BAC15 v Minister for Immigration
[2016] FCCA 2792
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAC15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2792 |
| Catchwords: MIGRATION – Judicial review of decision of Migration Review Tribunal – Protection (Class XA) visa – where applicant claimed fear of serious harm as a member particular social group of returned failed asylum seekers – whether the Tribunal applied the incorrect test – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.91R(2) |
| Cases cited: SZTEQ v Minister for Immigration and Border Protection (2015) 145 ALD 577; [2015] FCAFC 39 Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 |
| Applicant: | BAC15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1322 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
| Counsel for the Applicant: | Applicant In Person |
| Counsel for the Respondents: | Ms Batten |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed 11 June 2015 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1322 of 2015
| BAC15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this matter, the applicant filed an application on 11 June 2015, seeking judicial review of a decision of the Refugee Review Tribunal (as it then was)(“the Tribunal”). The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) Visa (“the visa”). The applicant is seeking an order that the decision of the Tribunal be quashed and an issue of a
writ of mandamus.
In the application, the applicant set out one ground of review of the Tribunal’s decision as follows (copied exactly):
The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act (sic).
Particulars
By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at (30) and (45).
Background
The applicant is a citizen of Sri Lanka. On 13 November 2012, the applicant applied to the Department of Immigration and Border Protection (“the Department”) for the grant of a visa. The applicant claimed that he would face significant harm upon his return to Sri Lanka as he was a young Tamil man; had departed Sri Lanka unlawfully; has a father who spent 6 months out of the year living in Mullaitivu during the war (an area known to be a LTTE stronghold); has spent a substantial amount of time abroad; and is being returned as a failed asylum seeker.[1]
[1] Court Book 244
Further, he claimed that he would face significant harm after
“spending a period of time in a country perceived by the Sri Lankan authorities to ‘harbour’ a pro-LTTE community.”The applicant also claimed that as a returned failed asylum seeker he would be exposed to discriminatory and persecutory treatment, as well as detention conditions which would amount to significant harm.[2]
[2] Court Book 123
On 10 July 2013, a delegate refused to grant the visa. The applicant applied to the Tribunal for review on 17 July 2013. On 4 December 2014 the applicant appeared before the Tribunal with the assistance of his representative who appeared by telephone. In an email dated
5 December 2014, the applicant’s representatives informed the Tribunal that the applicant wound not be providing any further written submission and that the applicant’s “inconsistencies” were due to the applicant being confused during the hearing.[3]
[3] Court Book 262
On 12 May 2015, the Tribunal affirmed the delegate’s decision to refuse to grant the visa.
The Decision of the Tribunal
The Tribunal considered at [23] to [34] of its decision, details of the applicant’s claims of an attempted kidnapping of his father who is a businessman. The Tribunal found that the version of events with regard to this claim as related by the applicant at the entry interview was so different on numerous counts to the version he told the Tribunal, that the Tribunal considered the inconsistencies to be not explainable by the applicant being confused or being unable to articulate himself in a clear manner.
The Tribunal also found at [31] that the failure of the applicant to provide a translation of a police report written in Singhalese, which he was provided with additional time by the delegate to obtain, led to the inference that the police report was unsupportive of his claim and that the failure weighed in favour of finding the applicant had fabricated his claims regarding the kidnap attempt.
The Tribunal considered the claim of the applicant that he would be harmed because he is a Tamil and that he would be harmed by the
Sri Lankan authorities as someone suspected of links with the LTTE or opposed to the government because of his ethnicity. The Tribunal accepted that the applicant is a Tamil and considered the country information regarding the situation for Tamils. While the Tribunal accepted that Tamils may face discrimination and harassment in
Sri Lanka which does give rise to some harm as indicated in the country information, in the applicant’s circumstances, it was satisfied that the applicant faces a remote chance of harm and therefore not a real chance of harm because he is a Tamil. The Tribunal at [41] did not accept that there was a real chance that the applicant would face serious harm now or in the reasonably foreseeable future, from the
Sri Lankan authorities because of his race as a Tamil, his membership of any particular social group or political opinion related to the LTTE or any other Convention reason.
The Tribunal at [42] accepted that if the applicant returns to Sri Lanka he would do so as a failed asylum seeker. However, based on country information, it did not accept that the applicant would be imputed with an anti-government or pro LTTE political opinion, or that he would face a real chance of serious harm as a failed asylum seeker.
The Tribunal at [51] had regard to the Full Federal Court decision in SZTEQ v Minister for Immigration and Border Protection[4]in consideration of the applicant’s claim that he would face serious harm if returned to Sri Lanka as he departed illegally. The Tribunal was not satisfied that the questioning, arrest, poor conditions in remand and the penalty for illegal departure amounted to systematic and discriminatory conduct, nor was it satisfied that the applicant would face a real chance of serious harm while held on remand.
[4] (2015) 145 ALD 577; [2015] FCAFC 39
The Tribunal at [58] to [62] considered whether the applicant faced a real risk of significant harm. The Tribunal at [59] considered that the relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
At [59] to [60], the Tribunal was not satisfied that harm arising from harassment or discrimination, or harm arising from the applicant committing offences under the Sri Lankan “Immigration and Emigration Act of 2006” would amount to significant harm. At [61] the Tribunal considered the balance of the applicant’s claims and was not satisfied that the applicant faced a real risk of significant harm.
Consideration
At the time of Tribunal’s decision, s91R(2) of the Act provided:
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill‑treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In his grounds of review the applicant referred to and relied upon WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”). In that decision North J. held that serious harm for the purposes of s.91(R)(1)(b) is constituted by a threat to life or liberty without reference to the severity of the consequences to life and liberty. His Honour held: at [28] that there was no qualitative element of the harm stipulated in s.91R(2)(a).
WZAPN was appealed to the High Court: Minister for Immigration and Border Protection v WZAPN.[5] The plurality of French CJ,
Kiefel, Bell, Gageler and Keane JJ identified the basis of the claimant’s argument at [2] as follows (footnotes omitted):
Each claimant argued that the likelihood of any detention is such a threat, and therefore an instance of serious harm for the purposes of s.91R(1)(b) of the Act, irrespective of the frequency, length or conditions of that detention and its consequences for the detainee.
[5] (2015) 254 CLR 610
It rejected the claim at [45]:
This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious harm instanced by s.91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.
By reason of the High Court decision, the applicant’s ground must fail. No other ground has been identified. The court considered the applicant’s claim[6] that he would suffer serious harm and rejected the claim. The Tribunal applied the correct test in determining the claim.
[6] At [58] – [62]
This court had the benefit of detailed and even-handed oral submission of Ms Batten of Counsel, who recognising the position of a
self-represented applicant, conducted a careful review of the material before the Tribunal and the decision of the Tribunal with the view of identifying and dealing with any other ground available to him that may be apparent. No such grounds were identified.
In these circumstances, the application is dismissed with the applicant to pay the first respondent’s costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 17 November 2016
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