AZR16 v Minister for Immigration

[2017] FCCA 1725

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZR16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1725

Catchwords:
MIGRATION – Administrative Appeals Tribunal – the Tribunal complied with its statutory obligations under s.424AA – the Tribunal provided the applicant with an opportunity to respond or comment to the information – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424, 424AA, 424B, 425, 426, 426A, 426B, 476

Applicant: AZR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1031 of 2016

Judgment of: Judge Street

Hearing date: 25 July 2017

Date of Last Submission: 25 July 2017

Delivered at: Sydney

Delivered on: 31 July 2017

REPRESENTATION

Counsel for the Applicant:

Mr R Chia

On a direct access basis

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1031 of 2016

AZR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 31 March 2016, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 9 June 2012. The applicant applied for protection on 23 November 2012. On 2 August 2013, the delegate refused the grant of a protection visa and found the applicant failed to meet the criteria under the Migration Act.

The Tribunal’s decision

1. The applicant applied for review on 8 August 2013. The applicant was invited to attend a hearing before the Tribunal on 9 January 2015 and attended on that date to give evidence and present arguments. The applicant was also represented at that hearing by the applicant’s migration agent. 

The hearing before the Tribunal

1. At the commencement of the hearing, the Tribunal explained the nature of the hearing and that the Tribunal was making a fresh decision based on all the information and the Tribunal was not bound by the findings made by the delegate. The Tribunal explained the considerations under the Refugees Convention and in respect of complementary protection.  The Tribunal explained that the applicant would be asked questions and that it was important that the applicant answer them truthfully.

2. The Tribunal observed that if the Tribunal had concerns, the Tribunal would raise them but that it did not mean that the Tribunal had made up its mind. The Tribunal also said during the hearing that the Tribunal would not be making a decision today and that instead the Tribunal would consider everything and would go away and do a decision in writing and send it to the agent. The Tribunal gave the applicant an opportunity to ask questions about that introduction. 

3. The Tribunal also made reference to documents produced on the day of the hearing. In the course of the hearing, the Tribunal then indicated that the Tribunal wished to put some information, pursuant to s.424AA of the Migration Act to the applicant and inquired whether the applicant, through his agent wanted a break beforehand. The Tribunal then explained that it was going to say what the relevance of the information was and then tell the applicant the consequences of the Tribunal relying on the information.

The opportunity provided to the applicant to comment or respond to information

1. The Tribunal expressly identified that it was going to ask the applicant if the applicant “would like to comment on or respond to the information and if the applicant would like further time and if so, why?” It was in those circumstances that the Tribunal raised that during the entry interview in 2012, the applicant said that he left Sri Lanka in 2006 because of the incident and the threats made by the Karuna Group. The Tribunal complied with the requirements of s.424AA of the Migration Act in respect of that information.

2. The Tribunal then continued and identified to the applicant “would you like to comment or respond to the information or would you like further time and if so, why?” The Tribunal received a response from the applicant and then continued “Right. So the next information is that in the entry interview you told the Department that your mother passed away.” The Tribunal gave clear particulars and complied with the requirements of s.424AA of the Migration Act in respect of that information. The Tribunal again asked the applicant “would you like to comment on or respond to the information or would you like further time and if so, why?” A response was provided by the applicant.

3. The Tribunal then turned to the next information being that at the entry interview, the applicant had said that “In 2000, they were conscripting young boys to the movement by force and I had to flee Trincomalee and continue to do my studies there for two years.” The Tribunal complied with the requirements of s.424AA of the Migration Act in relation to that information. The Tribunal asked in respect of that information “would you like to comment or respond to the information, or would you like further time and, if so, why?” The applicant provided a response.

4. The Tribunal then referred to the next information which is raised by ground 2 of the amended application, being the applicant’s mention of fears of extortion and the applicant’s brother-in-law’s claimed LTTE links. In this regard, the Tribunal referred to the question asked at the entry interview “‘Have you or any members of your family been associated or involved with any political group or organisations”’ and that the applicant had responded “’No.’” The Tribunal explained that this information is relevant because the Tribunal would think that if the applicant did have fears relating to extortion, and the applicant’s brother-in-law had been involved in the LTTE, then the applicant would have mentioned that and that:

   “If the Tribunal takes into account that documents can be fabricated then it may find that… you did not have any fear in relation to extortion and that your brother-in-law was not involved with the LTTE and that the document in relation to his release and arrest is a fabrication.”

   The Tribunal then said “so please let me finish and then I will give you a chance.” The applicant at that point interrupted, saying “so you are going to say that… those documents…it’s fabricated?”

