BCS17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)

[2023] FedCFamC2G 541

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BCS17 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 541

File number:	MLG 528 of 2017
Judgment of:	JUDGE YOUNG
Date of judgment:	21 April 2023
Catchwords:	MIGRATION LAW – application for review of a decision of the AAT to refuse the applicant a protection visa – where the applicant is a Sri Lankan citizen of Tamil ethnicity - where the applicant has not particularised grounds of review – where the applicant has not filed any written submissions - where the Tribunal found the applicant’s claims to be vague – where the court is not satisfied the decision was effected by jurisdictional error – the application is dismissed.
Division:	Division 2 General Federal Law
Number of paragraphs:	12
Date of hearing:	21 April 2023
Place:	Darwin
Solicitor for the Applicant:	Self-Represented Litigant
Counsel for the Respondent:	Mr Macaulay
Solicitor for the Respondent:	Clayton Utz

ORDERS

MLG 528 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BCS17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE YOUNG
DATE OF ORDER:	21 APRIL 20243

THE COURT ORDERS THAT:

1.The Application filed 16 March 2017 is dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

Judge Young:

1. This is an application for a judicial review of a decision of the Administrative Appeals Tribunal made on 22 February 2017 affirming a decision of the Minister’s delegate to refuse the applicant a protection visa.  On 16 March 2017 the applicant filed an application for review which read as follows:

   (1)The decision of the Tribunal:

   (a)is affected by an error of law;  and

   (b)denied the applicant procedural fairness. 

2. There is a second sentence where the applicant states: 

   I have made an application for assistance through Victorian Legal Aid, and I am waiting for a decision.

3. That single ground of review has not been amended nor has the applicant filed any written submissions.  There is abundant authority that an unparticularised or general ground of review is, in itself, sufficient ground for dismissing an application.  I have carefully read the decision of the Tribunal, which is lengthy.  I am going to refer to aspects of it, though I do not propose to summarise the entirety of the decision. 

4. The background to the matter is that the applicant is a Sri Lankan citizen of Tamil ethnicity.  It is clear that during the civil war in Sri Lanka the applicant lived in an area occupied for a period by the Liberation Tigers of Tamil Eelam (the LTTE).  He said that his brother had been killed by the Sri Lankan Army during an attack on a village where there was indiscriminate killing of civilians, including his brother and the wounding of his father.  At the end of the war he was detained in a camp, along with many thousands of other civilians and that claim was accepted by the Tribunal. The Tribunal accepted that he was mistreated in that camp but did not accept the applicant’s claims of severe mistreatment and found the applicant’s claims to be vague and not compelling. The Tribunal was satisfied the applicant was not a witness of truth in that respect.  The applicant also said in the hearing before the Tribunal that he was suspected by the Sri Lankan authorities of being a member of the LTTE.

5. The Tribunal said that this claim had not previously been raised and was also, in the Tribunal’s view, inconsistent with the applicant’s release from the Ramantathan refugee camp in 2010.  The Tribunal noted that LTTE members or suspected members were usually detained in so called rehabilitation centres.  The applicant claimed that he had been visited after his release from the refugee camp four or five times by members of the Sri Lankan Army.  He said that he had been assaulted on those occasions.  That claim was not accepted by the Tribunal. 

6. The applicant also said that he had been threatened by Sri Lankan Army members by having a gun held to his head a week before his departure to Australia in 2012 but he had not referred to this at an earlier point.  The Tribunal was evidently unable to accept that claim.

7. The Tribunal accepted that the applicant’s sister had been stopped and questioned at various times by the authorities but there was no evidence that she had been mistreated.  The Tribunal also considered a claim advanced by the applicant of an imputed opinion favourable to the LTTE. The Tribunal referred to DFAT country information in its assessment and generally did not accept that the applicant had a profile or was a person of interest for any reason, including because of his brother or his relationship to his brother. 

8. The Tribunal was satisfied the applicant had no links to the LTTE.  The applicant also advanced the claim that he had a well-founded fear of persecution as a Tamil male from a previously controlled LTTE area. That, the Tribunal was satisfied, did not give rise to a well-founded fear of persecution.  The Tribunal also referred to other grounds advanced, including that the applicant was a witness to human rights abuses. The Tribunal accepted that, at the time, those who had given evidence may have been at some risk but it did not accept that the applicant was in such a position and the Tribunal was not satisfied that the applicant was at serious risk of harm or a significant risk of harm should he return to Sri Lanka on any other basis, including his race, or as a returning asylum seeker, or because of his illegal departure. 

9. After hearing oral submissions today and having perused the Tribunal’s decision, it is not apparent to me that there is any jurisdictional error. In oral submissions the applicant raised two matters.  The first was, he said, that at page 7 of 36 of the decision, there was a significant error in the relevant paragraph which says:

   The SLA approached the bunker where the applicant’s brother [name] was sleeping and shot him, as they believed he was an LTTE member.  Upon hearing the gunfire, the applicant’s father was immediately awoken.  The applicant’s father was also shot in the arm by the LTTE as they were – as they suspected he too was an LTTE member.  The SLA shot and killed approximately 30 Tamils who they suspected were linked to the LTTE.

10. It is clear that the phrase “shot in the arm by the LTTE” contains an error and it is clear from the rest of the paragraph and the context that the Tribunal has made an error by referring to the LTTE rather than the SLA.  I am satisfied that that error is, essentially, typographical or perhaps if not typographical, a slip by the Tribunal.  It is clear from the balance of the decision that the Tribunal understood the applicant’s claims and understood that the incident referred to was one involving shooting by the SLA, not the LTTE.  I am satisfied that it was merely a slip and does not indicate that the Tribunal was under any misapprehension whatsoever about the true nature of the applicant’s claims. 

11. The other matter the applicant raised in oral submissions was that the hearing conducted by the Member was hasty and he did not have enough time to explain his position.  The applicant was represented by a migration agent who had made written submissions on his behalf.  The migration agent was present during the hearing, albeit apparently by telephone, as far as I can see. The hearing record appears at pages 270 and 271 of the court book, which I will make exhibit R1, and it is clear from that document that the hearing commenced at 1.12pm, ran until 2.27 pm, there was a break, the hearing resumed at 2.40 pm and it concluded at 4.12 pm.

12. In other words, the hearing ran for approximately two hours and forty minutes, which is a reasonably lengthy hearing. The court book does not give any indication that the migration agent made a post-hearing submission but a migration agent would, of course, be aware that a post-hearing submission is often made and may be made.  There is no evidence of a post-hearing submission complaining in any way about the adequacy of the hearing or that there was insufficient time for the applicant to advance his claims properly in that hearing of, on my calculation, two hours and 47 minutes.  I am not satisfied that any of those points raised in oral submissions by the applicant are jurisdictional errors.  The application is dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       21 April 2023