BML15 v Minister for Immigration

[2017] FCCA 2475

FEDERAL CIRCUIT COURT OF AUSTRALIA

BML15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2475

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (Tribunal) affirming decision of delegate of Minister for Immigration and Border Protection not to grant the applicant a Protection visa – whether Tribunal considered psychological report – whether Tribunal considered claim based on the conditions the applicant is likely to face on his return to Sri Lanka – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A)

Applicant: BML15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2052 of 2015

Judgment of: Judge Manousaridis

Hearing date: 27 September 2016

Date of Last Submission: 27 September 2016

Delivered at: Sydney

Delivered on: 13 October 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitors for the First Respondent: Ms S Burnett of Clayton Utz

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2052 of 2015

BML15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the Refugee Review Tribunal (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA) visa (Protection visa).

Claims for protection

1. The asserted facts on which the applicant relied for protection are set out in a statutory declaration that formed part of his application for a Protection visa.[1]

   [1] CB80-81

2. According to that statutory declaration the applicant is Sinhalese born in Negombo. Since 2000 the applicant conducted a business in which he bought, repaired, and resold old cars. He worked from his parents’ house.

3. In October 2011 officers of the CID (criminal investigation department) came to the applicant’s parents’ house and asked the applicant questions about a car he had sold. The officers told the applicant the car was found in Vavuniya, and they asked him whether he had supplied vehicles to the Liberation Tigers of Tamil Eelam (LTTE). The applicant said he did not, and asked for two weeks to find information about the person to whom the applicant had sold the car.

4. After the CID’s visit, the applicant ceased his business, and decided to hide in his wife’s sister’s house. The applicant claims he was afraid of the CID. He did not know if the CID were telling him the truth, or if “they were just falsely accusing me of this and will later ask me for money”. The applicant claimed that many members of the police, the army, and the CID are corrupt and sometimes make false accusations about persons who run businesses or are self-employed, and then ask for money. The CID returned to the applicant’s parents’ house two weeks later, and a number of other times looking for the applicant.

5. The applicant also claimed that in March 2012 he had rented his house to some people, but about one month later he asked the tenants to move out because they were disturbing the neighbours. After they refused to move out, the applicant asked his friend to help him, and his friend did so by obtaining the help of the police. The tenants moved out, but the applicant’s wife told the applicant the former tenants threatened to kill the applicant. The applicant then decided to leave Sri Lanka.

6. The applicant claimed that he fears that if he returns to Sri Lanka his life will be at risk. He claimed he fears:

   a)the CID will contact him again and harass him or ask him for money and falsely accuse him of supplying cars to the LTTE;

   b)the former tenants whom he had evicted will harm the applicant;

   c)the Sri Lankan authorities will detain and mistreat him because he left Sri Lanka illegally and travelled to Australia to seek protection; and

   d)the authorities will ask him questions about the boat on which he travelled to Australia or suspect him of being a crew member, because he is Sinhalese.

Tribunal’s decision

1. The Tribunal was not satisfied the incident with the CID officers occurred.[2] The Tribunal relied on a number of matters. The applicant’s evidence about the incident was vague and confusing; the applicant did not raise this claim in the entry interview document; before the Tribunal the applicant claimed an additional incident occurred in 2005 involving his brother-in-law which the applicant had not mentioned before the hearing; and the applicant had not been the subject of any extortion attempts by the CID, including in relation to the claimed incident.[3]

   [2] CB139-140, [40]

   [3] CB139-140, [39]-[41]

2. The Tribunal also did not accept the applicant closed his business because he feared the CID.[4] The Tribunal noted the applicant was willing to obtain police help to evict his tenants at a time the applicant claimed he was in hiding. The Tribunal found that was inconsistent with the applicant’s claimed fear of the CID. The Tribunal, therefore, was not satisfied the applicant had a well-founded fear of persecution based on his being a member of a particular social group of small business people in Sri Lanka who might be subject to extortion attempts by the CID.[5]

   [4] CB140, [41]

   [5] CB141, [43]

3. The Tribunal was not satisfied the applicant had a well-founded fear of being persecuted because he would be perceived to have an imputed pro-LTTE political opinion. That is so because that claim relied entirely on the applicant’s claimed incident with the CID, which the Tribunal did not accept occurred.[6] Nor was the Tribunal satisfied the applicant had any well-founded fear of persecution because of his religious beliefs. The applicant said he did not have any difficulties practising his religion in Sri Lanka. The applicant did claim he feared harm, but the Tribunal found the applicant’s evidence to be “very vague”.[7]

   [6] CB142, [44]

   [7] CB142-143, [45]

4. The Tribunal noted the applicant did not wish to pursue his claim based on his being Sinhalese, and therefore would be perceived to have been a crew member on a people smuggling boat venture. The Tribunal, nevertheless, considered the claim but did not accept it.[8] The Tribunal, however, accepted the applicant left Sri Lanka illegally and travelled to Australia as a passenger on a people smuggling boat.[9]

   [8] CB143, [46]

   [9] CB143, [46]