5. The Tribunal then continued, identifying the Tribunal wanted to finish what it was going to say. The Tribunal identified the document in relation to the applicant’s brother being arrested and released in relation to the applicant saying that he was a member of the LTTE. The Tribunal raised that:

   “the consequences of the Tribunal relying upon the omission to mention these matters in the in your bio data interview and entry interview, i.e. the matters of extortion and your brother-in-law’s LTTE connection the Tribunal would find that you’ve made up those claims, and they’re not genuine fears and the document about your brother-in-law is also made up.”

6. The Tribunal said “would you like to comment and the Tribunal would affirm the decision under review, because it would find that there is no reason for you to fear harm.” The Tribunal then said “would you like to comment on or respond to the information, or would you like further time and if so, why?” The applicant did provide a response. The Tribunal on a fair reading of the transcript complied with the requirements of s.424AA of the Migration Act in respect of this information.

Post hearing submissions provided by the applicant

1. Further time was provided to the applicant at the end of the Tribunal’s hearing to put on submissions in relation to the applicant’s credibility, being a two-week opportunity. The applicant took advantage of that opportunity and provided post-hearing submissions on 19 January 2015, as well as further submissions as a result of letters sent on 13 January 2015 and 25 January 2015. By letter dated 2 February 2016, the applicant responded to the Tribunal’s letter dated 25 January 2016.

The Tribunal’s letter sent to the applicant dated 13 January 2015

1. It is necessary to refer in more detail to the letter dated 13 January 2015 sent by the Tribunal to the applicant which together with the letter dated 25 January 2016 is raised by ground 3 of the amended application. That letter referred to the review and that there had been a change in agent. The Tribunal in that letter noted that the applicant had been allowed until 21 January 2015 to provide further submissions in relation to two Department of Foreign Affairs and Trade reports.

2. The Tribunal expressly made reference to an issue raised at the hearing that in accordance with the Department of Foreign Affairs and Trade report, the applicant being an involuntary returnee, may face questioning and that that questioning or being held on remand did not appear to lead to a real chance of serious harm or a real risk of harm to the applicant. The Tribunal also made reference to the applicant being processed under the Immigrants and Emigrants Act for illegal departure. The Tribunal made reference to the applicant’s migration history and that the applicant was unlikely to be subjected to a fine or custodial sentence. The letter invited the applicant to provide comments, if any, that the applicant wished.

The Tribunal’s letter sent to the applicant dated 25 January 2016

1. The Tribunal’s letter dated 25 January 2016 enclosed documents sent to the migration agent as the authorised recipient of the applicant, noting that the documents were thereby taken to have been received by the applicant. The relevant letter identified that a Department of Foreign Affairs and Trade report dated 18 December 2015 had been published, the contents of which were similar to the reports of 3 October 2014 and 16 February 2015. The applicant was informed that if the applicant wished to comment on any aspect of the most recent report, the applicant was invited to do so by a particular date.

Applicant’s claims for protection

1. The applicant claimed to fear harm from the Karuna Group or another other militia who would try to recruit him and the local head of the Karuna Group who said he would kill the applicant because the applicant had injured him. The applicant also feared harm because of his brother-in-law’s alleged past association with the LTTE, which would result in the applicant being suspected of the same association that would lead to him being targeted by militia groups. The applicant also feared harm as he had lived out of Sri Lanka for seven years, that he would be perceived as wealthy and would be vulnerable to kidnapping for ransom.

2. The applicant feared that the groups are supported by the authorities and he would not be protected. The applicant also feared harm by reason of his Tamil ethnicity, imputed political affiliations including the LTTE and that the applicant would not receive effective state protection.

3. The Tribunal in its reasons of 31 March 2016, identified the applicant’s background. The Tribunal identified communications that had taken place with the applicant and in particular, the communications sent on 9 January 2015 and 25 January 2015, as well as the applicant’s responses.

4. The Tribunal did not accept the applicant has a well-founded fear of persecution for a convention reason, nor 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 he will suffer significant harm. 

5. The Tribunal identified the applicant’s claims and what occurred at the delegate’s interview.  The Tribunal noted that the applicant did not fear harm on the basis of his religion being a Hindu and that the applicant had not experienced problems on account of his religion in the past.

Consideration of the applicant’s credibility

1. The Tribunal identified serious concerns about the applicant’s credibility and the veracity of his claims. The Tribunal did not accept the applicant is a witness of truth concerning his claims of past harm or threats relating either to himself, his sister, his brother-in-law, or any other family member in Sri Lanka, nor his reasons for travelling to Australia and his future fears. 

