AVI15 v Minister for Immigration

[2015] FCCA 2399

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVI15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2399

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal complied with s.424A by not setting out the country information in full in the decision record – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 476

Applicant: AVI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1413 of 2015

Judgment of: Judge Street

Hearing date: 2 September 2015

Date of Last Submission: 2 September 2015

Delivered at: Sydney

Delivered on: 2 September 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the first respondent: Mr D McLaren
Minter Ellison

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents 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 $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1413 of 2015

AVI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 15 May 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country as the receiving country.

2. The applicant appeared before the Tribunal on 30 April 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent.  The applicant claimed to fear harm in Sri Lanka on the basis of his Tamil ethnicity, being imputed with the political opinion of previously having been affiliated with the Liberation Tigers of Tamil Eelam (LTTE), and a member of a particular social group, being failed asylum seekers who are treated as being associated with the LTTE and who have left Sri Lanka illegally.  

3. This is a case where the Tribunal found much of the applicant’s evidence not to be credible and made adverse findings in relation to the applicant’s claims, relevantly, as follows:

   62. For the above reasons, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm if he returns to Sri Lanka because of one or more of the following reasons:

    He is Tamil;

    He is from the north of Sri Lanka;

    He will be imputed to hold a pro-LTTE political opinion because:

   o He is a Tamil;

   o He is a Tamil from the north of Sri Lanka;

   o His sister-in-law was an LTTE combatant who was killed;

   o His brother was killed by the SLA who suspected him of being affiliated with the LTTE.

    His membership of a particular social group, failed Tamil asylum seekers and/or from the north, who left Sri Lanka illegally.

    His membership of a particular social group, Tamil and/or from the north of Sri Lanka.

   63. The applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Sri Lanka.

4. The Tribunal had earlier set out reasons for rejecting the applicant’s evidence as being credible in relation to what had happened to him in Sri Lanka and made the following adverse findings:

   52. Given the applicant’s history as found by the Tribunal above, the Tribunal finds that he does not have a profile that will of interest to the SLA or CID or any other Sri Lankan authority if he returns to Sri Lanka. In making this finding the Tribunal has taken into account the Department of Foreign Affairs and Trade Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, dated 3 October 2014 (the Thematic Report) and the submissions and country information provided by the representative. However, it does not accept that the applicant’s history supports a finding that he has a profile that will make him of concern to any Sri Lankan authority. In making that finding, the Tribunal has taken into account that the applicant is a Tamil who has lived in [X] and the [Y] areas which are both in the Northern Province and claimed that his sister-in-law died in combat for the LTTE and his brother was killed by the SLA because he was suspected of LTTE involvement.

   …

   54. … The Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or that there is a real risk that he will suffer significant harm during the processing at the airport.

   …

   58. …However, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or that there is a real risk that he will suffer significant harm during a short period of detention or imprisonment because of the conditions.

   59. … The Tribunal does not accept that there is a real chance or a real risk that the applicant will be tortured or mistreated if he returns because he has returned after departing Sri Lanka illegally or because of his past history and associations in Sri Lanka, including with his sister-in-law and brother.

   …

   61. The Tribunal accepts that he may be questioned by CID after he returns to [X] as a failed asylum seeker, but given his history and profile as found above, the Tribunal does not accept that there is a real chance that he will suffer serious harm, or a real risk that he will suffer significant harm as a consequence.

5. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations and that the applicant did not meet the criteria under s.36(2)(a). The Tribunal also identified reasons why it rejected the applicant as not meeting the criteria under s.36(2)(aa). The grounds of the application are as follows:

   1. The RRT erred in law, and the error is a jurisdictional error, in misapplying the well founded fear test.

   Particulars

   The Tribunal failed to discern that the Applicant was involved with the LTTE and therefore will be imputed with the political opinion of the LTTE.

   2. The Second Respondent made a jurisdictional error of natural justice in that it did not include the country information it relied on in full in the decision record.

   Particulars

   The Second respondent referred to country information by mentioning it rather than fully quoting it.

6. I accept the first respondent’s submission that ground 1 is, in substance, an impermissible challenge to the adverse findings of fact by the Tribunal.  I accept the first respondent’s submission that it is clear that the Tribunal dealt with the integer of the applicant’s claim in relation to an imputed political opinion of the LTTE.  I accept the first respondent’s submission that this is a case where the Tribunal correctly identified the relevant law to be applied and that there is no basis for the proposition that the Tribunal applied the wrong test.  Ground 1 is not made out.

7. In relation to ground 2, I accept the first respondent’s submission that it was a matter for the Tribunal to determine what country information was relevant and that ground 2 fails to identify any jurisdictional error.  I accept the first respondent’s submission that the assertion of a denial of natural justice by reason of not setting out the country information in full lacks any foundation in law.

8. I accept the first respondent’s submission that, to the extent relevant, s.424A(3)(a) relieves the Tribunal of the obligation to provide the country information to the applicant. It was a matter for the Tribunal to determine what country information was relevant and the weight it gave that country information. Ground 2 fails to make out any jurisdictional error.

9. I also accept the first respondent’s submission that this is a case where it is clear that there was an intellectual engagement by the Tribunal with PAM3 in relation to the conditions and punishment to which the applicant would be exposed, having illegally left Sri Lanka.  The application fails to make out any jurisdictional error.  The Court notes this is a case where on 2 July 2015, orders were made by this Court giving the applicant an opportunity to file an amended application, put on affidavit evidence and put on submissions, but no such documents were filed.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  8 September 2015