AVF15 v Minister for Immigration

[2016] FCCA 1961

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVF15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1961

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal decision was affected by an error of law – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, pt.7 of div.4

Applicant: AVF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1166 of 2015

Judgment of: Judge Smith

Hearing date: 11 July 2016

Date of Last Submission: 11 July 2016

Delivered at: Melbourne

Delivered on: 11 July 2016

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,025.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1166 of 2015

AVF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. This is an application for judicial review of a decision of the Refugee Review Tribunal[1] made on 21 April 2015. The Tribunal affirmed a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. In order to succeed in his application the applicant had to show that the Tribunal fell into jurisdictional error. That means that the Tribunal made, in some way, an error that diverted it from some task that it was required to complete under the Migration Act 1958 (Cth).

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. In order to understand the issues that arise from the application and their resolution, it is necessary to briefly outline the background facts to the Tribunal’s decision as well as the Tribunal’s reasons for its decision.

Background

1. The applicant arrived in Australia from Sri Lanka on 16 July 2012. On 31 October 2012 he lodged an application for a protection visa. The claims that the applicant made in support of that application were summarised by the Tribunal at [22] - [26] of its reasons, which I set out below:

   22.In 1989 the applicant travelled to Puthumanthalan in Mullaitivu district with his father as his father wanted him to work as a fisherman. He was (sic) worked for a fisherman and his father was paid money. The ethnic conflict worsened and the LTTE[2] entered the area in 1995 and it became a LTTE stronghold. In 2007/08 unmarried young males were forced to join the LTTE and as he was married he was not conscripted. He was also exempted on the basis of his work as a “toddy tapper” and its association paid large taxes to the LTTE.

   23.In 2009 many Tamils including his brother were killed by the army who were firing rockets. The applicant and his family secretly crossed a river to get to where the army was. The army took the applicant and his family to the Chettikulam army camp. He was interrogated there more than once as the authorities suspected he was a LTTE member or had close links to them. The applicant's son was assaulted by the army whilst at the camp.

   24.In late 2010 the applicant and his wife were allowed to leave the camp for five days to visit family in Jaffna. The applicant was on a motorbike with his brother and they were stopped by the police. They were questioned and he was asked for identification papers but did not have them on him. The police took him to their station and beat him along the way. He was imprisoned overnight and went to the court the next day and did not pay a fine.

   25.In November 2011, the applicant and his family were allowed to return home, however the area is heavily militarised. The CID and the army continued to question and interrogate him from time to time. On three occasions at sentry points he had to perform menial tasks including road works and chopping wood.

   26.The applicant fears harm because he is from a former LTTE controlled area and has made asylum claims in Australia.

   [2] Liberation Tigers of Tamil Eelam.

2. In addition to those claims, the applicant claimed that he had suffered scarring during an incident in the civil war and that two of his brothers lived in India. These matters might give rise to a suspicion that he was involved with, or supportive of the LTTE.

Tribunal’s decision

1. On 19 December 2013, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The applicant was represented by migration agents for the purpose of that review and on 23 April 2014 those agents sent to the Tribunal written submissions in support of the applicant’s claims together with a statutory declaration made by the applicant on 14 April 2014. The applicant was invited to, and attended a hearing, conducted by the Tribunal on 20 April 2015.

2. It appears that at the Tribunal hearing the submissions and statutory declaration dated 14 April 2014 were brought to the attention of the Tribunal. The Tribunal had not yet seen those documents. In light of that, it adjourned briefly in order to give it time to read the documents. When the hearing recommenced, the Tribunal asked the applicant a number of questions about his claims, including questions about his statutory declaration dated 14 April 2014. The Tribunal also raised with the applicant a number of issues that it had with his claims and put to him for comment certain country information that it had available to it concerning the circumstances prevailing in Sri Lanka at the present time. On 21 April 2015, the Tribunal made its decision affirming the delegate’s decision to refuse to grant the applicant a visa.

