BAX16 v Minister for Immigration
[2017] FCCA 167
•27 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAX16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 167 |
| Catchwords: MIGRATION – Visa – protection visa – procedural fairness – failure to apply correct legal test – appeal dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36, 36(2)(a)(a), 36(2)(a)(aa) & (c) |
| Cases cited: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 |
| Applicant: | BAX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 143 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 5 December 2016 |
| Date of Last Submission: | 5 December 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 27 September 2017 |
REPRESENTATION
| The Applicant: | In person with assistance of an interpreter |
| Counsel for the Respondents: | Ms M Scanlon |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application dated 4 May 2016 is dismissed.
The applicant do pay the costs of the first respondent fixed in the amount of SIX THOUSAND DOLLARS ($6,000).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 143 of 2016
| BAX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 6 April 2016 which affirmed an earlier decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant, who represented himself with the assistance of an interpreter, raised two grounds of application as follows:
“1.The Refugee Review Tribunal (sic) did not afford me procedural fairness.
2.The Refugee Review Tribunal (sic) applied the wrong legal test.”
On 16 June 2016, a Registrar of the Court gave the applicant leave to file and serve any amended application by 12 August 2016. He was also given leave to file and serve such further material, including transcript of the proceedings before the Tribunal, if he sought to rely on it. He was also ordered to file and serve an outline of submissions 10 business days prior to the hearing. The applicant has not filed and served an amended application, has not filed any further materials, and did not file a written outline of submissions.
When the application was filed, the applicant also filed an affidavit in support dated 2 May 2016. That affidavit annexes a copy of the Tribunal decision but otherwise does not add anything to the application itself.
Background
Much of the relevant background to this matter is summarised in the first respondent’s outline of submissions. I do not understand either from the materials filed by the applicant, or the oral submissions he made before me, that he disputes the background facts as asserted by the first respondent. Accordingly, I have paraphrased aspects of that summary below.
The applicant is a male Sri Lankan citizen in his late 30s. He is a Catholic of Sinhalese ethnicity. He is married and has two children who remain living in Sri Lanka. Prior to his departure for Australia, he was a fisherman by trade.
The applicant left Sri Lanka illegally in June 2012, arriving in Australia on 15 July 2012. He applied for a protection visa on 15 October 2013. On 14 November 2014, a delegate of the first respondent refused that application. The applicant applied to the Tribunal for review of the delegate’s decision on 21 November 2014. A hearing took place before the Tribunal on 21 March 2016. At this time the applicant had the assistance of a Sinhalese interpreter. The Tribunal reserved its decision and on 6 April 2016, it affirmed the decision under review. Proceedings in this Court were subsequently lodged on 4 May 2016.
The applicant represented himself before the Tribunal. It seems that the applicant had engaged the services of a migration agent, but that the agent did not attend the hearing.
Tribunal hearing and findings
The Tribunal identified the issues as being whether the applicant met the refugee or complimentary protection criteria for one of the following reasons:
a)His membership of the political party, Janatha Vimukthi Peramuna (JVP), and for that reason his imputed political opinion;
b)The fact that he departed Sri Lanka illegally and was in addition a failed asylum seeker; and
c)The ramifications of having captained the boat on which he arrived in Australia, thereby facilitating a people smuggling operation.[1]
[1] Court Book (‘CB’) p 156 at [11].
In its Decision Record, the Tribunal summarised the applicant’s claims to having been a political activist, including the fact that he worked for a person who ran for public office with JVP. That was in 2010. The Tribunal also summarised those matters which, on the applicant’s case, were a consequence of his involvement with JVP.[2] The Tribunal Decision Record also briefly summarises the matters of which the delegate was satisfied and those which the delegate did not accept.[3]
[2] CB p 157 at [17]-[27].
[3] Op cit at [27].
