Bav16 v Minister for Immigration
[2018] FCCA 1112
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAV16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1112 |
| Catchwords: MIGRATION – Unparticularised grounds of review – application amounts to improper merits review – the Applicant’s Father has lived untroubled in Sri Lanka for a significant number of years and the Applicant is somewhat further removed from any possible risk of harm due to family history – no error established in very comprehensive reasons given by the Tribunal – Application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 65, 425 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 CZBQ v Minister for Immigration and Border Protection [2015] FCA 526 Minister for Immigration and Border Protection v CZBQ & Anor [2015] HCASL 229 |
| Applicant: | BAV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 31 of 2016 |
| Judgment of: | Judge Neville |
| Hearing date: | 28 September 2016 |
| Date of Last Submission: | 31 August 2017 |
| Delivered at: | Canberra |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondents: | Clayton Utz |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Application filed on 5 May 2016 by the Applicant be dismissed.
The Applicant is to pay the First Respondent’s costs as per Schedule 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 31 of 2016
| BAV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns the review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 7th April 2016. This was the second time the Tribunal had declined to interfere with the decision of a delegate of the Minister in relation to this Applicant, who is a 24 year old citizen of Sri Lanka, to decline to grant him a protection (Class XA) visa pursuant to s.65 of the Migration Act1958 (Cth) (“the Act”).
The Applicant seeks an Order that the Tribunal's decision be quashed. The Minister submits that the Application should be dismissed with costs because the decision discloses no jurisdictional error, and is otherwise properly characterised as a privative clause decision for the purposes of s.474 of the Act.
As recounted in the decision of the Full Court of the Federal Court of Australia when the matter was on appeal from a decision of this Court (differently constituted), Collier J (sitting alone as the Full Court) noted the following general undisputed background of the Applicant, at [2] – [3]:[1]
[2] The appellant is a citizen of Sri Lanka, and is of the Tamil ethnicity. In February 2012, the appellant was assisted by smugglers to flee Sri Lanka and come to Australia. He arrived in Australia by boat on approximately 17 February 2012 and was taken to detention on Christmas Island. He was subsequently transferred to Darwin. The appellant was 17 years old at this time.
[3] The appellant has described his religion as Christian Catholic. In Darwin, the appellant applied for a visa through the assistance of Centrecare Catholic Migrant Services on 31 May 2012.
[1] CZBQ v Minister for Immigration and Border Protection [2015] FCA 526.
Procedural History
On 6th June 2012, the Applicant applied for a protection (Class XA) visa.
Summarily, the Applicant claimed to fear persecution or harm if he was returned to Sri Lanka because he is a Tamil and a Christian and because of certain events involving various family members and himself. The Applicant's claims were expanded from his original grounds by the time of the Tribunal's hearing held on 23rd March 2016; the current Tribunal's decision record contains a detailed discussion of the Applicant's claims and evidence at pars.21 - 24.
On 3rd July 2012, a delegate of the Minister decided not to grant the Applicant the visa sought (“the Delegate's Decision”).
On 13th July 2012, the Applicant applied to the Refugee Review Tribunal (“RRT”) for review of the Delegate's Decision. On 13th November 2012, the Tribunal affirmed the Delegate's Decision (“RRT Decision”).
The Applicant then unsuccessfully sought judicial review of the first Tribunal's decision in this Court.[2] The Applicant successfully appealed to the Federal Court of Australia.[3]
[2] See CZBQ v Minister/or Immigration and Border Protection & Anor [2014] FCCA 2952.
[3] See CZBQ v Minister for Immigration and Border Protection & Anor [2015] FCA 526.
The Minister then sought special leave to appeal the Federal Court’s decision to the High Court of Australia. The High Court refused special leave.[4]
[4] See Minister for Immigration and Border Protection v CZBQ & Anor [2015] HCASL 229.
On 23rd June 2015, the Tribunal notified the Applicant that, as a result of the decision of the Federal Court, the matter had been remitted to the Tribunal for reconsideration. On 23rd March 2016, the hearing was held and at which the Applicant and his Uncle attended in person.
On 7th April 2016, the Tribunal notified the Applicant that the Tribunal had affirmed the Delegate's Decision not to grant him a protection visa.
On 5th May 2016, the Applicant applied to this Court for judicial review of the Tribunal’s decision.
The Applicant was given leave to file any Amended Application in this proceeding by 25th July 2016, which was extended by the Court to 5th August 2016 with the Minister's consent. No Amended Application has been filed.
The matter was heard on 28th September 2016. [5] Then followed a not completely regular procedural history.
[5] Written submissions were filed only by the First Respondent, the Minister for Immigration and Border Protection (“the Minister”) for the purposes of the September 2016 hearing.
Via e-mail on 11th November 2016, the solicitor appearing on behalf of the Minister made a joint request, together with the solicitor for the Applicant, for the matter to be adjourned pending the handing down of the Full Court’s judgment in Singh v Minister for Immigration & Anor (VID1202/2016), which was potentially relevant to any judgment in these proceedings.
On 19th December 2016, the Full Court of the Federal Court delivered judgment in Minister for Immigration and Border Protection v Singh (“Singh”).[6]
[6] Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; (2016) 343 ALR 97.
On 18th January 2017, the parties requested that the matter be further adjourned pending the outcome of the special leave application in Singh, filed by the Minister on 16th January 2017.
On 12th May 2017, the Minister's application for special leave to appeal from the decision in Singh was dismissed by the High Court.
On 22nd August 2017, Orders were made in Chambers by consent, which provided for the preparation of written submissions addressing the discrete issue of how the Tribunal dealt with the letter from the Bishop.[7] As with the primary submissions, only the Minister filed supplementary submissions. This is also to record that the Applicant has only filed his original Application and an Affidavit in support of it.
[7] See CB at p.219.
