BIA16 v Minister for Immigration

[2017] FCCA 2066

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2066

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – show cause hearing – protection (Class XA) visa – where Applicant seeks merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.91R(1)

Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a)
Immigrants and Emigrants Act 1949 (Sri Lanka)

Applicant: BIA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1129 of 2016

Judgment of: Judge Hartnett

Hearing date: 16 August 2017

Delivered at: Melbourne

Delivered on: 16 August 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Koya

Solicitors for the First Respondents: DLA Piper Australia

ORDERS

1. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1129 of 2016

BIA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 30 May 2016, being in excess of 14 months ago, wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 20 May 2016.  By that decision, the Tribunal affirmed a decision of a Delegate of the First Respondent (‘the Delegate’) not to grant the Applicant a Protection (Class XA) visa (‘the visa’).

2. The Applicant’s grounds of application are as follows:-

   “1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error

   Particulars

   a. The Tribunal has again miscarried in its statutory task, namely by failing to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Migration Act 1958 (Cth) (‘the Act’) in respect of the Applicant's claim that he was at real risk of serious or significant harm as a result of returning to Sri Lanka without a Sri Lankan passport as a failed asylum seeker from 'the West' and/or in its assessment of the accumulation of his claims including that claim.

   b. The Tribunal's lack of discussion of the question of bail which is often discussed in a variety of Country Reports was not raised by the tribunal, i.e. that the Applicant or his family or someone else would be able and willing to provide the guarantee required for the Applicant's bail when he returned to the country was not discussed and this is a relevant factor which was 'adverse' to the Applicant.

   c. The Tribunal did not give the Applicant 'the opportunity of ascertaining' that issue or the opportunity 'to be informed of the nature and content of adverse material' in relation to that issue.”

3. The Respondent seeks in this show cause hearing, dismissal of the Applicant’s application and that a costs order follow. 

4. The Applicant filed no amended application nor any written submissions in accordance with the orders of Registrar Buljan of 9 November 2016.  The Applicant was nevertheless given an opportunity to make oral submissions this day and was assisted by an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant confirmed that he had received the First Respondent’s outline of submissions which are relied upon by the First Respondent and which were filed on 27 April 2017.

5. These proceedings commenced with the Applicant seeking an adjournment for the purposes of obtaining legal assistance. That adjournment application was opposed by the First Respondent and not acceded to by the Court.  The Applicant has had over 14 months since the filing of his application to seek out, and obtain, legal assistance. The Applicant indicated that he had no money for legal assistance, but that if the matter was adjourned he might be able to save some money.  He provided no evidence of any attempt to find legal assistance, and the Court is concerned that this matter has remained in the list for a very long period of time and requires judicial determination.  The matter was listed for final hearing in May 2017 and subsequently relisted by the Court, giving the Applicant a further opportunity beyond that which he anticipated in November 2016 when the orders were made setting the matter down in May 2017, to obtain legal assistance. The application was denied there being no evidentiary basis to support it.

Background

1. The Applicant is a citizen of Sri Lanka. He arrived in Australia on 1 July 2012 as an unlawful maritime arrival.  The Applicant applied for the visa on 3 December 2012 and it was refused by the Delegate on 16 August 2013.

The Tribunal

1. The Applicant appeared before the Tribunal on 18 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant was represented in relation to the review by a registered migration agent, whom attended the Tribunal hearing. The Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) makes clear that during that hearing the dispositive issues were discussed by the Tribunal with the Applicant at the hearing. The Decision Record also makes evident that the Tribunal complied with its procedural fairness obligations pursuant to Division 4 of Part 7 of the Migration Act 1958 (Cth) (‘the Act’).

