AZADT v Minister for Immigration

[2013] FCCA 2404

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZADT & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2404

Catchwords:
MIGRATION – Protection visa – whether Refugee Review Tribunal fell in to jurisdictional error in affirming decision of delegate of Minister not to grant the applicant’s protection visa – review not allowed.

Legislation:  

Migration Act 1958
Rules of Court 2011

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

Craig v The State of South Australia [1995] HCA 58

First Applicant: AZADT

Second Applicant: AZADU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 196 of 2013

Judgment of: Judge Lindsay

Hearing date: 23 December 2013

Date of Last Submission: 23 December 2013

Delivered at: Adelaide

Delivered on: 23 December 2013

REPRESENTATION

Counsel for the First Applicant: In person

Solicitors for the First Applicant: Not Applicable

Counsel for the First Respondent: Ms Matthews

Solicitors for the First Respondent: Sparke Helmore Lawyers

Counsel for the Second Respondent: No Appearance

Solicitors for the Second Respondent: No Appearance

ORDERS

1. The Application for Review filed 5 July 2013 be dismissed pursuant to Rule 44.12(1)(a) of the Rules of Court.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 196 of 2013

AZADT

First Applicant

AZADU

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before me on 9 December was an application by the applicants for review of a decision of the Refugee Review Tribunal, which decision was made on 12 June 2013.  There was an application for adjournment promoted which I refused.  I then reopened the matter though.  I set aside my refusal of the adjournment order to just hear argument in relation to one matter which I did not think I had given adequate consideration to.  I heard some submissions about that but then I confirmed my refusal of the adjournment for reasons I gave and reasons that will be published at the time that this decision itself is published.  And so that left the substantive application for review.

2. The review was contained in a document filed on 5 July 2013 which simply said under the grounds of application that the matter should be remitted with a direction that the first and second applicant satisfy s.36(2)(a) and (aa) of the Migration Act 1958 (“the Act”).  So there is not much identified there.  The amended application which was going to be promoted, we were told, by the legal practitioner who was consulted and who sought an adjournment but only upon the basis that the adjournment was until March.  The Court could have accommodated shorter adjournments. 

3. That document says under grounds that the Tribunal member failed to adequately consider relevant country information in the legal references provided by the applicant in her submissions “on her behalf” for the assessment of her eligibility under the Complementary Protection Provisions in arriving at the adverse decision.  So I will proceed upon the basis even though that is not formally before me, that the application includes a second supplementary ground in those terms in addition to the little that is provided by way of particulars in the original document. 

4. The application for review is made under s.476 of the Act. Under that section this Court has the same jurisdiction as the High Court in relation to review but only in relation to migration decisions and migration decisions are defined with some precision under the Act and for all purposes relevant to today’s application mean privative clause decisions or purported privative clause decisions under section 474 of the Act. The decision of the Tribunal is such a decision. What follows from that though as the High Court discussed in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 is that the decision of the Tribunal will only be successfully reviewed if it can be shown to have been vitiated by jurisdictional error.

5. Jurisdictional error is a concept best explained in High Court cases such as Craig v The State of South Australia [1995] HCA 58. So the review will only lie if I am satisfied that the decision of the Tribunal has been made in excess of or for want of jurisdiction or, as a subset of those, if the applicants or either of them have been denied procedural fairness.

6. The applicants are from Sri Lanka.  That is their country of nationality against which the applications were assessed.  The second applicant, the husband if I may refer to him that way, left Sri Lanka and travelled to India many years ago, from recollection some 20 years prior to the application.  The first applicant though left relatively recently in 2012.

7. As to the circumstances of her leaving Sri Lanka and travelling to India, her account of that changed radically between the time of the making of the application and the attendance before the delegate of the Minister.  She said in her application that she travelled illegally by boat with no passport or permission to travel from Sri Lanka to India but shortly prior to her interview with the delegate she admitted that she had provided false information in her visa application and in her entry interview and that in fact she had obtained a genuine Sri Lankan passport and a three month tourist visit to enable her to travel legally to India when she departed Sri Lanka in April 2012, and in fact travelled by plane from Colombo to Chennai and did not travel by boat with the assistance of people smugglers as initially claimed.

