BMP15 v Minister for Immigration & Anor

[2016] FCCA 2443

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2443

Catchwords:
MIGRATION – Judicial review – protection visa – applicant claims decision was illogical – s425 – treatment of claim raised post hearing.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 245, 424A(3), 425

Immigrants and Emigrants Act 1949

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection vSZTQS [2015] FCA 1069
SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175
ACC15 v Minister for Immigration and Border Protection [2016] FCA 97
Kopaliapillai v Minister for Immigration and Multicultural Affairs (1988) 86 FCR 547

Applicant: BMP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1700 of 2015

Judgment of: Judge Harland

Hearing date: 2 August 2016

Date of Last Submission: 2 August 2016

Delivered at: Melbourne

Delivered on: 22 September 2016

REPRESENTATION

Counsel for the Applicant: Ms Taylor

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the Respondents: Ms Latif

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for judicial review filed on 23 July 2015, amended on 23 June 2016, is dismissed.

2. That the applicant pay the first respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1700 of 2015

BMP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia by boat. He applied for a protection visa on 5 December 2012 with the assistance of a migration agent. The delegate handed down a decision on 11 October 2013. The applicant reviewed that decision and the Tribunal handed down its decision affirming the delegate’s decision on 26 June 2015.  The applicant filed an application for judicial review on 23 July 2015.

2. The applicant relies on the following grounds in his amended application for judicial review filed on 23 June 2016:

   Ground One

   The Tribunal constructively failed to exercise its jurisdiction  by failing to consider an integer of the applicant's  claims:

   Particulars

   i) In considering whether the applicant was owed protection under s.36(2)(a) or s.36(2)(aa), the Tribunal failed to assess the applicant's claims as a member of a particular social group, namely "Tamil males of fighting age from Jaffna or LTTE-controlled areas in northern Sri Lanka"; and

   ii) Failed to assess whether the applicant's visible injuries placed him at a higher degree of risk than other members of the particular social group of "Tamil males of fighting age from Jaffna or LTIE-controlled areas in northern Sri Lanka".

   Ground Two

   The Tribunal erred in its consideration of the complementary protection criteria in s.36(2)(aa) of the MigrationAct1958, having made a finding so illogical or unreasonable as to be one at which no rational or logical decision maker could arrive on the same evidence.

   Ground Three

   The Tribunal failed to afford the applicant procedural fairness in accordance with the requirements in s.425 of the MigrationAct1958.

   Particulars

   i) The Tribunal failed to invite the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review, namely, that the applicant would be granted bail after being remanded "for a short period of time" and that the applicant's "wife and his siblings are in Sri Lanka so would be available to sign him out if necessary".

   Ground 4

   The Tribunal constructively failed to exercise its jurisdiction by failing to take into account a relevant consideration.

   Particulars

   i) In considering the applicant's claims under s.36(2)(a) and s.36(2)(aa), Tribunal failed to take into account that the applicant's brother was a Major in the LTTE, such fact having been rejected by the Tribunal "due to the late claim", but not otherwise considered or assessed .

Background

1. The applicant is a Sri Lankan of Tamil ethnicity. He is Catholic.  He is married with four children.

2. He was injured in a shell attack in 2006. He has scars on his legs and hand. He lost fingers on his left hand and suffered broken bones.

3. The applicant’s case is that on several occasions he was detained by the Sri Lankan army and Criminal Investigation Department (“CID”) and interrogated.

4. The applicant says that he is at increased risk because of his visible injuries. He says he was questioned about being involved with the Liberation Tigers of Tamil Eelam (“LTTE”) and was under increased suspicions of fighting for the LTTE because of his injuries.

5. The applicant accepts that his claims are accurately summarised in the first set of submissions prepared by the first respondent is accurate. I will not set them out here.

Ground One

1. At the commencement of the hearing the applicant indicated that he was no longer pressing ground one.

Ground Two

1. Ground two focuses on the Tribunal’s assessment of Australia’s complementary protection obligations.

2. The applicant acknowledges the authorities which apply to the question of detention of a failed asylum seeker but argues that the applicant’s circumstances are different to that of other failed asylum seekers because of his visible injuries and his previous treatment when detained.