For procedural and evidentiary context, among other things, it is as well to record some matters that were set out in the Full Court’s decision in the earlier iteration of the current matter. Indeed, given the very modest documentation put before the Court by the Applicant in the proceeding before me, it is essential to record here the volume of material that has previously been considered by the Tribunal – and others.
First, at [4] – [5], Collier J noted the following material that was put before the Tribunal:
[4] There was a considerable amount of material before the Tribunal, which delivered a relatively lengthy Statement of Decision and Reasons. In summary, the appellant made the following claims before the Tribunal:
(a) His uncle, who had been a member of the Liberation Tigers of Tamil Eelam (“LTTE”), had died during the Sri Lankan civil war. As a result, he believed the military was after him because they thought he was related to and worked with the LTTE.
(b) His grandfather had been shot by the Indian army twenty-six years earlier because he was suspected of having links to the LTTE.
(c) A number of years previously, while on a trip to Colombo with two of the appellant’s maternal uncles, his father was detained and tortured for about two months because he was suspected of having links to the LTTE.
(d) Approximately two or three months after his father was released, he was again detained by the police for two to three weeks and tortured. After his father was released from that detention, an unknown person continuously telephoned and threatened his father.
(e) A number of years previously “they” had tried to “take” him after school. A white van had approached him but he saw it and ran to his teacher’s house. He waited until dark before going home.
(f) If he returned to Sri Lanka he faced a real chance of being kidnapped at the airport by government officials, the military or para-military groups. The fact that he had sought asylum in Australia would put him at more risk; and
(g) If he returned to Sri Lanka he would not be treated well because of his Tamil ethnicity. He would also be targeted because he was Catholic.[5] Documentation provided by the appellant to the Tribunal in support of his application for a protection visa included the following:
(a) An untranslated article from an unidentified newspaper which purportedly mentioned his uncle.
(b) An International Committee for the Red Cross “Detention Attestation” attesting that his father had been detained at a prison in 2005.
(c) Certificates certifying that he had taken part in “Vocation Discernment Camps” in his home area, Batticaloa, in August 2007, April 2008 and August 2008; and
(d) A letter from the parish priest of a church in Batticaloa, stating that the appellant was known to him, that he came from a very good practising Catholic family and had been involved in parish mission work.Then at [6], her Honour set out the claims of the Applicant, thus:
The appellant then attended a hearing before the Tribunal on 30 August 2012. The appellant made the following claims at the hearing, which are summarised by his Honour below at [8] of the primary judgment:
(a) His grandfather had been shot by the Sri Lankan army while walking to his (the appellant’s) aunt’s house for dinner after returning late from work. The appellant then said that his grandfather had been on his way home after dinner at his aunt’s house. Someone from the group that had shot his grandfather had come to their house and said that his grandfather had been an LTTE member.
(b) His father had been caught transporting batteries, which were banned, to his brother and was accused of buying them for the LTTE. Later the police came to their house. His father sent him and his siblings to his aunt’s house and when they returned the next morning, their mother told them that the police had taken his father. He did not know how long his father was detained but he was beaten and had to be hospitalised for ten to fifteen days after his release.
(c) When his father was detained while on his way Colombo in 2005, he was detained for one month on suspicion of being an LTTE member. He was falsely charged with being an LTTE supporter and they had to pay a thirty thousand rupee bribe for him to be released.
(d) After his release his father was threatened over the phone. He was not sure how long his father was threatened for.
(e) In November 2009 his father had tried to leave Sri Lanka by boat but was caught by the police who beat him, saying he was trying to escape and that he was an LTTE supporter. He was detained at a police station for fifty days and then transferred to another place where he was detained for forty more days. He could not remember if his father had been detained between 2005 and 2009 because he had been young and had not known much.
(f) His paternal aunt’s husband had been shot in 2009. A group of people had burst into a family function at which he had been present and had taken that uncle and another of his uncles. His aunt’s husband was shot in front of his house but his other uncle was brought back. He did not know what group it was but suspected it was affiliated with the Sri Lankan authorities.
(g) In June 2006 or 2007, he and his friends were approached by a white van while walking to a teacher’s house after school. The people in the van opened the door and he and his friends ran to the teacher’s house and hid; and
(h) He had distributed leaflets and posted bills in the 2009 local elections. He could not remember the name of the party he had supported but it helped Tamil people and had the word Tamil in its name. He had not been bullied by other parties while he was in Sri Lanka but his father had told him that “they” were always asking about him since he had left.Next, her Honour set out, at [7], the further documentation which the Applicant provided to the Tribunal, post the hearing:
Immediately following the Tribunal hearing, he provided the Tribunal with the following documentation:
(a) A letter from the Roman Catholic bishop of Batticaloa stating that the appellant’s father had been gaoled several times on suspicion of being an LTTE supporter and that his family could not stay in one place. The bishop stated that the appellant had fled Sri Lanka because he had been threatened by armed groups for supporting other groups during the provincial council elections.
(b) A second letter from the parish priest stating that the appellant’s father had been gaoled several times on suspicion of being an LTTE member and had been attacked because he had driven a vehicle for a local politician.
(c) A detention order dated 23 November 2009 relating to the appellant’s father; and
(d) At the Tribunal hearing, the appellant’s paternal aunt gave evidence that relevantly claimed that her father, the appellant’s grandfather, has been shot by the Sri Lankan army in 1993; and that her brother (the appellant’s father) had been detained once while travelling to Colombo.All of these matters from her Honour’s judgment in the Full Court are set out by the Tribunal in the current decision under Review at paragraph 21 of its reasons, dated 7th April 2016.
The Tribunal’s Decision
By my somewhat conservative count, which includes sub-headings, the 148 paragraphs that are the Tribunal’s reasons in this matter are considered under 15 headings. This is to suggest if not to denote specifically that the Tribunal’s reasons are nothing if not comprehensive. Summarily, the Tribunal’s decision may be outlined as follows.
