AYY15 v Minister for Immgiration
[2016] FCCA 2911
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYY15 v MINISTER FOR IMMGIRATION & ANOR | [2016] FCCA 2911 |
| Catchwords: MIGRATION – Alleged failure of the Tribunal to consider claims cumulatively – merits review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) |
| Cases cited: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 |
| Applicant: | AYY15 |
| First Respondent: | MINISTER FOR IMMGIRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1296 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 18 October 2016 |
| Date of Last Submission: | 18 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| Applicant in Person |
| Counsel for the Respondents: | Mr Leerdam |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application filed 9 June 2016 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1296 of 2015
| AYY15 |
Applicant
And
| MINISTER FOR IMMGIRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 9 June 2016, the applicant challenged a decision of the Refugee Review Tribunal (as it was then)
(“the Tribunal”) dated 14 May 2015 that the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under ss.36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
Background
The applicant is a citizen of Sri Lanka and Tamil and he claimed to fear harm as a result of his race; perceived links to LTTE; membership of a particular social group; being a failed asylum seeker and having left
Sri Lanka illegally.
On 10 December 2013, a delegate of the first respondent made a decision not to grant the applicant a protection (class XA) visa. On
27 December 2013 the applicant lodged an application with the Tribunal to review the delegate’s decision. The applicant’s agent provided written submissions to the Tribunal dated 23 March 2014 which set out the applicant’s claims and provided comments on the finding of the delegate.
The applicant appeared before the Tribunal on 13 May 2015 to give evidence and present arguments. The Tribunal made its decision on
14 May 2015.
The decision of the Tribunal
A significant feature of this case is that the Tribunal accepted that:
a)the applicant’s father was shot by the Navy on his way to work on a fishing boat in 2001;
b)
in around 2005 the LTTE began a campaign of conscripting
able-bodied Tamil males to be soldiers and as the eldest in the family he feared that he would be conscripted;
c)in mid-2005 the applicant moved to Qatar and worked as a Barber;
d)in around 2009 the LTTE arrived at the applicant’s family residence and forcibly recruited his sister;
e)in about March 2009 the applicant’s brother was forced to assist the LTTE to help relocate equipment and supplies;
f)in April 2009, the applicant’s sister was admitted to hospital after she was shot during the fighting;
g)following the war the remaining members of the applicant’s family were relocated to an IDP camp in Sri Lanka;
h)in around November 2011 the CID arrived at the applicant’s residence and asked him questions about his family and his time in Qatar;
i)he was forced to sign documents in Sinhalese that he did not understand;
j)the members of the CID would return and question him about his movements and provide records of people he interacted with.
The Tribunal at [38] then considered whether the applicant would now be of adverse interest to the authorities and face serious harm or significant harm due to perceived links of his family with the LTTE. The Tribunal concluded that the chance that he is of adverse interest, or will be, is remote. The Tribunal set out at [9], and in reasonably detailed dot points, the reasons why it concluded that he would not face a significant risk of harm or be of ongoing adverse interest.
The Tribunal gave reasons for making this finding, which are helpfully summarised in the outline of submissions filed on behalf of the first respondent (which accurately reflect the findings of the Tribunal) as follows:
11.1 The applicant was never detained or harmed by the Sri Lankan authorities and they had ample opportunity to detain him from November 2011 to his departure in mid-2012 if they seriously suspected him of being involved with the LTTE.
11.2 The applicant lived abroad from 2005-2010 which would have been apparent to the authorities, and he was never actually involved in the LTTE.
11.3 The war ended in 2009 and while his siblings were forced to join the LTTE, neither of his siblings had a long or high profile involvement in the LTTE, and it had occurred a significant time ago.
11.4 The applicant did not indicate that anything had happened since he left Sri Lanka in 2012 that would make him concerned about his safety.
11.5 While the RRT accepted that the applicant was forced to sign documents in Sinhalese that he did not understand, it was speculative that this would mean that he was still of adverse interest given the unknown nature and content of the documents and given the applicant had never been detained when the authorities had the opportunity to detain him.
11.6 The RRT also took into account that the applicant was told not to leave the area without reporting and that he did so, but the RRT found that this factor did not outweigh all the other considerations that strongly indicated he would not be of continuing adverse interest.