3. The statement of reasons prepared by the Tribunal revealed that its approach in dealing with the applicant’s claims was, firstly, to make findings about the applicant and about what had happened to the applicant, and  secondly, to assess what might occur to the applicant upon return to Sri Lanka against the background of its earlier findings. That is an orthodox approach, clearly in recognition of the logic that past events can have some bearing on the probability of other events occurring in the future, in particular, the events claimed by the applicant that might occur to him upon return to Sri Lanka.

4. In dealing with the applicant’s claims about past events, the Tribunal accepted a number of the applicant’s claims, but rejected others. On the positive side, it made the following findings at [37] of its reasons:

   37.There are a number of the applicant's claims I accept based on the consistency of his evidence. I accept that he is from Jaffna district and that he moved to the Mullaitivu area when he was 15 years old. I accept he worked there as a fisherman and then as a “toddy tapper”. I accept that he was not conscripted into the LTTE as its association paid large taxes to them. I accept that in 1998-99 he was injured in army bombing and suffered scarring. I accept that in April 2009, the applicant’s brother was killed in army shelling and the applicant's family were forced to leave their home due to the conflict and move to an army controlled area where they were put into a camp in Chettikulam. I accept that he was interrogated there about whether he had any association with the LTTE and there were international agencies present to monitor the situation. I accept that at the camp his son was physically assaulted by a soldier when he went to a fence to speak to his grandparents who were in a separate area. I accept that the family complained to the police about this incident but did not take the matter further. I accept that the applicant and his family were released from the camp in November 2011 and that they returned to their home.

5. On the other hand it found, in some respects, the applicant’s credibility as a witness was found wanting and in light of that, and in light of certain independent country information about Sri Lanka, the Tribunal did not accept some of the applicant’s claims. In particular, it did not accept that the applicant was stopped by the police in 2010 and detained, beaten and forced to pay a fine or that he had ever been forced to undertake unpaid labour by the army or for anyone else.

6. The Tribunal then assessed the claims that it had accepted but concluded that the chance that the Sri Lankan authorities or anyone else would now, or in the reasonably foreseeable future, impute the applicant with a pro-LTTE political opinion to be remote. Further, and more generally, the Tribunal did not accept that the applicant was of any adverse interest to the authorities or anyone else for any reason, including being suspected of having links to the LTTE. For those reasons, the Tribunal reached the following conclusions based upon the history of the applicant accepted by it:

   49.Based on his individual circumstances and the overall weight of the country information, I find that the applicant does not face a real chance of persecution on account of his Tamil race, membership of particular social groups (including male Tamils or Tamil males in an area previously controlled by the LTTE or his family) or his actual or imputed political opinion or any other Convention reason or any non-Convention reason, now or in the reasonably foreseeable future from the authorities, paramilitary groups or anyone else.

   50.Based on his individual circumstances and the overall weight of the country information, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on these bases.

7. The Tribunal then turned to deal with what might occur to the applicant as a result of his having left Sri Lanka illegally and having sought asylum in Australia. In this respect, it relied upon country information and, in particular, a report from the Department of Foreign Affairs and Trade (DFAT). While the Tribunal accepted that people with an actual or perceived association with the LTTE may face a risk of harm in Sri Lanka, as do those people with a profile who have returned to Sri Lanka from abroad, it did not accept that returnees generally were regarded as having links with the LTTE or being opposed to the government simply because they had been in Australia.

8. For those reasons, the Tribunal did not accept that if the applicant were to return to Sri Lanka the authorities would regard him as a supporter of the LTTE or as someone with links to the LTTE. It did accept, however, that the applicant may be subjected to some questioning upon his return, but did not accept that that constituted either serious harm or significant harm within the meaning of those terms in the Migration Act. For those reasons, the Tribunal found that the fact that the applicant would return to Sri Lanka as a failed asylum seeker did not bring him within the criteria for a grant of a protection visa. The Tribunal then dealt with the consequence of the applicant’s illegal departure from Sri Lanka by sea in 2012.

9. Again, having considered country information relevant to those circumstances, the Tribunal accepted that the applicant may have breached the Sir Lankan law by such departure, but found that the applicant, like others before him, would not be given a custodial sentence but would only be fined as a deterrent.