Paragraphs 1 – 5 set out the procedural history of the matter. They recorded that the Applicant claims to be a citizen of Sri Lanka and that he applied for a visa on 6th June 2012 which was refused by the Delegate on 3rd July 2012. The Applicant sought review of the Delegate’s decision with the Tribunal; the matter was ultimately remitted to the Tribunal by the Full Federal Court. As noted earlier, the Full Court considered that the RRT (as it then was) had fallen into jurisdictional error in its consideration of the identity of the issuer and subsequent genuineness of a detention order document.[8]
[8] See CZBQ v Minister for Immigration and Border Protection [2015] FCA 526 at [22].
At pars. 6 – 20, the Tribunal set out an account of the relevant law, including consideration of the refugee criterion contained within s.36(2)(a), and the complimentary protection criterion contained without s.36(2)(aa), of the Act.
At par.21 the Tribunal set out and adopted the Full Court’s account of the Applicant’s evidence as provided throughout the various earlier hearings. At par.23, the Tribunal set out its own summary of the Applicant’s claims, which may be summarised thus: the Applicant fears harm because of the activities of various members of his family, on the bases that (a) he is a young Tamil male and (b) he is a Christian.
In the course of its “findings and reasons”, at par.25 the Tribunal accepted that the Applicant is a Sri Lankan citizen and that Sri Lanka is a receiving country for the purposes of complementary protection. Also at par.25, the Tribunal accepted that there was no evidence before it to suggest that the Applicant has the right to enter and reside in any safe third country.
In pars.27 – 37, the Tribunal made various findings regarding the Applicant’s credibility. For example, at par.32, it found the Applicant’s evidence was generally consistent and credible and accepted that his young age and mental stress sufficiently explain some of the inconsistencies in his account.
At par.33, the Tribunal gave an example of this inconsistency – the white van incident – to which the Applicant first assigned a 2006/2007 date and then later a 2009 date. The Tribunal considered that the 2006/2007 date was more consistent and thus the accurate date.
Notwithstanding the Tribunal’s acceptance of the Applicant’s “mental confusion”, it did not accept this as an excuse for introducing new claims that had not been raised before the RRT. For example, at par.37, the Tribunal found that the Applicant’s claim that the Army had prevented him from practising his religion was not credible, nor did it accept that the Applicant had any interactions with the Sri Lankan authorities himself, either during the civil war or afterwards. It determined that as the claim had not been raised on any previous occasion it had been contrived. The Tribunal noted that the Applicant had not had any personal interaction with the Sri Lankan authorities.
At par.36, the Tribunal considered the detention document that was the subject of the Full Federal Court hearing. The Tribunal determined it to be a genuine document.
At pars.40 – 42, the Tribunal considered the Applicant’s evidence with respect to “the white van incident”. In particular, at par.41, the Tribunal accepted that the incident occurred but found it to be an “opportunistic incident” and unlikely to happen again. The Applicant, when a student along with others, was forced to flee when a van in which they were travelling was stopped, purportedly because he (and others) were considered to be supporters of the LTTE and were then caught up in an ongoing civil war. On this basis, and noting how long ago this incident occurred (in 2006 or 2007) it found that the Applicant does not have a real chance of serious harm or a real risk of significant harm arising from any white van or abduction issues in the future.
In the absence of any further claims by the Applicant, and in light of its rejection of the Applicant’s claim to have been prohibited from practicing his religion by the army, the Tribunal found (at par.42) that the Applicant has not personally experienced any threat of harm in Sri Lanka.
At pars. 43 – 69, under the general heading “Family Connections”, the Tribunal considered the Applicant’s claims with respect to his family’s experiences in Sri Lanka.
At par. 45, it discussed the Applicant’s claim with respect to his Grandfather. The Tribunal accepted that the Applicant’s Grandfather was shot and killed in 1993 but determined that the incident was of little relevance to the Applicant now returning to Sri Lanka, given that the incident occurred before the Applicant’s birth and had not caused the Applicant to have any difficulties whilst residing in Sri Lanka to 2012.
At par.48, the Tribunal considered the Applicant’s claim with respect to his uncle, Rohan. The Applicant claimed that his uncle was an LTTE cadre and was killed in 1998. For similar reasons provided in relation to the Applicant’s Grandfather, the Tribunal considered that the length of time that had passed between the incident, and the fact that it had not since caused any problems for the Applicant, rendered it essentially irrelevant to consideration of the Applicant’s current fear of harm on his return to Sri Lanka.
At pars.50 – 53, the Tribunal addressed the Applicant’s claims with respect to his aunt’s husband. It noted that the Applicant claimed that this person was shot and killed but that the timing as to when this occurred was not very clear at all. He said that this person had returned to Switzerland in around 2008, which is when (according to the Applicant) the shooting took place. The Applicant claimed that his aunt’s husband was shot by the LTTE because he had a relationship with the TVMP and Karuna Group. At par.52, the Tribunal accepted that while the death of people that the Applicant knew would have been traumatic, the incident posed no risk of harm to him. It noted that the Applicant was not associated with his aunt’s husband, or the groups he supported, and consequently, the Sri Lankan authorities would not harm him owing to his relationship to his aunt’s husband.
At pars.54 – 69, the Tribunal considered the Applicant’s claims with respect to his Father. At par.55, it accepted that an incident occurred in 2005 where the Applicant’s Father was detained whilst he was travelling without documentation. However, at par.56, the Tribunal rejected the Applicant’s claim that his Father was detained for a second time in 2005. It took this view on the basis that it had not been raised in either the Applicant’s Father’s statement or before the RRT previously.
At par.61, the Tribunal determined that the Applicant’s Father was detained for 90 days and then released after investigations confirmed he was not involved with the LTTE. It further determined that the Detention Order document provided by the Applicant to the Tribunal is a genuine document.
At par.62, the Tribunal confirmed with the Applicant that his Father had not had any problems with the authorities, or in fact anyone else, since 2009.