3. It is important to understand that the applicant’s argument pursuant to this ground is based on his previous experience of being detained and the Tribunal’s finding that he had been detained, and questioned and on at least one occasion beaten. The Tribunal found at [45] that this treatment amounted to serious or significant harm. The Tribunal went on to find at [47] that he was released within 3 hours or a day after being detained and questioned. He was not questioned in the 18 month period before he left Sri Lanka. The Tribunal found that this indicated he was no longer of any interest to the authorities. The Tribunal rejected the applicant’s claim that he was in hiding before he left.

4. The applicant relies on Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 in support of his contention that the Tribunal decision was illogical. The illogicality must go to a jurisdictional fact. The bar is high when seeking to establish that a finding was illogical or unreasonable. He also relied on the High Court decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

5. The applicant argues that the Tribunal’s identification of the duration of detention was “the crucial plank” of its reasoning. That ignores the other factors the Tribunal referred including prison conditions, bail and the imposition of fines. The statements the Tribunal made are typical ones with respect to the application of the Immigrants and Emigrants Act 1949.

6. The respondent argues that the applicant has conflated two very different circumstances and two different forms of harm.

7. The detention the applicant was previously subjected to and which the Tribunal found did find amounted to significant harm was in a different context to the issue of the applicant returning to Sri Lanka as a failed asylum seeker and being detained under the Immigrants and Emigrants Act.  Different country information is relevant. The respondent argues that the Tribunal correctly considered the different circumstances of the applicant and the different country information.

8. The applicant argues that if the Tribunal had referred back to its earlier finding and made a finding at the situation in Sri Lanka had changed since he was detained and beaten then ground two could not be made out but that the Tribunal did not do this.

9. The applicant points to page 30 of the transcript where the Tribunal asked him about his fears of the kind of interrogation he might face upon his return to Sri Lanka.

10. The characterisation that the applicant made of the Tribunal’s reasoning cannot be sustained when the decision record is looked as a whole. It is clear from reading the Tribunal decision that the Tribunal was mindful of the finding it made about the applicant’s earlier detention but for the reasons it gave found that the applicant was no longer of interest. The reasoning of the Tribunal in this respect is clear and was open to it on the evidence. In light of those findings, there is no illogicality in the Tribunal’s reasoning.

11. The Tribunal found that the applicant has significant visible injuries and accepted that country information showed that in the aftermath of the war people with scarring were questioned as to how they got those injuries. The Tribunal found that the authorities questioned him about his injuries and released him and did not question him for 18 months indicating that the authorities did not suspect him of having links to the LTTE. At [64] the Tribunal said that it:

    [D]oes not accept that the applicant will be of interest on return because of his injuries. Even if the authorities were not aware of the previous questioning regarding his injuries, there is no real chance that he would not be able to explain how they were sustained as he has in the past when questioned.

12. The respondent submits that the Tribunal did properly consider its earlier finding in the context of its consideration of the complementary protection obligations and the country information. The first respondent draws attention to [45], [47], [49], [74], [75], [76] and [93].

13. Ground Two is not made out.

Ground Three

1. Ground three concerns procedural fairness. This again relates to the Tribunal’s findings about what is likely to happen to the applicant upon his return as a failed asylum seeker. The focus of this complaint is the Tribunal’s findings with respect to bail and the availability of family members to bail him out.

2. The applicant accepts that s.424A(3) excludes country information from having to be put to the applicant but claims that the Tribunal’s findings went beyond that. The applicant argues that the finding that the applicant would be bailed was a ‘crucial plank’ in the Tribunal’s finding that the applicant would not face a risk of serious or significant harm.

3. The applicant argues that the Tribunal breached s.425 by not inviting the applicant to comment on whether or not he would be granted bail and the ability of his relatives to travel to bail him out.