During the course of the Tribunal hearing, the nature of the applicant’s claims changed. He effectively abandoned his claim based on membership of JVP and potentially imputed political opinions.[4] It appears that by the time of the Tribunal hearing, the applicant accepted the finding of the delegate that he was a low level supporter of the JVP.[5] Under questioning by the Tribunal about his level of involvement with JVP and the provenance of a letter of reference he provided to the Department in support of his application, there was a shift in the applicant’s evidence. He told the Tribunal that he was no longer interested in politics and that he had been informed by his wife that he no longer had any problem in Sri Lanka associated with his political involvement. For that reason, he told the Tribunal he believed he was no longer in danger and no longer feared persecution because of his political opinions.[6] The Tribunal regarded that as a shift in his evidence from having made an earlier claim to being an active member of the JVP, who had experienced persecution in the past, to having been a low level supporter of that party. On the basis of this concession, the Tribunal found that the applicant had not been an active member, or active supporter of the JVP, and did not accept that he had assisted a candidate in the 2010 election campaign. It did not accept that he had been targeted by members or supporters of parties opposed to the JVP in Sri Lanka.[7] It was prepared to accept that the applicant was an ‘ordinary supporter’ of JVP having attended some meetings, putting up a few posters, and distributed rice parcels in his local area.[8] In other words, the Tribunal accepted the applicant’s concession that he was in fact a low level supporter. For that reason, the Tribunal concluded, as the applicant himself apparently conceded, that there was no real chance that he would be persecuted by members and supporters of political parties opposed to JVP in the event that he returned to Sri Lanka now, or in the reasonably foreseeable future. Although it appears to have been somewhat otiose in the circumstances, the Tribunal found that it was not satisfied that the applicant’s fear of persecution because of his actual or imputed political opinion in Sri Lanka was well-founded.[9] Of course, as the Tribunal itself had noted, the applicant had in his evidence disavowed having any such fear.
[4] CB p 158 at [31].
[5] CB p 157 at [29].
[6] CB p 158 at [31].
[7] CB p 158 at [33].
[8] CB p 158 at [34].
[9] CB p 158 at [35].
The applicant claimed to the Tribunal that his only fear was that he would be killed by local “thugs” if he were to return to Sri Lanka. He described to the Tribunal an incident in June 2010 in Negombo that he said had occurred after he had returned from a fishing trip. A group of local thugs approached him and demanded that he hand over his catch for free. He managed to escape from them. The thugs later returned with a sword and hit one of his fellow crew members over the head. He sought assistance from a navy officer who remained with the boat and the episode ended with no further incident.[10] This account was at some variance with the account given to the delegate of apparently the same incident. The applicant told the delegate that the navy had attended in a dingy with officers who conducted an unsuccessful search for the thugs. He said the incident was reported to police, but he had no confidence that either the police or navy could assist him because the thugs bribe them with alcohol and cigarettes. On the applicant’s account, it was relatively common for the thugs to accost fisherman and demand free fish. When asked as to the motivation behind the attack, the applicant surmised that it was simply because the men were drunk and wanted fish. As he was in the habit of sleeping on his boat overnight, he held a fear that the thugs would one day return and kill him.[11]
[10] CB pp 158-159 at [37]-[38].
[11] CB p 159 at [40-[41].
On the applicant’s account before the Tribunal, he had not experienced any other problems in Sri Lanka between this incident in 2010 and June 2012 when he departed for Australia.[12]
[12] CB p 159 at [42].
When he appeared before the delegate, the applicant had given a further example of trouble he had experienced. This involved a claim of having been attacked whilst driving home by two men who stopped his vehicle and tried to assault him. Police apparently intervened and the incident ended. The Tribunal noted with respect to this alleged episode “the applicant did not expand on the evidence at the hearing”.[13] It seems from that observation the applicant failed to mention this incident at all before the Tribunal. In any event, the Tribunal found that the claim was vague and lacking in detail and did not accept that the incident was politically motivated.
[13] CB p 159 at [43].
In summary, the applicant’s position was that he was known to the thugs who had harassed him in the past, and that if he returned to Sri Lanka resuming his trade as a fisherman, he would be at risk at being murdered by them.[14]
[14] CB p 159 at [45].
