AYM15 v Minister for Immigration

[2015] FCCA 2869

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYM15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2869

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – show cause hearing – whether the applicant had a sufficiently arguable case – procedural fairness – no arguable jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

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

Applicant: AYM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1534 of 2015

Judgment of: Judge Street

Hearing date: 23 October 2015

Date of Last Submission: 23 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms N. Maddocks
DLA Piper

ORDERS

1. The amended application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1534 of 2015

AYM15

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 25 May 2015 affirming a decision of the delegate not to grant the application a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant claimed to fear harm in Sri Lanka as being a young Tamil male from a former LTTE-controlled area, being a Hindu and being a failed asylum seeker.  The applicant claimed to fear harm by the Sri Lankan security authorities as a perceived supporter of the LTTE or Tamil nationalist.  The applicant claimed that family members had been killed and that he had a strong opinion against the Sri Lankan government and that he was interested in seeking justice against the government and the Sri Lankan security forces.  The applicant claimed he had had problems with the CID from 2009 onwards, including various interrogations after he arrived at a particular army camp.  The applicant claimed he supported the Tamil National Alliance and its member for parliament. 

3. On 16 July 2015, orders were made by the Registrar of the Court fixing this matter for a show cause hearing under r.44.12. Orders were made providing for the applicant to have an opportunity to file an amended application, affidavit evidence and submissions. The applicant has filed an amended application raising the following grounds:

   I had a legitimate expectation that the RRT would contact me for a second hearing and/or that the RRT would invite me for comments if they found any negative information in respect of my RRT review after the hearing.

   The RRT did not give me an opportunity after the hearing, before this decision was taken, to respond to negative information by way of a further hearing or respond to me in writing of their intention to use this information to refuse my application. The RRT decision indicates that there are major issues which RRT did not consider.

   Particulars:

   I intended to provide the enclosed materials before the RRT made my decision. The RRT did not give me that opportunity. If the RRT sent me a letter stating that as stated on page 7 of 16 at paragraph 16 of my RRT decision l would have given the RRT new evidence as to why I was credible. Therefore the RRT breached procedural fairness to me as required in the Migration Act.

   From the paragraphs from 17 to 31 on the pages from 7 to I 0 or 14 in the RRT decision were not put me sufficiently for my comments during the hearing or after the hearing, by a second hearing or inviting me in writing, before this decision was made. Therefore the RRT breached the procedural fairness to me as required in the Migration Act. The RRT failed to exercise its power given to that in my RRT review.

4. The Tribunal found that the applicant was not a truthful and credible witness in regard to his experience in Sri Lanka and also in relation to the reasons he feared persecution. 

5. The applicant arrived in Australia on 9 August 2012 as an unauthorised maritime arrival and applied for a protection visa on 24 December 2012, which application was refused by the delegate on 9 January 2014.  On 23 January, the applicant applied for review.  On 29 January, the Tribunal acknowledge receipt of the application for review which expressly referred in the attached letter to:

   If you wish to provide material or written submissions for the Tribunal to consider, you should do so as soon as possible.

6. An email address was provided for the provision of those submissions.  On 5 November 2014, Parish Patience Immigration Lawyers lodged a change of contact details confirming that they were not acting for the applicant.  On 25 March 2015, consistent with the statutory regime, the applicant was invited to appear before the Tribunal. 

7. A further letter to the applicant dated 25 March 2015 also noted the applicant should provide a written submission setting out all claims made and maintained by 6 May 2015 and that the submission should be accompanied by a signed declaration of the applicant that the submission has been read and explained, and the letter also referred to the ability of the applicant to bring an original document to the hearing and that the applicant should bring a copy and provide an address for documents or written arguments to be sent to the Tribunal.

8. A response to the invitation for hearing was completed on 10 April 2015 and submissions were provided to the Tribunal by the legal representatives for the applicant on 7 May 2015 as referred to in para.12 of the Tribunal’s reasons.  The applicant appeared before the Tribunal on 13 May 2015 to give evidence and present arguments and was assisted by an interpreter and was represented by his registered migration agent at the hearing. 

9. Subsequent to the hearing, further submissions were provided by the legal representative of the applicant to the Tribunal on 20 and 21 May as referred to in para.14 of the Tribunal’s reasons.  Relevantly, the Tribunal found:

   25. In view of the multiple concerns addressed above, the Tribunal is not satisfied that the applicant has been truthful about his experiences in Sri Lanka and the reasons he fears returning to that country; or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant was ever actively involved with or supported the TNA or a TNA MP, including in any election campaigns in 2010 or 2011; or that he was targeted by the CID for this reason or because he happened to be passing a TNA meeting in [X] on his way home; or that he was taken or summoned to the CID office for questioning or asked to return there at a later time; nor that this prompted him to leave Sri Lanka, as claimed. The Tribunal is not satisfied that the applicant has the profile of a perceived or actual TNA supporter or a suspected LTTE supporter; nor that his father and brother were actively involved in Tamil politics or that his brother was killed by the EPLFP or EPDP for refusing to join them or as an LTTE supporter. Neither does the Tribunal accept that the applicant ever attended [X] College or came into contact with the LTTE sports wing leader who may identify him at the airport as an LTTE supporter.

