AWD15 v Minister for Immigration

[2016] FCCA 226

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 226

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (class XA) visa – whether the Tribunal correctly applied the test of serious harm – whether the hearing was procedurally fair – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2A), 424AA, 476

SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175

Applicant: AWD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1455 of 2015

Judgment of: Judge Street

Hearing date: 8 February 2016

Date of Last Submission: 8 February 2016

Delivered at: Sydney

Delivered on: 8 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1455 of 2015

AWD15

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 5 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and of Tamil ethnicity.  The applicant claimed to fear harm on the basis of his Tamil ethnicity at the hands of the authorities and the Sinhalese as well as his political activities with the United National Party (UNP), his imputed political opinion and his membership of various social groups.  The applicant also claimed he had problems with the family of the person who he married, being a Sinhalese woman. 

3. The applicant contended that both he and his family had been supporters of the UNP for years, and he joined the UNP in 2008.  The applicant further contended that he became active around 2010 and campaigned for a particular UNP candidate in April 2010.  The applicant contends a few days after the election, he went into hiding for a month and a half at a relative’s house, during which time the United People’s Freedom Alliance (UPFA) supporters came to his house and destroyed his property.  The applicant claims to have been threatened by members and supporters of the UPFA on numerous occasions and that his brother‑in‑law was killed because of his UNP connection.  Members of the UPFA, the applicant alleges, came to his house with guns and verbally assaulted his wife and threatened to kill him on many occasions.

4. In 2011, the applicant was involved in campaigning for the UNP candidate in a local election and helped him canvass for votes.  The applicant claimed that after the UNPs loss in this election, he was again targeted and physically assaulted and forced to pay bribes, leading him to flee to Dubai.  The applicant returned to Sri Lanka after six months because he thought the situation had improved.  A few days after the applicant’s return, he says he was threatened by UPFA candidates who pressured him to resign from his government job.

5. The applicant departed the west coast of Sri Lanka unlawfully by boat and arrived on Christmas Island on 13 August 2012.  By letter dated 29 January 2015, the applicant was invited to attend a hearing to be held on 30 March 2015.  It is apparent that the applicant appeared on that day to give evidence and present arguments and was assisted by an interpreter, as well as having a representative. 

6. During the hearing, the Tribunal raised certain matters with the applicant consistent with s.424AA, and the applicant was given an opportunity to provide a written response. The Tribunal’s reasons refer to that written response dated 18 April 2015. In relation to credibility issues in relation to the applicant, the Tribunal found the applicant not to be a credible, truthful or reliable witness and found the applicant had fabricated claims and concocted evidence to achieve an immigration outcome. The Tribunal did not accept the applicant was a credible or truthful witness for reasons identified by the Tribunal, which were open on the material before the Tribunal.

7. The grounds of the application are as follows:

   Though the tribunal did accept in the decision record that I may be remanded upon return in conditions which are cramped and uncomfortable (possibly for a fortnight) I believe the tribunal did not accept that I would suffer harm under such prison conditions. I am an ethnic Tamil and I believe I would suffer serious harm if returned, my claims were not fully heard and considered by the tribunal.

8. On 9 July 2015, a registrar of this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  On 5 November 2015, by consent, a hearing date that had been fixed for 9 November 2015 was vacated, and the matter was stood over to be listed for hearing after delivery of the decision in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175. That decision was delivered on 9 December 2015, and the matter was refixed for hearing today.

9. I accept the first respondent’s submission that the first ground identified in the application is an impermissible challenge to the merits of the matter, which were for the Tribunal to determine. The Tribunal rejected the applicant’s claims on the basis of comprehensive adverse credibility findings. The Tribunal did accept the applicant may be held for a limited period in remand and took into account the overcrowding and other problems to which the applicant would be subjected, which, it found, were not intentionally inflicted and did not fall within the definition of significant harm under s.36(2A), as defined in s.5 of the Act. Ground 1 fails to make out any jurisdictional error.

10. In relation to ground 2, the Tribunal gave the applicant a genuine hearing and made comprehensive adverse findings in relation to the applicant’s claims.  Ground 2 fails to make out any jurisdictional error.

11. From the bar table, the applicant suggested that he had not had a fair hearing and had been deprived of the opportunity to answer questions. There is no evidence to support those assertions, and the history of the matter is identified in the Tribunal’s reasons. In particular, the opportunity to provide written comments in relation to the s.424AA matters, in which the applicant engaged through his representative, are not consistent with the complaint advanced by the applicant.

12. The applicant sought to maintain the genuineness of his fears and the problems he would face if returned.  This was an impermissible challenge to the merits of the matter, in relation to which the Tribunal made adverse findings.  Nothing said by the applicant from the bar table identified any jurisdictional error.  Further, nothing said in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 gives rise to any jurisdictional error by the Tribunal in the present case.

13. I should note for the benefit of the record that at the time of filing the applicant’s application and affidavit to commence proceedings, the matter was given the pseudonym ADW15 by error in the cover pages and that the correct pseudonym for this matter number is, in fact, AWD15 and the correct pseudonym has thereafter appeared on all Court documents. 

14. There being no jurisdictional error disclosed by the application, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 9 February 2016