AYE15 v Minister for Immigration

[2016] FCCA 1206

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYE15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1206

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal failed to consider relevant matters – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R(1)(c) & 36(2)(aa)

Applicant: AYE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 202 of 2015

Judgment of: Judge Heffernan

Hearing date: 1 March 2016

Date of Last Submission: 1 March 2016

Delivered at: Adelaide

Delivered on: 30 May 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application dated 4 June 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 202 of 2015

AYE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 8 May 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (‘the visa’).

2. There is one ground of application as follows:

   “The RRT erred in not giving consideration to the evidence provided by the Applicant to the effect that the Applicant will be harmed upon his return to his home country.  The Applicant has provided evidence that the authorities of the Applicant’s home country will arrest and detain the Applicant and torture and/or imprison him being a failed asylum seeker.  The Tribunal has not given consideration to the evidence provided.  Accordingly the Tribunal has erred as a matter of law.”

3. The applicant is a Sri Lankan, Sinhalese man aged approximately 28 years old.  He arrived in Australia as an unauthorised maritime arrival in July 2012.  He claimed before the Tribunal to fear serious harm should he be returned to Sri Lanka on the basis of his actual or imputed political opinions.  He claimed to have been a member of the Sri Lankan political party, Janatha Vimukthi Paramuna (‘JVP’).  In that capacity, he said that from August 2009, he had played an active role in the 2010 presidential election campaign.[1]  Along with fellow party members, he would erect political posters, usually at night.  On one occasion whilst doing this, he claimed that he and his companion were attacked by a group of men with batons.[2]  The night after the JVP lost the 2010 presidential election, rocks were thrown at the roof of his house by unknown people.  This was reported to the police.  He was assaulted on a further occasion whilst working at an electoral office during the 2010 parliamentary elections when a group of men attacked the office he was working in.[3]  His uncle, also a member of the JVP, was assaulted at about this time and the assailants made a threat against the applicant whilst doing so.  He claimed to have fled Sri Lanka as a result of these incidents.  He claimed that he would be prosecuted as an illegal departee and suffer harm as a result.  He claims political supporters of the ruling party will persecute him as a former member of JVP.

   [1]     Court Book (‘CB’) p 159.

   [2]     CB p 159.

   [3]     CB p 160.

Tribunal hearing

1. The applicant was represented before the Tribunal by a registered migration agent.  The agent made a written submission to the Tribunal prior to the hearing.  The Tribunal considered that submission and the attached materials.  The applicant’s claim was clarified in that he asserted that his fear of persecution was both state and non-state based.  He submitted that relocation was not a reasonable option for him.  He pointed to the combined effect of his unlawful departure and his JVP affiliation as being of particular adverse interest to the authorities.[4]

   [4]     CB p 162.

2. The applicant gave evidence before the Tribunal.  It appears that evidence was generally consistent with his earlier written claims.  The Tribunal raised a number of concerns with him based on his evidence and the country information it had compiled.  The Decision Record indicates that these were specifically identified to the applicant and his comment was sought on them.

3. A significant amount of country information was considered by the Tribunal, including DFAT country information and UNHCR information.[5]

   [5]     CB pp 166-172.

4. The Tribunal accepted much of the applicant’s evidence and claims.  It found that his involvement with the JVP was at a lower level and involved menial tasks.[6]  It accepted as the applicant had claimed, that there were three incidents of violence in which he was involved.  It found that the incidents were unrelated and that the applicant had not been targeted.  In none of them, had he suffered serious harm.  The Tribunal found that the police had responded to his complaints about each of these incidents and that their response was appropriate and effective.[7]

   [6]     CB p 172 at [120]-[122].

   [7] CB p 173 at [135].

5. The Tribunal placed weight on the fact that after the applicant had moved to Colombo there appears to have been no attempts by opponents of the JVP to ascertain his whereabouts and persecute him.[8]

   [8] CB p 173 at [133].

