AZF15 v Minister for Immigration
[2015] FCCA 2922
•29 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZF15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2922 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476 |
| Applicant: | AZF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1563 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 29 October 2015 |
| Date of Last Submission: | 29 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr T Galvin Minter Ellison |
ORDERS
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1563 of 2015
| AZF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction on s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal dated 19 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Sri Lanka, and accordingly, Sri Lanka was treated as the applicant’s country of nationality for the assessment of his protection claims and as the receiving country in relation to the issue of complementary protection.
The applicant was sent a letter dated 28 January 2015 inviting the applicant to appear before the Tribunal on 10 March 2015. The applicant appeared on that date to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent.
Prior to attending at hearing the applicant’s representative provided submissions to the Tribunal which were received under cover of an email dated 30 April 2014 and referred to in footnote 31 of the Tribunal’s reasons. In those submissions, at Court book 289, it records:
(c) Our client fears that if he is returned to Sri Lanka he will suffer official persecution by the Sri Lankan army, police and authorities. Our client fears arbitrary detention, imprisonment, torture and other forms of significant physical mistreatment or being killed on account of:
(i) his race as a Tamil;
(ii) his imputed political opinion of being opposed to the Sri Lankan government and being a supporter or member of the LTTE as a result of his:
being a Tamil male;
having previously come to the adverse attention of the army and authorities;
and
illegal departure from Sri Lanka and act of seeking asylum in Australia;
(iii) his membership of a particular social group, namely:
young Tamil males.
The submissions also identified the applicant feared private serious harm, including physical attack and other retribution from [X], his previous Sinhalese work supervisor and his associates, against which he will be discriminatorily denied State protection because of the matters raised above.
In the statutory declaration in support of the applicant’s application for protection, relevantly in answer to the question, “What I fear may happen to me if I return to that country and why?” the applicant said:
27. I believe I am at risk of being harmed by the authorities if I am returned as I am a Tamil who has fled Sri Lanka illegally and claimed asylum in Australia. I fear the CID would arrest me, press false charges and send me to prison.
That statutory declaration was referred to in footnote 2 of the Tribunal’s reasons as well as in the body of the Tribunal’s reasons, relevantly in para.16, and there is also reference to a written statement by the applicant made in April 2014, referred to in footnote 2 to the Tribunal’s reasons. That written statement relevantly provided (CB316-317):
I am afraid to return to Sri Lanka given all of the problems I have experienced as a young Tamil male. My life is in danger. I am afraid that I will be abducted, imprisoned, physically harmed, tortured and/or killed by the Sri Lankan authorities and Army. I am also afraid of being physically harmed and killed by [X].
If I go back to Sri Lanka, [X] will make sure that I am harmed. I also fear that the Sri Lankan authorities will harm me. I have already been suspected of being associated with the LTTE in August 2011. The fact that I left Sri Lanka illegally and would be returning as a failed asylum seeker would increase the likelihood that I will be suspected of this again and be harmed. I am afraid that" they· will link these events on my return end that when they check with the local police in my area, they will tell them that I had fled Sri Lanka under suspicious circumstances. I am afraid that I will come under suspicion by the police and Army because I am e young able-bodied Tamil male. The authorities harm young Tamil males Uke me because they are keen on making sure that the LTIE does not· resurface again and think If they destroy young Tamils now, there is no future for the LTTE.
The Sri Lank.an authorities will not protect me from the harm t fear from [X] As stated above, [X] has many contacts in the police and making a complaint about [X], who is Sinhalese and well connected, with only cause mora problems for me and lead me to harm.
On 16 July 2015 a Registrar of the Court made orders providing for the applicant to be given an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application which raises the following ground:
1. The Tribunal made a legal error in failing to consider a claim squarely raised.
·Particulars
a. On page 46 at paragraph 27 of my statutory declaration I stated that:
"I believe I am at risk of being harmed by the authorities if I am returned as I am a Tam;/ who has fled Sri Lanka illegally and claimed asylum in Australia. I fear the CID would arrest me, press false charges and send me to prison";
b. On page 307 my agent made the following submission:
"It is submitted that the processing our client would undergo on return as a non-voluntary returnee gives rise to a number of risk factors that may lead to disclosure by the authorities in his local area that they have been previously interested in him, especially after his illegal departure from Sri Lanka and failed asylum seeker claim in Australia";
“… even after being released from the airport, failed asylum seekers have been targeted after returning to their home area and been subjected to arbitra1y detention and torture by the police, CID and/or the military; and
c. The Tribunal erred in failing to consider this claim.
I accept the first respondent’s submission that it is clear that the Tribunal addressed the integers of the applicant’s claimed fears in relation to being a Tamil and having fled Sri Lanka illegally and being a failed asylum seeker, which appears to be the content of the claims raised in the particulars. I accept the first respondent’s submission that the reference to a fear the CID would arrest the applicant and press false charges and send him to prison was a derivative consequence in relation to his fears referable to being a Tamil, failed asylum seeker and illegal departee from the authorities.
It is clear that the Tribunal’s reference to the authorities relevantly included the CID, which was expressly referred to after reference to law enforcement agencies in para.33 of the Tribunal’s reasons. I accept the first respondent’s submission that the proposition that the applicant feared the CID would arrest him and press false charges and send him to prison was not a separate claim but rather the consequence of the claims deriving from his position as a Tamil, failed asylum seeker and illegal departee. I accept the first respondent’s submission that is consistent with the way in which the claims were presented to the Tribunal as identified in the submissions to which I have referred.
