BHI15 v Minister for Immigration

[2016] FCCA 623

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHI15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 623

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal failed to have regard to relevant consideration – impermissible merits review.

Legislation:

Migration Act 1958 (Cth), ss.36(2)A, 91R(2) & 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167

Applicant: BHI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 247 of 2015

Judgment of: Judge Heffernan

Hearing date: 10 March 2016

Date of Last Submission: 10 March 2016

Delivered at: Adelaide

Delivered on: 4 April 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The Application filed on 8 July 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 247 of 2015

BHI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) of a decision of the Refugee Review Tribunal, as it then was, (‘the Tribunal’) dated 5 June 2015. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa.

2. The applicant appeared before me unrepresented.  He raised a single ground of appeal in his application of 8 July 2015.  That ground is as follows:

   “1.The Applicant was denied procedural fairness by the Refugee Review Tribunal member’s failure to address part of the Applicant’s claim and/or the failure to take into account a relevant consideration.

   2.More details will be provided later.”

3. The ground was not further particularised.

4. The applicant is a Sri Lankan male of Tamil ethnicity.  He has been in Australia since 2012, having arrived here as an unauthorised maritime arrival.[1]  When he initially made his application for a protection visa, he claimed that to return to Sri Lanka would put him at risk of serious harm on the basis of an actual, or imputed, involvement with the Liberation Tigers of Tamil Eelam (LTTE).  He claimed that he would be at risk from both the People’s Liberation Organisation of Tamil Eelam (PLOTE), and the Criminal Investigation Department (CID) of the Sri Lankan Police, because of this involvement.[2]

   [1]     Court Book (‘CB’) p 20.

   [2]     CB pp 38-42.

Tribunal hearing and findings

1. At the Tribunal hearing, the applicant was represented by a migration agent.

2. The Tribunal hearing took place on 27 February 2015, and the applicant gave evidence on that occasion.

3. The Tribunal Decision Record shows that it gave comprehensive consideration to the matters considered by the delegate, and the evidence and claims made to it by the applicant.[3]

   [3]     CB pp 135-144.  There is one possible exception to the consideration of the applicant’s claim which was raised with this Court by the first respondent.  I will deal with that later in these reasons.

4. The claims made by the applicant covered a number of incidents over many years, which he said, properly understood, formed the basis of his well-founded belief to be at risk of serious harm for a convention reason.  Those claims commenced in 1995, at a time when the applicant was a vegetable seller.  He also worked for a man who owned a chicken shop.  The number of local groups were allied with the Sri Lankan Military.  This included the PLOTE, who apparently tried to coerce him and other store holders into buying goods from them.[4]  He also rebuffed an attempt to coerce him onto a PLOTE soccer team.  At about this time, he was involved in an incident, so he says, in which batteries were inserted into live chickens in order to smuggle them to members of the LTTE.  His involvement in this scheme was discovered by the Army who referred him to the police and he was interrogated, but later released.  After this incident, the applicant apparently spent 16 years in Qatar between 1995 and 2010.  During that period of time, he returned to Sri Lanka on a number of occasions.  The Tribunal regarded this fact as significant because given that he had had to pass through international borders in order to get to and from Qatar, it tended to suggest that he was of no interest to the Sri Lankan authorities.[5]

   [4]     CB p 136.

   [5]     CB pp 150-151.

5. The applicant claimed, and the Tribunal accepted, that he had returned to Sri Lanka in 2010, living in his family home until 2012.  The applicant further claimed, and the Tribunal accepted, that his sister and her husband had a past association with the LTTE, and that during a time when they lived with him and his wife, his sister and brother-in-law were subject to some routine questioning by the authorities because of that prior involvement with the LTTE.