At par.63, it accepted that the Applicant’s Father had had difficulties with the authorities in the past, including being questioned, detained and most likely harmed while in detention. Further, given that the Tribunal had recorded that the Applicant’s Father had not had any difficulties with authorities since 2009, it did not see how the Applicant, being “a step removed from his Father”, would face any difficulties on his return to Sri Lanka.
At par.65, the Tribunal rejected the Applicant’s claims as implausible that his Father was receiving phone calls in Sri Lanka from unknown persons enquiring as to the Applicant’s whereabouts. It noted, at par.64, that these calls were not referred to in the Father’s statement and that the Applicant did not provide an explanation as to why these people would be asking after him.
At par.67, the Tribunal concluded that it was implausible that the Applicant’s various relationships with his Father, Uncle and Grandfather would lead the Applicant to be a person of interest to the authorities and possibly harmed on return to Sri Lanka. Central to this finding was the Applicant’s concession that his Father had not had any further interaction with the authorities since 2009, having been cleared of suspicion of involvement with the LTTE. The Tribunal found, at par.68, that the Applicant’s fear of harm on this basis is not well-founded and, at par.69, that the Applicant did not face a real risk of significant harm on return to Sri Lanka.
At paras.70 – 76, under the heading “TNA Involvement”, the Tribunal considered the Applicant’s claims with respect to his and his family’s involvement with the Tamil National Alliance (“TNA”).
At par.72, the Tribunal noted that whatever its past may have been, today the TNA was the official Opposition party in the national parliament of Sri Lanka. Implicitly, whatever concerns the Applicant may have had about the TNA, they could not reasonably be accepted as continuing today.
At par.74 the Tribunal recorded an inconsistency in the Applicant’s evidence regarding his family’s involvement with the TNA. On one hand, the Applicant had stated that his Father had had no problems with anyone since 2009, but on the other hand, presented evidence that problems arose with regard to TNA involvement in 2009, 2010 or 2011. The Tribunal considered that this inconsistency demonstrated that the Applicant’s family had sought to embellish the claims for protection arising out of some previous support for the TNA.
Further, it was held that the evidence of the Applicant and his family illustrated a “significant ignorance” as to the elections held in their home region, leading to a concern regarding the veracity of the Applicant’s evidence relating to his and his family’s involvement with TNA campaigning. The Tribunal noted that the Applicant does not currently support the TNA.
At para.75, the Tribunal determined that, owing to these findings, the Applicant and his family’s previous support for, or assistance to, the TNA would not lead to the Applicant being harmed on return to Sri Lanka.
At pars.77 – 79, under the heading “Militia Groups”, the Tribunal considered and rejected the Applicant’s concern that he may be shot by various militia groups in Sri Lanka. With regard to the Applicant’s concern about the TNA, it noted that although the TNA initially had close ties to the LTTE, they are now an established political group, not an armed group. With respect to TVMP and the Karuna Group, the Tribunal said that, on the basis of DFAT country information, those groups lack the power to threaten or harm Tamils now or in the reasonably foreseeable future.
At pars.80 – 84, under the heading “Religion”, the Tribunal noted that the Applicant had relevantly changed his evidence between the first and second hearing. At the first hearing, the Applicant claimed he feared harm from Buddhists in Sri Lanka as Christianity is a minority religion. However, at the second hearing the Applicant claimed that he had been prohibited from practicing his religion by the army, and feared harm from Hindus and Muslims as well. Notwithstanding these concerns or fears, the Tribunal noted (at par.83) that the Applicant conceded that he “had no problems with religion.”
In rejecting the Applicant’s claims, the Tribunal had regard to DFAT country information, and noted that there [now] exists freedom of religion in Sri Lanka.
At pars.85 – 89, under the heading “Corruption Claim”, the Tribunal considered the Applicant’s claims with respect to corruption in Sri Lanka. For example, at par.85, it referred to the evidence of the “witness”, which I assume to be a reference to the Applicant’s Uncle.[9] The Tribunal noted that the witness claimed that when the Applicant came to Australia the Applicant’s Father was visited by police who demanded that he pay 50,000 rupees because of the Applicant’s departure from Sri Lanka. The witness said that he provided the money to his brother (the Applicant’s Father) who was in hiding at home, to avoid attracting or facing any problems from the authorities. The Tribunal noted that the Applicant made no mention of this information at the hearing.
[9] See [4] of the Reasons.
The Tribunal also considered that the evidence from the witness directly contradicted the Applicant who had consistently stated that his Father was working driving a lorry. On this basis, the Tribunal rejected the witness’s claim that the Applicant’s Father was in hiding. Further, the Tribunal also rejected the claim regarding the payment of 50,000 rupees on the basis that it had not been raised previously and ought to have been, given its significance.
At pars.90 – 106, under the heading (abbreviated) “Tamil/Young Tamil Male from the East … with an imputed anti-Government pro LTTE opinion”, the Tribunal considered the Applicant’s claims arising out of his personal profile and circumstances. It had previously been claimed that the Applicant feared harm because of his ethnicity, age, gender, location within Sri Lanka and imputed political opinions arising from this background that were pro LTTE and anti-government.
The Tribunal referred to information from the UNHCR and the decision of the United Kingdom Upper Tribunal Immigration and Asylum Chamber GJ & Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (“GJ Case”). Both sources identify the categories of persons at real risk of persecution or serious harm on return to Sri Lanka.
At para.94, however, the Tribunal noted that “Tamils” or “young male Tamils” or “Tamil males from the East”, as distinct groups, are not mentioned as in need of international protection. Rather, relevant categories of persons or groups which are likely to be “at risk” include, for example, Tamils with real or perceived links with the LTTE. At par.97, the Tribunal found that the Applicant’s involvement with the Tamil community associations in Australia or any Tamil commemorative events would not cause him to be harmed on return to Sri Lanka.
