BJW16 v Minister for Immigration and Anor
[2018] FCCA 3588
•13 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJW16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3588 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – whether the Tribunal took into account irrelevant facts – whether the Tribunal failed to take into account relevant facts – whether the Tribunal failed to take into account country information – whether any other jurisdictional error is discernible. |
| Applicant: | BJW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1194 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 13 November 2018 |
| Date of last submission: | 13 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the first respondent: | Inshani Ward |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application filed on 7 June 2016 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1194 of 2016
| BJW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from the Transcript)[1]
Introduction
[1] Reasons for judgment were given orally on 13 November 2018. The applicant did not ask for the reasons to be reduced to writing. The appeal period expired on 4 December 2018. The applicant filed a notice of appeal on 27 November 2018. The registry advised chambers on 3 December 2018 that the applicant had filed a notice of appeal. Chambers ordered a transcript of the reasons for judgment on 3 December 2018. Auscript provided the transcript of the reasons for judgment on 4 December 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 5 December 2018.
This is an application for review of a decision of the Administrative Appeals Tribunal. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicant a protection (class XA) visa. The applicant is a citizen of Sri Lanka. He arrived on Christmas Island on 15 July 2012 as an irregular maritime arrival. He applied for a protection visa on 11 December 2012. He included a statutory declaration with his protection visa application.
The applicant claimed that:
a)he is a Tamil Hindu from the Puttalam District in Sri Lanka;
b)his father was a fisherman;
c)his father was captured by the CID because he was suspected of being involved with the Liberation Tamil Tigers of Eelam (“LTTE”);
d)his father was detained for three years;
e)after his father’s release, he was detained by another branch of the CID for a few weeks and then went into hiding;
f)in March 2012, the Sri Lankan Army (“SLA”) took the applicant to their camp and interrogated and tortured him for two or three hours;
g)the reason the SLA did that was because they wanted the applicant to join them;
h)he feared being harmed by the CID and the SLA because of their suspicion that he was involved with the LTTE;
i)he feared the grease men; and
j)he feared harm because of his Tamil race, his Hindu religion, and because he had sought asylum in Australia.
A delegate of the Minister interviewed the applicant on 22 August 2013. The delegate was not satisfied of the applicant’s credibility. The delegate refused to grant the applicant a protection visa on 18 December 2013.
The applicant applied to the Refugee Review Tribunal on 24 December 2013. The applicant was represented and his agent provided written submissions to the Tribunal. The Tribunal conducted a hearing on 11 February 2016. The applicant attended and gave oral evidence. He was assisted by a Tamil interpreter and his registered migration agent. Following the hearing the applicant’s agent provided further written submissions to the Tribunal. The Tribunal affirmed the delegate’s decision on 5 May 2016.
The Tribunal considered that the applicant’s claims about the treatment of his father were vague and lacking in detail. The Tribunal also noted various inconsistencies between his evidence given orally at the Tribunal hearing and his written claims in his protection visa application. The Tribunal did not accept the applicant’s claims about his father as credible and, in particular, did not accept that the applicant’s father had a scar as result of the war, or that his father had been detained for three years by the CID.
The Tribunal noted conflicting evidence given by the applicant. As a result, the Tribunal did not accept that applicant had been contacted by the SLA or the CID about his father, or that weapons were found in his home, or that the applicant was taken to an army camp and interrogated and tortured, or that he was asked to join the SLA. The Tribunal did not accept that the applicant’s father was in hiding or that the CID had come to the applicant’s home to look for his father.
The Tribunal accepted that the Sri Lankan authorities may have performed routine checks in relation to the applicant’s whereabouts, but did not accept that there had been any specific inquiries by the authorities since the applicant left Sri Lanka. The Tribunal did not accept the applicant’s claims about weapons having been found in his home. Consequently, the Tribunal did not accept the claim that the applicant’s absence from his home would result in him being suspected by the authorities of any adverse activity.
The Tribunal did not accept that the applicant, or any of this family members, had been of any interest to the authorities in the past and generally found that the applicant’s claims were inconsistent, lacking in detail, and were not credible overall.
The Tribunal considered certain country information. On the basis of that information, the Tribunal did not accept that the applicant faced a real chance of serious harm by reason of his Tamil ethnicity or his membership of a particular social group consisting of young Tamil males. The Tribunal did not accept that the applicant faced a real chance of persecution based on an imputed political opinion arising from his Tamil ethnicity or his age.
The Tribunal considered the applicant’s claim about grease men. The Tribunal noted that the applicant had not had any involvement with grease men previously. The Tribunal did not accept that the applicant might face a real chance of serious harm from grease men if he were to return to Sri Lanka in the future.
