Biv15 v Minister for Immigration

[2016] FCCA 630

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIV15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 630

Catchwords:
MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 46A

Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant: BIV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1951 of 2015

Judgment of: Judge Driver

Hearing date: 23 March 2016

Delivered at: Sydney

Delivered on: 23 March 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Dennis of Minter Ellison

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1951 of 2015

BIV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is from Sri Lanka and had made claims based upon his Tamil ethnicity an imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE) and his status as a failed asylum seeker returning to Sri Lanka.  Background facts relating to the applicant’s claims and the decision of the Tribunal on them, are set out in the Minister’s outline of legal submissions filed on 14 March 2016. 

3. The applicant is a citizen of Sri Lanka who arrived in Australia on 29 June 2012 as an unauthorised maritime arrival[1]. On 8 September 2012 the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to apply for a protection visa[2].  The applicant subsequently made an application for a protection visa on 5 November 2012[3].

   [1] Court Book (CB) 143

   [2] CB 143

   [3] CB 45

4. On 13 December 2013, a delegate of the Minister refused to grant the applicant a protection visa[4]. The applicant sought review of that decision by the Tribunal[5]. On 23 June 2015, the Tribunal affirmed the decision under review[6]. 

   [4] CB 142

   [5] CB 165

   [6] CB 309

The applicant’s claims

1. The applicant claimed to fear harm from the Sri Lankan authorities on the grounds of his imputed political opinion as a suspected LTTE supporter (because his brother in law was allegedly imprisoned over his LTTE involvement), his Tamil ethnicity and as a failed asylum seeker from a Western country who left Sri Lanka illegally. In support of those claims, the applicant recounted the following events:

   a)his brother in-law was captured and gaoled by the army because he was suspected to be a member of the LTTE;

   b)the applicant was questioned by the Criminal Investigation Department (CID) on three occasions between 2009 and 2012; and

   c)after the last occasion of questioning, the CID visited the applicant's home in search of him.

Tribunal findings

1. The Tribunal found that the applicant was not a “truthful and credible witness”[7]. In light of “multiple concerns” with the applicant's claims and evidence, the Tribunal disbelieved the applicant's claims regarding his brother in law and his experiences in Sri Lanka prior to departure[8].

   [7] CB 314: [18]

   [8] CB 314-315: [19]-[28], [27]

2. The Tribunal dealt with the applicant's claims about his imputed political opinion and Tamil ethnicity under the same heading[9]. In light of country information addressing both issues, and the applicant's own evidence, the Tribunal found that the applicant did not have “a profile” that would put him at risk[10].

   [9] CB 315: [29]-[32]

   [10] CB 315: [29]-[32]

3. The Tribunal also found that the applicant did not face harm if he returned to Sri Lanka as a failed asylum seeker by reason of his illegal departure because the applicant would be subjected to “standardised procedures”[11].

   [11] CB 317: [36]

4. For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion under s.36(2)(a) of the Migration Act[12]. For the same reasons, and making specific findings relevant to the definition of “significant harm” under the Migration Act[13], the Tribunal found that the applicant failed to satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act[14].

   [12] CB 320: [52]

   [13] CB 319: [47]-[49]

   [14] CB 320: [53]

The present proceedings

1. These proceedings began with a show cause application filed on 15 July 2015.  The applicant continues to rely upon that application.  The applicant has not taken up the opportunity afforded him in procedural orders made by a registrar for the filing of an amended application or additional evidence.  The sole ground in the application is:

   If I return to Sri Lanka I will be persecuted as I am a Tamil.  RRT did not look at this in great detail.

2. The application is supported by a short affidavit filed with it which I received. 

3. I also received as evidence the court book filed by the Minister on 31 August 2015. 

4. The applicant denied receipt of the court book.  Exhibit R1 is a letter from the Minister’s solicitors to the applicant at his nominated address for service dated 31 August 2015.   The letter is evidence that the court book was sent to the applicant by ordinary pre-paid post.  The applicant confirmed that the letter was sent to his correct address for service.  He is not able to explain why the court book was not received.  However, he had brought with him a substantial volume of material and it was apparent that he had taken care to have what appeared to be relevant documents with him for the purposes of today’s hearing.  I am willing to accept that for some reason he did not receive the court book that was sent to him.  I provided the applicant with a copy of the court book and told him that he could retain it.  I am satisfied that the applicant was not prejudiced by the late provision of the court book. 

5. Only the Minister prepared written submissions in accordance with the registrar’s procedural orders. 

6. I invited oral submissions from the applicant this morning.  He first referred to his claim based on his Tamil ethnicity.  I took the applicant to the Tribunal’s decision on relation to that ground at [29]-[32][15].  The applicant then referred to his claim based on the alleged conduct of his brother-in-law.  I took the applicant to the Tribunal’s decision in relation to that claim at [19]-[28][16].

   [15] CB 315-316

   [16] CB 314-315

7. The applicant was not able to develop further any argument of error by the Tribunal.  From my own perusal of the court book, neither the Tribunal’s decision nor the process followed by the Tribunal reveals any arguable case of jurisdictional error. 

8. The Minister’s submissions deal adequately with the single ground advanced by the applicant.

9. The Minister submits that, in substance, this claim seeks impermissible merits review and does not identify any arguable jurisdictional error in the Tribunal's decision[17].  I agree.

   [17] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

10. The Tribunal set out the applicant's claims, including his claim relating to his Tamil ethnicity[18]. The Tribunal was plainly cognisant of the claim and the applicant's evidence supporting that claim. Indeed, the Tribunal accepted that the applicant was a Sri Lankan Tamil and set out numerous sources of country information relating to the situation for Tamils in Sri Lanka[19]. 

    [18] CB 310‑314: [2], [10]-[14], [17]

    [19] CB 313: [16]; see also footnotes 1, 4-5

11. The Tribunal then proceeded to consider the applicant's Tamil ethnicity claim[20]. The Tribunal was not satisfied that the applicant had a real risk of harm in Sri Lanka because of his Tamil ethnicity as a result of him not having the requisite profile that would put him at risk, based on the available country information. This was because the applicant came from a region of the country (the north west) that was not affected by the Sri Lankan civil war to the same extent as the northern and eastern parts of the country, neither he nor any of his direct family members had ever been involved with the LTTE, and the Tribunal did not accept the applicant's claims that his brother in law was imprisoned because of his LTTE links.

    [20] CB 315: [29]‑[32]

12. Moreover, the Tribunal did not overlook or misunderstand any aspect of the applicant's Tamil ethnicity claim.  In these circumstances, the Tribunal correctly understood and appropriately considered the applicant's Tamil ethnicity claim.

13. More generally, the Tribunal plainly considered the applicant's claims and evidence and rejected them on the basis of comprehensive adverse credibility findings. The Tribunal's conclusion that the applicant was not credible is a finding of fact par excellence[21]. Those findings were open to the Tribunal for the reasons it gave and the Court cannot review the merits of the Tribunal’s decision[22].

    [21] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]

    [22] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

14. I conclude that the applicant is unable to advance an arguable case of jurisdiction error by the Tribunal.

15. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

16. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant claims impecuniosity but, as has been repeated stated, that is not a reason for the Court to refrain from making a costs order.  I explained to the applicant the consequences of the Court making a costs order in a fixed amount.

17. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  24 March 2016