At par.98, the Tribunal rejected the Applicant’s claims based on his previous support of and assistance to the TNA. It noted (and as earlier recorded) that the TNA is now an established opposition party in Sri Lanka and that Applicant’s real or perceived support of the group would not be equated by the authorities as support for a separatist Tamil state. Further, it was noted that the Applicant’s, and his family’s, involvement with the TNA in the past was “very limited.”
At par.99, the Tribunal considered the Applicant’s claims concerning any imputed political opinion either against the Government or pro-LTTE. It noted that the Applicant has had no involvement with any Tamil separatist groups, either in Sri Lanka or Australia, and that his claims concerning fear of harm in this regard are not consistent with the UNHCR and GJ Case information. The Tribunal rejected that there is anything remarkable about the Applicant’s race, age, gender or location in Sri Lanka that would lead to any anti-Government imputation.
At par.102, the Tribunal rejected the Applicant’s claim that he would have to bribe someone to get a job in Sri Lanka as an “embellishment by the Applicant, and was not based on fact”.
At par.103, the Tribunal noted that Sri Lanka has changed significantly since the Applicant departed. It did not accept that he would face systemic discrimination that could be described as serious or significant harm on his return, nor did it accept that he had done so in the past.
At par.104, the Tribunal concluded that, although the UNHCR information stated that Tamils are reportedly more often subjected to “arbitrary detention, abductions or enforced disappearances”, this should be taken as a reference to Tamils with a history of involvement in dissident organisations, a group of people to which the Applicant does not belong. At par.106, the Tribunal determined that the Applicant does not face a real risk of significant harm on return to Sri Lanka owing to his personal profile and circumstances.
At pars.107 – 124, under the heading “Failed Asylum Seeker”, the Tribunal considered the Applicant’s claims with respect to fear of harm arising from being a failed asylum seeker by reference to DFAT and UNHCR advice about the treatment of failed asylum seekers on return to Sri Lanka. It accepted that the Sri Lankan authorities would assume that the Applicant had sought asylum in Australia; however, they would not be privy to the Applicant’s specific claims. Further, although the Tribunal accepted that the Applicant will be questioned by the authorities on his return, his profile (as described above) would not lead to any suspicion or adverse treatment. Indeed, at par.119, the Tribunal considered that any period of brief questioning or monitoring of the Applicant in this regard, owing to his illegal departure from or return to Sri Lanka would not, of itself, amount to harm, or risk of serious harm, to him.[10]
[10] The Tribunal noted also, at par.122, country information from Amnesty International and Human Rights Watch in relation to the current situation that greets failed asylum seekers upon their return to Sri Lanka. On the basis of such information the Tribunal concluded that there was no real chance or real risk that the government in Sri Lanka will detain, harm, torture or kill the Applicant due to any assumption that he criticised the government in the course of seeking asylum.
At pars.125 – 142, under the heading “Illegal Departure”, the Tribunal considered the Applicant’s claims with respect to his illegal departure from Sri Lanka. At par.130, by reference to DFAT information, the Tribunal stated that it was likely the Applicant will be held for a short period on arrival for questioning and is further likely to be charged with an offence under the Immigrants and Emigrants Act. The Tribunal found that the operation of this Act was uniform, and was not discriminatorily used against failed asylum seekers.
At par.133, it determined that this very brief period of remand by the authorities for questioning and for the provision of pending bail at the airport or in prison will/would not itself constitute systemic and discriminatory conduct. Further, at par.134, although the Tribunal accepted that the Applicant will likely face a financial penalty, it determined that the chances are very remote that the Applicant will be sentenced to any term of imprisonment due to his illegal departure. On the Applicant’s own evidence, it found it is likely that the Applicant would pay whatever financial penalty was imposed.
Turning to the circumstances of any brief imprisonment of the Applicant on remand, the Tribunal accepted that notwithstanding the Applicant “may be placed in overcrowded and poor conditions for short period of time”, he will not be singled out or intentionally harmed by the authorities in the process. It made this determination on the basis of the Applicant’s profile as described above and the relevant DFAT country information. The Tribunal determined that this brief period of imprisonment on remand does not/would not constitute a real risk of significant harm for the purposes of the Migration Act 1958.
At par.143, the Tribunal concluded that the Applicant “does not face a real chance of serious harm in Sri Lanka arising from his race, being a young male Tamil from the eastern region of Sri Lanka, his association with various family members, his TNA involvement, any imputed political opinion, religion, or as a member of a particular social group of either failed asylum seekers or returnees from Western Country or person who left Sri Lanka illegally, now or in the reasonably foreseeable future”. Consequently, the Tribunal affirmed the decision of the Delegate not the grant the Applicant a Protection visa.
Applicant’s Grounds of Appeal
The Applicant filed an Application with the Court on 5th May 2016 for review of the Tribunal’s decision. The grounds of review were as follows (typographical errors and emphasis in original):
1. The Tribunal failed to consider of [sic] social group advanced by the Applicant
A) The Tribunal accepts that the Applicant was Tamil from particular area.
B) The Tribunal did not consider the claim made by Applicant that the authority will not protect him.
C) The Tribunal committed jurisdictional error.
2. The Tribunal denied the Applicant’s [sic] procedural fairness and breeched 425 [sic] particulars.
A) Further particulars would be provided from transcript.
B) The Tribunal committed jurisdictional error.
3. The Tribunal committed jurisdictional error regarding the Applicant’s abduction and detention from TMVP.
Particulars
A) The Tribunal didn’t not [sic] give proper consideration that the Applicant have fear from TMVP and detention from them.
B) The Tribunal failed to carry out its duties and committed jurisdictional error.
Submissions of the Applicant
The Court made Orders on 6th June 2016 directing the parties to file and serve written submissions prior to the Hearing date. The Applicant did not file any submissions.
The Applicant confirmed via e-mail to Chambers on 24th August 2017 that he would not be making supplementary submissions in relation to the discrete issue of how the Tribunal dealt with the letter from the Bishop of Batticaloa.[11]
[11] The letter is at CB p.219.
