AYI16 v Minister for Immigration
[2017] FCCA 1040
•21 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYI16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1040 |
| Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – whether Tribunal considered all integers of Applicant’s claims – whether Tribunal’s decision was supported by evidence – whether Tribunal breached s.414 of the Migration Act 1958 (Cth) – whether Tribunal afforded Applicant procedural fairness – no jurisdictional error –application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.414, 424A, 425. |
| Cases cited: SZSGA v The Minister (2013) FCA 774. |
| Applicant: | AYI16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 829 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 21 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 21 April 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor for the First Respondent: | Ms Helsdon |
| 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 $5,800.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 829 of 2016
| AYI16 |
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 for judicial review of a decision of the Second Respondent made 23 March 2016. The application was filed on 22 April 2016. The grounds of application are as follows:-
“1) The Tribunal has erred and fell into jurisdictional error by not assessing the Applicant’s integer claims cumulatively being a young Sri Lankan Tamil fisherman of Hindu faith with suspected association with the LTTE.
2) The Tribunal’s assessment and the rejection of the “boating incident” was not supported by evidence.
3) The Tribunal breached section 414 of the Migration Act by not review (sic) the application in accordance with the law.
4) The Tribunal erred by failing to accord procedural fairness to the Applicant.”
By response, filed the 2 May 2016, the First Respondent seeks dismissal of the application, and notes that the application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal (‘the Tribunal’), dated 23 March 2016.
By orders made by Registrar Buljan, on 14 September 2016, the Applicant was to file and serve any amended application, including any additional grounds of review with complete particulars of each ground, and written submissions. The Applicant filed no amended application, and the Applicant filed no written submissions. The First Respondent has filed written submissions, on which he relies, dated 7 April 2017, and there is also, before the Court, the evidence as contained in the Court Book.
The Applicant was given an opportunity this day to make oral submissions to the Court. The Court notes that the written submissions of the First Respondent have been translated to the Applicant by the interpreter, who provided assistance to the Applicant this day. The interpreter was fluent in the Tamil (Sri Lankan) and English languages.
The Applicant did not make any oral submissions, save that he required further time before proceeding with his application in order to produce some documents in respect of one of his protection claims. That request was refused by the Court. The Applicant has had a 12 month period since filing his application to prepare for same and any material not before the Tribunal in the circumstances here, would not be admitted into evidence.
When asked by the Court what it was about the decision of the Tribunal, dated 23 March 2016, that was wrong, the Applicant was unable to point to any ground or grounds on which he either relied in his application, or sought to rely on at the hearing, nor could the Applicant explain why it was that he alleged the Tribunal failed to accord him procedural fairness. Nor could the Applicant explain why it was he claimed the Tribunal did not review his application in accordance with the law, as he put it.
The decision of the Tribunal affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant, to the Applicant, a protection (Class XA) visa (‘the visa’).
Background
The Applicant arrived in Australia, on Christmas Island, on 15 July 2012. He arrived as an unauthorised maritime arrival. On 8 November 2012, the Applicant applied for the visa.
The Applicant’s written claims for the visa were set out in a statutory declaration accompanying the visa application. The Applicant provided further information regarding his claims in an interview with the delegate, conducted on 11 March 2013. Relevantly, the Applicant claimed that:-
a)he is a Hindu of Tamil ethnicity, from Udappu village, Puttalam district, in the north-western province of Sri Lanka;
b)his father was kidnapped and tortured by the Liberation Tigers of Tamil Eelam (LTTE) between 2007 and 2009;
c)following his father’s return to the Applicant’s hometown of Udappu in 2009, his father was detained on one occasion by police, for questioning, and his house was regularly searched for weapons and his family were harassed by local Sinhalese villagers;
d)his father was killed in a boating accident on 9 December 2009, as a result of Sinhalese fisherman and the police ramming his father’s boat, due to his father’s involvement with the LTTE;
e)following his father’s death, the authorities began to question him about his involvement with the LTTE and continued to search his house for weapons. He claimed that the police detained and questioned him on one occasion, and that he faced continued discrimination and harassment by the police in Sinhalese villages.