The Tribunal accepted that the applicant had been accosted by thugs in June 2010 as he claimed. It accepted that the matter had been reported to the police. It found that a navy officer came to his assistance. The Tribunal concluded that that incident was unrelated to the later incident where he was stopped whilst driving home. It found the events to be random.[15] In essence, the Tribunal found that the applicant had been targeted by the thugs on the first occasion simply because they were seeking free fish, were drunk, and were behaving in a disorderly manner. It found that thugs targeted other fisherman in this manner as well.[16] The Tribunal also noted that the applicant made a further claim to the delegate about people approaching his boat in 2010 and attacking him, but it appears that this claim was not advanced before the Tribunal.[17]
[15] CB p 159 at [46].
[16] CB p 159 at [47].
[17] CB p 160 at [47].
The Tribunal was not satisfied that the applicant was monitored by unknown people or targeted by the thugs because of his race, religion, nationality, membership of a particular social group, or political opinion. In essence, the Tribunal found that the action of the thugs was localised criminal conduct. Both the applicant and the owner of the boat had been provided with appropriate assistance by the Sri Lankan authorities. It took note of the fact that the DFAT’s country information confirmed that there was no law or government policy hindering access to state protection on the basis of religion or ethnicity. It found that the applicant was able to access state protection in the reasonably foreseeable future. For that reason, the Tribunal was not satisfied that there was a real chance that the applicant will be denied state protection on the basis of his race, religion, nationality, membership of a particular social group, or his imputed political opinion.[18] For this reason, the Tribunal found that the applicant’s fear of persecution from the thugs in the reasonably foreseeable future was not well-founded. For the same reasons, it found that there was no real risk that he would suffer significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka.
[18] CB p 160 at [50].
The Tribunal considered the applicant’s claim that he had assisted in the role of skippering the boat from Sri Lanka to Australia. It questioned him about that matter. It did not accept evidence that he had been approached for the purpose of captaining the boat to Australia, or that he had been in charge of the boat during the journey. Rather, the Tribunal accepted that as a fisherman, the applicant might have assisted the crew, along with other passengers, in taking turns to steer the boat during the long journey.[19] It was of particular significance to the Tribunal that the applicant had to be prompted during the hearing to provide evidence about his claim that he had been the captain of the boat.[20] The Tribunal specifically rejected that the applicant had agreed to captain the boat, or that he left Sri Lanka because he believed his life was in danger. The Tribunal noted that the claim to have left the country in fear of his life was inconsistent with his evidence that he had experienced no problems between 2010 and the time of his departure in June 2012. It found that the only problems experienced by the applicant in Sri Lanka were the examples of criminal conduct in 2010.[21] The Tribunal rejected the applicant’s claim that he would be imprisoned in Sri Lanka because he had been the captain of the boat. The Tribunal found that it was not satisfied that his fear of persecution as a failed asylum seeker, illegal departee, and captain of the boat, were well-founded.[22]
[19] CB p 162 at [70].
[20] CB p 161 at [63].
[21] CB p 160 at [54] & p 161 at [63].
[22] CB p 165 at [79].
With respect to the failed asylum seeker claim, the Tribunal gave a thorough consideration to relevant country information relating to the status of failed asylum seekers. It was not satisfied that either his illegal departure or his status as a failed asylum seeker would cause him to be imputed with any political opinion should he return to Sri Lanka.[23] For that reason, it found that there was not a real chance in the reasonably foreseeable future that he would suffer serious harm amounting to persecution, either when he returned to Sri Lanka or his village on the basis of his membership of the social group of failed asylum seekers, or because he helped steer the boat to Australia.[24]
[23] CB p 164 at [76].
[24] CB p 164 at [78].