2. The Tribunal provided detailed reasons in support of the adverse credibility findings. Firstly, in relation to the applicant’s evidence as to the reasons why he decided to leave Sri Lanka in 2006.

3. Secondly, the Tribunal provided detailed reasons in relation to the applicant’s return to the family home in Sri Lanka in 2010 as being inconsistent with the claim that he had left because he had been threatened to be killed.   

4. Thirdly, the Tribunal made reference to the inconsistent evidence about whether the applicant knew of ongoing threats to him and the danger they posed.

5. Fourthly, the Tribunal made reference to being concerned that the applicant did not escape to Qatar when he claimed that he had to flee Sri Lanka for a second time in 2010. 

6. Fifthly, the Tribunal was concerned the applicant had provided evidence that was inconsistent and not plausible concerning what happened to the applicant when he returned home in 2010. 

7. Sixthly, the Tribunal was concerned by the applicant’s vague and conflicting evidence about how long he stayed in Sri Lanka when he returned in 2010. 

8. Seventhly, the Tribunal had further concerns, as put to the applicant at hearing, that according to his own evidence, the Karuna Group had been working with the authorities since before he first left the country in 2006 and that they had been after him for a long time and yet, he had been able to leave the country using a passport in his own name on two occasions. 

9. Eighthly, the Tribunal provided reasons in respect of a number of concerns about the claimed LTTE connection of the applicant’s brother-in-law, which the Tribunal explained.

10. In that regard, the Tribunal made express reference to the steps taken during the hearing to comply with s.424AA of the Migration Act in respect of the answer by the applicant to the question in the interview about political involvement of the applicant or members of his family being associated or involved with political groups or organisations.

11. The Tribunal further found concern in relation to the applicant’s changing evidence about his brother-in-law’s situation. Further, the Tribunal was concerned with other evidence relating to the brother-in-law, which the Tribunal provided reasons, which seemed to undermine the claim of the LTTE connection and the authorities being interested in him. 

12. Ninthly, the Tribunal found the applicant gave inconsistent evidence about whether he had suffered past harm in Sri Lanka and provided detailed reasons in that regard. In those circumstances, the Tribunal was not satisfied the applicant was a witness of truth.

13. The Tribunal did not accept the applicant’s explanations in relation to difficulties with his evidence. The Tribunal found that the applicant is not a witness of truth and the applicant and exaggerated and fabricated accounts of evidence as well as claimed fears upon which he has based his protection claims.

Refugee convention criteria assessment

1. The Tribunal did not accept the applicant’s brother-in-law was convicted, nor actually or imputed as being involved with the LTTE.  The Tribunal did not accept the applicant’s claims in relation to his brother-in-law’s LTTE connection.  The Tribunal did not accept that the applicant’s brother-in-law was suspected, charged, convicted, rehabilitated, released or monitored thereafter on the grounds that he was involved with the LTTE, or for any other reason. The Tribunal did not accept that the applicant or his family members have had any involvement with or have been imputed as having involvement with the LTTE. The Tribunal did not accept the claims, including the most recent submissions, to which the applicant claimed to fear harm because of family links to the LTTE.

2. The Tribunal made reference to the Karuna Group and did not accept the applicant was subject to earlier attempted recruitment. As a result of the adverse credibility findings, the Tribunal did not accept that the applicant had an encounter with, was harmed by, fled from, was searched for, summonsed, threatened by, or feared harm at the hands of anyone in the Karuna Group in 2006. The Tribunal found that the applicant was of no interest to the authorities or the Karuna Group or any other militia while he was in Sri Lanka before leaving for Qatar in 2006.

3. The Tribunal made reference to not having accepted that the applicant had difficulties with the Karuna Group, the authorities, or anyone else prior to travelling to Qatar. The Tribunal did not accept the claim that the applicant complained to the police about the Karuna Group. The Tribunal did not accept the applicant’s claim that he had reported to the police when he returned. 

4. The Tribunal found that the applicant was not of any adverse interest to anyone including the authorities when he returned to Sri Lanka after the conflict ended in 2010, having been away working in Qatar for a number of years.  The Tribunal found the applicant could have returned to Qatar but instead chose to go to Australia. The Tribunal did not accept the applicant was in hiding at any time before his departure.

5. The Tribunal did not accept the applicant fled Sri Lanka in fear of his life or because he was in danger, or because he was targeted for harm by anyone, any groups or any authorities. The Tribunal did not accept that anyone has any adverse interest in the applicant while he was in Sri Lanka or since he left Sri Lanka.

