BKT15 v Minister for Immigration
[2017] FCCA 3089
•13 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKT15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3089 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal complied with its obligations under s.424A of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider a claim – whether the Tribunal misunderstood a claim – whether the Tribunal properly considered the claims to fear harm under the complementary protection criterion – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 476 |
| Cases cited: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 | ||
| Applicant: | BKT15 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2000 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 28 November 2017 |
| Date of Last Submission: | 28 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 December 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore Lawyers |
ORDERS
The application made on 20 July 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2000 of 2015
| BKT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 July 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which, on 25 June 2015, affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Sri Lanka (CB 30). He is of Tamil ethnicity and Hindu religion (CB 30). He arrived in Australia as an “[i]rregular [m]aritime [a]rrival” on 2 July 2012 (CB 1 to CB 14 to CB 31). The applicant applied for a protection visa which was received by the Minister’s department on 30 November 2012 (CB 15 to CB 80). The applicant’s claims to fear harm were contained in a Statutory Declaration made by the applicant on 27 November 2012 (CB 44 to CB 47).
The applicant stated that he was from Udappu, Sri Lanka, which is a “Tamil village” and worked as a fisherman. The applicant claimed that if there were any “problems” in the surrounding Sinhalese and Muslim areas then the authorities, who were also Sinhalese, “blame the Tamil people in Udappu” because they accuse them of being “former [Liberation Tigers of Tamil Eelam (“LTTE”)] members” ([9] at CB 44 to CB 45). The applicant claimed to fear harm from the Sri Lankan authorities, including the Sri Lankan police, who had “beaten [him] up on a few occasions” and “questioned” him and his friends “almost every week” ([11] at CB 45).
The applicant claimed that due to an injury his father sustained to his leg, only his mother was able to work and support the family and it was difficult for the family to pay for his father’s medical bills ([12] at CB 45). The applicant claimed that on 13 June 2012 whilst at a temple with friends, he was “grabbed”, forced into a jeep, and taken to a Sri Lankan Army camp in Udappu ([13] at CB 45). At the camp, the applicant claimed he was “beaten and verbally abused”, but because his parents and a “village leader” made “a big fuss” he was released ([14] at CB 45 to CB 46 to [15] at CB 46).
The applicant’s father became “worried for [the applicant’s] life”, and subsequently organised for the applicant to leave for Australia
([16] – [17] at CB 46). The applicant claims to fear harm on return to Sri Lanka from the Sri Lankan authorities, including the Sri Lankan police, because of his Tamil ethnicity, because he left Sri Lanka illegally, as a failed asylum seeker, and as someone who had returned from Australia who would be considered as wealthy and targeted for extortion ([19] at CB 46 to [24] at CB 47).
The applicant was invited to, and attended, an interview with the delegate on 23 May 2013 (CB 90 to CB 93 and CB 127.2). The applicant’s representative sent written submissions and country information by email to the Minister’s department after the interview on 5 June 2013 (CB 94 to CB 120). The delegate refused the application for the visa on 16 August 2013 and the applicant was notified by letter of the same date sent to his representative authorised to receive correspondence on his behalf (CB 121 to CB 147).
The applicant applied for review to the Tribunal which was received on 23 August 2013 (CB 148 to CB 154). The applicant was invited to, and attended a rescheduled hearing before the Tribunal on 10 March 2015 (CB 173 to CB 176 and CB 195 to CB 198). The applicant’s representative sent written submissions and an unsigned Statutory Declaration to the Tribunal by email on 4 March 2015 prior to the hearing (CB 179 to CB 188). The applicant’s representative also sent further written submissions to the Tribunal following the hearing on 17 March 2015 (CB 201 to CB 212).
In the unsigned Statutory Declaration sent to the Tribunal on 4 March 2015, the applicant stated that he had “last made contact” with his mother on 11 January 2015, and that she had told him that “Sinhalese people” had come to the family home looking for him. However, this was the only time that this had happened since the applicant left Sri Lanka ([2] – [3] at CB 187).
Since that time, the applicant claimed he had tried to contact his parents, but was unable to. He subsequently contacted his aunt on 1 March 2015, who told the applicant that his parents were no longer at their house, and that “there is no sign of them” ([4] – [5] at CB 187). The applicant considers that since his parents had “a significant debt problem” that they “departed” their home for this reason. Since they also owed money to his aunt and her husband, he was told not to contact them again as they “[could] not help [him]” ([6] – [7] at CB 188). The applicant fears that on return to Sri Lanka he will not be able to contact his family ([8] at CB 188).
