BAF15 v Minister for Immigration

[2016] FCCA 1111

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAF15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1111

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the 2015 DFAT report was fully considered by the Tribunal – real chance test – whether the applicant was afforded a genuine hearing – whether the Tribunal denied the respondent procedural fairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424, 425, 476

Applicant: BAF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1599 of 2015

Judgment of: Judge Street

Hearing date: 10 May 2016

Date of Last Submission: 10 May 2016

Delivered at: Sydney

Delivered on: 10 May 2016

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr T Reilly

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1599 of 2015

BAF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision the Tribunal made on 22 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 his claims were assessed against that country.

2. The applicant arrived at Christmas Island on 13 June 2012 and on 2 November 2012, applied for protection.  The delegate refused to grant a protection visa on 29 July 2013 and the applicant applied for a review of the delegate’s decision on 31 July 2013.  The applicant appeared before the Tribunal on 22 November 2014 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent.

3. The applicant claims to fear persecution in Sri Lanka on the basis of his Tamil race, extortion from the army/Eelam People’s Democratic Party (EPDP) and is a suspected member of the LTTE, as well as by reason of being a failed asylum seeker and an illegal departee.  The applicant provided to the Tribunal further material prior to the hearing which was identified by the Tribunal and, after the hearing, the applicant provided further material that was identified by the Tribunal.

4. The Tribunal accepted part of the applicant’s evidence in relation to mistreatment by Sri Lankan authorities in 2007 and that he was required to report to the authorities regarding any LTTE activities or suspicious people in the area until 2009.  The Tribunal also accepted as plausible that the applicant was required to attend victory celebrations until 2012 and if he failed to attend, he was required to undertake tasks for the army.

5. The Tribunal, however, found it was not satisfied that any treatment by the authorities indicated a change in their view regarding the absence of LTTE affiliation by the applicant and the Tribunal was not satisfied the applicant was suspected of being connected to the LTTE at the time he left Sri Lanka in 2012 or that he was of any interest to the authorities at that time.

6. The Tribunal was also not satisfied that the applicant was the victim of extortion at a hardware business or that he worked there as claimed up until the time he left Sri Lanka or that he would work there if he returned to Sri Lanka.  The Tribunal was not satisfied that the applicant was of interest to the Sri Lankan authorities when he left and the country information does not suggest that the applicant would be at risk if he returns.

7. The Tribunal found that the applicant did not have a real chance of serious harm on the basis regarding his past experiences in Sri Lanka and the Tribunal found the applicant did not have a well-founded fear of persecution on that basis if he returned to Sri Lanka now or in the reasonably foreseeable future.

8. In relation to the Sri Lankan army, the Tribunal found that it was not satisfied there is a real chance that the applicant will face serious harm if he were to return to Sri Lanka now or in the reasonably foreseeable future and held that the applicant did not have a well-founded fear of persecution on that basis.

9. In relation to the applicant’s allegation of extortion by the army and the EPDP, the Tribunal was not satisfied there was any real chance that the applicant would face any harm on this basis if he returned to Sri Lanka now or in the reasonably foreseeable future.  In relation to the applicant’s Tamil ethnicity, the Tribunal found it was not satisfied there is a real chance the applicant will face harm on the basis of his Tamil race if he were to return to Sri Lanka now or in the reasonably foreseeable future.  The Tribunal found that the applicant did not have a well-founded fear of persecution on that basis.

10. The Tribunal, in referring to the applicant’s Tamil ethnicity, referred to a DFAT report dated 3 October 2014 and made reference to that report having been updated from 16 February 2014. The Tribunal relevantly noted that the update was “to take into account the presidential elections:  however, the relevant information regarding the treatment of Tamils remains the same in both reports”.

11. In relation to the applicant’s claim of being a failed asylum seeker or returnee, the Tribunal also referred to the same two DFAT reports at different paragraphs to those earlier referred to above.  The paragraphs in the two reports from the reference by the Tribunal were relevantly in content identical.  The Tribunal found that the applicant did not have a well-founded fear of convention-related persecution on the basis of being a failed asylum seeker or returnee.

12. The Tribunal turned to the applicant’s illegal departure from Sri Lanka and again made reference to the same two DFAT reports but cited different specific paragraphs.  Those specific paragraphs were identical in the two reports.  The Tribunal found the applicant did not have a fear of convention-related persecution on the basis of his illegal departure from Sri Lanka or its consequences.  It was in those circumstances the Tribunal found the applicant did not have a well-founded fear of persecution on a convention reason if he returns to Sri Lanka now or in the reasonably foreseeable future.

13. The Tribunal then turned to the issue of complimentary protection and relevantly, in relation to the applicant being an illegal departee, referred again to the same two DFAT reports, one dated 3 October 2014, the other dated 16 February 2014, in respect of a specific paragraph.  The paragraph was in content the same in the two reports.  Relevantly, in the course of considering that claim, the Tribunal said it did not accept that a relatively short period of remand (as indicated in the DFAT Sri Lankan country report) amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant, or amounts to an act which could reasonably be regarded as cruel or inhumane.