6. The Tribunal did not accept any of the applicant’s claims of past harm.  The Tribunal did not accept the applicant has previously come to the adverse attention of the Sri Lankan authorities or any groups or organisations, nor that he has ever had any previous past political involvement. The Tribunal did not accept that there was any reason, at the time the applicant left Sri Lanka in May 2010, for him to be imputed with an anti-government opinion, nor to have been suspected of any involvement with the LTTE or to be of interest to any militia groups. The Tribunal did not accept that anyone else has shown any adverse interest in the applicant. 

7. The Tribunal accepted that the applicant would be returning to Sri Lanka as a failed asylum seeker. The Tribunal found that the applicant was of no interest to the government authorities before he left. The Tribunal was not satisfied on the information before it, that the applicant faced a real chance (or a real risk) of being detained under the Prevention of Terrorism Act or having regard to the current information, that his profile is such that he faces a real chance or real risk of arbitrary arrest or detention or disappearance.

8. The Tribunal was not satisfied on the evidence before it, that just because the applicant spent some time in Malaysia, Indonesia, Singapore, Qatar or Australia, that he has sent money back to his sister from these countries and having regard to his profile, that the applicant faces a real chance or risk of being imputed of having funded the LTTE or its resurgence or supported or been involved in them in any way and thus facing a real chance of serious harm or a real risk of significant harm.

9. The Tribunal was not satisfied there is any reason for the applicant to be on the stop list, nor did the Tribunal accept there is reason for the authorities to suspect the applicant is involved in separatist or criminal activities, nor that he is on a watch list. The Tribunal did not accept the applicant will be imputed as having an anti-government opinion/LTTE opinion, or involvement in the reformation or funding of the LTTE, or the politically active diaspora, or will be otherwise of adverse interest to the authorities, or have any particular profile, especially given the significant numbers of failed asylum seekers returned to Sri Lanka.

1. The Tribunal found that the applicant being a Tamil male from the Eastern province who has lived out of Sri Lanka for 10 years, worked in Qatar and Asian countries and having travelled to Australia by boat and being returned as a failed asylum seeker, would not be a reason for the applicant to be considered of adverse interest either to the authorities or the population in general.

2. Having considered the claims cumulatively and individually, the Tribunal was not satisfied that the applicant faced a real chance of persecution now or in the reasonably-foreseeable future, or a real risk of significant harm, because of his Tamil ethnicity, his place and origin and return, because he has spent time out of Sri Lanka in Qatar, Asian countries and then travelled to Australia by boat, and is presumed to have claimed asylum because of his brother-in-law’s travel, because he has sent money back to his sister, or that he will be suspected of links to the LTTE, or other Tamil or anti-government organisations, or otherwise of adverse interest to the authorities. The Tribunal was not satisfied that these factors (as well as his youth and gender) whether individually or cumulatively, support a finding that there is a well-founded fear of persecution for the applicant and found the applicant does not face a real risk of significant harm. 

3. The Tribunal considered the process which the applicant would face returning to Sri Lanka. The Tribunal was not satisfied the applicant faces a well-founded fear of persecution during his processing at the airport, including while being held and questioned.

4. The Tribunal did not accept that the Karuna Group will harm the applicant for the reasons claimed. The Tribunal was not satisfied there is a real chance or a real risk on the evidence before it that the applicant will be abducted by a white van. The Tribunal was not satisfied on the evidence before it that the applicant faces a real chance of serious harm due to floods. The Tribunal was not satisfied the applicant faces a real chance of serious harm or a risk of significant harm on the basis of not being able to look after himself.

5. The Tribunal made reference to the applicant’s claims in respect of extortion, kidnapping and targeting. The Tribunal was not satisfied on the evidence before it that the applicant faces a real chance or a real risk of being considered to be wealthy or of being subjected to extortion or kidnapping.  The Tribunal did not accept that there was a real chance of serious harm from the Karuna Group or any other state-sponsored or affiliated group or militia to the applicant.

6. The Tribunal was not satisfied on the evidence that the applicant faces a real chance of suffering in the reasonably foreseeable future, harm in the form of adverse interest from the authorities or others in his area, or discrimination, harassment or persecution in his home area. 

7. The Tribunal, having considered the applicant’s claims individually and cumulatively, found the applicant was not a credible witness in respect of his past and future harm feared, and taking into account the relevant country information, the Tribunal rejected all of the various claims made and found that the applicant did not have a well-founded fear of Convention-related persecution for any of the reasons put forward by the applicant or on the applicant’s behalf.

