BCY16 v Minister for Immigration

[2017] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2380

Catchwords:
MIGRATION – Application for judicial review – protection claim – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: BCY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 989 of 2016

Judgment of: Judge Riethmuller

Hearing date: 8 September 2017

Date of Last Submission: 8 September 2017

Delivered at: Melbourne

Delivered on: 11 October 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 989 of 2016

BCY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal dated 18 April 2016, which affirmed the decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia on 1 July 2012 as an irregular maritime arrival. On 17 December 2012 the applicant applied for ta protection visa saying that he feared harm on the basis of his Tamil race and being perceived as a LTTE supporter, being a failed asylum seeker, and his illegal departure from Sri Lanka.

3. On 9 December 2013 a delegate of the Minister refused to grant the applicant a protection visa. On 17 December 2013 the applicant applied to the Refugee Review Tribunal (as it then was) for a review of the delegate’s decision.  The applicant appeared before the Tribunal on 30 October 2015.

4. On 18 April 2016 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

The Applicant’s Claims

1. The applicant claims that in December 2007, whilst working at a bakery, he witnessed an incident in the market square of a person being shot at close range. The applicant claims that the shooter, who he identified to be ‘K’ was a senior intelligence officer for the CID, left the scene by motorbike with other intelligence officers.  The bakery remained open, despite people fleeing and other businesses closing.  The applicant claims that ‘K’ later returned in uniform with police and a judge to the crime scene. The applicant claims he was questioned by the police and judge as to what he saw and asked to attend court the following morning.  The applicant attended court and he was asked to sign a statement saying he had not seen the incident, which he signed.

2. The applicant claims that following this incident the military would return to the bakery and ask questions, demand yeast and make threats that if the applicant didn’t do as they asked, he “would meet the same fate”.

3. The applicant claims that in April 2008 he witnessed a second shooting outside the bakery in similar circumstances to the first. The applicant claims that the police, a judge and military also attended the crime scene, and this included ‘K’ along with ‘R’ who was the shooter in the second incident. The applicant was again summoned to court and signed a further statement that he had not seen anything. 

4. The applicant claimed that a local news report aired footage following the second shooting and the applicant and bakery were visible in the footage.  The applicant claimed the reporter of the news story was also shot but he did not have any further details

5. Following the second incident, the applicant claims that ‘K’ and ‘R’ frequently came to the bakery and threatened him.  This caused problems and the bakery owner closed the bakery.

6. The applicant also claimed that his wife had been questioned as to his whereabouts.

7. The applicant further claimed that ‘K’, the first shooter was on the boat that bought him to Australia and was in detention with him.  The applicant claims that ‘K’ (who was also known as ‘E’) was threatening to other detainees and the applicant reported him to immigration officers. The applicant was sure ‘K’ would have informed his contacts and he feared being killed.

8. At the Tribunal hearing, the applicant also raised as an issue that he was distantly related to a former LTTE leader, that his father in law was involved in politics and that he was a member of a secret fisherman’s society.

The Tribunal’s findings

1. The Tribunal questioned the applicant throughout the hearing and put to him their concerns in relation to inconsistencies in his evidence leading them to doubt his credibility.  The Tribunal stated:

   77.  The tribunal acknowledges that the applicant has maintained his general claims of having witnessed murders and faced harassment by CID as a result and that he has provided relatively plausible details in relation to certain matters, such as the two murders he claims occurred outside his bakery.  However, many aspects of the applicant’s claims regarding his fears of the CID including ‘R’ and ‘K’ lack credibility.  Some aspects of his claims are inconsistent, implausible and vague, namely his account of what occurred after the murders including alleged threats and harassment by ‘K’ and ‘R’.  Other aspects of his claims, namely his fears arising out of K aka E’s past presence in Australia appear speculative.

2. The Tribunal addressed in detail all of the applicant’s claims in categories: the applicant’s fears in relation to having witnesses two murders by the CID (at [78 to [99]), the applicant’s fears of ‘K’ based on his presence in Australia (at [100] to [106]) and other claims raised by applicant including his father in law and relating to Prabhakaran (at [107] to [109]).

3. The Tribunal accepted that the applicant may have witnessed the two murders, in part, but found his evidence in relation to what followed and the CID involvement was “confused, vague and implausible” (at [83]. The tribunal did not accept that the applicant was ever threatened by R or K.

4. At [90] the Tribunal said:

   90.… the applicant’s bakery remained open and does not accept that he was questioned by police or other authorities about the murders.  Given its findings that the CID were not involved, the tribunal does not accept that the perpetrators of the murders returned in uniform to investigate the murders.  Given the discrepancies in his evidence, the tribunal does not accept that the applicant provided a statement to court in relation to either of these incidents or that a just accused him of knowing the identity of perpetrators  and warning the applicant that this would cause him problems.