On 25 July 2013, the delegate refused to grant the Applicant the visa. On 29 July 2013, the Applicant applied to the then Refugee Review Tribunal for a review of the delegate’s decision. The Applicant included a copy of the delegate’s decision with the application.
On 1 November 2013, the Applicant’s registered migration agent provided written submissions to the Tribunal. The Applicant’s registered migration agent made a further claim that the Applicant was a member of the particular social group “failed asylum seekers returning to Sri Lanka”.
On 16 October 2014, the Tribunal invited the Applicant to attend a hearing before it that was scheduled for 4 December 2014. On 21 November 2014, the Applicant’s registered migration agent wrote to the Tribunal, requesting that the scheduled hearing be postponed, as they were unable to contact the Applicant.
On 27 November 2014, the Applicant’s registered migration agent provided further written submissions to the Tribunal, and again requested that the hearing scheduled for 4 December 2014 be postponed.
On 1 December 2014, the Tribunal wrote to the Applicant’s registered migration agent, agreeing to reschedule the hearing and issuing a new hearing invitation, inviting the Applicant to attend a hearing scheduled on 17 February 2015. The hearing invitation also enclosed a copy of a Department of Foreign Affairs and Trade (‘DFAT’) thematic report, entitled “People with Links to the Liberation Tigers of Tamil Eelam”, dated 3 October 2014.
On 11 February 2015, the Applicant’s registered migration agent provided further written submissions to the Tribunal, responding to the DFAT thematic report.
The Tribunal
On 17 February 2015, the Applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant’s registered migration agent attended the Tribunal hearing.
In assessing the Applicant’s claims, the Tribunal noted in its Statement of Decision and Reasons (‘the Decision Record’) that it had regard to the file of the Department of Immigration and Border Protection (‘the Department’), relating to the protection visa application, the primary Decision Record (a copy of which the Applicant had provided to the Tribunal), the written submissions made prior to and after the hearing (the Applicant’s registered migration agent provided post-hearing submissions on 19 March 2015, after several extensions were granted by the Tribunal, to the Applicant’s registered migration agent, to provide post-hearing submissions) and country information referred to, which the Tribunal discussed with the Applicant during the hearing, and that referred to by the Applicant’s registered migration agent in submissions.
The Tribunal’s findings, with respect to the Applicant’s claims made, which, by then, included that a mob had attacked his family home on 31 December 2014, resulting in the Applicant’s mother and siblings leaving the family home, fearing for their safety, are accurately set out in the First Respondent’s written submissions. Those findings are adopted by the Court and are as follows:-
a)the Tribunal accepted, with reference to country information, that the Applicant’s father was kidnapped by the LTTE and returned home two years later. The Tribunal also accepted that, upon return to his village in 2009, the Applicant’s father was held for one day and questioned by the authorities and then released. With reference to country information, the Tribunal accepted that the authorities conducted searches on several occasions after his father’s return, however, the Tribunal did not accept that the Applicant’s father had a high LTTE profile ascribed to him by the authorities or that he was of particular interest to the authorities;
b)the Tribunal accepted that the Applicant’s father died in a boating accident, but did not accept that this was as a result of a deliberate act of Sinhalese people, or that the police conspired with members of the Sinhalese community to kill the Applicant’s father and disguise the incident as an accident. The Tribunal noted the inconsistency in the Applicant’s oral evidence which was that his uncle had told him about his father’s death and that he had witnessed the incident. The Tribunal did not accept that the Sri Lankan authorities, in 2009, would have needed to contrive a boating accident if they had an interest in, or security concern about the Applicant’s father;
c)in not accepting the death was a staged event, the Tribunal had regard to country information, indicating that security concerns were heightened in 2009, around the end of the civil war, and found that the authorities had a low level of interest in the Applicant’s father, based on holding him for one day and releasing him, at a time, near the end of the war;
d)the Tribunal did not accept that the inconsistencies in the version provided by the Applicant were explained by his young age. The Tribunal found that the Applicant had embellished the boating accident in order to strengthen his claims for protection;
e)the Tribunal accepted as plausible that members of the Sinhalese community asked him if he was LTTE, especially in 2009. However, the Tribunal noted that the Applicant had raised two claims which had not been previously raised with the Department, at interview or in his written statement of claims. The Tribunal indicated to the Applicant that it had concerns with the Applicant’s credibility in this respect, and the Applicant took an adjournment to discuss the concerns with his registered migration agent;