10. The Tribunal did accept that the applicant faced a short term detention prior to applying for, and obtaining bail, in connection with the charge of that unlawful act. The Tribunal however found that he would be able to obtain bail, and that any short term detention or fine did not amount to persecution for Convention reasons, nor did it amount to significant harm within the meaning of s.36(2A) of the Act. Amongst the reasons given for the latter finding was that, in spite of there being poor prison conditions, the Tribunal was not satisfied that any harm that might come to the applicant would be intentionally inflicted, as is required by the definition of the relevant parts of “significant harm” in the Act.

11. Finally, the Tribunal looked at all of the applicant’s claims on a cumulative basis, that is to say altogether, and found that even in doing so, there was no well-founded fear of persecution for a Convention reason or a real risk of significant harm. On the basis of those findings, the Tribunal was not satisfied that the applicant satisfied the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. There are two grounds in the application. The first is that the decision of the Tribunal is affected by error of law; and the second is that the applicant was denied procedural fairness.

2. The Tribunal’s duty under the Act was to review the delegate’s decision. What that meant, in effect, was that it had to determine whether it was satisfied that the applicant met the criteria for the grant of a protection visa. Those criteria are relevantly contained in ss.36(2)(a) and 36(2)(aa) of the Act. It will be in the Tribunal’s understanding of those criteria, or its application of them and to the facts before it, that any error of law might arise. However, I cannot see that the Tribunal fell into any such error. As I have said, the Tribunal addressed itself in a way which, firstly considered the past factual background put forward by the applicant in support of his claims and then assessed the future probability of any harm coming to the applicant against the background of those findings.

3. In particular, in line with the criteria in ss.36(2)(a) and 36(2)(aa) , it addressed the issue firstly, whether there was any well-founded fear of persecution for a Convention reason in the reasonably foreseeable future and, secondly, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia that there is a real risk that he will suffer significant harm on those bases.

4. On the face of the Tribunal’s reasons then, it addressed the correct question posed by the criterion. Further, on the basis of the findings that I have outlined above, it is clear that the Tribunal addressed each of the applicant’s claims which he said brought him within those criteria. For those reasons, I consider that the Tribunal did not fall into any error of law.

5. The question whether the applicant was denied procedural fairness must be viewed in this case by reference to the provisions of the Act. In particular, s.422B of the Act, which provides that pt.7 of div.4 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. There having been no particulars given by the applicant of the allegation of a denial of procedural fairness, I have looked at the matter broadly with a focus on whether there was any breach by the Tribunal of its obligations of the provisions in div.4 of pt. 7 of the Act.

6. I can see nothing that might fall outside of those, such as an apprehension of bias, as the transcript of the Tribunal’s hearing reveals that such a claim would have no foundation at all. The two critical obligations on the Tribunal in div.4 of pt.7 are found at s.424A, which deals with adverse material and s.425 of the Act, which deals with the obligation to conduct a hearing. The obligation under s.424A however, is limited and does not apply to information: for example, that is not specifically about the applicant.

7. There is nothing in the material before the Court to suggest that there was any information that fell within s.424A(1) of the Act and it is clear from the transcript of the hearing, that the Tribunal went beyond its obligations under that section. Section 425 requires in essence, that the applicant be given the opportunity to give evidence about, and present arguments in respect of the issues that arise in relation to the decision on review.

8. Once again, as I have noted in respect of the transcript of the hearing, it is clear to me that the Tribunal did raise the issues that were critical to its decision with the applicant at the hearing and that he had a real opportunity to address those issues. That opportunity included the opportunity for the applicant to take an adjournment and to discuss matters with his migration agent. Both the applicant and the migration agent made submissions towards the conclusion of the hearing. For those reasons, I conclude that there was no breach of any of the provisions in div.4 of pt.7 and, having read all of the material before the Court, cannot discern any suggestion that there was otherwise a denial of procedural fairness.

9. It is my view that the Tribunal properly conducted a review according to law and that there is no jurisdictional error affecting its decision. For those reasons, the application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith.

Date: 1 August 2016