. Those findings were not irrational or illogical. The Tribunal did not fail to apply the correct test in relation to the applicant’s claims in respect of the LTTE links in respect of whether the applicant had a well-founded fear of persecution or in relation to the issue of complementary protection. 

16. Ground 2 is in substance an impermissible challenge to the adverse finding of fact made by the Tribunal. Ground 2 fails to make out any jurisdictional error. 

17. Mr Kumar of counsel identified in his submissions and from the bar table that Ground 3 was not pressed. 

18. In relation to Ground 4, Mr Kumar properly drew the Court’s attention to SZTAL v Minister for Immigration [2016] FCAFC 69, and formally maintained the alleged error in Ground 4 but accepted that this Court was bound by the decision in SZTAL and as a result of that decision, Ground 4 must fail.  That was a proper concession by Mr Kumar and an appropriate way to preserve the rights of his client in relation to the issue raised by Ground 4. The Court is bound by the decision in SZTAL, by reason of which Ground 4 fails to make out any jurisdictional error. 

19. In these circumstances, the application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 14 October 2016