5. The Tribunal also considered whether the applicant was at risk because he was a member of a particular social group of Sri Lankans who left Sri Lanka illegally and sought asylum in a Western country. The Tribunal accepted that, on his return to Sri Lanka, the applicant would be questioned, he would almost certainly be charged with an offence or with offences under the Immigrants and Emigrants Act, he would be detained and arrested at the airport, he could spend several days in gaol pending a bail determination, and that gaol conditions in Sri Lanka are poor. The Tribunal also found, however, that returnees who had left Sri Lanka illegally are not subject to mistreatment during their processing at the airport, and “are treated according to standard procedures regardless of their ethnic extraction or religion”.[10] The Tribunal found that it is likely the applicant would be fined for his having left Sri Lanka illegally.[11] On the basis of these findings, the Tribunal was not satisfied the enforcement of the law dealing with the illegal departure of Sri Lankan citizens from Sri Lanka and the imposition of penalties would involve systematic and discriminatory conduct.[12] Nor was the Tribunal satisfied that the conditions the applicant was likely to encounter as a failed asylum seeker on his return to Sri Lanka would put the applicant at a real risk of significant harm, as defined in s.36(2A) of the Migration Act 1958 (Cth) (Act).[13]

   [10] CB143, [47]

   [11] CB143, [47]

   [12] CB143-144, [47]

   [13] CB146, [52]

Grounds of review

1. The application contains two grounds of review. The first is:

   The Tribunal failed to genuinely consider a submission of substance.

   Particulars

   a.At paragraph 37 the Tribunal disregarded the psychological report because the applicant only consulted the psychologist 6 weeks before the Tribunal hearing and had not mentioned any mental health issues at the entry and delegate’s interviews.

2. The applicant, who is not legally represented, made no submission in relation to this ground.

3. At paragraph 35 of its reasons, the Tribunal notes the applicant informed the Tribunal he had some “mental distress”, and that the Red Cross had organised for him to see a psychologist, and that the applicant had done so twice in the six weeks leading up to the Tribunal hearing. The Tribunal also recorded the applicant claimed he had some “memory problems”. The Tribunal noted the applicant had not been provided “with any report in relation to the applicant’s claim that he had seen a psychologist or in relation to any other medical issues relating to the applicant”. The Tribunal, however, allowed the applicant until close of business on 10 April 2015 “to provide any further comments or responses to the Tribunal or to provide any further submissions in relation to his claims”, but “[n]o further comments or responses or submissions were received by the Tribunal”.[14]

   [14] CB137, [35]

4. At paragraph 37 of its reasons, being the paragraph referred to in ground 1, the Tribunal records the applicant having claimed he had “some memory difficulties and suffers from some mental distress, and by implication those claimed conditions affected the applicant’s capacity to recall details or to fully address the Tribunal’s questions about his claims”.[15] The Tribunal then considered these claims. The Tribunal did not accept the applicant’s claims. It relied on the applicant having only seen a psychologist in the six weeks leading up to the Tribunal hearing, and neither the delegate’s record of decision nor the entry interview document containing a claim that the applicant suffered from any mental distress or any memory problems.[16]

   [15] CB138, [37]

   [16] CB138, [37]

5. There is no evidence the applicant provided to the Tribunal any psychological report. The Tribunal, therefore, cannot have made any jurisdictional error by not considering a report that had not been provided to it. To the extent the ground intends to claim the Tribunal did not consider the applicant’s claims that he suffered from mental distress and memory problems, such claim cannot succeed. The Tribunal did consider the applicant’s claims and, for reasons that were reasonably open to it, the Tribunal did not accept the applicant suffered from memory difficulties or suffers from some mental distress.

6. Ground 1, therefore, does not succeed.

7. Ground 2 is as follows:

   At paragraph 53 the Tribunal failed to apply the test of degrading treatment or punishment to the claim squarely raised that the applicant would upon return be charged with illegal departure and face time on remand while awaiting bail.

8. When invited to make a submission in relation to this ground, the applicant submitted he could not judge now what would happen to him, in the sense of how he would be treated, if he returns to Sri Lanka. Later, the applicant submitted that he could not return to Sri Lanka. These submissions do not address ground 2, and are an appeal to this Court to make an order that would have the effect of preventing the applicant from being returned to Sri Lanka. As I informed the applicant, this Court does not have jurisdiction to determine whether the applicant has valid grounds for protection.

9. Ground 2 cannot succeed. The Tribunal did consider a claim based on the applicant’s being a person who had left Sri Lanka illegally. As I have already noted, the Tribunal accepted that, on his return to Sri Lanka, the applicant would be questioned, he would almost certainly be charged with an offence or with offences under the Immigrants and Emigrants Act, he would be detained and arrested at the airport, he could spend several days in gaol pending a bail determination, and that gaol conditions in Sri Lanka are poor. The Tribunal also found that it was likely that the applicant would face no punishment for illegally departing Sri Lanka other than being ordered to pay a fine which the applicant would be able to afford. The Tribunal considered whether, on these findings, the applicant satisfied the criteria specified in s.36(2)(a) and s.36(2)(aa) of the Act, and in terms concluded it was not satisfied “there are substantial grounds for believing that there is a real risk the applicant would suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1)”.[17]

   [17] CB147, [53]

10. Ground 2, therefore, also fails.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  13 October 2017