14. The Tribunal expressly referred to the definition of “cruel or unusual treatment or punishment” and attachment A to the Tribunal’s report summarised the relevant law.  The Tribunal said that it did not accept that a relatively short period of remand amounts to an act of omission that is intended to cause extreme humiliation which is unreasonable and again made reference to the definition of “cruel or unusual treatment or punishment”.  It is in those circumstances that the Tribunal found, there was no substantial ground for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk the applicant will suffer harm as a result of his illegal departure from Sri Lanka.

15. The Tribunal also made adverse findings in relation to complementary protection in respect of the other claims by the applicant and identified having considered the applicant’s claim individually and cumulatively. The Tribunal found there were no 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.  It was in those circumstances the Tribunal found that the criteria under s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 were not made out.

16. The Court made orders on 1 July 2015 and again on 9 July 2015, providing the applicant with an opportunity to file an amended application affidavit of evidence and submissions.  The applicant filed affidavit evidence which included material that was not before the Tribunal and which the applicant sought to rely upon in relation to his claims.

17. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the decision of the Tribunal was affected by legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.

18. The Court explained that if satisfied there was relevant legal error, the decision of the Tribunal would be set aside and if not set aside there was relevant legal error, the application would be dismissed.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then submissions from counsel for the first respondent and then submissions from the applicant in reply.  The applicant confirmed that he understood the nature of the hearing, as explained by the Court.

19. The Court rejected the particular material that was not before the Tribunal on the basis that it was not relevant.  The Court explained that this Court does not have power to make fresh findings of fact in relation to the applicant’s claims.  The applicant also filed two sets of submissions but has not filed a new amended application.

20. The application identifies the following grounds:

    1. The Tribunal failed to give the applicant a fair hearing as required by s425 of the Act.

    Particulars

    a. The hearing was held on 27 November 2014;

    b. At footnotes 12, 13, 18, 19 and 25 the Tribunal relied adversely on a DFAT Country Information report published on 16 February 2015; and c. S425 of the Act requires that the Tribunal put to the applicant for comment material that it relies on for part of its reasons to refuse the applicant and therefore, the Tribunal has failed to provide the applicant with a fair hearing.

    2. The Tribunal erred in placing a time requirement on the definition of degrading treatment/punishment.

    Particulars

    a. At paragraph 108 the Tribunal did not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable;

    b. At paragraph 109 the Tribunal found that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces

    a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment; and

    c. The Tribunal has failed to apply the correct elements to the definition and applied a qualitative assessment instead.

21. In relation to ground 1, the applicant referred to other sections that differ between the 2015 report and the 2014 report and that the applicant says should have been considered.  The applicant identified that those other paragraphs in the 2015 report were different from what was in the 2014 report.

22. None of the paragraphs referred to by the applicant were the paragraphs specified by the Tribunal in its reasons in evaluating the applicant’s claims.  The applicant sought to argue that the Tribunal had not properly considered or fully considered the 2015 DFAT country report.  The applicant appears to have based that submission on the absence of reference to the other paragraphs in relation to the difference between the two reports.

23. It is not necessary for the Tribunal to refer to all evidence before it.  It is clear that the Tribunal appreciated the direction have regard to the country information in relation to the DFAT reports and it is clear that the Tribunal took those reports into account and had an intellectual engagement with the relevant content in those reports relating to the claims of the applicant.

24. There was nothing in the 2015 report that could be said to give rise to any want of procedural fairness or breach of s.425 in respect of the applicant’s claims. I accept the submission of the first respondent that in this case the country information to which the Tribunal referred in relation to the 2015 report all fell within s.424(3)(a).

25. In those circumstances, the Tribunal was not required to take any further step in relation to the 2015 country information report.  There is no obligation upon the Tribunal to raise the 2015 report with the applicant and no jurisdictional error is made out by ground 1.

26. Further, there is no basis upon the material before the Court and the reasoning of the Tribunal to find that the Tribunal failed to comply with its duty to take into account the DFAT report as a whole and to the extent that the applicant sought to advance from the bar table that the Tribunal failed to have regard to the other sections in the DFAT report. That assertion is inconsistent with the Tribunal’s reference to the ministerial direction in para.135, as well as being inconsistent with the fact that the Tribunal referred to particular paragraphs in the report relevant to the evaluation of the applicant’s claims.

27. It was a matter for the Tribunal to determine what weight to give to the country information.  The applicant suggested that the Tribunal had selectively extracted material from the country information.  The selection of country information upon which the Tribunal makes findings is a matter for the Tribunal.

28. To the extent that the applicant suggested there was some selectivity based on the Tribunal referring only to particular paragraphs, that is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial, independent mind to the determination of the matter on its merits. Nothing said by the applicant made out any jurisdictional error in relation to the DFAT country reports, or otherwise. 

29. In relation to ground 2, whilst the applicant had in written submissions suggested that the applicant was abandoning that ground, the applicant in the hearing before the Court sought to maintain an alleged error by the Tribunal in its findings in para.108 in respect of the remand of the applicant for a short period.

30. Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal.  Those adverse findings were open on material before the Tribunal and cannot be said to lack in evident and intelligible justification.  Nothing said by the applicant from the bar table has raised any jurisdictional error of a kind articulated in ground 2.  Ground 2 fails to make out any jurisdictional error.

31. The application is dismissed.

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

Associate: 

Date:  17 May 2016