AUT15 v Minister for Immigration

[2017] FCCA 1353

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUT15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1353

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

Legislation:

Migration Act 1958 (Cth)

Applicant: AUT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1149 of 2015

Judgment of: Judge Riethmuller

Hearing date: 30 March 2017

Date of Last Submission: 30 March 2017

Delivered at: Melbourne

Delivered on: 30 March 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1149 of 2015

AUT15

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 by the Refugee Review Tribunal, as it was then called, made on 4 May 2015.  The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia as an unlawful maritime arrival on 26 July 2012.  The applicant sought a Protection (Class XA) visa, which was refused by a delegate to the Minister in September 2013.  On 18 September 2013, the applicant sought an application for review by the Tribunal, which refused his application on 4 May 2015. 

2. In September 2014, the applicant had the opportunity to appear before the Tribunal to give evidence and present arguments with the assistance of a migration agent and a Tamil interpreter.  The applicant says that he fears harm as he is ethnically Tamil and may have an imputed Liberation Tigers of Tamil Eelam (“LTTE”) political opinion or be persecuted as a failed asylum seeker who departed Sri Lanka illegally.

3. The Tribunal set out the claims that he made in his original application at paragraph [20] of its decision, as follows:

   20. The applicant’s claims are set out in an accompanying statutory declaration and summarised as follows:

   (a) In 1990 his parents moved the family from Batticoloa to Chilaw due to problems for Tamils.  In 2008 the returned to Batticoloa.

   (b) In 2004, some Sinhalese thugs came and asked him for money to buy alcohol.  When he refused, they harassed and abused him, injuring his hand with a knife.

   (c) In 2006 his counsel was taken away by a white van.  They still do not know his whereabouts.  This happens to a lot of Tamil men because they are suspecting of supporting and participating in the LTTE.  In 2009 his brother in law was taken in a white van for the same reason.  They also do not know about his whereabouts.

   (d) In 2008 some Sinhalese men injured his younger brother, [T], and he had to be taken to the hospital.  The police refused to help because they were Tamils.

   (e) In March 2010 the applicant participated in a protest against the Sri Lankan government about injustice and persecution of Tamils.  After the protests a white van came and inquired about him and his brother a few times but they were not there.

   (f) In April 2011 the applicant was arrested on suspicion of being involved with the LTTE.  He was taken to an Army camp, interrogated and beaten up.  He was kept for four days with no food and minimum water.  His right arm was broken and he was tortured.

   (g) Two days after he was released one of his friends saw the Army coming towards the applicant’s house and warned the applicant.  The applicant quickly left his house and stayed with a relative in a remote area for 20 days.

   (h) In July 2011 a grease man tried to attack his mother.  He escaped when his mother screamed but the man injured another woman in the village and was later released.

   (i) Life became difficult.  He lived in fear and lived with relatives sometimes so he didn’t stay in one place for too long and kept a low profile.  His father advised him to leave the country.

   (j) After is arrival in Australia the authorities took his father and beat him.

   (k) He fears he will be tortured and killed by the Sri Lankan authorities on suspicion of helping and supported the LTTE.  He participated in a demonstration against the government and was videotaped.  He also fears harm because he left Sri Lanka illegally.

4. Considerable further evidence was given at the Tribunal hearing, which is summarised at paragraphs [23] to [94] of the Tribunal’s decision. 

5. In substance, the Tribunal was unimpressed with the applicant’s evidence and credibility, saying: 

   99. The tribunal found the applicant’s evidence at hearing to be confusing, vague, implausible and significantly inconsistent in many key details of his claims from his previous written and oral evidence to the department.  The tribunal refers to its concerns in its consideration of the applicant’s claims below.

6. The Tribunal did not reject everything that the applicant said, for example saying:

   116 Despite the lack of detail provided by the applicant, the tribunal is willing to accept that his cousin and brother in law were disappeared by white vans in 2006 and 2009, respectively due to suspected LTTE involvement.  The applicant has not indicated that he is aware of any actual LTTE involvement by these family members.  These incidents took place during hostilities between the LTTE and Sri Lankan government and the tribunal accepts that such targeting of Tamils would have occurred.  The tribunal does not accept, however given the lack of further details about these incidents and lack of evidence indicating the applicant faced problems arising from these disappearances, that the applicant faces any real chance or risk of serious or significant harm in the reasonably foreseeable future from his relatives’ abductions.