5. The Tribunal did not accept the applicant’s claims in relation to the first shooter being in detention with the applicant and did not accept that the person known as ‘E’ in detention was the same person as ‘K’.

6. The Tribunal found that:

   104. The tribunal does not accept the applicant’s vague and undetailed assertion that E made a ‘general statement’ to Tamil detainees.  Furthermore, his evidence about threats made by E to him is inconsistent.  He claimed at hearing that E did not threaten him because he knew the applicant would report it to Australian authorities and that he merely made ‘normal conversation’ whereas his written claims refer to being threatened by E aka K in the form of being accused as an LTTE member or having E’s aka K’s partner harm the applicant’s family.  Given these inconsistencies and the tribunal’s finding that K and E are not the same person, the tribunal does not accept that the applicant was ever threatened by ‘E’ in Australia.

   105. Given its concerns and above findings, the tribunal does not accept that E aka K told his partner R or other contacts that the applicant is in Australia or that information has been provided to Australian authorities about them.  As put to the applicant, the person described by the applicant as E aka K returned to Sri Lanka in 2013 and the applicant has not claimed that his family have been contacted or harmed by this individual.  The tribunal finds the applicant’s claim that E aka K, R or others may have made inquiries with others about him to be speculative and without basis and gives little weight to the applicant’s evidence that action will only be taken once the applicant has returned to Sri Lanka.

   106. On the basis of the evidence before it the tribunal finds the chance or risk that the applicant will face serious harm or significant harm by E (aka K) and/or any associates is remote and speculative.

7. The Tribunal accepted that the applicant’s father in law may have been involved in politics but found the applicant had little knowledge of his political involvement and was not able to elaborate.  The Tribunal did not accept that the applicant was related to a former LTTE leader or that the applicant faced any risk being a member of a fishing society (at [107] to [109]).

8. The Tribunal noted the applicant has not claimed to be a member of the LTTE and the tribunal did not accept there was a real chance of the applicant facing harm as a result of his Tamil ethnicity or being a Tamil from the north.

9. The Tribunal considered the county information and found the applicant would not “face a real chance or risk of serious or significant harm as a result of being a failed asylum seeker”.

10. The Tribunal considered the applicant’s claim of harm on the basis of his illegal departure from Sri Lanka. The Tribunal accept that it was a criminal office to depart illegally and the applicant would be arrested and detained upon his return, however the Tribunal concluded the applicant would most likely receive a monetary fine.

11. Ultimately, the Tribunal found that the applicant was not a person to whom Australian owed protection obligations.

Grounds for judicial review

1. The applicant seeks judicial review of the Tribunal’s decision by application filed 12 May 2016 on the following grounds:

   1.   The decision of the Tribunal:

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

   (b) denied the applicant procedural fairness.

2. The applicant was unable to articulate what he said constituted the error alleged by the Tribunal.

3. The applicant sought to challenge the fact finding of the Tribunal, saying that all he knew was that he was persecuted.  It is not open to this Court to undertake a merits review of the Tribunal’s decision.

4. The applicant alleged that the Department sent information on him to the Sri Lankan authorities although there is no evidence of this.  To the extent that this claim is effectively that the authorities will know of him through K, it cannot succeed as the Tribunal did not accept that K was the same person with whom he was in detention, nor that he was of interest to authorities.

5. The applicant raised no points of law or procedural fairness.

6. As the case involved the possibility of detention in Sri Lanka on his return, as a person who departed illegally, I adjourned the hearing pending the outcome in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34. A further hearing was scheduled after that judgment was handed down, and neither party identified any relevant argument that may be a basis for reviewing the decision of the Tribunal. Importantly, the Tribunal addressed the issue, saying:

   133. As required by ministerial direction, the tribunal has taken into account the relevant guidance in the PAM including in relation to the circumstances in which harsh detention conditions may amount to significant harm (see “Lawful Sanctions Not Inconsistent with the ICCPR; Section 29; Imprisonment/Prison Conditions”).  Given that the applicant will be on remand for no more than a few days maximum, the tribunal finds that the risk that he would face significant harm while on remand for this short period is remote.  The tribunal further notes that, as discussed with the applicant at hearing, under Australian legislation, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation.  Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law.  Country information indicates that the poor prison conditions in Sri Lanka are due to a lack of resources (DFAT Country Report: Sri Lanka (18 December 2015); US State Department Country Reports on Human Rights Practices for 2014: Sri Lanka (2015); UK Home Office Operational Guidance Note: Sri Lanka (July 2013) at 3.16 ‘Prison Conditions) rather than an intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation.  The tribunal does not accept that any anxiety and/or discomfort that the applicant would face while on remand for the short period described amounts to significant harm, where evidence indicates that such discomfort and anxiety is not caused by an intention by the authorities to inflict sever pain or suffering or to cause extreme humiliation.

7. I therefore dismiss the application with costs on scale.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 11 October 2017