2. In the course of its consideration of the Applicant’s claims, the Tribunal considered a large amount of country information, being that provided by the Applicant’s agent prior to the Tribunal hearing and following the hearing, together with country information obtained by the Tribunal and put to the Applicant, being:-

   a)Department of Foreign Affairs and Trade (‘DFAT’) country information reports for Sri Lanka dated 18 December 2015 and 15 February 2015;

   b)United Nations High Commissioner for Refugees (‘UNHCR’) eligibility guidelines for assessing international protection needs of asylum seekers from Sri Lanka dated 5 July 2010 and 21 December 2010;

   c)UK Home Office operation guidance note for Sri Lanka dated July 2013; and

   d)UK Home Office operation country information and guidance report about Tamil separatism in Sri Lanka dated 28 August 2014.

   All of this country information suggested that the security and humanitarian situation had improved greatly since the end of the conflict in Sri Lanka in May 2009.

3. The Tribunal delivered a very comprehensive Decision Record. The Tribunal first set out the claims and evidence of the Applicant, and then its consideration of those claims and evidence. The relevant law was accurately stated as to the refugee criterion and the complementary protection criterion and applied to the facts as found by the Tribunal.  Each of the facts as found by the Tribunal were clearly open to it on the evidence before it.

4. The Tribunal accepted the Applicant was a citizen of Sri Lanka and assessed his claims against Sri Lanka as his country of nationality.  The Tribunal noted that the Applicant had departed Sri Lanka legally on 23 March 2012 and that his father, mother, brother and two sisters remain residing in Sri Lanka.

5. The Applicant’s claims were set out in his protection visa application on 21 November 2012; a departmental interview he attended on 27 June 2013; in submissions received by the first Tribunal at an earlier Tribunal hearing; and before the Tribunal from the Applicant’s advisor at his Tribunal hearing on 18 February 2016.  In paragraph 23 of the Decision Record, the Tribunal set out the statutory declaration made by the Applicant attached to his protection visa application.

6. The Applicant made, essentially, three claims to fear harm if he returns to Sri Lanka, the first being for reason of an imputed political opinion; the second being his Tamil ethnicity, or as a young Tamil male or young Tamil male from the north; and the third being as a failed asylum seeker and/or a returnee from a western country.  The Tribunal examined each of those claims in some detail. 

7. Specifically, the Applicant claimed that in late 2007, after completing his ‘A levels’ and while on vacation, he made some new friends, being two boys who used to stand near a junction that he would pass. The Tribunal did not accept on the evidence that the boys were anything more than acquaintances of the Applicant, given the Applicant’s limited knowledge about them.  The Tribunal noted the Applicant claimed in the hearing when asked if the boys lived nearby to him that he was not aware of where they lived.  Similarly, when asked about how old these boys were, the Applicant stated that they were in their 20s.  In response to the Tribunal’s questions as to whether they were in their early, mid or late 20s, the Applicant stated he did not know their age and suggested they were probably 20 years old.  The only meetings the Applicant had with the boys were once in a while at the junction when they would talk casually.

8. The Tribunal said as to the relationship between the Applicant and the boys in paragraph 29 of the Decision Record:-

   “The Tribunal accepts that the applicant may have got to know some boys who used to hang around the junction and that he would talk to them occasionally. The applicant claimed in February 2008, while he was talking to the boys at the junction, the army came on their field bikes and pulled the two boys and got them on their bikes and asked him to follow them…” 

   Whilst the Tribunal had some concern as to some of the claims made in relation to this, the Tribunal accepted as plausible the above account.

9. The Applicant’s evidence in the hearing was further that the boys were taken to the army camp, and he followed them to the camp on his bicycle.  The Applicant claimed he did not go inside the camp, but was kept outside, and he was not questioned “he was simply asked for his name and address and then let go.”[1] The Tribunal noted the Applicant claimed he had no contact with the authorities, including the army, prior to this incident in February 2008.

   [1] Decision Record at paragraph [30].

