BMW15 v Minister for Immigration

[2016] FCCA 1507

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1507

Catchwords:
MIGRATION – Judicial review – protection visa – procedural.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA

Immigration and Emigrants Act 1949 (Sri Lanka)

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: BMW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1713 of 2015

Judgment of: Judge Harland

Hearing date: 14 June 2016

Date of Last Submission: 14 June 2016

Delivered at: Melbourne

Delivered on: 21 June 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Ms Bosnjak

Solicitors for the Respondents: Clayton Utz

ORDERS

1. That the application filed 24 July 2015 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1713 of 2015

BMW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a 28 year old Hindu Tamil citizen of Sri Lanka. He arrived at Christmas Island by boat on 7 July 2012. The applicant applies, or seeks, a judicial review of the Tribunal’s decision affirming the delegate’s decision to refuse his application for a protection visa. The criteria for the granting of a protection visa is set out in section 36 of the Migration Act 1958 (Cth). The applicant had the assistance of an interpreter today, but has not had the assistance of a lawyer in these proceedings.

2. In those circumstances, it is not surprising that he did not provide particulars in his application of the jurisdictional errors he says the Tribunal made.  Rather, he simply says that the Tribunal made an error of law and denied him procedural fairness.  He also refers to having made an application for assistance through Victoria Legal Aid. 

3. The applicant filed the application for judicial review on 24 July 2015.  I explained to the applicant the limited nature of judicial review proceedings; I acknowledge that it is difficult for applicants who are not lawyers, and who need the assistance of interpreters, to be able to adequately prepare and argue their case given the technical nature of migration proceedings.

4. The applicant acknowledged having received and read the respondent’s submissions.  He also acknowledged having received the Court Book (“CB”). He did not have it in Court with him. The respondent was able to provide a spare copy.  The applicant submitted that when he went to the Tribunal, he gave his brother-in-law’s case, rather than his case and because of that and said that because his brother-in-law’s case was rejected by a different Tribunal, his case was rejected as well.  He then said he went to Court, but they did not hear anything he had to tell them.

5. It was difficult to follow what the applicant was saying.  On further inquiries of him it became apparent that part of his complaint is that he says this Court cannot determine his application because his brother-in-law’s application for judicial review is yet to be determined by another member of the Court.  He said his brother-in-law’s case was to be determined in April this year, and he turned up for that, but it did not go ahead and has not yet been heard.  The Applicant sees his claim, and his brother-in-law’s claim, as being connected.  Whilst it is clear from the Tribunal’s decision that the applicant was making claims linked to his brother-in-law that was not the sole basis of his claim. Both men made claims separately in their own right, One of the issues of concern to the Tribunal was the applicant’s lack of knowledge of his brother-in-law’s problems.

6. The applicant’s claim was made independently of any claim by his brother-in-law. The only claim before me is the application for judicial review filed by BMW15. His visa application at CB 46 shows himself as the only applicant for protection.

7. It is clear from the Tribunal decision, and it is summarised at paragraph 18, that the Tribunal considered the applicant’s claims, which were not solely based on issues with respect to his brother-in-law.

8. The applicant made claims that he and a work colleague were asked to work at an army base in August 2009, but were not paid.  They refused to work without payment, and were threatened as a result.  The applicant also claimed that he was kidnapped and detained overnight in August 2009, and that that was due to something his brother-in-law did.  He says that in April 2010 he again was taken in for questioning about his brother-in-law.  His brother-in-law had left Sri Lanka but then returned.

9. The applicant was not able to provide details about what his brother-in-law’s problems were.  The Tribunal decision sets out the applicant’s evidence, and also the issues of concern to the Tribunal.  The decision summarises the questions the Tribunal asked the applicant to clarify with respect to his evidence.  The Tribunal asked him to explain why he would be still be of interest to the authorities, when the incidents had occurred in 2009 and 2010.  The applicant replied that it was because he was Tamil.

10. The Tribunal put to him that there was no evidence of him having any problems in the last year before he left. He replied that once you have problems you are affected for the rest of your life.  The Tribunal records, at paragraph 60 of its decision, that it explained to him that the Tribunal has to assess any future risk to him, and that whilst the Tribunal accepted that terrible things have happened to Tamils in the past, independent country information did not indicate that simply being a young Tamil man would be enough for the authorities to take an interest in him, and suspect the applicant of LTTE activities.

