BHU15 v Minister for Immigration

[2017] FCCA 2866

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHU15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2866

Catchwords:
MIGRATION – Protection visa – no reason for interfering in Tribunal’s decision.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2)(a), 36(2)(aa), 425

Cases cited:

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

SZUQB v Mnister for Immigration and Border Protections [2016] FCCA 2180

Applicant: BHU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1571 of 2015

Judgment of: Judge Wilson

Hearing date: 13 October 2017

Date of Last Submission: 13 October 2017

Delivered at: Melbourne

Delivered on: 23 November 2017

REPRESENTATION

Applicant in person

Solicitors for the
First Respondent: DLA Piper Australia

ORDERS

1. The application filed 9 July 2015 is dismissed.

2. The applicant pay the costs of the first respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1571 of 2015

BHU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed in this court on 9 July 2015 the applicant sought judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made 26 June 2015[1] pursuant to which the Tribunal affirmed a decision made by the delegate of the Minister on 10 February 2014[2] refusing the applicant’s application for a protection visa.

   [1] Court book filed 15 September 2015 at pp.233-266.

   [2] Court book filed 15 September 2015 at pp.129-143.

2. In essence, the Tribunal was not satisfied that the applicant met the criteria for the grant of a refugee protection visa under s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he had a

   
   

   well-founded fear of persecution on account of his actual or imputed political opinion or by reason of his membership of a particular social group (in this case, a person who departed Sri Lanka illegally, a failed asylum seeker or an illegal returnee) or for any other Convention reason. In essence, the Tribunal was not satisfied that the applicant met the criteria for the grant of a complementary protection visa on the basis that the Tribunal did not accept there was a real risk of the applicant suffering any form of significant harm in the manner contemplated by s.36(2)(aa) of the Act.

3. The applicant applied to this court on the basis that the decision of the Tribunal was affected by an error of law and by reason of the fact that he said the Tribunal denied him procedural fairness. The applicant also said he was in the throes of seeking assistance from Victoria Legal Aid (“VLA”) and was awaiting a decision on the application.

4. Before me the applicant appeared with the assistance of a Sinhalese interpreter.

5. The applicant urged me to conclude that the Tribunal had fallen into jurisdictional error.

Synopsis

1. For the reasons that follow, in my judgment the Tribunal did not fall into jurisdictional error with the consequence that this application for judicial review is dismissed and I order the applicant to pay the Minister’s costs.

Short factual narration

1. The applicant, a male Sri Lankan citizen, applied for a protection

   
   

   (class XA) visa on 12 December 2012. In support of his application

   
   

   he provided two statements that recorded his claims, the first dated

   
   

   7 December 2012 and a supplementary statement dated

   
   

   13 February 2013. In his written statement made 7 December 2012 the applicant claimed –

   a)in the period between 2005 and 2006 in the company of a friend he had worked for the United National Party (“UNP”);

   b)on an unspecified date between 2005 and 2007 his friend’s house was destroyed by government supporters and his friend was later killed by thugs;

   c)

   between 2009 and April 2010 he campaigned for a presidential candidate for the UNP as a result of which his life was threatened which state of affairs continued until he left Sri Lanka in

   
   

   July 2012;

   d)between 2009 and 2012 he was beaten many times by government supporters;

   e)in October 2011 he campaigned in the Negombo local council elections;

   f)in February 2012, en route to a fish market, four men on two motorcycles who he recognised as government supporters pointed a pistol at his head and said they intended to kill him;

   g)subsequently, on four separate occasions unidentified people came to his family home asking for his whereabouts; and

   h)

   by reason of fear he decided to leave Sri Lanka since which time his wife (who did not accompany him and instead remained in

   
   

   Sri Lanka) told him that on 15 October 2012 the same people who had previously come to his family home visited his wife at their house looking for him.

2. In his supplementary statement made 13 February 2013, after correcting errors in the first statement the applicant stated –

   a)

   between 2009 and April 2010 the applicant campaigned for a particular politician under the direction of a leading

   
   

   UNP politician; and

   b)while he was working with a transportation entity, unidentified persons came to the door asking where he was.

3. The Minister’s delegate did not accept aspects of the version of

   
   

   events that the applicant gave and refused to grant the visa on

   
   

   10 February 2014.

4. The applicant sought a merits review before the Tribunal on

   
   

   20 February 2014 and on 13 February 2015 appeared before the Tribunal and gave evidence. On 26 June 2015 the Tribunal affirmed the delegate’s decision.

5. In a somewhat unorthodox manner, the Tribunal incorporated the legal criteria to be established for the grant of a protection visa for a Convention-based reason as well as for the grant of a visa based on complementary protection grounds in annexure A to the Tribunal’s reasons.

6. In debate with Ms Stone for the Minister, I raised with her whether, as a matter of acceptable legal reasoning, it was legitimate for the Tribunal to use phrases such as “[h]aving regard to all the evidence before it”, “having regard to its findings of fact above”, and “[f]or the reasons given above” when the Tribunal was referring to its assessment of the various claims made by the applicant.[3] In SZUQB v Ministerfor Immigration and Border Protection[4] I examined the use of those phrases as well as “based on the findings above” when used interchangeably between a Convention-based protection claim and a complementary protection claim, the two being grounded in different legal criteria. Ms Stone urged me to conclude that the Tribunal’s disposition of the evidence in relation to the applicant’s fear of persecution was sufficient to dispose of the case in the overall.