6. The Tribunal considered country information and concluded that the applicant had not suffered serious harm by reason of his Tamil ethnicity, and that he would not suffer serious harm in the reasonably foreseeable future on that basis.[6]  Further, the Tribunal found that taking into account the claims made by the applicant, he did not have a political profile of any adverse concern to the Sri Lankan authorities, and nor would he in the reasonably foreseeable future.[7]  The Tribunal found that the applicant had not advanced any claims based on membership of a particular social group that would suggest that he faced a real chance of harm at this time, or any time in the reasonably foreseeable future, on that basis.

   [6]     CB p 154.

   [7]     CB p 154.

7. The Tribunal also considered the status of the applicant as a member of the social groups of failed asylum seekers and Tamil failed asylum seekers. Whilst accepting that he will be subject to some questioning and possible charges on his return to Sri Lanka, it concluded that any possible implications for him were as a result of laws of general application and not discriminatory. It also concluded that the likely consequences to the applicant by virtue of being a failed asylum seeker, did not come within the ambit of serious harm when the examples given in s.91R(2) of the Act were considered. For that reason, it concluded that the consequences of illegal departure did not amount to a real chance of serious harm, now or in the reasonably foreseeable future.[8] The Tribunal specifically considered whether or not the applicant’s likely treatment on return to Sri Lanka would give rise to a real risk of “significant harm”, as defined by s.36(2)A of the Act, and concluded that it would not do so.[9]

   [8]     CB pp 154-155.

   [9]     CB p 157.

8. In considering the claims made by the applicant, the Tribunal made a number of findings of credit.  These were as follows:

   a)The Tribunal found that he had fabricated his claims about his involvement with the smuggling of batteries to the LTTE inside live chickens.  It found that he had fabricated the details of his subsequent arrest and interrogation by police relating to this incident.[10]  The finding of fabrication was based on the inconsistencies and inherent implausibility of some aspects of his account of these events.  The Tribunal found that the reason for the fabrication was specifically to provide a basis for claiming to be of adverse interest to the PLOTE and the Sri Lankan authorities because of his links to the LTTE.[11]

   b)The Tribunal did not accept the applicant’s claim that his reason for leaving Sri Lanka for Qatar was associated with his fear of the PLOTE. 

   c)The Tribunal did not accept that the applicant was of adverse interest to the PLOTE by virtue of his failure to purchase chickens from a PLOTE farm.

   d)Whilst the Tribunal accepted the evidence of the applicant that there were instances of him not co-operating with the PLOTE, it was not prepared to find that he faced a risk of serious harm because of this.[12]

   e)The Tribunal found that the applicant had embellished the circumstances of the disappearance of his friend in 2008 with a view to supporting his assertion that he was of adverse interest to the PLOTE.[13]

   f)The applicant had claimed that on two occasions, unnamed persons on motorbikes had visited his premises in 2012 and he advanced this to support his claims that he was at risk of serious harm.  The Tribunal was not satisfied these events had in fact occurred at all, but noted that even if they had, there was nothing overt about the nature of the incidents that would lend any support to his claims to have a well-founded fear of being at risk of serious harm for any convention reason.[14]

   [10]   CB pp 149-150.

   [11] CB p 150 at [141].

   [12]   CB p 151.

   [13]   CB p 152.

   [14]   CB p 153.

Submissions of applicant

1. The applicant made brief oral submissions before me.  He stated that he had gone back to his home country (and by this I understood him to be referring to his return to Sri Lanka from Qatar), but that his local community group thought that he was linked to the LTTE, and for this reason, he came to Australia.

2. He submitted that once he came to Australia, he felt safe.  He submitted that if he returns to Sri Lanka, he could be killed and his whole family could be killed.  Whilst his family is not with him in Australia, he submitted that they are safe now because he is living in Australia.

