BJM16 v Minister for Immigration

[2016] FCCA 2408

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJM16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2408

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal’s reasoning was irrational –  no jurisdictional error identified – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12.

Migration Act 1958 (Cth), ss.5AAA, 36, 91R, 430, 476.

Cases cited:

SZTAL v Minister for Immigration [2016] FCAFC 69

Applicant: BJM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1431 of 2016

Judgment of: Judge Street

Hearing date: 15 September 2016

Delivered at: Sydney

Delivered on: 15 September 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Respondents: Mr M Glavac
Clayton Utz

ORDERS

1. The Court dispenses with the show cause hearing.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1431 of 2016

BJM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 May 2016 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka. Between 2006 and 2012 the applicant travelled to Qatar for employment. On 9 April 2013, the applicant arrived on the Australian mainland without a valid visa. On 8 July 2013, the applicant applied for a protection visa.

The Delegate’s Decision

1. The applicant claimed to fear harm from the Sri Lankan authorities and Tamil paramilitary groups due to his known association and forced transport of goods including fuel for the LTTE, the previous adverse attention of the Karuna Group that works closely with the Sri Lankan government, because his family owns large amounts of land and he has travelled to Qatar several times he believes he would be at risk of being targeted by the CID and Karuna as they perceive him to be wealthy, and the applicant also claimed to fear harm by reason of leaving Sri Lanka illegally and being an asylum seeker in Australia.

2. On 25 July 2014, the applicant’s migration agent provided detailed submissions in support of the applicant’s application. Those submissions were expressly referred to in the delegate’s decision on page 6, specifically in relation to the claim that the applicant would be at risk of harm due to his illegal departure from Sri Lanka. The delegate was not satisfied that the authorities have ever seriously suspected or would suspect the applicant had supported or fought the LTTE, and found there was no evidence to suggest the applicant had been politically active in Sri Lanka or abroad.

3. The delegate was not satisfied that as an ethnic Tamil from the East of Sri Lanka, with no recent profile, apart from having illegally departed the country, the applicant would face harm amounting to persecution if he returned to Sri Lanka as a failed asylum seeker. The delegate was not satisfied the applicant faces a real chance of being persecuted should he return to Sri Lanka. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason, and found the applicant’s fear of persecution was not well-founded.

4. The delegate was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will be subject to significant harm.

The Tribunal Decision

1. The applicant applied for review on 9 October 2014. By letter dated 9 November 2015, the applicant was invited to attend a hearing on 17 December 2016. The applicant attended on that date to give evidence and present arguments.

2. The Tribunal identified the relevant law and set out the applicant’s claims and evidence. The Tribunal made reference to the fact that at the hearing the applicant did not claim that he would be persecuted for reasons of his Tamil ethnicity, his perceived status as a wealthy person, or his membership of a particular social group of failed asylum seekers who left Sri Lanka illegally and who returned to Sri Lanka from Australia, and that nevertheless the Tribunal gave consideration to each of these claims that had been made earlier by the applicant to the Department.

3. The applicant had provided a statutory declaration to the Minister’s Department dated 3 July 2013. It made no reference to the applicant’s Tamil ethnicity. The submissions dated 25 July 2014 expressly referred to the applicant’s Tamil ethnicity and, in my opinion, that was what the Tribunal was referring to in the context of having said that part of these claims had been made earlier to the Department. I should note that there was, in submissions filed for the Minister, a written suggestion that the Tribunal had not had before it the submissions of 25 July 2014 referred to in the delegate’s reasons. That submission was withdrawn at this hearing in light of the clear reference to those submissions in para.69 of the Tribunal’s reasons and the language used in that paragraph as well as the express reference in para.69 to the subject matter addressed on page 109 in the submissions of 25 July 2014.

4. No issue was advanced in relation to the Tribunal not having the submissions of 25 July 2014 before the Tribunal. The Minister withdrew the written submission and maintained that the submission of 25 July 2014 was before the Tribunal. Given the reference to the Tamil claim ethnicity as well as the reference in para.69, I am satisfied that the submissions of 25 July 2014 were before the Tribunal, and that it was proper to withdraw the submission to the contrary. No ground of jurisdictional error was advanced by Mr Kumar, Counsel for the applicant, in relation to those submissions.