7. The Tribunal did, however, reject the claim that he had participated in a protest in 2010, saying:

   113. As a result of the above concerns, the tribunal does not accept that the applicant has ever participated in a protest in 2010 or at any other time, either in relation to the governments treatment of Tamils, greaseman attacks or the army’s control or confiscation of land.

8. The Tribunal further rejected his claims with respect to being arrested, finding only that he had been questioned, saying:

   122. The tribunal is also willing to accept that the applicant was questioned about whether he had any LTTE connections, during which he may have been accused of LTTE membership and may have been physically harmed. The tribunal finds that any accusation of LTTE membership would have been made in the course of interrogation, in the hope of ascertaining information from the applicant rather than a genuinely held belief that the applicant actually was an LTTE member.  This is particularly so given the random nature of the roundup.  The tribunal does not accept that the applicant was targeted for roundup in any way because of his profile, apart from being a Tamil male, and does not accept his evidence that the authorities suspected he was involved with the LTTE because he had lived in Chilaw.  As put to the applicant, Chilaw was not an area of LTTE control during the war.

9. The Tribunal also turned its mind to the country information and his risk of being imputed with a political opinion as a result of his ethnicity.  Relevantly, the Tribunal found:

   129. Country information indication that Sri Lankan authorities no longer consider being a Tamil, a Tamil male or even a Tamil male from formerly LTTE-controlled areas gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with pro-LTTE opinion [FN: UNHCR, Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka, 21 December 2012 do not list Tamils as a group at risk in Sri Lanka.].  The UK Home Office noted in 2012 that “the principle focus of authorities continues to be, not Tamils from the north (or east ) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms”. [FN: UK Home Office, 2012, Country Policy Bulletin – Sri Lanka, October.].

   130. As discussed with the applicant at the hearing, the country information available to the tribunal does not indicate that More recently, in the country guidance decision of GJ & Others (post–civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (1AC), the UK Upper Tribunal concluded that the focus of the Sri Lanka government’s concern has changed since the end of the civil war in May 2009 and that the LTTE in Sri Lanka is a spent force.  The Upper Tribunal found that the government’s present objective is to identify Tamil activists in the diaspora working for Tamil separatism and to destabilize the unitary Sri Lankan state. [FN: GJ & Others (post–civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (1AC).]  The Upper Tribunal concluded that individuals who are or are perceived to be a threat to the integrity of Sri Lanka as a single state are at risk of serious harm in Sri Lanka.  These findings further support the view that merely being of Tamil origin is not sufficient to give rise to an imputed pro-LTTE political opinion, a real chance of serious harm or real risk of significant harm.

   131. The tribunal accepts that the applicant was previously rounded dup and interrogated by the army in Batticoloa during which he may have been subjected to physical abuse amounting to physical harm. However, the tribunal has found that this event occurred at some stage between 2008 and 2011 and does not accept that the applicant suffered any further harm at the hands of the authorities up until the time of his departure from Sri Lanka in July 2012.  The applicant has not claimed to have been the subject of any other roundups.  The evidence before it indicates that the applicant is not of any interest to the authorities.  Although the tribunal accepts the applicant may be apprehensive due to his past experiences, the tribunal does not assess the country information to suggest that a real chance of risk of such a roundup exists for the applicant if he returns to Sri Lanka now or in the reasonably foreseeable future.

10. The Tribunal specifically found that the applicant would not be subjected to detention or interrogation on arrival to Sri Lanka other than standard questioning procedures: see paragraph [144]. At paragraphs [156] to [162], the Tribunal turned its mind to the consequences of the applicant leaving Sri Lanka illegally and the fine that was likely to be imposed. Ultimately, the Tribunal found that the applicant did not fulfil the criteria for a protection visa.

11. The applicant’s application contains grounds in the following terms:

    (1) The decision of the Tribunal:

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

    (b) denied the applicant procedural fairness.

12. These are standard-form grounds that are commonly seen in cases of this type and contain no information or particulars to make them meaningful for the circumstances of this case.  At the hearing, I asked the applicant to identify any errors or failures of the Tribunal with respect to its procedure that he relied upon.  The applicant was only able to complain that he did not agree with the outcome.  In the circumstances, the applicant has not identified any matter that is capable of giving rise to jurisdictional error, and I therefore dismiss the current application. 

13. In this matter, the Minister seeks costs in the sum of $7,206, as provided for on the court scale.  Costs ordinarily follow the event in cases of this type.  The applicant argues that he has no income or financial resources.  This is not a basis for refusing to make a costs order. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  21 June 2017