AXZ15 v Minister for Immigration - [2016] FCCA 2162

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXZ15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2162

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s. 36(2)(a), 36(2)(aa), 414, 424A, 425

Cases cited:

SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64

SZTCY vMinister for Immigration & Border Protection [2015] FCCA 85

SZTGM vMinister for Immigration & Border Protection [2015] FCCA 87

Applicant:

AXZ15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1262 of 2015

Judgment of:

Judge Hartnett

Hearing date:

1 August 2016

Delivered at:

Melbourne

Delivered on:

1 August 2016

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr Cunynghame

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1262 of 2015

AXZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is an application filed 4 June 2015 seeking judicial review of a decision of the Refugee Review Tribunal (as it then was, now the Administrative Appeals Tribunal) (‘the Tribunal’) dated 13 May 2015. By that decision the Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa.
The grounds of application are as follows:
“1. The decision of the tribunal:
(a) is affected by an error of law;
(b) denied the applicant procedural fairness.
2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.”
The Court observes that the grounds as stated above are not particularised and are not meaningful grounds. By orders made by Registrar Burns on 14 October 2015 the Applicant was ordered to file and serve any amended application, including any additional grounds of review with complete particulars of each ground. The Applicant has not amended his initiating application. Those orders also provided, amongst other things, for the Applicant to file and serve written submissions 14 days prior to the final hearing. The Applicant has not placed any written submissions before the Court.
The Applicant filed an affidavit in the proceedings affirmed on 3 June 2015, which essentially annexed the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal. No further affidavit material has been filed by the Applicant.
At the commencement of the hearing the Applicant sought an adjournment of the proceedings on the basis that he wished to obtain legal advice. That request for an adjournment was opposed by the First Respondent and dismissed by the Court. In the filing of his application approximately one year and two months ago, the Applicant indicated that he had approached Victoria Legal Aid for assistance. He said as to his adjournment application that some two weeks ago Victoria Legal Aid had told him they would not be assisting him. He provided no affidavit material or documentary evidence to support that assertion nor indeed any of the assertions he made in respect of his adjournment application.
By correspondence of 15 June 2015 the First Respondent communicated with the Applicant and advised of a list of legal-services-providers and their contact numbers. This was to enable the Applicant to seek assistance in the preparation of his case before the Court. Victoria Legal Aid was noted as a legal-service-provider, and its contact details given, together with the Law Institute of Victoria, the Victorian Bar Association and the Refugee and Immigration Legal Centre. An advice line was also provided in that correspondence. The Applicant, it would appear, contacted no other lawyers. He indicated to the Court that one of his friends knew an interpreter who was going to arrange representation for him, but essentially, he has not heard from anyone. The Applicant also indicated to the Court that he had no funds for a private lawyer.
In the above circumstances, given the length of time which the Applicant has had to obtain legal advice and legal representation for the hearing of this matter; the necessity for the Court to provide the possibility of a timely hearing to those other members of the public who wish to access the resources of the Court; and in the absence of any evidence as to concerted efforts made by the Applicant to obtain such legal representation, the Court dismissed the application for an adjournment.
The Applicant was asked on the hearing this day whether he wished to make oral submissions. He indicated through his interpreter that he had read the First Respondent’s written submissions, which are filed in the Court and dated 25 July 2016. The Applicant indicated that he wished to make no submissions. He was again asked following completion of the First Respondent’s oral submissions (in support of his written submissions) whether he wished to say anything in reply, and he declined that offer. He made no submissions as to the application for judicial review.
The First Respondent relies upon a response filed 15 June 2015 and the First Respondent’s written submissions. The First Respondent seeks dismissal of the application with costs.
The Court has before it the evidence as contained in the Court Book filed on 16 December 2015.
On the hearing of the matter it was clear that the Applicant had no understanding of the grounds of the application filed by him. He could not articulate any complaint had by him with the decision of the Tribunal.

History

The Applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 20 June 2012. He participated in an entry interview on 18 August 2012.
On 19 December 2012 the Applicant applied to the then Department of Immigration and Citizenship (‘the Department’) for a Protection visa. On that same day he appointed a migration agent to represent him throughout the process.
On 6 August 2013 the Applicant attended a Protection visa interview with the Department. Prior to that time the Applicant had provided a statutory declaration to the Department which went to his claims of harm, both prior and into the future, should he be forced to return to Sri Lanka. At the Protection visa interview the Applicant’s representative provided a verbal submission in response to some of the questions and country information that was put to the Applicant.
On 18 October 2013 a delegate of the Minister refused to grant the Applicant the protection visa.