4. The Tribunal dealt with the country information with respect to the application of Immigrants and Emigrants Act and the treatment of failed asylum seekers upon their return at [88] to [101]. The delegate also addressed this at Court Book (“CB”) 172-173 although it does not specifically mention bail in the body of its reasons. The respondent argues country information was identified in footnote 37. The first respondent relies on the affidavit of Ms Ness which annexes the country information referred to a footnote 37 of the delegate’s decision. That country information refers to returnees being granted bail on their own surety. Some then have to wait for a family member to come collect them from court.

5. The applicant relies on Minister for Immigration and Border Protection vSZTQS [2015] FCA 1069 (“SZTQS”). The applicant says a “near identical” situation arose in that case. However an examination of the facts in that case shows that this is not the case. In SZTQS the applicant had been arrested two days before he left Sri Lanka. His mother attended and paid bail. He was told to return to court two days later but he left the country. The factual circumstances in the present case are quite different.

6. The first respondent relies on SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 particularly where the Full Court of the Federal Court hold that SZTQS was fact-specific and “does not stand for the proposition that every reference to a family member being required to provide surety involves a breach of s.425(1) of the Act.”

7. The applicant argues that it is unfair to expect the applicant to be on notice about the issue from a reference to a footnote in the decision.  There is merit in that point. However that footnote is referring to country information. The respondent argues that the applicant was represented by a migration agent before the delegate and was on notice of the issue of the conditions of return. I accept that is a standard issue to be addressed which a migration agent acting in these types of matters would be aware of.

8. Page 29 of the transcript of the proceedings before the Tribunal shows that the country information including the issue of bail and a family member attending. It clear from this that the applicant did have the opportunity to comment on this. The applicant’s migration agent indicated that she would put on written submissions after the hearing.  That too is clear from transcript. Furthermore as this was country information. Section 424(3)(a) applies. In this regard the first respondent relies on ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 at [29].

9. Ground 3 cannot be made out both because the relevant information was country information therefore s.424(3)(a) and in any event, the information was put to the applicant and he had the opportunity to respondent to it.

Ground Four

1. The complaint in ground 4 is that the Tribunal failed to deal with the applicant’s claim was that his brother was a Major in the LTTE. The applicant concedes that the claim was made very late in post hearing submissions and did not arise from the earlier material before the Tribunal. Nevertheless the applicant submits that the Tribunal was obliged to consider this claim and failed to comment that the claim was made late without considering its merits.

2. The applicant argues that although the claim was raised late, it was a fundamental aspect of his claim and given the lengthy consideration the Tribunal gave to the applicant’s claims about being imputed to have an association with the LTTE the Tribunal was obliged to consider it.

3. The first respondent submits that the Tribunal was entitled to reject the claim and relies on Kopaliapillai v Minister for Immigration and Multicultural Affairs (1988) 86 FCR 547 (“Kopaliapillai”) and 558 with respect to the a claim being raised late and credibility.

4. The applicant concedes that if the Tribunal had made a credibility assessment about the late raised claim then there could be no complaint but says it did not do so.

5. The applicant also accepts that it is a matter of weight but argues that [54] shows that it the Tribunal dismissed the claim without considering it. The applicant submits that Kopaliapillai is distinguishable, as in that case there were other adverse credibility findings. However the applicant only quotes a sentence from that paragraph.

6. The respondent argues that it is necessary to look at [53] and [54] of the Tribunal’s reasons. It is apparent when reading the whole of those two paragraphs that the Tribunal did consider the reason the applicant gave for delaying in making the claim. The Tribunal observed that the applicant’s brother died in 2009. The Tribunal refers back to its earlier findings with respect to the applicant being questioned. It is not a fair reading to zero in on the sentence beginning with the words “due to the late claim.” The respondent argues that it is clear that the Tribunal did not summarily dismiss the claim because it was late but rather found that the claim was inconsistent with the other evidence.

7. Having considered the material I accept the first respondent’s submissions. Ground four also fails.

Conclusion

1. As none of the grounds have been made out the application must be dismissed.

2. I will hear from the parties as to costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 22 September 2016