The Tribunal accepted that if the applicant was returned to Sri Lanka he would be questioned by authorities, but did not accept that this would constitute serious or significant harm [49]. It accepted that the applicant left Sri Lanka illegally and would be subject to the
Sri Lankan Immigrants and Emigrants Act of 1948 (“I&E Act”), however it found that the law had general application, therefore its enforcement did not constitute discriminatory conduct [50]. The Tribunal found that as a result of the applicant’s illegal departure, he would face short-term detainment prior to him applying for obtaining bail defined as a result of been charged under the I&E Act. The Tribunal found that short-term detention, questioning, or an imposition of a fine, did not amount to significant harm [55].
Grounds of Application
The applicant has filed four grounds in support of his application which are as follows:
1.The Tribunal found the applicant is a credible witness, but fell into jurisdictional error when it found that he would not be of continuing adverse interest to the authorities despite being left area (sic) without reporting to them as instructed. Such finding was not supported by evidence. Please refer to page 10 last dot point of the RRT decision record. (CB 253)
2.The Tribunal did not assess the applicant’s integer claim of facing persecution at the hands of the authorities for leaving the area without reporting to them.
3.The Tribunal accepted the applicant was forced to sign documents in Singhalese but trivialised the consequences and by doing so not assessed this piece of information and fell into jurisdictional error.
4.The Tribunal has not assessed another integer claim and in particular his father and siblings association with LTTE and its impact on him.
5.The Tribunal has not assessed the applicant’s claimed cumulatively and thereby fell into jurisdictional error.
Consideration
Ground 1
Ground one is in the nature of merits review and is therefore impermissible.[1] The applicant refers in the particulars to the ground in the final dot point of [38] of the Tribunal’s decision, where the Tribunal states:
I have taken into account that the applicant was told not to leave the area without reporting and that he did so but I do not consider this factor outweighs all the other considerations that strongly indicate he would not be of continuing adverse interest.
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
That final dot point must be considered in the context of the conclusions preceding it and the Tribunal was entitled to give such weight to the evidence led by the applicant as considered appropriate in all the circumstances.[2] The Tribunal set out in detail the evidence, its thought process in reaching a decision and its decision. In my view, no jurisdictional error is identified by the applicant or apparent from the decision of the Tribunal.
[2] Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
Ground 2
The decision of the Tribunal indicates that the Tribunal considered this claim at [25], accepted at [37] and [38], and considered whether given the history of the applicant he would be of adverse interest to the authorities now or in the reasonably foreseeable future due to his perceived links with the LTTE. In the course of considering the applicant’s claims, at [38] the Tribunal took into account that the applicant was told not to leave the area without reporting, but took into account all the other considerations which it referred to, and concluded that it did not consider this factor to outweigh all the other considerations that strongly indicate that he would not be of continuing adverse interest.
The Tribunal considered the applicant’s claims and made a factual finding that he would not be of continuing interest. In relation to this ground no jurisdictional error is revealed.
Ground 3
In relation to ground three, the Tribunal considered these claims at [38]. The applicant’s grounds of application are merits review and as such are impermissible.
Ground 4
The Tribunal considered the applicant’s siblings’ involvement with the LTTE [23] and accepted the applicant’s claims regarding his siblings’ involvement [35]. The Tribunal concluded at [38] that given the circumstances, including the length of time since his siblings’ involvement and the lack of interest in his family by the authorities since that time, his family’s involvement would not mean that he was of adverse interest to the authorities. This finding was open to the Tribunal and no jurisdictional error is apparent.
Ground 5
This ground asserts that the Tribunal did not assess the applicant’s claims cumulatively and therefore fell into a jurisdictional error.
This ground is not supported by the specific reference to the cumulative assessment undertaken by the Tribunal at [58] – [59] of the decision. It is apparent from those paragraphs of the reasons that the Tribunal did consider the applicant’s claims cumulatively against both the refugee and complimentary protection criteria.
Conclusion
In these circumstances, the applicant’s application should be dismissed and the applicant should pay the first respondents costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 17 November 2016
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