5. The Tribunal found that the applicant had returned to Sri Lanka in 2010 for a vacation for a few months from Qatar and had no problems with the CID. The Tribunal did not find the applicant’s evidence credible that in 2012 it was only after he left his home and went to his sister’s home that the CID came to his house and threatened to shoot his wife. The Tribunal did not accept the applicant’s evidence that after he arrived in Australia the CID went to his house and questioned his wife about his whereabouts.

6. In relation to the applicant’s claim of an imputed political opinion, the Tribunal found the applicant had a very low level of association with the LTTE as a result of transporting small packages of medicine and some fuel for the LTTE when he was aged between 16 and 20 years old. The Tribunal found that the applicant was not a person in whom the authorities would be interested for reasons specified individually or cumulatively or for any imputed anti-government or pro-LTTE political opinion.

7. The Tribunal was not satisfied that the applicant was of any adverse interest to the Sri Lankan authorities, including the Sri Lankan Army, CID, or former members of Karuna now or in the foreseeable future for any imputed or actual activities with the LTTE that he had undertaken between 2002 and 2005, or for reasons relating to a bomb being found outside the gate of his property in 2007 or 2008. The Tribunal was not satisfied that there is a real risk that the applicant would suffer significant or serious harm as a result of his imputed political opinions and/or his previous activities with the LTTE if he were returned to Sri Lanka now or in the reasonably foreseeable future.

8. The Tribunal made reference to the fact that the applicant was a land owner and had worked as a farmer in the past, and considered that the applicant can readily find work and support himself on return to Sri Lanka, and will not face serious harm or significant harm for this reason. The Tribunal made reference to the possibility that the applicant will be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would be later fined if found guilty. The Tribunal accepted that there is a possibility the applicant may be remanded for a short period whilst waiting to be brought before a magistrate in conditions which are cramped, uncomfortable and unsanitary.

9. The Tribunal took into account s.91R(2) of the Act and found that the relatively short detention in remand or monitoring would not constitute serious harm. The Tribunal was not satisfied that during any questioning at the airport there is a real risk the applicant would suffer significant harm. The Tribunal found that the fact that the applicant may spend up to a fortnight in remand or jail on his return to Sri Lanka did not satisfy the Tribunal that the pain or suffering caused by severe crowding or overcrowding in poor and unsanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhumane treatment or punishment. Nor did the Tribunal accept that the severe overcrowding in poor conditions is intended to cause extreme humiliation as required by the definition of degrading treatment or punishment.

10. The Tribunal was also not satisfied that the evidence indicates that during the period in remand there is a real risk the applicant will suffer intentionally inflicted torture, the death penalty, or arbitrarily be deprived of his life. The Tribunal made reference to the applicant’s lack of a pro-LTTE or anti-government profile, and was not satisfied on the basis of the evidence before it that there is a real risk the applicant will suffer serious harm or a real chance that the applicant will be subjected to serious harm at the airport, on remand or in his home area as a failed asylum seeker who departed Sri Lanka illegally including from a western country such as Australia.

11. The Tribunal made reference to the applicant’s family having a significant amount of land and the applicant being perceived as wealthy, and being targeted by the authorities for that reason. The Tribunal made reference to the fact that the applicant had not provided any evidence about his landholdings, and noted that the applicant had told the Tribunal that his farm was currently being worked by his uncle. The Tribunal did not accept that the applicant will be perceived to be wealthy as a result of his family land holdings or his work in Qatar.

12. Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied there is a real risk that the applicant will suffer serious harm as a result of any of the individual claims advanced by the applicant or as a result of a combination of any of those claims, including his race, imputed political opinion, or his membership of a particular social group. The Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm for the reasons claimed.

13. The Tribunal was not satisfied the applicant would suffer significant harm for any other reason. The Tribunal found that the applicant failed to satisfy the criteria under s.36(2) of the Act, and affirmed the decision of the delegate.