The Tribunal affirmed the delegate’s decision on 25 June 2015 and the applicant was notified by letter of the same date sent by facsimile to his representative authorised to receive correspondence on his behalf (CB 213 to CB 243).
The Tribunal had a “number of doubts as to the credibility” of the applicant’s claims for a number of reasons ([24] at CB 230). These included, amongst other things, that it was implausible that the applicant had been detained and beaten by army personnel without having been interrogated at the same time, and inconsistencies in his movements following his release from the army camp as between what he told the delegate at the protection visa interview, and his evidence at the hearing before the Tribunal. Further, the Tribunal was of the view that it was “difficult to believe” that the necessary arrangements for the applicant’s departure to Australia could be made on the same day, subsequent to his release from the army camp in the afternoon (see [25] at CB 230 to [29] at CB 231).
As a result, the Tribunal did not accept that the incident that the applicant claimed occurred in June 2012, did actually occur. This in turn “[cast] significant doubt over the credibility of his other claims” ([30] at CB 232). The Tribunal also noted that at the hearing before it, the applicant “disavowed” his claim to have suffered harm from the Sri Lankan authorities “apart from the alleged incident in 2012” ([30] at CB 232).
The Tribunal found that the authorities had no “adverse interest” in the applicant, and there was nothing about the applicant’s past experiences that would impute him with a pro-LTTE political opinion ([32] at CB 232). Further, on the basis of relevant country information, the Tribunal found that neither the applicant’s Tamil ethnicity, nor his status as a failed asylum seeker, would lead to imputations of any
pro-LTTE political opinion on return to Sri Lanka ([33] at CB 232 to [35] at CB 233).
On the basis of country information, the Tribunal found that “Sri Lankans who are ethnically Tamil” do not face a real chance of harm simply because of their Tamil ethnicity, or that “associated factors”, such as being a young male from the north or east of Sri Lanka, put them at any “greater risk of such harm” ([40] at CB 234). Considering the applicant’s circumstances, the Tribunal was not satisfied that he would face a risk of serious or significant harm by reason of his Tamil ethnicity on return to Sri Lanka ([36] at CB 233 to [43] at CB 235).
In relation to the applicant’s claim to fear harm on return to Sri Lanka as a failed Tamil asylum seeker, the Tribunal considered country information that indicated that it was only individuals who actually had, or were strongly suspected of having, links to the LTTE that have suffered torture and abuses. The Tribunal also noted that the applicant would be subject to “standardised procedures” that applied to all returnees, including routine interviews, and accepted that the applicant would be subject to these processes on return to Sri Lanka ([44] at CB 235 to [51] at CB 237).
However, the Tribunal was not satisfied that the applicant had any relevant profile or fell within any “identified category of persons” that would put him at risk of harm on return to Sri Lanka “either at the airport or later” ([51] at CB 237). Further, the Tribunal did not accept that the applicant would be targeted for extortion as a returnee from Australia who would be considered as wealthy, as this claim was inconsistent with relevant country information ([53] at CB 238).
The Tribunal also considered relevant country information in relation to unlawful departure from Sri Lanka. This indicated that individuals who return to Sri Lanka and are suspected of being in breach of relevant departure laws, are arrested at the airport and brought before magistrates. There they apply for bail, which is routinely given, although a family member may also be required to provide surety. Further, although conditions in Sri Lankan prisons have been described as “overcrowded and unsanitary”, there was no evidence to indicate that returnees held on remand are subject to mistreatment
([55] – [56] at CB 239).
Relevant country information also indicated that the likely penalty for a breach of the Immigrants and Emigrants Act (Sri Lanka) is a fine, and that the relevant provisions of that Act “are applied consistently and do not discriminate among Sri Lankans because of their race, their religion or on any other ground” ([57] at CB 239 to [59] at CB 239 to CB 240). On the basis of the applicant’s circumstances, the Tribunal found that the applicant would not face serious harm on return to Sri Lanka by reason of his illegal departure.