The Tribunal addressed the question of complimentary protection criteria under s.36(2)(a)(a) of the Migration Act 1958 (Cth) (‘the Act’). It considered the fact of his illegal departure, but concluded that on his return he would be subject to standard procedures and laws of general application directed towards the legitimate management of the proper exit and entry of persons to Sri Lanka.[25] It found that the applicant would not suffer harm of any kind on his return to Sri Lanka for reasons of race, religion, being a member of a particular social group, or having an imputed political opinion, being a failed asylum seeker, or as a result of any personal characteristics.[26] Having considered the applicant’s claims individually, it then considered them cumulatively and found that they did not attract the complimentary protection obligations.[27] It specifically found that any period in gaol on remand on the applicant’s return to Sri Lanka would not amount to the intentional infliction of harm within the definition of “cruel or inhumane treatment or punishment” contained in s.5(1) of the Act.[28]
[25] CB p 165 at [86].
[26] CB p 165 at [81].
[27] CB p 166 at [88].
[28] CB p 166 at [88].
Complaint to Tribunal after hearing
After the Tribunal hearing, the applicant’s migration agent contacted the Tribunal and advised that the applicant had instructed them that he did not understand what had occurred at the Tribunal hearing.[29]
[29] CB p 155 at [4].
The migration agent was apparently unable to offer any clarification of these instructions. The Tribunal invited the migration agent to make further submissions or provide further evidence in support of the applicant’s claims. The Tribunal also made an offer to the applicant through the migration agent of an opportunity to engage in a second hearing. This offer was not taken up and no further materials were presented to the Tribunal by or on behalf of the applicant.[30]
[30] CB p 155 at [5].
Based on the fact that the Tribunal had had an opportunity to observe and listen to the applicant through the interpreter, the Tribunal found that he had been able to meaningfully participate in the hearing. It noted that the applicant had not complained at any stage about the quality of the interpreting or the manner in which the hearing had been conducted.[31]
[31] CB p 155 at [4].
Submissions
The applicant made brief oral submissions before me. He wanted to know why the Tribunal did not consider the fact that he had received death threats in Sri Lanka. He submitted that the Tribunal did not give adequate consideration to the fact that he was a fisherman who had to work around the harbour. He submitted that the Tribunal had erred in not accepting his evidence that he had been the captain of the boat that brought him to Australia. He reiterated that he was scared to return to Sri Lanka and that it was not safe for him to do so because he would be required to perform the same job and no-one had taken any action about the threats against him. The applicant did not advance any submissions specifically directed to the question of a denial of procedural fairness or the application of the wrong legal test.
Counsel for the first respondent submitted that there was no procedural unfairness occasioned to the applicant by virtue of the manner in which the Tribunal hearing was conducted. Further, she submitted that it was apparent from material in the Court Book that the applicant’s migration agent had understood the nature of the invitation extended to the applicant after the hearing.[32] The first respondent submitted that the hearing provided by the Tribunal amounted to a meaningful opportunity to attend, present evidence, and make argument in support of his claims.
[32] CB p 150.
The first respondent submitted that there was no error in the approach taken by the Tribunal to s.36 of the Act. It submitted that it was a significant matter that the Tribunal made findings against the credit of the applicant. The findings made by the Tribunal as to whether or not there was a risk of intentionally inflicted cruel or inhumane treatment or punishment was consistent with the authority of SZTAL v Minister for Immigration and Border Protection[33] which was binding on this Court notwithstanding that an appeal of that decision to the High Court was pending.
[33] [2016] FCAFC 69.
Consideration
There was no procedural unfairness occasioned to the applicant on the basis of the complaint made after the hearing that he had not understood what had occurred. The Tribunal responded appropriately to that complaint and no further action was taken by the applicant.
It is not possible to discern from either the application to this Court or the submissions made by the applicant the precise basis upon which he says that he was denied procedural fairness. I have considered both the post hearing complaint and the conduct of the hearing by the Tribunal as evidenced by the materials in the Court Book. The obligation on the Tribunal was to extend an invitation to the applicant to attend at a hearing and to provide an opportunity for him to present evidence and present arguments in relation to the issues arising in relation to the decision under review.[34] The Tribunal wrote to the applicant extending such an invitation.[35] Procedural fairness required that invitation to provide a meaningful opportunity to be heard. In fairness to him, it needed to be more than a hollow invitation or rhetorical gesture.[36] The applicant was on notice of the issues that arose before the Tribunal by virtue of the decision of the delegate.[37] The applicant had a qualified interpreter available to him.[38] He gave evidence and was questioned by the Tribunal. Nothing in any of the materials before me suggests that the applicant felt at the time of the hearing, that he was not able to participate meaningfully in the process. The response provided to the migration agent after the hearing, gave the applicant an opportunity, of which he did not avail himself, to supplement his claims with further written material, or to give further evidence. There was no error by the Tribunal in the approach that it took to the post hearing complaint and no procedural unfairness occasioned to the applicant.