Proceedings Before This Court

1. The grounds of the amended application are as follows:

   1. The Tribunal fell into error in finding that the Applicant was not wealthy or perceived to be wealthy but whether as land-owner he would be targeted and face risk of harm. Further the Tribunal denied procedural fairness in failing to allow the applicant would not be subject to future extortion claims.

   2. The Tribunal denied applicant procedural fairness when it decided as landholder [69] he would be able to support himself as the Applicant was not given opportunity to be heard on this issue.

   3. The Tribunal fell into error when it found that the Applicant’s detention in severe conditions [73-74] would not constitute significant or serious harm. The Tribunal in its consideration under Direction No. 56 in its Decision Record published pursuant to s.430 of the Migration Act 1958 referred to the Directions / PAM 3 generally but did not apply to the Applicant’s circumstances. The Tribunal committed jurisdiction error in failing to comply with s.499(2A) of the Act and Direction No. 56 and/or deal with an express claim regarding intention to cause significant/serious harm (CB125-126) particularly causing of extreme humiliation/degrading treatment or punishment pursuant to s.36(2)(aa). The Tribunal has not applied the Complementary Protection Guidelines and/or Humanitarian Law Guidelines; otherwise made findings not supported by evidence.

   Particulars

   a In exercising its functions the Tribunal was required to take into account complementary protection guidelines.

   b The Applicant had claimed that the detention of the applicant upon return to Sri Lanka constitutes serious harm/significant harm (CB125-126).

   c The Applicant claimed that was deliberate intention to cause harm and/or deliberately failing to improve prison conditions (CB 125). The Tribunal has not applied the PAM 3 guidelines to the Applicant’s circumstances at all.

   d The Tribunal has failed to deal with the claims relating to the claims of intention (intentional infliction of the harm) and knowledge of the authorities.

   e The Tribunal thereby committed jurisdictional error.

   4. The Tribunal’s reasoning is irrational and/or illogical or unreasonable.

   Particulars

   a The Tribunal found that in 2012 that CID came to his house inquiring about him and threatened to shoot his wife if she did not tell the detectives where the Applicant was (CB 182 at [51]). In exercising its functions the Tribunal was required to take into account complementary protection guidelines.

   b The Tribunal found on the basis of country information that the Applicant was of no interest to CID based on the country information (CB185 at [63]).

   c The findings on country information is irrational/illogical and lacks logical connection to the claims whereby the CID were looking for the Applicant in 2012.

   d The Tribunal thereby committed jurisdictional error.

   5. The Tribunal’s erred in consideration of bail findings are irrational and/or illogical or unreasonable.

   a. The Tribunal found that on the basis of perception the applicant would be able to obtain bail (CB185 at [63]).

   b. The Tribunal has not addressed and made findings whether the Applicant would be able to raise monies.

   c. The findings on country information is irrational/illogical and lacks logical connection to the evidence

   d. The Tribunal thereby committed jurisdictional error.

2. In relation to Ground 1, the Court was taken to the Tribunal’s reasons at paras.69 and 80, and also to the transcript at page 40. On the material before the Court, it was open to the Tribunal to find that the applicant would not be perceived to be wealthy as a result of his family land ownings or his work in Qatar. The adverse finding in relation to the applicant’s claimed fear in respect of being wealthy cannot be said to lack an evident and intelligible justification. Indeed, in the course of the transcript, the applicant purported to recant from any fear not being looked at as a wealthy person, and said he was not worried about that. Insofar as Ground 1 suggests that there was a claim of future extortion, Mr Kumar of counsel took the Court to the evidence in relation to the applicant paying three or four Karuna people money as a result of having pawned his wife’s necklace. This appears to have occurred in 2007/2008. The applicant then returned to Qatar after this incident to work.

3. Mr Kumar of counsel submitted that the evidence gave rise to a claim that the Tribunal should have addressed a fear of extortion. I accept the Minister’s submission that the evidence in relation to the incident in 2007/2008 did not, on its face, give rise to a claimed fear of extortion, and that this is not a case where a claim of fear of extortion should reasonably have been regarded as arising in the material before the Tribunal. Ground 1 fails to make out any jurisdictional error.