In this regard, the Tribunal also considered the applicant’s claim that he had lost contact with his family and would therefore be unable to meet the conditions for bail. Given the “general unreliability” of the applicant’s evidence, the Tribunal had “considerable doubts” about the credibility of this claim ([61] at CB 240). The Tribunal was not satisfied that the applicant had lost contact with his parents or that they had moved because they were pursued “over a debt or for any other reason” ([61] at CB 241). Therefore, the Tribunal found that the applicant would not be held “in remand for a lengthy or indefinite period” as the applicant had claimed ([61] at CB 240 to [62] at CB 241).
The Tribunal also rejected the claim that the applicant would be unable to subsist on return to Sri Lanka, given that it was not satisfied that he had in fact lost contact with his family. Further, he had also been employed up until leaving Sri Lanka and there was “nothing to demonstrate why the [a]pplicant could not resume his previous occupation as a fisherman and worker on a prawn farm” apart from his “simple assertions” in this regard ([63] at CB 241).
The Tribunal found that the applicant did not meet the criterion in s.36(2)(a) of the Act for the grant of the visa ([64] at CB 241 to [67] at CB 242). Further, the Tribunal was not satisfied that being detained at the airport, questioned and later remanded in custody for a “relatively brief period” amounted to “significant harm” within the meaning of the Act. The Tribunal found that the applicant also did not meet the complementary protection criterion in s.36(2)(aa) of the Act for the grant of the visa ([68] at CB 242 to [75] at CB 243).
Before the Court
The applicant first appeared before a Registrar of the Court on 13 August 2015. Various orders were made, including that the applicant have the opportunity to file any amended application and evidence by way of affidavit. The applicant filed no further documents in this regard.
The applicant again appeared before a Registrar of the Court on 3 March 2016, and various orders were made, including that the parties file written submissions in the matter before the hearing, which was set down for 20 July 2017. The applicant filed written submissions on 15 November 2017 which addressed amended grounds of his application to the Court (see further below). The Minister filed written submissions on 21 November 2017. Subsequently, the matter was relisted for hearing before me on 28 November 2017.
At the hearing, the applicant appeared in person with the assistance of an interpreter in the Tamil language. The Minister was represented by a solicitor.
The Application to the Court
At the hearing, the applicant sought leave to amend the grounds of his application in the terms set out in his written submissions filed on 15 November 2017, which he said had been prepared with the assistance of “community leaders and friends”.
The Minister did not oppose the granting of leave. The applicant was granted leave to proceed on the grounds set out in the written submissions. The four grounds are in the following terms:
“Ground 1: Section 424A and 424AA
…
Ground 2: The Tribunal failed to consider relevant consideration and integer aspect of the applicant's claim for protection. AAT failed to consider that claim in the sense of giving proper, genuine and realistic consideration to that claim. The Tribunal fell into jurisdictional error in that it failed to make enquiries as required by law, whether by the exercise of its power under s.424 of the Migration Act 1958 (‘the Act’) to get information or otherwise.
…
Ground 3: The Tribunal misunderstood the applicant’s claim.
…
Ground 4: The Tribunal failed to consider the following claims under the Complementary Protection ground. AAT misconstrued or misapplied the test for complementary protection in that the Member failed to separately consider whether evidence of a risk of harm which he implicitly accepted existed in relation to his consideration of Convention related grounds (namely brief arrest and imprisonment) raised by the applicant, but which were not made out in relation to those Convention grounds, could nonetheless give rise to a complementary protection claim.”
[Note: Errors in original. Submissions omitted.]
Consideration
Before the Court, the applicant explained that he did not know what was stated in the grounds of his application because he could not read English. He explained that a number of people at a “church in Toongabbie” had drafted the document for him. He could not remember who these people were. The applicant was unable to assist in explaining the grounds of the amended application.
The applicant also submitted before the Court that he had lost contact with his family in Sri Lanka and had no one to look after him if he were to return. In all, the applicant’s oral submissions did not rise above a request for the Court to engage in impermissible merits review.
Ground one asserts a breach of s.424A and s.424AA of the Act. [I note the applicant’s written submissions also reference “s424(A)” and “s424(AA)”. I have taken the view that what was intended by the author of the grounds was s.424A and s.424AA of the Act].
In essence, the explanation of the ground is that the Tribunal took into account information that the applicant had given orally to the delegate, without giving the applicant the opportunity to comment on, or respond to the information, as required by s.424A(1) of the Act.
The applicant’s written submissions state that the Tribunal “raised concerns which seriously undermined [his] credibility” ([13] of the applicant’s written submissions). The submissions assert that these concerns arose from “information” the applicant had given to the delegate.