The Tribunal considered the issues surrounding the applicant’s illegal departure from Sri Lanka. The Tribunal considered that a member of his family would stand as guarantor for him if he were fined for leaving Sri Lanka illegally. The Tribunal accepted that the applicant might face a short period in remand if he returned to Sri Lanka and accepted that prison conditions might be poor. However, the Tribunal did not consider that anything the applicant might experience in that context would amount to serious harm for a Convention reason. Moreover, the Tribunal found that the Sri Lankan Immigrants and Emigrants Act was a law of general application which was not applied discriminately. Overall, the Tribunal did not accept that the applicant would face a real chance of serious harm due to his illegal departure, or as a failed asylum seeker, or as a Tamil failed asylum seeker.
The Tribunal noted the applicant’s evidence that he had been able to practice his religion freely in Sri Lanka. The Tribunal did not accept that the applicant would face a real chance of serious harm by reason of his Hindu religion. The Tribunal considered the applicant’s claims individually and cumulatively and did not accept that the applicant faced a real chance of persecution for any reason.
Similarly, the Tribunal did not consider that the applicant faced a real chance of significant harm. That was essentially based on the same reasons that the Tribunal had previously given in relation to serious harm. In relation to the prison conditions, the Tribunal did not consider that there was the required intention to cause harm and therefore did not accept that the applicant would face a real chance of significant harm if he were to be imprisoned for a short period of time. As mentioned, the Tribunal considered that the applicant’s family would assist him to pay any fine that might be imposed on him.
The Tribunal considered that any questioning or fine that the applicant might receive would not amount to significant harm as the requirement that the harm be intentionally inflicted was not met. There was nothing before the Tribunal to indicate that the applicant might face a real chance of significant harm on the basis of his religion. All in all, the Tribunal did not accept that the applicant faced a real chance of either significant or serious harm.
The application to this court appears to have been filed without the benefit of legal assistance. The applicant appeared in court today without legal representation.
The first ground in the application filed on 7 June 2016 (“the application”) is:
The Minister erred in law by taking into consideration facts not relevant to the matter in making the decision.
It was explained to the applicant that this court was not permitted to review decisions of the Minister in cases such as this. The court asked the applicant if he wished to say that the Tribunal had erred in law by taking into consideration facts not relevant to the matter. The applicant said he did. The court asked the applicant what facts he considered the Tribunal had taken into account that were not relevant. The applicant said weapons. When asked to explain, the applicant said that the army found him with weapons.
This is a matter that the Tribunal discussed in paragraphs 23 and 24 of its reasons for decision. The Tribunal recorded the claim that some CID people came to the applicant’s home, carried out a search, and found some weapons. The applicant claimed at the hearing before the Tribunal that he was questioned at home at the time the weapons were allegedly found. The Tribunal considered that the applicant had given conflicting evidence about the weapons in his statutory declaration in support of his protection visa application as opposed to his evidence to the Tribunal. The Tribunal did not accept that the authorities found any weapons at the applicant’s home.
The alleged finding of weapons was a matter raised by the applicant and potentially supported his claims for protection. I am unable to discern any basis upon which the Tribunal’s consideration of the applicant’s claims about weapons could be regarded as taking into account facts that were not relevant to the matter. There is no substance to ground 1.
Ground 2 in the application is that:
The Minister erred in law by not taking into consideration relevant facts in making the decision.
Presumably, this ground should also be recast to allege an error on the part of the Tribunal. When asked what he wished to say about this ground, the applicant said nothing. I have been unable to discern any relevant fact that the Tribunal failed to take into account.
Ground 3 in the application is that:
The Minister erred in not taking into consideration relevant country information in making the decision.
Again, this ground needs to be recast to allege error on the part of the Tribunal. When asked what country information the Tribunal had not taken into account, the applicant said that he did not have anything to say. It is clear from the Tribunal’s reasons for decision that the Tribunal did consider country information and including country information provided by the applicant’s representative. Country information is referred to in paragraphs 28 to 31 of the Tribunal’s reasons for decision. I am unable to see any basis upon which it could be said that the Tribunal failed to consider relevant country information.
The court asked the applicant if he wished to raise any other matters that could constitute an error on the part of the Tribunal. The applicant said that he had nothing else to say.
Following the Minister’s oral submissions, the applicant said in reply that he had safety concerns if he returned to Sri Lanka. Of course, this court is not permitted to embark on merits review. The court is only empowered to act on the basis of jurisdictional error affecting the Tribunal’s decision or decision making process.
I have considered the Tribunal’s reasons for decision and various parts of the court book. I have been unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process. Consequently, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 5 December 2018
0
0