4. In relation to Ground 2, Mr Kumar of counsel submitted that there is no discussion in the transcript about the applicant’s ability to sustain himself by reason of being a landholder. Pursuant to s.5AAA of the Act, it is a matter for the applicant to establish his claims in support of the criteria under ss.36(2)(a) and 36(2)(aa) of the Act. The finding that the applicant, being a landowner, would be able to sustain himself was a logical and rational deduction from the evidence adduced by the applicant.

5. I do not accept that the applicant’s ability to sustain himself was an issue on which the applicant was not given an opportunity to be heard. I find the applicant had a genuine, real, and meaningful hearing. Ground 2 fails to make out any jurisdictional error.

6. In relation to Ground 3, Mr Kumar of counsel recanted from the submission that there was a failure by the Tribunal to have regard to the PAM3 as a ground of jurisdictional error, but sought to maintain a formal submission that there was a jurisdictional error of the kind identified in SZTAL v Minister for Immigration [2016] FCAFC 69. Mr Kumar of counsel conceded that the Full Court’s decision is one by reason of which this challenge must fail, but formally challenged the ground in order to preserve his right of appeal. That was a proper course for Mr Kumar to take. I accept that I am bound by the decision in SZTAL, and, to the extent that Ground 3 seeks to raise that issue, it fails to make out any jurisdictional error.

7. I note that to the extent that Ground 3 suggested that the Tribunal failed to take into account the PAM3, the Tribunal’s reasons expressly referred to the same in paragraph 10, and the reasons of the Tribunal are consistent with having regard to the same. The concession made by Mr Kumar was appropriate in that regard.

8. In relation to Ground 4, Mr Kumar of counsel contended that there was a positive finding by the Tribunal accepting the applicant’s evidence as credible in para.51. The Minister submitted that there was an obvious typographical error in the omission of “not”. It was on the basis of the omitted “not” that Mr Kumar advanced that there could be said to be some irrationality or illogicality in the reasoning that followed para.51 and, in particular, para.63.

9. The Tribunal’s reasons are not to be read with a keen eye for error. Taking into account the language used at the commencement of paras. 49, 50, 51, and 52, it is clear that paragraph 51 erroneously omitted the word “not” in the opening first line. That omission is supported by the same language used in para.52 which commenced with the phrase “The Tribunal does not”. That language is to be compared with the language in paras.49 and 50, “The Tribunal accepts”. Further, in para.51 as a matter of syntax, the Tribunal gave a reason for the adverse finding in the first clause, starting with the word “Given”.

10. On a fair reading, there was an obvious typographical error. Mr Kumar of counsel properly conceded that if there was found to be a typographical error, Ground 4 could not succeed. That was a proper concession. The reasons of the Tribunal from paras.51-62 support the finding made in para.63. The finding by the Tribunal in para.63 cannot be said to lack an evident and intelligible justification. Ground 4 fails to make out any jurisdictional error.

1. In relation to Ground 5, Mr Kumar of counsel submitted that the finding in para.74, that the applicant would be able to pay bail and be released from remand, was illogical and irrational. Mr Kumar of counsel drew attention to the absence of any exploration of that issue specifically by the Tribunal with the applicant in the transcript. The Tribunal did explore with the applicant what would happen to him on return to Sri Lanka, and the applicant said that he was not a wealthy person, just a common man. The Tribunal also explored with the applicant that he had land on which his uncle was working, and that his brother and family were still in Sri Lanka, as well as his wife and children.

2. The finding by the Tribunal that the applicant will be able to pay bail was open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. No jurisdictional error of the kind identified in Ground 5 is made out.

3. The Court notes that at the commencement of the hearing the Court raised with counsel for the applicant whether counsel was in a position to proceed if the show cause hearing was dispensed with. Mr Kumar of counsel confirmed that he was in a position to do so. In considering whether the show cause hearing should be dispensed with, the Court took into account the concession about the submissions, and was of the view that the submissions filed by the parties gave rise to a proper basis to justify dispensing with the show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

4. For the reasons given, no jurisdictional error has been made out.

5. The amended application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 14 October 2016