Further, it is clear that the substance of the proposition of the CID arresting the applicant and pressing false charges and sending him to prison was squarely within the adverse findings made by the Tribunal concerning the authorities engaging in arbitrary arrest, detention and torture or acting with impunity dealt with in paras.48 and 49 as follows:
48. To support all of these claims, the representative produced country information containing allegations that Tamils who returned to Sri Lanka after periods of time abroad, including after seeking asylum, were harmed by the authorities either on arrival in the country or at some point after that.36 It was submitted that this harm could be committed by paramilitary groups who would target a returnee for the purpose of extortion or information. It was also submitted that arbitrary arrest, detention and torture take place in Sri Lanka and that the authorities act with impunity so one could not predict the behaviour of an officer of the authorities at a particular location and time when screening and monitoring the population and with respect to the view they took of the applicant or the information held about him at a particular time. It was submitted that, therefore, after leaving the airport the applicant was still at risk.
49. The Tribunal rejects all of these submissions and finds them highly speculative and mere conjecture. The reports produced about returnees suffering harm in Sri Lanka, where they provide some background about the person concerned, indicate that they are people who had actual involvement with the LTTE or people who came within the risk profiles framed by UNHCR. In all other cases insufficient information is given about the particular individual for the Tribunal to be able to find that the reason that person was harmed was because of a failed asylum application in another country; an illegal departure and Tamil ethnicity. The Tribunal remains of the view as presented in country information discussed above that there are no substantiated allegations of Tamils being harmed on return to Sri Lanka because of their ethnicity, failed asylum application in another country and their illegal departure (and that includes harm from paramilitary groups). The risk of the applicant suffering serious harm on those grounds is remote.
It was in these circumstances that the Tribunal relevantly found:
62. For all of the reasons given above, the Tribunal finds that there is not a real chance the applicant will suffer serious harm (including for the essential and significant reason of a convention ground) if he returns to Sri Lanka. He does not hold a well founded fear of persecution based on any convention ground.
…
64. Based on country information set out earlier in this decision, the Tribunal finds that the risk of the applicant suffering significant harm in Sri Lanka because he is a Tamil from [Y] who left the country illegally and will return there as a failed asylum seeker, whether those factors are considered singularly or cumulatively, is remote. The Tribunal reaches that finding for the same reasons it finds that the risk of him suffering serious harm on those grounds is remote.
65. The Tribunal infers from this country information that being a Tamil from [Y] does not put the applicant into one of the profiles or categories of people set out above in country information for whom there is a heightened risk of suffering human rights abuses. While those categories are not exhaustive, the Tribunal does not accept, based on the country information set out above in this decision, that there is a real risk this applicant will suffer significant harm just because he is Tamil from [Y]. The country information does not support such an assertion and the risk of him suffering significant harm on those grounds is remote.
66. Further, based on the country information set out above, the risk of the applicant suffering significant harm in the process of returning to Sri Lanka and being prosecuted for his illegal departure is also remote. Although returnees will be held in custody on arrival for checks to be made they are not subject to mistreatment. Returnees are brought before a magistrate at the earliest opportunity and are only held in prison should they arrive in Sri Lanka on a day when a magistrate is not available. Any period of time spent in prison will be brief and due to the non-discriminatory enforcement of Sri Lanka’s laws regulating the manner in which people can depart from that country.
67. Accordingly, although prison conditions in Sri Lanka are poor, conditions themselves caused by inadequate resources, having to spend time in such conditions (which the Tribunal infers will be brief if it even occurs) does not amount to significant harm as that term is defined in the Act (that is harm that is intentionally inflicted; the arbitrary deprivation of life or the death penalty).38 Further, the (comparatively few) allegations made about returnees being harmed after arriving in Sri Lanka have not been substantiated. Accordingly, the Tribunal infers that, for leaving Sri Lanka illegally and returning there as a failed asylum seeker from Australia, the risk of a Tamil returnee suffering significant harm in the process of re-entering the country and being brought before a court is remote.
68. Country information indicates that returnees receive a fine for their illegal departure and the risk of them receiving a custodial sentence in which they could be held in poor conditions is remote (unless they are people smugglers). The Tribunal does not accept that the imposition of a fine in the amounts described in country information amounts to significant harm. The applicant did not claim that he was unable to pay the fine. Accordingly, for all of these reasons, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to the receiving country, Sri Lanka, there is a real risk that he will suffer significant harm.
It was in those circumstances the Tribunal found the applicant was not a person in respect of whom Australia had a protection obligation, and concluded that the criteria under ss.36(2)(a) and 36(2)(aa) had not been made out.
For the reasons given, it is clear that the Tribunal properly considered the claims raised by the applicant and that this is not a case where there has been a failure to consider an integer of the applicant’s claims of fear of persecution or fear of significant harm. Accordingly, ground 1 fails to make out any jurisdictional error.
From the bar table, the applicant took issue with the adverse findings of credit, specifically in relation to the information that he provided to his mother, and maintained that he would have problems if he was returned to Sri Lanka and sought to proffer explanation as to the reasons for the inconsistencies in the detail that he provided on different occasions. The applicant maintained that he would be subject to arbitrary arrest. Nothing was said by the applicant to identify any jurisdictional error in the conduct of the review by the Tribunal. The amended application is dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 2 November 2015
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