10. The Applicant claimed he then experienced no problems until December 2011, when he received a call from the Criminal Investigation Department (‘CID’) asking if he had contact with the two boys and to meet them, the CID, at the cemetery.  The Tribunal did not accept the Applicant was contacted by the CID in December 2011 as claimed and found it far-fetched that some three years and 10 months later, the CID were pursing the Applicant for information about the two boys he had a short acquaintance with. The Tribunal further found it implausible that nearly four years later, he would be sought in relation to information about them.

11. The Tribunal said in paragraph 33 of the Decision Record:-

    “The Tribunal also finds it implausible that if the CID wanted to get information from the applicant about these two boys or had any interest in the applicant as a result of his previous association with these two boys that the CID would simply call the applicant and ask him to meet them instead of coming to his home and questioning him or detaining him and questioning him. The Tribunal does not accept the applicant’s response that this was what usually happened in his village.  As the Tribunal put to the applicant in the hearing, taking into consideration the independent information regarding the practices of the CID, including information provided by the applicant’s previous and current advisor, the Tribunal finds it implausible the CID would ring the applicant in advance and request he attend meetings with them either at a cemetery or late at night outside his house.”

12. The Tribunal noted the discrepancies in the Applicant’s evidence in relation to his level of contact with the CID and found the Applicant to have:-

    “…embellished this aspect of his claims in an effort to bolster his evidence regarding the level of interest the CID allegedly had in him and for this reason, it is further satisfied that the applicant was of no interest to the CID from December 2011 onwards and did not receive any calls or requests for him to meet them as he claimed.”[2]

    The Court notes the Applicant claimed that the CID rang him and arranged a meeting with them three times in total between December 2011 and late January 2016 and thereafter rang many times.

    [2] Decision Record dated 20 May 2016 at paragraph 36.

13. The Tribunal said in summation in paragraphs 39 to 42 of the Decision Record the following:-

    “…39. For the reasons provided above, while the Tribunal accepts that the applicant may have given his name and address to the army in February 2008 when he was made to wait outside the army camp for a short period of time, the Tribunal does not accept that over three years later, in December 2011, the applicant was contacted on his mobile phone by the CID, who requested that he meet them at a cemetery. The Tribunal does not accept that at the cemetery, the applicant was questioned about the two boys he was acquainted with in February 2008 or that he was threatened with having a gun pointed at his head. Nor does the Tribunal accept two or three weeks later the CID called him at midnight and asked him to come outside, where he was asked the same questions regarding the two boys he knew more than three and a half years earlier and again threatened with a gun or that ten days after this alleged visit to his home by the CID, he was again contacted by the CID and they asked him again to come to the cemetery, where he was asked the same questions and threatened to shoot him.

    40. As the Tribunal does not accept that the applicant was of any interest to the CID in the past in Sri Lanka, particularly from December 2011 onwards, it does not accept that in addition to receiving these calls requesting that he meet the CID, the applicant frequently received calls either between the alleged meetings he had with the CID or after his third meeting with the CID, while he was either travelling between Jaffna and Colombo or while he was allegedly residing in Colombo, up until he departed the country.

    41. Based on the Tribunal's findings that the applicant was not of any interest to the CID prior to his departure from the country, as he has claimed, the Tribunal does not accept that any of the enquiries that have been made from (sic) his mother purportedly by his friends, which he discussed during the hearing, were made by the CID or any other authorities.

    42. Given the Tribunal does not accept that the applicant was of any interest to the CID as a result of the incident that occurred in February 2008, the Tribunal does not accept that if the applicant returns to Sri Lanka now, that he will be threatened, harmed or killed by the CID. The Tribunal does not accept that the CID suspected that the applicant was involved with the LTTE or that he has information about the LTTE because he was there when the two boys were arrested by the army in February 2008, as he claimed in his statutory declaration attached to his protection visa application. The Tribunal finds that the applicant was of no interest to the authorities, including the army, despite the one instance in February 2008 when he was required to give his name and address. As such the Tribunal does not accept that if the applicant returns to Sri Lanka, he faces a real chance of persecution from the CID, the army or any other authorities for an imputed association with the LTTE based on his short acquaintance with two boys over eight years ago.”