8. She said she had provided that false information because she had received advice from other detainees on Christmas Island not to disclose to that she held a genuine passport and because she was afraid of being sent back to Sri Lanka. 

9. Both applicants arrived on Christmas Island on 28 June 2012.  They both are ethnic Tamils.  Both are of the Hindu religion and both come from similar districts in Sri Lanka.  The applicants married in India in May 2012 after the applicant travelled from Sri Lanka to India.  The first applicant’s mother travelled from Sri Lanka to India to be at the wedding. 

10. The claims in the protection visa application of the first applicant focused upon the behaviour of someone known as the grease man who was a person who terrorised, it’s fair to say, women in the Kilinochchi district from where the applicant was residing.  She claims that in late 2011 the grease man came to her home.  She heard a noise and started to scream.  Her neighbours came to her assistance.  The Tribunal was ultimately satisfied of the truth, incidentally, that there was a problem in this area with persons described as the grease men.  They were persons associated with the military but persons who burgled and covered themselves in grease, essentially to make their apprehension more difficult. 

11. And the Tribunal was satisfied upon the basis of an assessment of the country information that there had been such a problem in the region of Sri Lanka from which the applicant comes and I will come to that again in a moment.  But that was the focus of her application.  She also indicated in her application, her initial application, that in March of 2012 the CID had visited her house in Sri Lanka on consecutive days and had asked that she attend a local camp for questioning.  She did, she was questioned about her background and whether she was affiliated with the Tamil Tigers. 

12. And she said that it was after this incident, this interrogation, that she became afraid and made arrangements to flee Sri Lanka and to travel alone to Chennai and I have already indicated the false account she gave in her application in relation to how she travelled from Sri Lanka to India.  By the time the matter reached the Tribunal the applicant’s claims had expanded – the applicant’s claims to be entitled to protection had expanded.  She referred to the experience of her sister Savannah in 2006.  She said that Savannah had been recruited by the Tamil Tigers, that she had been with them for a few weeks before she managed to escape. 

13. Having escaped, her family – the first applicant’s family – hid her at the applicant’s sister in law’s house and the Tamil Tigers came to their home and asked after her, but she was hidden successfully by the family until the family was displaced due to the civil war.  They returned to the Kilinochchi area in June 2010.  She said there was questioning that went on of her family after their return to that area.  In particular, in late 2011 there was questioning from the CID about the whereabouts of her and her siblings and whether any other members of the family had been involved with the Tamil Tigers.  Two months later the CID returned to the house.  There was further questioning of her. 

14. She was told to report to the Poonakari camp and then she travelled to that camp and was interrogated there for the whole day.  They were suspicious of her but she was released following the interrogation.  She also claims that in 2010 a nephew was taken by the CID on suspicion of being involved with the Tamil Tigers and he was detained for two years, or almost two years. 

15. The second applicant was about 15 years of age when the Tamil Tigers tried to recruit him.  When they attempted to do so he and his family fled to India and they have been living in refugee camps in India from about 2000.  He feared persecution for a convention reason because he says that if returned to Sri Lanka the Sri Lankan authorities are suspicious of all Tamils as possibly being supporters of the Tigers.  On account of that he will be suspected.  And he says, in addition to that, that his wife is suspected of being a supporter of the Tamil Tigers by the CID in Sri Lanka.  And coupled with that he says that – and this is more a matter that went to the complementary protections claim – that since he was 16 years of age he had not been in Sri Lanka, and that he would find it difficult to support himself and find employment if he were to return. 

16. The applicant attended the hearing convened by the Tribunal. Following the hearing, the tribunal sent a letter pursuant to section 424A of the Act, inviting their comment on information that the tribunal believed may result in their applications being refused. Essentially, what the 424A letter sought was the applicants’ response to the tribunal’s concerns about the shift in the first applicant’s claims. That is, why she did not mention, at the time of making her protection application, a range of matters she now relied upon. Certain contradictions in the accounts were presented, and the tribunal was, in particular, concerned about second applicant’s lack of knowledge about his wife’s predicament in Sri Lanka, and why she fled to India. And the applicant made her response.