f)in light of the Applicant’s oral evidence and post-hearing submissions provided by the Applicant’s registered migration agent, the Tribunal accepted that the Applicant may have been subjected to low-level verbal abuse by members of the Sinhalese community in 2009. However, the Tribunal remained of the view that the Applicant had sought to embellish the extent of the abuse. The Tribunal did not accept the Applicant’s new claim, that he was stopped by army officers approximately one year after his father’s death, and noted that the claim sought to lend weight to his claim that the boating accident was a deliberate act to kill his father. The Tribunal considered that the Applicant had fabricated this claim to embellish his claims for protection;
g)the Tribunal accepted that the Applicant was questioned by the Sri Lankan authorities and released after two hours. The Tribunal also accepted that, after his father’s death, authorities searched the Applicant’s house for weapons. The Tribunal accepted that the Applicant and his family were verbally abused by individuals, and people threw rocks at the Applicant because of his Tamil ethnicity and his father’s connection with the LTTE. However, the Tribunal did not accept the claim of continued interest by the police, as it was inconsistent with the Applicant’s evidence that the authorities released him after two hours of questioning. The Tribunal did not accept that the authorities had any interest in the Applicant because of his father’s connection with the LTTE, or for any imputed political opinion as the son of an LTTE man or perceived opposition to the government;
h)the Tribunal noted it had serious doubts about the credibility of the Applicant’s claim of an attack on his family home because of the inconsistences in the evidence and the lack of concern shown by the Applicant in response to the level of danger he was ascribing to his family’s safety. The Tribunal noted that the Applicant requested further time to obtain supporting documentation in relation to this claim, however no further documentation was received. The Tribunal noted, in paragraph 54 of the Decision Record, that requests for additional time to provide further supporting documents were granted but that no further documents or contact was received. The Tribunal did not accept that the attack took place, and found that the Applicant had fabricated this claim to strengthen his claim for protection;
i)in relation to the Applicant’s claim of his illegal departure from Sri Lanka, the Applicant gave evidence that he did not previously consider this a serious matter. The Tribunal found this explanation for not raising this matter “incomprehensible” and found this claim to be a fabrication;
j)the Tribunal considered that the Applicant would face harassment and disadvantage on return to Sri Lanka, on the basis of his Tamil ethnicity, but found that this would not rise to the level of serious or significant harm;
k)the Tribunal also considered an implied claim of persecution on the basis of the Applicant’s Hindu faith, and found that any harassment the Applicant would suffer on this basis would not rise to the level of serious or significant harm;
l)the Tribunal considered independent country information, including that contained in the Applicant’s written submissions regarding treatment of failed Tamil asylum seekers on their return to Sri Lanka, and did not accept that the Applicant would face serious or significant harm in Sri Lanka now or in the reasonably foreseeable future because he was a Tamil and a failed asylum seeker;
m)the Tribunal accepted that failed asylum seekers returning to Sri Lanka would undergo checks, questioning and, as a young Tamil, the Applicant was likely to be questioned about his LTTE links or activities in and outside Sri Lanka. However, the Tribunal did not accept the submissions that all Tamils, or young Tamils with low or no LTTE associations around the end of the civil war with no separatist activities, were at risk of serious harm upon returning to Sri Lanka. The Tribunal found that the Applicant may be detained and held for some days upon his arrival at the airport in Colombo for his illegal departure, and found that he would be granted bail and, if convicted, receive a fine. The Tribunal found Sri Lanka’s departure laws were laws of general application and the Applicant would not be treated differently to other returnees for any Convention reason;
n)the Tribunal considered whether the Applicant would face a real chance of serious harm, on the basis of his claims separately and cumulatively, namely his claims of being a young Tamil male, and Hindu; his actual or imputed political opinion; being suspected of LTTE connections or a sympathiser, taken with his father’s abduction by the LTTE for two years; his father then been suspected of membership with LTTE; the Applicant being perceived as being anti-government; having departed illegally and returning voluntarily as a failed asylum seeker. The Tribunal found that the effect of each claim separately or cumulatively did not mean that there was a real chance that the Applicant would face serious harm. Accordingly, the Tribunal was not satisfied the Applicant was a person in respect of whom Australia had protection obligations and found that he did not satisfy the criterion set out in s.36(2)(a) of the Act; and
o)further, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. The Tribunal accepted that the Applicant would face low levels of discrimination and social and economic disadvantage because of his ethnicity and Hindu religion, but that it did not rise to the level of serious harm. The Tribunal also accepted that the Applicant would be questioned on arrival at the airport and at his village, that he would be charged under Sri Lanka’s departure laws and that those laws were of general application to all Sri Lankan nationals. The Tribunal accepted that the Applicant would be held on remand for a short period, in relation to the charges, and convicted, leading to a fine, but found that it did not rise to the level of serious harm.