The Applicant’s claims

The Applicant claims to fear harm on return to Sri Lanka because of his race and imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE).
The Applicant’s claims as set out in his statutory declaration dated 2 November 2012 are summarised as follows:-
a)the Applicant claimed that he is of Tamil race and Hindu religion and was born on 15 July 1990 in Udappa, Northwestern Province, Sri Lanka;
b)the Applicant claimed that his father had a business dispute with a Sinhalese competitor who then falsely informed the CID that the Applicant’s father was involved with the LTTE;
c)the Applicant claimed that on 26 June 2009, four individuals from the CID visited the Applicant’s house asking for the Applicant’s father;
d)the Applicant claimed that during this encounter he was threatened with a gun and assaulted, causing significant damage to his right eye;
e)the Applicant claimed these individuals accused his father of helping the LTTE and accused the Applicant of helping his father to do this;
f)the Applicant claimed these individuals left before stating “if you continue to help the LTTE again we will kidnap and torture you”;
g)the Applicant claimed that he then had to have eye surgery in Colombo as a result of the assault;
h)the Applicant claimed that in August 2010, he was approached by two individuals from the Sri Lankan Army who enquired what he was doing and slapped him;
i)the Applicant claimed that a number of “grease devil” attacks occurred in his area in 2011 which affected about 10-15 houses, and that there may be an ethnic element to the attacks;
j)the Applicant claimed that in May 2012, while he was at a neighbour’s house, an individual from the CID visited and was enquiring about the whereabouts of another individual. The Applicant claimed that after he discussed this visit by the CID with his father, it was decided that the Applicant should leave Sri Lanka;
k)the Applicant claimed that in his village it is normal for the CID to visit residents at night and extort money or kidnap them as a means of intimidating Tamils;
l)the Applicant claimed that he will be detained, interrogated, tortured and killed by the Sri Lankan authorities if he was to return to Sri Lanka because of his Tamil race and because failed asylum-seekers are suspected as former LTTE members;
m)the Applicant claimed the authorities cannot protect him if he was to return.

The Tribunal

On 23 November 2013, the Applicant applied to the Tribunal for review of the delegate’s decision. On 10 February 2014, the Applicant’s representative provided written submissions to the Tribunal in support of the Applicant’s claims for protection.
On 4 February 2015, the Applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. That invitation to appear before the Tribunal noted that an interpreter in the Tamil (Sri Lankan) language would be available to assist him.
On 14 April 2015 the Applicant attended the hearing before the Tribunal. His representative attended the hearing by telephone.
On 20 April 2015, the Applicant’s representative requested of the Tribunal that it provide a copy of the audio recording of the hearing. By correspondence of 22 April 2015, the Tribunal forwarded to the Applicant’s authorised recipient a copy of the recording of the hearing held on 14 April 2015.
By correspondence dated 4 May 2015, the Applicant, through his representative, provided further written submissions to the Tribunal in support of the Applicant’s claims for protection.
On 13 May 2015, the Tribunal notified the Applicant of its decision, dated the same day. The Tribunal, as said earlier, affirmed the decision of the delegate.