[34] Section 360 Migration Act.
[35] CB pp 104-106.
[36] Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395 at [31]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 75 ALD 151 at [41].
[37] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
[38] Hearing record CB p 146.
The applicant did not file any materials in this Court capable of supporting the contention that he did not understand the proceedings. If the applicant sought to establish in this Court that by virtue of mistranslation, or an inability on his part to understand the interpreter, the decision making process had miscarried, the onus was on him to do so.[39] The finding of the Tribunal that the applicant had not experienced difficulties in communicating during the hearing and that he had been able to participate meaningfully was clearly open to it. I dismiss ground one of the application.
[39] WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29].
As to ground two, this ground also suffers from a complete lack of particularity. The Tribunal correctly stated the criteria for a protection visa pursuant to s.36(2)(a)(aa) and (c) of the Act and the complimentary protection criteria. I am not able to discern any error in the application of the legislation to the facts as the Tribunal found them to be. The findings of fact, including the findings as to credit, were open to the Tribunal. Specifically, there was no error in the Tribunal finding that the incidents experienced by the applicant in 2010 were random, unrelated, and amounted at most to generalised criminal conduct. It was open to the Tribunal to find that, given he claimed not to have experienced problems between 2010 and his departure in 2012, the persons who had drunkenly accosted him demanding that he hand over his fish did not represent a risk of harm to him in the future.
The finding by the Tribunal that the applicant could avail himself of state protection in the event of any future harassment or criminal conduct was open to it on the basis of country information on which it was entitled to rely.
The complaint made by the applicant in oral submissions that he had not been accepted on the question of whether he had captained the boat was an invitation to this Court to engage in an inpermissible merits review.[40] That finding was not unreasonable, illogical, or irrational.
[40] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
Similarly, the applicant’s submission that he was in fact at risk of harm should he return to Sri Lanka also invited this Court to revisit the merits of his claims and cannot succeed. His submission that the Tribunal did not consider death threats made to him in Sri Lanka cannot be sustained. This submission appeared to be a reference to the applicant’s original claim to having been targeted by supporters of the “ruling party”.[41] The applicant abandoned his claim to being at risk because of his imputed political opinions. In any event, in so far as the applicant’s submission on this point was a reference to the future danger posed to him by the “thugs” of whom he complained, the Tribunal made the specific finding that it did not accept that he had been monitored by unknown people or targeted by the thugs.[42] The Tribunal found that the applicant would be able to access state protection in the reasonably foreseeable future.[43]
[41] Statement of Claims, CB pp 81-83.
[42] CB p 160 at [48], pp 165-166 at [87].
[43] CB p 160 at [50].
I am satisfied that the Tribunal gave proper consideration to all of the claims advanced by the applicant, correctly applied the law, and made no error in its decision to affirm the decision of the delegate.
I dismiss ground two.
Since this matter was argued, the High Court has delivered its decision in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection.[44] With respect to the interpretation of the expression “intentionally inflicted” in the definitions of “torture” and “cruel and inhumane treatment or punishment” in s.5(1) of the Act and the expression “intended to cause” in the definition of “degrading treatment or punishment” in s.5(1) of the Act, the Court found that what was required was an actual subjective intention by a person to inflict pain or humiliation in order for such conduct to attract the complementary protection criteria under s.36. For that reason, the findings of the Tribunal at paragraph 88 of its reasons, was not made in error.
[44] [2017] HCA 34.
For the reasons above, I make the orders to be found at the beginning of these reasons.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 27 September 2017
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