   [3] Court book filed 15 September 2015 at p.253.

   [4] [2016] FCCA 2180.

7. The Minister contended that the Tribunal correctly recited the key elements for its consideration in annexure A where it condensed the relevant law. I agree.

In the Tribunal

1. The Tribunal made a series of important findings, especially on factual issues that it did not accept. Those may be catalogued in the manner set out below, although that list is not exhaustive. The Tribunal did not accept that –

   a)persons who held a gun to the applicant’s head had threatened to kill the applicant or had visited his family members threatening to kill them when they found them;

   b)the applicant went into hiding or that he would not have been noticed in the small village or he was of interest to any person or group;

   c)

   the applicant’s wife fled and the Tribunal found that instead,

   
   

   she moved away for financial support while her husband was away;

   d)the applicant was a credible witness;

   e)he had ever been threatened with harm or harmed by reason of this support for the UNP;

   f)the persons who assaulted him in February 2012 targeted the applicant because of his support for the UNP;

   g)the applicant had any involvement in any election campaign as a political leader, activist or organiser for the UNP;

   h)the chance of the applicant’s future involvement in political activities in Sri Lanka at present or in the reasonably foreseeable future and the chance of serious harm to the applicant due to such activity was higher than remote; and

   i)there was a real chance or real risk that the applicant would be regarded as supporting or having an association with the Liberation Tigers of Tamil Eelam.

2. The Tribunal accepted that the applicant assisted as a low level supporter in various political campaigns but that any such assistance was given because the applicant’s friend was assisting.

3. The Tribunal found that the applicant had no subjective fear of harm from those who arranged his journey to Australia.

4. The Tribunal accepted that the applicant would be returned to

   
   

   Sri Lanka where he would be regarded as a failed asylum seeker. However, the Tribunal found that –

   a)the applicant would not be imputed with a political opinion of opposing the Sri Lankan authorities as a result of applying for asylum; and

   b)there was no real chance the applicant would be seriously harmed in the reasonably foreseeable future on account of his being a failed asylum seeker and any fear of persecution on that basis was not well-founded.

5. The Tribunal addressed the consequences of the applicant’s illegal departure. It found –

   a)there was nothing to indicate he would not be granted bail;

   b)he faced only a remote chance of being imprisoned on account of his illegal departure; and

   c)even if he faced short-term detention prior to applying for bail and a fine was imposed upon him under the Immigrants and Emigrants Act, any such detention was not arbitrary and did not amount to Convention-based persecution.

6. In the end, the Tribunal found –

   a)it was not satisfied the applicant was a person to whom Australia owed protection obligations under the Convention and therefore the applicant did not satisfy the requirements of s.36(2)(a) of the Act; and

   b)it was not satisfied that the applicant was a person to whom Australia owed protection obligations under s.36(2)(aa) of the Act.

Application to this court

1. In his grounds of application when seeking judicial review of the Tribunal’s decision in this court, the applicant relied on three grounds. It must be said at once that the applicant gave no particulars to support any of the grounds. They were bare assertions. They were that –

   a)the decision of the Tribunal was affected by error of law;

   b)the decision of the Tribunal denied the applicant procedural fairness; and

   c)he had sought assistance from VLA and was awaiting a decision on his application.

Ground 1

1. As the Minister submitted, this ground did not give any insight into why the applicant said the Tribunal’s decision was affected by error of law. I detected no such error. To the contrary, the Tribunal carefully and diligently applied itself to the discharge of its statutory duty.

   
   

   The Tribunal considered all relevant material and applied the correct legal test.

2. It made no error.

Ground 2

1. Likewise, the applicant gave no details of the way the Tribunal allegedly denied the applicant procedural fairness. So far as I could detect, the Tribunal did in fact comply with its obligations under Division 4 of Part 7 of the Act. Pursuant to s.425 of the Act,

   
   

   the Tribunal invited the applicant to a hearing. At that hearing all relevant issues were canvassed. The applicant was given an opportunity to be heard and to present both evidence and argument.

2. This ground failed.

Ground 3

1. The applicant indicated he was seeking legal aid. When this case was heard by me he was not represented.

2. In accordance with my usual practice I asked the applicant to tell me in his own words what he said the Tribunal did wrong. After several attempts to convey that concept it became apparent to me that the applicant was in reality complaining about the result. The exchange unfolded as follows –

   HIS HONOUR:      So are you really saying that you are not happy with the result that the tribunal came to in this case?

   INTERPRETER: Yes.[5]

   [5] Transcript of proceedings, 13 October 2017 at p.16.

3. That did not amount to jurisdictional error.

4. The third ground failed.

SZTAL

1. To the extent that the applicant may have attempted to argue that poor prison conditions in remand, if he was returned to Sri Lanka, may have enlivened the concept of “degrading treatment or punishment” for the purposes of s.5 of the Act, I have considered the observations of the High Court of Australia in SZTAL v Minister for Immigration and Border Protection.[6] That authority provides no assistance to the applicant in this case.

   [6] [2017] HCA 34.

Conclusion

1. Each ground of review failed.

2. I dismiss this application for judicial review and order the applicant to pay the Minister’s costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 23 November 2017