17. The claim for entitlement to a protection visa essentially failed before the tribunal because of very serous credibility issues the first applicant had.  As the Tribunal says at paragraph 44, “Beyond these issues, however, the Tribunal does not believe any of the claims made by the first named applicant, or that she genuinely holds fear of any harm should she return to Sri Lanka”.  Paragraph 45 then goes on to specifically reject that the applicant has suffered harm in the past, or will suffer harm in the reasonably foreseeable future, because either the Tamil Tigers tried to recruit her or members of her family, or that the CID in Sri Lanka perceive her or members of her family to be associates or members of the Tamil Tigers, or that she will face serious harm from the grease men. 

18. Paragraph 46 of the Tribunal’s reasons summarises the matters mentioned for the first time by the applicant at the hearing before the Tribunal:  the experience of the sister in 2006, the Tamil Tigers coming to the home to look for her sister, and the hiding of the sister; the CID coming to the home every week for three months inquiring if she were an associate of the Tigers; the CID having written a list of her family and that her name was marked in red, and her nephew had been suspected of being a member.  And, of course, in paragraph 47 the tribunal notes the obvious concern about the change in the account of how she departed Sri Lanka for India.  The tribunal rejects, at paragraph 48, the first applicant’s explanation that she forgot to provide the details she was latterly providing, because she was pregnant, and that this caused her difficulty in recalling her claims. 

19. The Tribunal was concerned about the shift in focus from her claim, being the fear of the grease men, to the matters said to arise from her or her family’s perceived association with the Tamil Tigers.  The Tribunal also notes at paragraph 51 its concern that she had never discussed the details of her fears in Sri Lanka with her husband.  Her explanation in relation to that is because she did not think her husband would understand her predicament, that he was not well educated, that he had left Sri Lanka many years before her, and that he would not comprehend the fears that she had spoken to him about. 

20. The Tribunal summarises these concerns at paragraph 52 as follows.  The tribunal finds the new claims go beyond simply providing further details in support of her claims that had been previously raised.  Rather, parts of the applicant’s new claims directly contradicted her earlier evidence.  For example, in her interview with the department the first named applicant was specifically asked by the delegate whether any family members were conscripted by the LTTE, and the applicant responded by saying that her family hid and escaped any involvement.  The Tribunal found that the significant shift in the first applicant’s claims, together with her admission of providing a false account of her departure from Sri Lanka raised significant concerns about the credibility of her overall evidence. 

21. At paragraph 57 the Tribunal, for reasons it gives there, rejects the first applicant’s evidence about having been attacked by a grease man, or grease men, or any other intruder as claimed, and consequently came to the view that she did not face a real chance of being targeted by grease men in the reasonably foreseeable future.  The discrepancy in dates is noted.  That is that the initial claim in interview was that he came in April 2012, but then subsequently said it was late 2011.  But, perhaps more significantly, was the fact that the applicant was unable to account for why the intruder had targeted her home, and that the nature of the incident described by the applicant was such that there was an attempt to break into the home, with the intruder pushing against the door, but his having been scared away by neighbours.  And it was noted that nothing was stolen, and no one was injured; and there was inconsistency in her account before the delegate, and her account before the Tribunal as to whether she in fact saw the grease man, what he was wearing, and that he had a sword, is also noted. 

22. The claims of the second applicant are summarised at paragraphs 58 to 70.  In paragraph 63 is the most significant aspect of the discussion, the Tribunal noting that applicant 2 had left Sri Lanka 12 years ago, had no political profile, was not a member of the Tigers, and was not likely to come under the scrutiny of the Sri Lankan authorities, the applicant having agreed before the tribunal that he would not be detained by the authorities when he arrived in Sri Lanka.  His fears arise simply on account of the fact that he had left and moved to India as a young man, and, he said, the authorities’ knowledge that Tigers had trained in India.  His lack of knowledge of the first applicant’s claims are noted at paragraph 67, as his explanation as to why.  That is a matter that is further discussed at paragraph 69.

23. The country information in relation to returned asylum seekers, particular those returning from India is discussed in some detail by the tribunal at paragraph 71 to 79.  And it is fair to summarise the information which the tribunal considered as indicating that whilst there was evidence of past significant discrimination and harm inflicted on persons of Tamil ethnicity, that the position in Sri Lanka had improved significantly.  And that the country information – I am looking her particularly at paragraph 82 – indicated that there was no evidence from the UNHCR as to any risk on return to Sri Lanka for Tamils per se; that there was a program of voluntary assistance from India; and, in respect of both applicants, the Tribunal emphatically, it has to be said, rejected any suggestion that they would face risk of persecution if they were to return to Sri Lanka, because of any imputed political opinion as a supporter or member of the Tamil Tigers, whether, as claimed by the first applicant, on account of the involvement of a family member or family members, or whether, in respect of the second applicant, on account of his association with the first applicant and his having left Sri Lanka for India 12 years before. 