In the course of the hearing, the self-represented Applicant, through an interpreter, made the following brief “submissions”.
First, he sought the Court’s assistance in having the matter transferred to Sydney where, he said, he had a lawyer, who insisted that he could or would only assist the Applicant if the matter was heard in Sydney. The Court pointed out to the Applicant that there was no Application before the Court for the matter to be transferred to Sydney.[12]
[12] Transcript (28th September 2016) p.8. Hereafter “T” followed by the page number.
Secondly, the Applicant confirmed that the issue for him was that the Tribunal’s decision, in his view, did not give proper weight to the documents he provided to it, and that the Tribunal did not believe him and his claims. This included his fears should he return to Sri Lanka.[13]
[13] See the discussion at T 13 – 14.
Thirdly, the Applicant asked the Court to arrange a “mental health assessment” for him.[14]
[14] T 14 – 15.
Fourthly, the Applicant confirmed that he had no further “particulars” of his claims, as set out in his Application before the Court.[15]
[15] T 13.
Submissions for the Respondent
The Respondent filed written submissions on 21 September 2016. Those submissions are as follows:
INTRODUCTION
1) This is an application for judicial review of a decision of the Second Respondent (Tribunal) dated 7 April 2016. The Tribunal's decision affirmed an earlier decision of a delegate of the First Respondent (Minister) dated 4 July 2012 not to grant the Applicant a protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
2) The Applicant seeks an order that the Tribunal's decision be quashed. The Minister submits that the application should be dismissed with costs because the decision discloses no jurisdictional error and is properly characterised as a privative clause decision for the purposes of s 474 of the Migration Act.
BACKGROUND
3) The Applicant is a citizen of Sri Lanka (see Court Book (CB) pg 449 at [25]). According to the Applicant, his date of birth is 7 December 1994 (see CB pg 87).
4) On 17 February 2012 the Applicant arrived by boat at Christmas Island (see CB pgs 32 & 44).
5) On 31 May 2012, the Applicant was notified that, pursuant to s 46A(2) of the Migration Act, the Minister had decided to allow him to lodge a protection visa application (see CB pg 23). On 6 June 2012, the Applicant applied for a protection (Class XA) visa (Visa) (see CB pgs 31 to 105). In summary, the Applicant claimed to fear persecution or harm if he was returned to Sri Lanka because he is a Tamil and a Christian and because of certain events involving certain family members and himself. The Applicant's claims were expanded by the time of the Tribunal's hearing held on 23 March 2016 and the Tribunal's decision record contains a detailed discussion of the Applicant's claims and evidence at [21] to [24] (see CB pgs 446 to 449) and outlined further at paragraph 24 below).
6) On 3 July 2012, a delegate of the Minister decided not to grant the Applicant the Visa (see CB pgs 111 to 138) (Delegate's Decision).
7) On 13 July 2012, the Applicant applied to the Tribunal (then known as the Refugee Review Tribunal) for review of the Delegate's Decision (see CB pgs 139 to 166). On 13 November 2012, the Tribunal affirmed the Delegate's Decision (First Tribunal's Decision).
8) The Applicant then unsuccessfully sought judicial review of the First Tribunal's Decision in this Court (see CZBQ v Minister for Immigration and Border Protection & Anor [2014] FCCA 2952 at CB pgs 308 to 325) (FCC Decision).
9) The Applicant successfully appealed the FCC Decision in the appellate jurisdiction of the Federal Court of Australia (see CZBQ v Minister for Immigration and Border Protection & Anor [2015] FCA 526 at CB pgs 326 to 342) (FCA Decision).
10) The Minister then sought special leave to appeal the FCA Decision to the High Court of Australia. The High Court refused special leave, stating that "[n]o question of legal principle, as distinct from the proper application of settled principle, is advanced that would justify the grant of special leave (see Minister for Immigration and Border Protection v CZBQ & Anor [2015] HCASL 229 at CB pg 358).
11) On 23 June 2015, the Tribunal notified the Applicant that, as a result of the FCA Decision, the matter had been remitted to the Tribunal for reconsideration (see CB pgs 346 to 347). On 21 January 2016, the Tribunal emailed a copy of the hearing invitation letter to the Applicant (see CB pg 386) and on the same day the Applicant telephoned the Tribunal to confirm receipt of the invitation and to update his contact details (see CB pg 387).
12) At the request of the Applicant, the hearing was rescheduled (from 22 February 2016 to 23 March 2016) and a new hearing invitation was sent to the Applicant's recently-appointed representative (see CB pgs 407 to 417).
13) On 16 March 2016, the Applicant's representative informed that the Tribunal that he no longer represented the Applicant (see CB pg 418). On 23 March 2016, the hearing was held and was attended in person by the Applicant and his uncle.
14) On 7 April 2016, the Tribunal notified the Applicant that the Tribunal had affirmed the Delegate's Decision not to grant him the Visa (Second Tribunal's Decision) (see CB pgs 440 to 477).
15) On 5 May 2016, the Applicant applied to this Court for judicial review of the Second Tribunal's Decision, it being the subject of this proceeding. At that time, the Applicant was unrepresented.
16) On 6 June 2016, the First Respondent was informed that the Applicant had appointed Harris Wake as his legal representatives in this proceeding. On 11 August 2016, Harris Wake filed a notice of withdrawal as solicitor.
17) The Applicant was given leave to file any amended application in this proceeding by 25 July 2016, which was extended by the Court to 5 August 2016 with the Minister's consent. No amended application has been filed or served.
APPLICANT’S GROUNDS OF REVIEW
18) In his application for judicial review, the Applicant set out the following grounds of review (emphasis and typographical errors in original):
1) The Tribunal failed to consider of social group advanced by the Applicant
A) The Tribunal accepts that the Applicant was Tamil from particular area.