   26. As the Tribunal does not accept that the applicant was of interest to Sri Lankan security authorities before he left Sri Lanka, it is not satisfied that if he returns to Sri Lanka, he will be identified, detained, interrogated, tortured or killed by the Sri Lankan authorities, CID, Army or EPDP because of his involvement with the TNA or as a suspected LTTE supporter. In the Tribunal’s view, the applicant fabricated his account of his experiences in Sri Lanka in order to achieve a migration outcome.

   …

   32. In light of the above, the Tribunal is not satisfied that the applicant has a profile that would put him at risk of harm in Sri Lanka today.

   33. While the applicant asserted that he fears harm because of his Hindu religion, he did not elaborate on this claim. On the basis of independent country information, including as set out in the delegate’s decision, there is no evidence to suggest that the Sri Lanka authorities persecute Hindus for reason of their religion; and any societal discrimination based on such a religious affiliation does not amount to persecution.

   …

   35. These processes involve police and security clearances, including checks with the person's local police station, and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or the person is of security interest or on an immigration watch-list, they may be subject to further questioning. Returnees who are believed to have left the country in breach of immigration laws are arrested at the airport and brought before a court to apply for bail and usually subjected to a fine. The Tribunal has found that the applicant did not have a profile as an LTTE supporter or any other adverse political or criminal profile before he departed Sri Lanka. By his own evidence, the applicant did not leave Sri Lanka illegally, so will not be subject to charges under the Immigration and Emigration Act. In the Tribunal’s view, and as noted in the delegate’s decision, the act of entering Australia by unlawful means and without a passport has no bearing on Sri Lanka’s immigration laws or how he would be perceived or questioned on his return to Sri Lanka.

   36. The Tribunal has had regard to submissions from the applicant’s representative regarding the arrest and ill treatment of Tamil returnees. As discussed in the delegate’s decision, available country information supports a conclusion that Tamil returnees who have links, real or perceived, with the LTTE may be at risk of harm. However, as the Tribunal has found above that the applicant does not have a political profile of interest to the authorities for imputed LTTE links, as a risk to the unitary Sri Lankan state or government or any other reason, it is not satisfied that there is a real chance that the applicant will be subjected to serious harm on his arrival in Sri Lanka.

   …

   38. The Tribunal has found above that it is not satisfied the applicant would suffer harm for reasons of his race or ethnicity, actual or imputed political opinion or being a failed asylum seeker. The Tribunal is also not satisfied for the purposes of the Complementary Protection provisions that the applicant will be considered to have any adverse political profile such that there is a real risk he will suffer significant harm upon his return to Sri Lanka or that there is a real risk that he will suffer significant harm on the basis that he is a Tamil male from the north or a failed asylum seeker. As the applicant did not depart Sri Lanka illegally, the Tribunal does not accept he will be at risk of being charged, detained or imprisoned for breaching the immigration law of Sri Lanka, as claimed.

   39. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act.

   40. Having considered these circumstances, singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm.

10. It was in those circumstances that the Tribunal found the applicant was not a person in respect of whom Australia had protection obligations and that the applicant failed to meet the criteria under s.36(2)(a) or s.36(2)(aa). I accept that the first respondent’s submission that it is clear that the applicant had a genuine hearing and an opportunity to present evidence and argument and was invited to provide information prior to the hearing and, in fact, provided information through his legal representatives after the hearing.

11. There is no substance in the assertion that the applicant had the legitimate expectation that he would be contacted for a second hearing, and it is clear from paras.21, 28 and 30 of the Tribunal’s reasons that the Tribunal raised live issues with the applicant.  It was not necessary for the Tribunal to invite the applicant to a further hearing in relation to adverse findings on credit, and it is clear the applicant had an opportunity to give evidence and raise arguments in relation to his claims and fear of persecution or fear of significant harm. 

12. Nothing raised in the grounds of the application identifies any basis upon which there is an arguable case of breach of s.424A, and the Tribunal did not have an obligation to give the applicant notification of intention to refuse his application. There is no substance in the contention that there were major issues the RRT did not consider, and it is clear from the Tribunal’s reasons that the Tribunal addressed the claims articulated by the applicant.

13. The proposition that the applicant might have been able to provide further evidence as to why he was credible is not a matter that identifies any arguable jurisdictional error.  There is no substance in the contention that the Tribunal breached the procedural fairness, nor is it the case that the Tribunal was required to give the applicant notice of its reasoning process in relation to the applicant’s credit, and the adverse findings by the Tribunal in paras.17 to 31 were clearly open on the material before the Tribunal, as were the other adverse findings made by the Tribunal. 

14. Nothing in the grounds of the amended application identifies any arguable jurisdictional error.  The applicant from the bar table in substance repeated the substance of the grounds raised by the amended application and that if he had been informed by the Tribunal of its proposed adverse findings, he would have provided further letters or could have had called further people.  The applicant indicated that he did not know what to say and that he had been suffering from fever and was trembling before the Tribunal and could not say certain things and could not remember certain things. 

15. It is relevant that the applicant was represented by a legal representative at the hearing. Nothing said by the applicant from the bar table disclosed any arguable jurisdictional error. The amended application fails to disclose any arguable case of jurisdictional error. I am satisfied that this is an appropriate case to exercise the Court’s powers under r.44.12(1)(a). The amended application is dismissed under r.44.12(1)(a).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  27 October 2015