24. The claim for complimentary protection is considered in some detail. That is the claim pursuant to s.36(2)(aa). The significant harm referred to therein is defined in s.36(2A) and s.5(1) of the Act. Essentially, the complimentary protections provisions require a consideration of whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to (receive in country), there is a real risk that he or she will suffer significant harm. And the significant harm must be either arbitrary deprivation of their life, that the death penalty will be carried out on the person, that the person will be subjected to torture, that the person will be subjected to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. And it is those latter expressions that are defined in section 5 of the Act.

25. It will be the case in most claims, though not necessarily all, that if an applicant has not been able to satisfy the Tribunal that they have a risk of persecution for a convention reason, on account of identified aspects of their experience or identity – if they have not been able to cross that threshold, it is unlikely they will be able to cross the higher threshold in relation to the definition of significant harm required by the complimentary protection provisions, which seeks to protect persons from the significant harm that will be entailed by their return to their country of nationality, even if they have not met the definition of refugee as provided in the Refugees Convention and Refugees Protocol.  I have taken the opportunity to address the claim in some detail as it was put before the Tribunal, because as is so often the case in matters such as these where persons are self-represented, the claim for jurisdictional error is barely articulated.  And there is a claim to have overlooked – in the original application a claim to have overlooked relevant material in respect of both the protections visa – protection application and complementary protection provisions. 

26. And then there is a more specific claim as to a failure to conduct a review, (that is how I read the application) – to conduct a review and address the relevant issues raised on the material in respect of the complementary protection provisions.  There being no claim for jurisdictional error articulated and given the nature of the claims, I think it is important in those circumstances for the court to ensure that in the case of self-represented persons there is not some unarticulated problem associated with the way the Tribunal addressed its obligation to review and the way in which the tribunal approached the material before it and, in particular, whether it asked itself the right questions in respect of the application of both tests. 

1. And having scrutinised the reasons of the Tribunal with those matters in mind, I am unable to identify any way in which the Tribunal acted in the excess of or want of jurisdiction or failed to provide either applicant with the required procedural fairness.  The failure of the claims of the applicant for both forms of protection was a function of some quite strong credibility findings in relation to the first applicant and also in respect of the second applicant.  Even in the limited amount of those claims of the first applicant which survived the credibility assessment and in the second applicant’s claims simply as they were articulated, there was nothing that persuaded the Tribunal that there was any grounding of a fear of persecution for a convention reason. 

2. In their experience and looking to the future, there was no reason to believe that they were at risk of such.  I am unable to identify any way in which the Tribunal went about its obligations in respect of either claim for protection – any error, – let alone any error amounting to an error going to jurisdiction.  In those circumstances, the applications must fail. 

3. The formal order of the court is that the application for review of the applicants constituted by the application for review filed on 5 July 2013, and including the ground articulated in the proposed amended application provided at the hearing, be refused.

1. I am reminded that the adjournment which was refused was in respect of the show cause application that had been made by the Minister.  So in fact, the hearing that transpired was the hearing pursuant to rule 44.12 and that at that hearing, if the court was not satisfied that the application raised an arguable case for the relief claimed, it could dismiss the application.  Alternatively, if it was satisfied that there was an arguable case for the relief claimed, the proceeding would be adjourned and an order made requiring the respondent to show cause at a final hearing why an order for the relief claim should not be made, or I could determine the application without making an order under subparagraph (b). 

2. It will be plain from my reasons that I was not satisfied that the application raised an arguable case for the relief claimed. That was the hearing which I conducted. In the course of the consideration of that claim it was necessary for me to, as I indicated, scrutinise whether there were any unarticulated claims for jurisdictional error that had been overlooked in both the original application and the amended document. But the formal order of the court will reflect that the order is one made pursuant to Rule 44.12(1)(a) of the Act.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Lindsay

Associate: 

Date:  26 February 2014