14. When considering the Applicant’s claim to face a real chance of persecution because of his Tamil ethnicity or as a young Tamil male or young Tamil male from the north, the Tribunal set out considerable country information in its Decision Record and that, coupled with the earlier findings of the Tribunal, caused the Tribunal to say in paragraph 48 of the Decision Record, relevantly:-

    “…The Tribunal also does not accept that the applicant faces a real chance of persecution based on an imputed political opinion, including a pro-LTTE or an anti-government opinion, arising from his Tamil ethnicity and/or his age and his origins from the north of the country, or as a young Tamil male from the north who has travelled to Australia.”

15. The Tribunal also set out its consideration of the Applicant’s claim to face harm on his return to Sri Lanka as a failed asylum seeker and/or a returnee from a western country.  It noted that when the Applicant was asked what he believed would happen if he returned to Sri Lanka for this reason, the Applicant stated that all those who had gone back had been tortured.  The Applicant’s advisor submitted to the Tribunal that the Applicant’s concern was that people on return may be tortured and forced to make a false confession.

16. The Tribunal considered various country information as set out in the Decision Record and having done so, did not accept on the evidence before it that the Applicant had a profile which would be of any concern or interest to the Sri Lankan authorities. Whilst the Tribunal accepted that the Applicant may face questioning on his arrival in Sri Lanka, the Tribunal did not accept any questioning the Applicant would be subjected to amounted to serious harm as defined in s.91R(1) of the Act.

17. The Tribunal said in summary at paragraph 53 of the Decision Record:- 

    “Considering the applicant's claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the CID, the army or any other Sri Lankan authorities or anyone else because of an imputed political opinion of supporting the LTTE based on his short acquaintance with two Tamil boys in 2008, his Tamil ethnicity, his membership of a particular social group of young Tamil males or young Tamil males from the north, an imputed political opinion based on his Tamil ethnicity, origins and/or age or his return to Sri Lanka as a failed asylum seeker without a passport, his attempt to seek asylum in Australia, or his membership of the particular social groups of failed Tamil asylum seekers or Tamil returnees or Tamil failed asylum seekers without a passport. For the reasons provided above, the Tribunal finds the applicant's fear of persecution is not well-founded.”

18. The Tribunal considered the complimentary protection obligations and said at paragraph 58 and 59 of the Decision Record the following:-

    “58. The Tribunal also does not accept on the country information that there is a real risk the applicant would face significant harm on arrival in Sri Lanka as failed asylum seeker or Tamil failed asylum seeker or Tamil failed asylum seeker without a passport or as a result of an imputed political opinion as a Tamil failed asylum seeker without a passport. As discussed above, the Tribunal accepts that the applicant, as a failed asylum seeker or Tamil failed asylum seeker, may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However the Tribunal does not accept that the process of questioning amounts to arbitrary deprivation of his life, being subject to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The Tribunal is therefore not satisfied that as a necessary and foreseeable consequence of the applicant's return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities as part of a process of questioning to which he may be subjected to on his arrival in the country.

    59. Having regard to the applicant's claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).”

Consideration

1. The Applicant raises no arguable case of jurisdictional error on the part of the Tribunal. The application will be dismissed pursuant to r. 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). The Tribunal did not find the Applicant to be a witness of credit in many instances. The Tribunal did not find that on return to Sri Lanka, the Applicant would at any point be charged or detained, and noted that the Applicant had left Sri Lanka lawfully on a valid passport, and thus did not depart Sri Lanka in breach of the Immigrants and Emigrants Act 1949 (Sri Lanka).  The Tribunal extensively considered the claims of the Applicant and rejected them on the basis of the evidence before it, as it was entitled to do. No illogicality attends the decision of the Tribunal. The Applicant’s application is unmeritorious and cannot succeed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  4 September 2017