B) The Tribunal did not consider the claim made by Applicant that the authority will not protect him.
C) The Tribunal committed jurisdictional error.
2) The Tribunal denied the Applicant's procedural fairness and breeched 425 particulars
A) Further particulars would be provided from transcript
B) The Tribunal committed jurisdictional error.
3) The Tribunal committed jurisdictional error regarding the Applicants abduction and detention from TMVP
Particulars
A) The Tribunal didn't not give proper consideration that the Applicant have fear from TMVP and detention from them.
B) The Tribunal failed to carry out its duties and committed jurisdictional error.
19) The grounds appear to essentially make two allegations:
a) first, that the Tribunal failed to properly consider the Applicant's claim(s); and
b) second, that the Tribunal denied the Applicant procedural fairness.
SUMMARY OF FIRST RESPONDENT’S ARGUMENTS
Grounds one and three—failure to consider a claim
20) Grounds one and three appear to allege that the Tribunal failed to consider, or properly consider, certain claims of the Applicant.
21) A failure to consider a claim or its component integers amounts to jurisdictional error (see Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] to [27] and [95]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at 152 [42]).
22) By ground one, the Applicant appears to allege that the Tribunal did not consider a "social group" claim made by the Applicant, namely that, as a Tamil from a particular area, the authorities would not protect him.
23) It is clear from the Tribunal's decision record that the Tribunal was conscious of the Applicant being a Tamil from a particular area in Sri Lanka (see CB pg 449 at [23] and the decision record generally) and considered whether the Applicant would face persecution for this reason (see CB pgs 460 to 465 at [90]-[95] and [104]-[106]).
24) Further, the Minister submits that the Tribunal gave comprehensive and detailed consideration of the Applicant's various other claims and their component integers, including in relation to:
a) the “white van incident" (see CB pgs 451 to 452 at [40] to [42]);
b) incidents involving the Applicant's family members and his connection to those family members (see CB pgs 452 to 457 at [43] to [69]);
c) the TNA (which appears to be a reference to the Tamil National Alliance, a political party in Sri Linka) (at CB pgs 457 to 458 at [70] to [76]);
d) militant groups (see CB pgs 458 to 459 at [77] to [79]);
e) religion (see CB pgs 459 to 460 at [80] to [84]);
f) alleged corruption (see CB pg 460 at [85] to [89]);
g) the Applicant's background as a Tamil / young Tamil male from the East / Tamil male from the East with an imputed anti-Government, pro-LTTE opinion (see CB pgs 460 to 465 at [90] to [106]);
h) the Applicant being a failed asylum seeker (see CB pgs 465 to 470 at [107] to [124]); and
i) the Applicant's illegal departure from Sri Lanka (see CB pgs 470 to 474 at [125] to [142]).
25) To the extent that the Applicant claimed that he would not be protected by the authorities from any of the sources of alleged threat, the Minister submits that having (lawfully) found that the Applicant was not at risk of harm or persecution from the various sources, it was unnecessary for the Tribunal to expressly consider whether the authorities could or would protect him against any (essentially non-existent) threat (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604; [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ).
26) Accordingly, the Minister respectfully submits that ground one is not made out.
27) By ground three, the Applicant alleges that the Tribunal did not give proper consideration to the claim that the Applicant feared the TMVP and detention by them. The Minister submits that the Tribunal plainly did consider this issue and relevant material, as is clear from [79] of its decision record (see CB pg 503). Having regard to recent country information, the Tribunal found that the TMVP (and certain other groups) do not have the power to threaten or harm Tamils, such as the Applicant, now or in the reasonably foreseeable future. The Applicant has not demonstrated how the Tribunal failed to properly consider this claim and the Minister therefore submits that this ground is not made out.
28) The Minister respectfully submits that grounds one and three amount to little more than bald assertions which seek to invite the Court to undertake impermissible merits review and which ignore the Tribunal's detailed consideration of the Applicant's claims.
Ground two—denial of procedural fairness
29) By ground two, the Applicant alleges that the Tribunal denied the Applicant procedural fairness and breached s 425 of the Migration Act. The substance of this allegation is unclear as no sufficient particulars have been provided.
30) Section 422B of the Migration Act relevantly provides that Division 4 of Part 7 (which includes provisions relating to the conduct of hearings and inviting Applicants to attend hearings) are taken to be an exhaustive statement of the requirements of the natural justice rule in relation to the matters they deal with.
31) Section 425 of the Migration Act provides that, subject to certain exceptions which are not presently relevant, the Tribunal must invite an Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in relation to the decision under review. Section 425A of the Migration Act provides for certain notice requirements in relation to an invitation to appear before the Tribunal.
32) The Minister submits that the Tribunal's obligations in ss 425 and 425A were discharged in the circumstances because:
a) the Tribunal invited the Applicant to appear before the Tribunal to give evidence and present arguments (s 425(1)) following the Applicant’s request to reschedule the hearing (see CB pgs 407 to 417);
b) the Tribunal gave the Applicant notice of the scheduled day, time and place of the hearing (s 425A(1)) (see CB pgs 407 to 417);
c) the relevant notice given under s 425A(1) was despatched to the Applicant's "authorised recipient" (s 441G) by transmitting the document by email to the last email address provided to the Tribunal for the authorised recipient (see CB 407 to 417);
d) the period of notice given exceeded the prescribed period of fourteen days after the Applicant's authorised recipient received the invitation (s 425A(3) and reg 4.35D(3) of the Migration Regulations 1994); and
e) the notice contained a statement of the effect of s 426A that if the Applicant does not appear before the Tribunal, the Tribunal may make a decision on the review without taking any further action to allow or enable the Applicant to appear before it or may dismiss the application without any further consideration of the application or the information before the Tribunal (ss 425A(4) and 426A).