3. The applicant acknowledged that he had given evidence to the Tribunal, and that he had told the Tribunal about his version of events.  When I asked him in what way he said the Tribunal hearing was unfair, he responded that whatever the government does, the Tamil groups remain very powerful.  By this, I understood the applicant to be taking issue with the finding of the Tribunal that he was not presently, or in the reasonably foreseeable future, at risk of serious harm or significant harm, should he be required to return to Sri Lanka.  I note that the submissions of the applicant, contrary to his ground of application, did not identify any part of his claim that the Tribunal had not addressed or failed to take into account.  He did not identify in his oral submissions any other relevant consideration that the Tribunal had failed to take into account.

4. In reality, the submissions of the applicant and the basis of his application to this Court, appear to be a disagreement with the findings of the Tribunal.  In so far as he claimed any unfairness on the part of the Tribunal, it was due to the failure of the Tribunal to accept his claims and provide him with the protection visa.

Submissions of the first respondent

1. The first respondents submit that, as I have identified above, the arguments of the applicant simply amount to a disagreement with the findings of fact made by the Tribunal. It submits that the applicant was inviting the Court to undertake a merits review, which is of course not permitted under s.476 of the Act. The first respondent says that all of the claims about the applicant’s actual and imputed involvement with the LTTE and the PLOTE were clearly considered by the Tribunal in detail and that it made findings rejecting those claims. It submits that the findings were clearly open to the Tribunal. The first respondent submits that the Tribunal complied with its obligations to give the applicant an opportunity to give oral and written evidence.

2. Quite properly, the first respondent pointed to one matter which the Tribunal may not have specifically dealt with.  This was the question of the applicant’s fear of harm because of the implications potentially of being given a sentence of imprisonment based on his having departed Sri Lanka illegally.  However, the first respondent submits that the Tribunal did take into account country information which specifically addressed this point.  The Tribunal made findings concluding that the applicant was likely to be detained for a short period only and that he would not suffer significant harm as a result of this.  The first respondent says that when this is taken into account with the country information, and the finding at paragraph 198 of the Decision Record, it was implicit that it had considered and rejected the notion that the applicant would be at risk of serious harm by reason of a sentence of imprisonment.  In part, the DFAT country information advised that, “no returnee who was just a passenger on a people smuggling venture, has been given a custodial sentence for departing Sri Lanka illegally, but fines have been issued to act as a deterrent towards joining boat ventures in the future”.[15]

   [15]   CB p 148.

Considerations

1. I am not satisfied that the applicant has established any jurisdictional error on the part of the Tribunal.  To the extent that the applicant is dissatisfied with the result of the Tribunal’s finding, that is not a matter which this Court can have regard.  It is not within the power of this Court to undertake a merits review of the applicant’s claims.[16]  The decision of the Tribunal was clearly based on a thorough and careful consideration of the claims advanced by the applicant.  Insofar as the Tribunal made findings of credit relevant to its assessment of the applicant’s claim, that was entirely a matter for the Tribunal.[17]  The Tribunal gave sufficient reasons for its findings.  It was not required to give specific reasons as to why it accepted or rejected each particular piece of evidence.  I am satisfied that the findings of fact made by the Tribunal were all open on the material presented to it.  There was nothing unreasonable in the legal sense, illogical or irrational in the decision of the Tribunal.

   [16]   Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

   [17]   Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at [57]; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].

2. With respect to the issue raised by the first respondent that the Tribunal did not specifically address any risks associated with the potential imposition of a penalty of imprisonment, I am satisfied that it is implicit in the reasoning and the finding of the Tribunal, that it did take this into account.  The information provided by DFAT referred to the fact that there is no evidence that a sentence of imprisonment has ever been imposed on an illegal departee in the circumstances of the applicant.  The Tribunal clearly considered and accepted material from the DFAT report dated 16 February 2015.  It gave weight to that material, and it cannot be said that the implications of a possible sentence of imprisonment being imposed on the applicant was something that had slipped its attention.  Rather, on the material which it accepted[18] it could not be said that this was anything other than a remote possibility.

   [18] CB p 155 at [198].

3. For these reasons, the application is dismissed.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 4 April 2016