That is, the applicant’s written submissions assert that at the Tribunal hearing, the applicant gave evidence that he was released from an army camp (in context, presumably in June 2012), and his parents took him home. At the interview with the delegate, he said that after his release he had been taken to the “home of a neighbour”.
The applicant asserts in his written submissions that this “information”, and the inconsistencies in his evidence in relation to it, were a “part of the reason” for why the Tribunal questioned his credibility ([14] of the applicant’s written submissions).
The applicant’s written submissions also assert that at the hearing the Tribunal failed to give the applicant “clear particulars” of this “information”, and therefore did not comply with s.424A and s.424AA of the Act.
The applicant’s ground is not made out for the following reasons.
First, the information which the applicant now says he gave orally to the delegate at the interview, was set out in the delegate’s decision record (see CB 132.5).
On the evidence before the Court, I find that the applicant gave a copy of the delegate’s decision record to the Tribunal when he made his application for review (CB 148.5 and CB 152.8).
In making his application for review to the Tribunal, the applicant was represented by a solicitor and registered migration agent. The agent (Refugee Advice and Casework Service (“RACS”)) wrote to the Tribunal on 23 August 2013 and attached 33 pages (including the cover page) (CB 148). The application form itself is six pages. It is reasonable to assume, given the indications on the application form, that this included a copy of the delegate’s decision (see also item 19(b) of the index to the Court Book which is in evidence before the Court (RE1)).
In any event, there is nothing before the Court to contradict the Tribunal’s finding that a “copy of the delegate’s decision record was provided to the Tribunal with the application for review” ([14] at CB 221).
On this basis, the operation of s.424A(1) of the Act is excluded by the operation of s.424A(3)(b) of the Act (SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 229 FCR 90 and Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241).
Second, to the extent that the applicant’s explanation of the ground, as contained in his written submissions, complains about the Tribunal’s view that he had provided inconsistent evidence, it is the case, as explained by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”), that inconsistencies in evidence given by applicants is not “information” for the purposes of s.424A of the Act (SZBYR at [17] – [18]). Nor is evidence given by applicants at the Tribunal hearing for the purposes of the review “information” that is caught by the obligations in s.424A(1) of the Act, given the provisions of s.424A(3)(b) of the Act. Therefore, in the circumstances, the obligation in s.424A of the Act was not engaged.
Third, I note that on the evidence before the Court, the matter concerning the location where the applicant stayed after being released from the army camp, was raised at the Tribunal hearing, and the applicant was given the opportunity to specifically address the inconsistency in his evidence (dot point 12 of [18] at CB 224).
The applicant was given the opportunity to provide a transcript of the Tribunal hearing to the Court. He has not done so. Therefore, on the evidence before the Court, the Tribunal’s account in its decision record of what occurred at the hearing remains unchallenged.
Fourth, in circumstances where s.424A(1) of the Act is not enlivened, no breach of s.424AA of the Act arises. Section 424AA of the Act is a facilitative mechanism available to the Tribunal to discharge its obligation under s.424A(1) of the Act orally at the hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). In the circumstances, there was no need for the Tribunal to do this. Although, as set out above, the Tribunal specifically drew the applicant’s attention to the inconsistency in his evidence.
Fifth, although not clear, the last sentence of [13] of the applicant’s written submissions, may be an attempt to state that at the interview with the delegate, he did not actually say what the delegate reported that he had said in the decision record.
If that is what is meant by the applicant, then I agree with the Minister that there is nothing in the evidence before the Court to indicate that the applicant had not told the delegate that he had gone to his neighbour’s house after his release from the army camp in 2012.
In all, ground one is not made out.
There appear to be two elements to ground two.
First, that the Tribunal failed to consider an integer of the applicant’s claim. In essence, that integer is described as being that the applicant claimed that he would be harmed on return to Sri Lanka because he was a Tamil fisherman from Udappu. The complaint is that the Tribunal failed to give “proper, genuine and realistic consideration to that claim”.
The applicant’s written submissions direct attention to the delegate’s decision (at CB 142), to assert that the applicant made a claim to fear harm because he was a member of a particular social group being “Tamil fisherm[e]n” ([15] of the applicant’s written submissions). Further, the written submissions also direct attention to what he told an officer of the Minister’s department in an “Entry Interview” (CB 8 to CB 9). This was that he feared harm as a “Tamil living in Udappu” ([16] of the applicant’s written submissions).