Complementary protection criteria assessment

1. The Tribunal turned to the issue of complementary protection. The Tribunal was not satisfied 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.

2. The Tribunal found the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. Mr Chia of Counsel confirmed that ground 1 was abandoned. The grounds in the amended application are as follows:-

   2. Further or in the alternative, the Tribunal failed to comply with the mandatory requirement in subsection 424A(1) of the Act to give written information and invitation in relation to oral evidence, provided to the first respondent's department at his 2012 Entry Interview, that no member of his family had been associated or involved with any political organisation.

   3. Further or in the alternative to 1 and 2, either or both of the Tribunal's written invitations to a person to give information dated 13 January 2015 and 25 January 2016 did not comply with the mandatory requirements of section 424B of the Act.

Consideration

Ground 2

1. In relation to ground 2, Mr Chia of Counsel submitted that there had been a failure to comply with the requirements of s.424AA(1)(b)(i) and (iv) of the Migration Act. On a fair reading of the transcript, it is apparent that the Tribunal raised with the applicant clear particulars of the information that would be the reason or part of the reason for affirming the decision under review in respect of the applicant’s answer to the question as to whether the applicant or any members of his family had been associated or involved with any political group or organisation, to which he had answered no.

2. The reference to the fabrication or having made up the claims was a clear identification of the issue and sufficient to provide an understanding of the issue of credibility of the applicant and therefore the Tribunal complied with the requirements of s.424AA(1)(b)(i) of the Migration Act.

3. Mr Chia of Counsel argued that the reference to “would you like to comment on or respond to the information or would you like further time and, if so, why” was not advice as required within the meaning of s.424AA(1)(b)(iii) of the Migration Act.

4. On a fair reading of the transcript, the Tribunal complied with the obligations under s.424AA(1)(b)(iii) of the Migration Act. The applicant had an agent present during the course of the hearing. The s.424AA procedure was clearly identified at the outset by the Tribunal member and on a fair reading, the Tribunal complied with its statutory obligations under s.424AA of the Migration Act.

5. Further, I find that even if there had been some noncompliance in the present case with the requirements of s.424AA of the Migration Act as alleged, it is not one which gave rise to any practical injustice.

6. In these circumstances, if contrary to the Court’s finding that there was noncompliance with s.424AA of the Migration Act in the present case, the Court is satisfied that the noncompliance could not possibly have impacted on the outcome of the review. That is because the applicant had the opportunity to and did respond to the adverse information. Accordingly, there was no practical injustice to the applicant and the Court would refuse relief on discretionary grounds if an error had been made out.

Ground 3

1. In relation to ground 3, Mr Chia of Counsel submitted that the letters dated 13 January 2015 and 25 January 2016 constituted an invitation to give information within the meaning of s.424(2) of the Migration Act. Mr Chia of counsel submitted that the scheme of Division 4 of the Migration Act created particular powers and imposed obligations on the Tribunal. Mr Chia of counsel submitted that the applicant was within the scope of the meaning of person referred to in s.424(2) of the Migration Act and that the substance of the letters was to invite the applicant to give information.

2. I accept the submissions of the first respondent that the letters were not an invitation within the meaning of s.424(2) of the Migration Act. In the present case, the letters were clearly sent in purported compliance with the Tribunal’s obligations of procedural fairness in the conduct of the review. The letters, whilst providing an opportunity for comment or response, were not an invitation to a person to give information within the meaning of s.424 of the Migration Act.

3. Further, on its proper construction, s.424(2) of the Migration Act has no application to an applicant, given the specific provisions found in ss. 425, 426, 426A, and 426B of the Migration Act. There is no failure to comply with the requirements for s.424B of the Migration Act because it had no application. Further, even if it were found that the letters were sent under s.424(2) of the Migration Act, the Court is satisfied that the failure to comply with the time requirements and the failure to comply with the specification as to the way in which the information or comments could be given, could not have had any possible impact on the outcome of the review.

4. In these circumstances, if there was any application of and noncompliance with s.424B of the Migration Act, it did not give rise to any practical injustice. The applicant responded to the letters and any failure to comply did not give rise to any jurisdictional error. Further, if there was a jurisdictional error, it is one in respect of which the Court is satisfied there was no practical injustice and accordingly, relief would be refused on that ground. Ground 3 fails to make out any jurisdictional error.

Conclusion

1. Accordingly, the amended application is dismissed. 

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 July 2017