6. The Tribunal characterised the political involvement of the applicant as being at a low level.  It concluded in effect that his involvement was not such as to have given him a profile that would present a problem for him if he were to return to Sri Lanka.  His position was the same as a large number of persons with similar political views and a similar level of political activity and would not result in adverse attention to him in Sri Lanka in the reasonably foreseeable future.[9]

   [9] CB p 174 at [142].

7. The Tribunal rejected the claim that the applicant had been the subject of a threat made to his step-father after he had departed for Australia.  On the question of relocation, the Tribunal found that given the applicant had not experienced any difficulties in Colombo, and that he had not been isolated from his family during that time, it was reasonable and practicable to expect him to relocate there.

8. With respect to the failed asylum seeker aspect of the applicant’s claim, the Tribunal was not satisfied that he was likely to face serious harm in relation to this. It accepted that he will charged, detained, and possibly fined. It concluded that Sri Lanka’s laws with respect to returned failed asylum seekers were laws of general application. It concluded that his political profile was not such to suggest that he was likely to be singled out for adverse treatment on his return to Sri Lanka. It concluded that any detention he may experience would not amount to serious harm as defined in s.91R(1)(c) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal specifically considered Australia’s complementary protection obligations but was not satisfied that he was a person to whom Australia owed such obligations under s.36(2)(aa) of the Act.

Submissions

1. The applicant made brief oral submissions before me.  He asserted that the Tribunal had not properly considered the evidence.  In particular, he said that the Tribunal had not considered the evidence that he was attacked during the course of the presidential campaign and that someone had thrown stones on the roof of his house.  He submitted that he is the only person in a proper position to know what the situation is likely to be if he were to return to Sri Lanka.  Now is not a good time for him to be required to return to Sri Lanka, he said.  The political opponents in Sri Lanka were still angry with him.  The applicant also submitted, as he did before the Tribunal, that the opponents of JVP had assaulted his uncle and threatened to attack him as well.

2. The respondent submitted that all of the matters of which the applicant complained the Tribunal had not appropriately considered, were given proper and detailed consideration in the Decision Record.  It submitted that the applicant’s claim, as articulated before this Court, was essentially a request for a merits based review.  The first respondent submitted that no jurisdictional error has been identified.  It submits that the findings of the Tribunal were at least open to it on the evidence and that accordingly the application should be dismissed with costs.

Consideration

1. The ground of review complains that the Tribunal failed to properly consider the evidence relating to the likelihood of harm to the applicant should he be returned to Sri Lanka.  Logically, this appears to be a reference to the country information referred to in the written submissions provided to the Tribunal by his migration agent.  From his oral submissions, it is clear that the applicant also complains that the Tribunal failed to consider the evidence that he gave to it with respect to the incidents of violence he experienced during the 2010 election campaign.

2. A fair reading of the Tribunal Decision Record, does not suggest that the Tribunal failed to properly consider the materials provided to it by the applicant’s migration agent.  The relevance of country information to the claims raised by the applicant, were clearly at the forefront of the Tribunal’s consideration.  It was a matter for the Tribunal as to what aspects of the country information were relevant to its considerations in this matter and the weight to be given to it.  Furthermore, all of the evidence of the assaults and threats referred to by the applicant in his oral submission was specifically dealt with by the Tribunal.  What in reality, the applicant is complaining about in this matter, is not a failure to consider relevant material, but the conclusions the Tribunal reached about the evidence and what it meant with respect to his claim for protection.  In other words, he is dissatisfied with the outcome.  However, the merits of his claim cannot be re-agitated before this Court.  The reasons of the Tribunal were comprehensive and appear to demonstrate a qualitative assessment of the evidence before it.  I am satisfied that the findings made the Tribunal were at least open to it.

3. In the circumstances, I am not satisfied that jurisdictional error has been demonstrated.  I dismiss the application and I make the orders to be found at the beginning of these reasons.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  30 May 2016