Tribunal Decision

The Tribunal was satisfied that the Applicant was a national of Sri Lanka and assessed his claims against Sri Lanka as his country of nationality and his receiving country.
The Applicant told the Tribunal at the hearing that he rang his father in Trincomalee, where his father had a business buying fish which he sold at the fish market in Colombo, and told his father about the June 2009 visit to his home by the CID. His father then went into hiding in Trincomalee and Batticaloa and did not return home for a year. He stated that his father had told him that the men had come looking for him after a business dispute with a Sinhalese competitor. He stated that his mother told him, after he arrived in Australia, that his father had helped the LTTE during the conflict but she did not tell him how his father had helped the LTTE.
The Applicant provided a copy of a police report made by this father dated 24 June 2012, in which his father states that unidentified men in a vehicle went to his home in 2009; that the Applicant and others were at home at the time; and that the Applicant told the men his father was in Mullaitivu.
The Tribunal noted the inconsistencies between the Applicant’s account and the content of the report made by his father. Nevertheless, the Tribunal accepted, as stated in paragraph 15 of the Decision Record, that unidentified persons went to the Applicant’s home in June 2009 and asked for his father; accused his father of helping the LTTE; and assaulted the Applicant with a gun, injuring his eye, and that such an assault amounted to serious harm. The Tribunal did not accept, however, that the men were CID but considered it most likely that the men were business rivals who wished to threaten the Applicant’s father. The Tribunal noted that was also consistent with the Applicant’s evidence about what his father had told him about the visit.
In relation to the claimed incident between the Applicant and navy officers in 2001, when the Applicant claimed the officers pointed a gun at him and told him to come close; that the officers then punched him and he warded off the punch with his hands; the Tribunal accepted that that incident occurred and that it amounted to serious harm. The Tribunal found the incident was a random drunken assault which, although an abuse of power, was not part of a systemic targeting of the Applicant and the Tribunal was satisfied that the incident did not give rise to a real chance the Applicant would be assaulted again, now or in the reasonably foreseeable future.
Having regard to the Applicant’s concessions that he had not been personally affected by “grease devil” attacks, the Tribunal found there was no real chance that the Applicant would be harmed from such attacks in the future.
The Tribunal did not accept that whilst visiting the house of a neighbour, an inquiry from the CID posed any risk to the Applicant or that he would face a real chance of persecution in the future.
Whilst the Tribunal accepted that the CID visited the Applicant’s father in 2012, having regard to the inconsistencies in the documents provided by the Applicant, the Tribunal did not accept that the CID sought to interview the Applicant’s father or the Applicant in June 2012 about alleged help given to an LTTE operative during the war when they had not questioned him previously, although he had been living at home and conducting his business from at least January 2011. The Tribunal did not accept that a “call for investigation” letter was a genuine document or that the Applicant’s father went into hiding after this visit.
The Applicant stated that his father went into hiding after the claimed visit from the CID in June 2012 and went to stay in a fisherman’s place in Thalavila in Puttalam. The Tribunal did not accept the Applicant’s father had been in hiding since June 2012 or that masked men sought to abduct him in December 2014.
Having regard to country information, the Tribunal did not accept the Applicant would be imputed to be an LTTE supporter because of his race or because he applied for asylum in Australia. It concluded the Applicant did not face a real chance of persecution in the future because he is a Tamil or because he will be imputed to be associated with the LTTE.
In relation to the Applicant’s claim of being a failed asylum seeker who left Sri Lanka illegally, the Tribunal found, on the basis of the Applicant’s evidence and country information, that the Applicant did not face a risk of significant harm and that any questioning, charge, conviction or penalty, including detention, which the Applicant may face, “ought arise under a law of general application.”
The Tribunal said in paragraph 52 of its decision record:-
“52. As stated above, the Tribunal accepts that persons with an actual or suspected association with the LTTE may be at risk of harm on return to Sri Lanka. The applicant was in Sri Lanka at the end of the conflict and in the years following. For the reasons set out above, the Tribunal does not accept that the applicant has been imputed with an LTTE association or that the CID wants to question him in regard to suspected LTTE activity or that he will be imputed with an LTTE association on return to Sri Lanka. The Tribunal is satisfied that the applicant will not be subjected to any detention or interrogation on return to Sri Lanka other than the standard questioning and procedures as outlined by DFAT. The Tribunal does not accept that there is a real chance the applicant will be detained or tortured or otherwise mistreated at the airport or on return to Udappu because of an imputed LTTE association arising because he sought asylum in Australia.”
The Tribunal, having considered all of the circumstances, was not satisfied the Applicant satisfied the Refugee Convention criterion in section 36(2)(a) of the Act and was also not satisfied the Applicant was a person in respect of whom Australia had protection obligations under section 36(2)(aa) of the Act.

Consideration

On a fair reading of the Tribunal’s Decision Record, neither of the grounds contained in the application can be made out.
The Tribunal complied with its natural justice obligations under Part 7 of the Act, including the obligations imposed by ss. 414, 424A, and 425 of the Act. The Tribunal validly invited the Applicant to attend a hearing on 14 April 2015, which the Applicant attended with the assistance of his migration agent (by telephone) and an interpreter in the Tamil and English languages. The Tribunal canvassed matters of concern to it with the Applicant and considered all of the claims put by the Applicant including those in the various submissions filed by the Applicant’s representative, both before the delegate and before the Tribunal.
The Tribunal expressly made reference to its obligations with respect to PAM 3: Refugee and Humanitarian – Complementary Protection Guidelines and gave relevant consideration to the Applicant’s complementary protection claims in relation to his illegal departure from Sri Lanka, expressly engaging with the relevant statutory definition of significant harm. The Tribunal had regard to country information in that consideration.
As submitted by Counsel for the First Respondent, the Tribunal was correct to hold that there was a need for actual, subjective intention, in relation to the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”.[1]
[1] SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64, SZTCY vMinister for Immigration & Border Protection [2015] FCCA 85, and SZTGM vMinister for Immigration & Border Protection [2015] FCCA 87.
There is nothing in the Tribunal Decision Record that renders the Tribunal decision affected by an error of law and there is no merit to either of the grounds raised by the Applicant.
As no jurisdictional error attends the decision of the Tribunal, the application shall be dismissed with costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 23 August 2016