What is reproduced at Court Book page 142 is a part of the delegate’s decision record. This part of the delegate’s decision deals with the applicant’s claim to fear harm by the Udappu police on the basis that he would be a target for extortion, because as a returnee from Australia, he would be perceived to be wealthy (CB 141.7 to CB 142.8).
Further, while the delegate noted that “Udappu can be generally described as a ‘poor fishing village’”, there is nothing to indicate that the delegate understood the applicant to claim that he feared harm for reason of being a Tamil fisherman from Udappu (CB 141.9).
The record of the “Entry Interview” which reports specifically on what the applicant himself claimed at that time, similarly reveals no claim to fear harm on the basis of being a Tamil fisherman from Udappu (CB 1 to CB 14).
Relevantly, the claim actually made by the applicant is as follows (CB 8.3):
“…Also there is a problem in Udappu…Whenever there is a protest in Colombo on suspicion. Udappu is a Tamil area on suspicion they will take you and beat you up.”
[Errors in original.]
It must be said, that whoever drafted the applicant’s ground has taken some liberty with what the applicant put forward as the basis for his claim to fear harm.
Further to what is set out at Court Book page 8, on 5 June 2013, the applicant’s representative provided written submissions to the delegate summarising the applicant’s claims to fear harm at that time (CB 95 to CB 120 including annexures).
Relevantly, the submissions stated (CB 96):
“We submit that if [the applicant] is returned to Sri Lanka there is a real chance that he will be seriously harmed based on the following Refugees Convention grounds:
- Ethnicity – Tamil
- Imputed political opinion:
- A supporter of the LTTE
- Opponent of the Sri Lankan government.
- Membership of one or both of the following particular social groups:
- Tamil men who are perceived to be associated with or supporters of the LTTE;
- Returned failed asylum seekers of Tamil ethnicity.”
There is nothing here to suggest that the applicant’s claim to fear harm was because he is a Tamil fisherman from Udappu.
The applicant’s representative before the Tribunal made written submissions on 4 March 2015 (CB 179 to CB 186). There is nothing to indicate any claim, or integer of a claim, as “pleaded” in ground two arose in those submissions. Those submissions include the following ([1.1] at CB 180 to CB 181 and [1.3] at CB 182):
“[1.1] [The applicant] maintains the claims described in the written statement dated 27 November 2012 (the Statement) provided with his protection visa application lodged on 30 November 2012 and described in the Departmental interview on 23 May 2013 (the Interview). In summary:
- [the applicant] grew up in Udappu, Puttalam District, in North Western Province. He is an only child in his family.
- Mr Udappu’s (sic) [the applicant’s] village is primarily Tamil, and is surrounded by Sinhalese and Muslim areas. This caused problems for [the applicant], as the authorities would target Tamils, including [the applicant], and accuse them of being responsible for problems such as thefts and bombings. They regularly accuse Tamil people of being involved with the LTTE.
…
[1.3] [The applicant] fears that, upon return to Sri Lanka:
- He would continue to be victim of abduction, physical attacks and even criminal extortion on account of his ethnicity at the hands of security groups that operate in his area.
- He would be harassed, detained, interrogated and tortured at the hands of the Sri Lankan authorities, on account of his profile as a returned failed asylum seeker of Tamil ethnicity.”
[Errors in original.]
There is no transcript of the Tribunal hearing in evidence before the Court. The only evidence available is the Tribunal’s account in its decision record. On the evidence before the Court, the applicant made no claim at the hearing, to fear harm on the basis of being a Tamil fisherman from Udappu.
The only reference to “fisherman” in the Tribunal’s account of what the applicant said at the hearing, is as follows (dot point 5 of [18] at CB 223):
“Regarding his employment he confirmed that he had worked on a prawn farm and also as a fisherman, operating out of the Udappu port region. He had never gone to the East coast for seasonal fishing and worked on the prawn farm in the monsoon season. He agreed he had been employed up to the time he left Sri Lanka but, asked what work this was, then said he had been unemployed and would simply hang around with other youths on the streets. Asked about the disparity between these responses he said he would work for six months and then have a week or two off. Asked about his employment in the six months before he left Sri Lanka he said he worked on a prawn farm at night, to provide security and feed the stock, and would hang around the temple during the day. This was not the same prawn farm where his mother was employed.”