Consideration
None of the grounds as raised by the Applicant can be made out and the application must be dismissed. No jurisdictional error attends the decision of the Tribunal.
The Tribunal considered the Applicant’s claims separately and cumulatively, in relation to being a Tamil, a young Tamil male and Hindu, having an actual or imputed political opinion, being suspected of LTTE connections, or as a sympathiser, taken from his father’s abduction by the LTTE. The Applicant’s now claim that he was a “young, Sri Lankan, Tamil fisherman” was not a claim made by the Applicant before the Tribunal and was not squarely or sufficiently raised by the material before the Tribunal.[1]
[1] SZSGA v The Minister (2013) FCA 774, 44, 51-52 (Robertson J).
The Tribunal considered all of the claims, and integers of the claims made by the Applicant, and made findings on the evidence that were open to it. The Tribunal engaged in a careful and thorough consideration of the Applicant’s claims, considered relevant country information, the choice of, and weight to be given to it, a matter for the Tribunal, and applied correctly, the relevant legislation. Contrary to the Applicant’s assertion, the Tribunal’s assessment of the “boating incident” was supported by the evidence. The Tribunal’s reasons set out that the Tribunal did not accept the Applicant’s claim, on the basis of his own inconsistent evidence. The Tribunal formed the view the Applicant was not being truthful in telling the account of this incident. The Tribunal, in not accepting that it was a staged accident, had regard to the low level of interest the authorities had in the Applicant’s father, based on holding him for one day and then releasing him, especially at a time near the end of the civil war.
The Tribunal did not accept that the Applicant’s young age explained the inconsistencies in his evidence. The Tribunal formed the view the Applicant was embellishing the incident of a boating accident in order to strengthen his claims for protection. The Tribunal’s findings were clearly open to it.
The Applicant’s complaints that the Tribunal failed to comply with s.414 of the Act and failed to afford to the Applicant procedural fairness, are complaints without foundation. It is obvious the Tribunal complied with its obligations under Part 7 Division 4 of the Act, including the obligations imposed by ss.414, 424A and 425 of the Act. The Applicant was clearly on notice that his credibility was an issue for the Tribunal, it being the determinative issue in the delegate’s decision.
The Tribunal’s determination arose from the Applicant’s evidence, the Tribunal’s concerns about the Applicant’s credibility, the Tribunal’s assessment of country information, both provided to it and read by it, and there was no “information” that was required to be put to the Applicant in accordance with s.424A of the Act. The Tribunal allowed time and extensions of time for the Applicant’s registered migration agent to put submissions, prior to the Tribunal hearing, and to provide submissions following that hearing. All of the material provided by the Applicant was clearly considered by the Tribunal, as set out in the Decision Record, including each of the Applicant’s claims to fear harm. There is no failure in the Tribunal’s approach and none was particularised by the Applicant, nor referred to in oral submissions that the Applicant had an opportunity to make this day.
The application is dismissed and costs shall follow that event.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 19 May 2017
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