33) The Applicant attended the hearing (with his uncle, who was a witness) (see CB pgs 435 to 439) and the decision record demonstrates that he was able to meaningfully and effectively participate in the hearing, including by giving evidence and presenting arguments. At the hearing, the Tribunal also discussed with the Applicant the issues arising for consideration in the matter (see for example, at CB pg 452 at [41]).
34) The Minister contends that this ground is not made out.
DISPOSITION
35) The First Respondent respectfully seeks the following orders:
a) the application be dismissed; and
b) costs be awarded to the Minister in accordance with r 44.15(1) and Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001.
The First Respondent filed supplementary submissions on 31st August 2017 in accordance with Orders made by the Court on 22nd August 2017 addressing the discrete issue of how the Tribunal dealt with the letter from the Bishop at page 219 of the Court Book. Those supplementary submissions are as follows:
1) These supplementary submissions are filed by the First Respondent in accordance with the orders made by his Honour Judge Neville on 22 August 2017.
2) At page 219 of the Court Book is a letter dated 24 August 2012 from Rt Rev Dr Joseph Ponniah, Bishop of Batticaloa. The statements in the letter are expressed at a relatively high-level of assertion with limited supporting detail.
3) The Minister submits that the Tribunal was clearly aware of the letter and its contents, as is evidenced by the Tribunal's comments in paragraph [21] of the decision record and the direct reference to the document in the passage that the Tribunal cited from the Federal Court of Australia's decision in CZBQ v Minister for Immigration and Border Protection [2015] FCA 526 (at paragraph [7](a) of the cited passage).
4) The Minister submits that the Tribunal carefully considered the issues raised in the letter (which had also been raised elsewhere). The Tribunal:
a) did not take issue with the Applicant's claim that he is a Catholic (see [23] and [80]-[84])
b) accepted that the Applicant's father had been detained on a number of occasions in the past (see [54] to [63]);
c) found that the Applicant had only experienced one instance of a threat being targeted personally toward him (the "white van incident" - see [42]).
d) found that the Applicant was not at risk of harm or persecution from certain groups (including militant groups), having particular regard to relevant country information (see [77] to [79]); and
e) found that the Applicant's claims in relation to his and his family's involvement with the TNA (a political party) were embellished and that he would not be at risk of harm or persecution due to any previous support of or involvement with the TNA (see [70]- 76]).
Consideration & Disposition
Given (a) the comprehensiveness of the Tribunal’s reasons and coverage of claims made by the Applicant, (b) the brevity of the grounds of review outlined by the Applicant (and his lack of submissions), and (c) the comprehensiveness of the Minister’s submissions, I can and will be brief in my reasons.
First, the Tribunal plainly recognised and considered the two relevant groups claimed by the Applicant – Tamil and being Catholic – at pars.23, 90 – 95 and 104 – 106. In addition, as noted earlier in these reasons, at par.83 of its reasons, the Tribunal confirmed that the Applicant did not consider himself to have any relevant issues or problems arising out of his religious tradition.
Secondly, having regard to the detailed findings of the Tribunal regarding, among other things, the non-discriminatory enforcement of legislation in Sri Lanka, such as under the Immigrants and Emigrants Act, as well as country information and reports generally from bodies such as DFAT, UNHCR, Human Rights Watch, in my view there is no basis for the Applicant’s claim set out in Ground 1(B). Further, Ground 1(C) is necessarily a conclusion rather than a “ground of review.”
Thirdly, as noted earlier in these reasons, in relation to Ground 2 of his Application, the Applicant confirmed that there were no further particulars of the grounds of review which he promised would be provided. Thus, there are no details in relation his claim that he was denied procedural fairness by the Tribunal and that there were breaches – unspecified – in relation to s.425 of the Act.
It is unclear to what matter or issue the Applicant was complaining when he referred to s.425 of the Act. That section simply requires that the Tribunal invite the Applicant to appear before it. There can be no question that this occurred here. The Applicant and his Uncle appeared and gave evidence to the Tribunal. Any contention that there has somehow been a breach of s.425 of the Act is unsustainable.
Fourthly, the claim set out in Ground 3 of the Application, whereby it is contended that the Tribunal did not relevantly give “proper consideration” to the Applicant’s fears regarding the TMVP, is likewise unsustainable. Among other things, at par.79 of its reasons, the Tribunal plainly had regard to the TMVP as part of its consideration of “Militia Groups”, beginning at par.77 of its reasons.
In my view, the grounds set out in the Application to review the Tribunal’s decision are no more than an attempt to have this Court review the merits of the Tribunal’s decision. This is something which this Court cannot and must not do.[16]
[16] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at p.37 (Brennan J).
The Applicant has provided no legal basis which could possibly justify this Court interfering with the Tribunal’s decision. In my view, it is particularly noteworthy that the Tribunal found (at par.63) that his Father was not experiencing any difficulties living in Sri Lanka, and that, given that the Applicant is further removed from the relevant family history than is his Father, it is even less likely that he will face any relevant threat or risk upon his return to his native country. Moreover, the Applicant has not sought to challenge this particular finding of the Tribunal.
Further, the complaint(s) of the Applicant amount, in my view, simply to disappointment with the Tribunal’s decision. That being the case, it is apposite to recall the comments of Gleeson CJ and McHugh J in Minister for Immigration and Multicultural Affairs v Eshetu.[17] At [40], their Honours said:[18]
Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as “illogical” or “unreasonable", or even “so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
[17] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
[18] Their Honours’ comments cautioning about a court trespassing into the improper review of the merits of a decision are also apposite here. See Eshetu at [44], and to similar effect, Gummow J at [138].
Respectfully, much if not most of the Applicant’s submissions and grounds of review, such as they are, seem to be fuelled by the ‘strong disagreement’ to which the High Court refers.
In addition to what I have written, I otherwise agree with and adopt the submissions filed on behalf of the Minister.
For these reasons, the Application must be dismissed with costs pursuant to Schedule 1, Division 1 of Part 3 of this Court’s Rules.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 18 May 2018
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