The reference to “fisherman”, as set out above at [61], is in the context of the applicant’s ability to subsist.
The Tribunal made one further reference to “fisherman” in its decision record (see dot point 1 at [10] at CB 219). The Tribunal noted that applicant had set out in his Statutory Declaration that accompanied his application for the protection visa, that he was “employed as a fisherman” (CB 44). There is nothing in the evidence to show that the applicant claimed to fear harm on this basis.
In all, the applicant, amongst other things, relevantly claimed to fear harm as a Tamil. The Tribunal specifically considered this in the context of his being a Tamil from Udappu (see [40] at CB 234).
The Tribunal was only under an obligation to consider claims expressly made or clearly arising, or a substantial, clearly articulated argument relying on established facts (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs[2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2)[2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs[2003] HCA 26; (2003) 197 ALR 389). There is no failure by the Tribunal in this regard.
The second element in ground two, is the assertion that the Tribunal “failed to make enquiries as required by law, whether by the exercise of its power under s.424 of the Migration Act 1958 (‘the Act’) to get information or otherwise”.
It is not clear from what follows in the applicant’s written submissions what “enquiry” the applicant says the Tribunal should have made. At best, it appears that the complaint is that the Tribunal failed to make an “enquiry” in the sense of giving proper, genuine and realistic consideration to his claim to fear harm as a fisherman from Udappu. As set out above, no such claim was made.
In any event, there is no general duty on the Tribunal to make further inquiries in relation to an application for a protection visa. As was said in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (“SZIAI”), the duty on the Tribunal to undertake some independent investigation into an applicant’s claims can arise in only very limited circumstances. That is, in circumstances where “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances” support a finding of jurisdictional error (SZIAI at [25]).
As was noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [77] per Kenny J, an obligation to inquire may arise in “rare or exceptional” circumstances. There is nothing in this case to indicate that any duty to inquire was enlivened. In all, ground two is not made out.
Ground three asserts that “[t]he Tribunal misunderstood the applicant’s claim”. The applicant’s written submissions complain that the applicant would be detained on return to Sri Lanka, and even if only detained for a brief period, he would face “torture and sexual assault” ([32] of the applicant’s written submissions).
The applicant further explained that he would face harm for being imprisoned as a failed asylum seeker, in that he would face sexual assault as a consequence ([33] of the applicant’s written submissions).
Even further, the applicant’s written submissions assert legal error because the Tribunal rejected his claim to fear harm on the basis of a “statistical calculation” ([34] of the applicant’s written submissions).
The Tribunal considered the applicant’s claim in relation to detention and sexual assault ([44] at CB 235 to [54] at CB 238 to CB 239 and, in particular, [50] at CB 237 to [51] at CB 237 to CB 238). The Tribunal found that it was not satisfied, based on the applicant’s own evidence, claims and the available country information, that the applicant would face a real chance of serious or significant harm upon arrival in Sri Lanka, or after he returned to Udappu (see, in particular, [54] at CB 238 to CB 239).
There is nothing in the Tribunal’s analysis to indicate that it “misunderstood” the applicant’s claims, or for that matter, failed to consider them. On what is in evidence before the Court, it would appear that the ground (the use of the word “misunderstood”) is an expression of grievance with the Tribunal’s conclusion, and the findings that informed it. In effect, the ground seeks impermissible merits review. Ground three is not made out.
The reference in the applicant’s written submissions to “statistical calculation” (at [34]), appears to direct attention to, and take issue with, the Tribunal’s report that at the hearing, it put to the applicant the following (dot point 25 of [18] at CB 227 to CB 228):
“…there was no information to indicate that anyone who had returned to Sri Lanka from Australia had been subjected to sexual assault or torture while in remand for having left the country unlawfully”.
The applicant’s reference to SZSSM v Minister for Immigration & Anor [2013] FCCA 1489 and MZAKC v Minister for Immigration & Anor [2016] FCCA 834 does not assist him. That is because in the current case, the assertion that the Tribunal dismissed his claims on the basis of a “statistical calculation” is, as the Minister submits, without substance.
The Tribunal’s conclusions that the applicant’s claims did not reveal a real chance of serious or significant harm, was not based on any assessment or application of “numerical” weighting, but arose from comprehensive and extensive reasons, that properly addressed each of his claims.
Further, it was reasonably open to the Tribunal to note that there was no information to support the applicant’s claims in relation to sexual assault or torture (dot point 24 of [18] at CB 227).
The applicant claimed that he feared such harm on return because of conditions in the jail to which he would be placed, because he had breached Sri Lanka’s emigration laws. It was open to the Tribunal to note the absence of information to indicate that anyone else who had returned to Sri Lanka in similar circumstances to the applicant, had not been subjected to sexual assault or torture. The Tribunal was not undertaking a statistical analysis, but rather, was evaluating the evidence before it which, in the Tribunal’s view, indicated that the real chance of the applicant being sexually assaulted or tortured for the reasons that he gave, was remote. In all, ground three is not made out.
Ground four asserts that the Tribunal failed to consider two of the applicant’s claims as against the complementary protection criterion (s.36(2)(aa) of the Act). One, that the applicant would suffer harm because of “sexual violence” while awaiting a bail hearing. Two, whether his family would be able to provide surety for bail.
The applicant’s written submissions assert that the Tribunal considered these matters in relation to its consideration of the Refugees Convention criterion (s.36(2)(a) of the Act), but failed to do so in relation to the complementary protection criterion (s.36(2)(aa) of the Act).
The Tribunal’s consideration of the complementary protection criterion (s.36(2)(aa) of the Act) is set out at [68] (at CB 242) to [74] (at CB 243) of its decision record. It is clear that the Tribunal’s assessment here was based on findings of fact expressed earlier in its decision record. There is no legal error revealed in this regard (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
Before the Court, the Minister submitted that the applicant’s ground may also have been an attempt to assert error as was found in SZTQS v Minister for Immigration & Border Protection & Anor [2015] FCCA 978 and on appeal in Minister for Immigration & Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”) (with reference to the applicant’s claims to have lost touch with his family, and therefore would be unable to meet the conditions for bail, including a surety or guarantee from a family member).
If this is the case, the Tribunal addressed this claim at [60] (at CB 240) to [62] (at CB 241) (and see in particular [61] at CB 240 to CB 241). No legal error as found in SZTQS is apparent in the current case.
Before the Court, the applicant did claim that he had lost contact with his family and that he “had no one to go back to” in Sri Lanka. In the context of what is asserted in ground four, the Tribunal did note the applicant’s evidence given in a Statutory Declaration dated 3 March 2015 (unsigned) (see CB 187 to CB 188). The Tribunal noted that the applicant “has repeatedly tried to contact his parents on their home telephone” and was unable to contact them (see dot point 2 of [15] at CB 222).
The applicant’s evidence before the Tribunal was that he was concerned that his parents may have had a “significant debt” arising from sending him to Australia, were being harassed for money, and his suspicion was that “they departed for this reason” (dot point 3 of [15] at CB 222). The applicant’s concern was expressed by the Tribunal as follows (dot point 4 of [15] at CB 222):
“He fears that if he returns to Sri Lanka he will not be able to make contact with his family. If he is imprisoned on return for having departed the country illegally he will have nobody to assist him in obtaining bail for his release. The conditions in prison are very poor and he fears he will be mistreated and possibly imprisoned for a longer period if nobody can secure his release.”
The Tribunal specifically addressed this claim made by the applicant (see [61] at CB 240 to CB 241). Tribunal gave reasons for its finding that it was not satisfied that the applicant had in fact “lost touch with his parents”, or that “they had moved away from the family home” for reason of “being pursued over a debt”, or “for any other reason” (see [62] at CB 241, and in particular see the reasoning at paragraph [61] at CB 240 to CB 241).
Specifically in relation to the complementary protection criterion (s.36(2)(aa) of the Act), the Tribunal relied on those findings of fact, and concluded at [72] (at CB 243), that while the applicant and his family might have difficulty in repaying a debt they incurred in order to send the applicant to Australia by boat, nonetheless, the Tribunal, for reasons that it had explained earlier in making relevant findings of fact, found that this would not lead to the applicant suffering significant harm such that he would meet the complementary protection criterion (s36(2)(aa) of the Act). This was a finding reasonably open to the Tribunal on what was before it. In all, ground four is not made out.
Conclusion
There is no jurisdictional error arising from the “grounds” of the amended application. It is appropriate to dismiss the application as amended. I will make the appropriate order.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 13 December 2017
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