11. The Tribunal asked the applicant if he knew what his brother-in-law had done to lead him to be of interest to the authorities.  The applicant was not able to give any detailed evidence.  He said that he had only contacted his brother-in-law a week before the Tribunal hearing.  The Tribunal expressed surprise at this, given the claims he was making with respect to his brother-in-law’s interests.  The Tribunal put the adverse information to the applicant.

12. The applicant asked for an opportunity to speak to his lawyer, which was granted.  He then changed his evidence and said that the army officers had come and taken him not in 2010, but in 2012.  He said that his brother-in-law had left Sri Lanka in May 2009 and returned in October 2011.  The Tribunal did not accept the applicant’s explanation for the change in his evidence about the dates, given that he had been previously been asked several times to confirm what had happened in 2010.  The applicant then asked for further time to provide documents from his brother-in-law. 

13. The Tribunal noted that he had been requested to provide documents at least seven days before the hearing.  The Tribunal also put to him that the submissions by his representative referred to another incident in May 2012, which had not been referred to by the applicant before.  The Tribunal also put the independent country information to the applicant.  The Tribunal gave the applicant until 19 June 2015 to provide further documents from his brother-in-law. 

14. The Tribunal’s decision was handed down on 30 June 2015.  The Tribunal noted that it received further submissions from the applicant’s representative on 19 June 2015.  Those submissions referred to the applicant’s brother-in-law being alleged to support the LLTE, and that the applicant would be similarly at risk because of this perceived political opinion.

15. In its findings and reasoning, commencing at CB 337, the Tribunal, whilst acknowledging difficulties that refugee applicants have with proof, found that there were several key aspects of the applicant’s evidence that was not credible.  The Tribunal outlines its reasonings for reaching that conclusion.  It also found that the applicant’s knowledge of his brother-in-law’s problems were extremely vague, and it did not accept his explanation as to why he did not have that knowledge of his brother-in-law’s problems. 

16. The Tribunal put to the applicant, pursuant to section 424AA of the Migration Act 1958 (Cth), that a differently constituted Tribunal had found that his brother-in-law was never of interest to the Sri Lankan authorities or faced any problems from them, and that his claims were not credible. The applicant’s representative’s submissions argued that despite those findings, the Tribunal was entitled to reach a different view with respect to the applicant’s case.

17. The Tribunal did not accept that the document provided post the hearing supported a finding that the applicant’s brother-in-law was of interest to the Sri Lankan authorities.  Whilst the Tribunal accepted as plausible his evidence that in 2009 he was beaten and abducted because of his refusal to do unpaid work for authorities, noted that that was consistent with it occurring near the end of the civil war. 

18. The Tribunal found that the applicant had not faced any harm in the two years after 2010 until he departed from Sri Lanka, and noted that there has been a further passing of three years since he left Sri Lanka.  The Tribunal rejected the applicant’s claims that he would be imputed with pro LTTE political sympathies because of his relationship with his brother-in-law.

19. The Tribunal went on to consider the complimentary protection provisions and found that country information did not support a finding that all Tamils who leave Sri Lanka illegally are imputed with LTTE associations.  The Tribunal also found that the applicant would not be subjected to any detention or interrogation upon his return to Sri Lanka, other than the standard questioning and procedures that DFAT refer to, which is that Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen and are not singled out for special treatment. 

20. The Tribunal referred to the Immigrants and Emigrants Act 1949 (Sri Lanka) and the fact that all returnees who have left Sri Lanka illegally since November 2012 have been arrested and charged with an offence under that Act and then bailed.  The Tribunal accepted that he may spend a few days in detention before being bailed and did not accept that this would amount to significant risk of harm.  Whilst it acknowledged that prison conditions in Sri Lanka may not meet international standards, that is not sufficient to amount to an intention by Sri Lankan authorities to inflict harm or degrading treatment, and does not give rise to Australia having obligations to the applicant under the complimentary protection provisions. The first respondent relied on the recent Federal Court of Australia decision of SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. The case is directly on point with respect to this issue. The Tribunal considered this issue properly and did not err in its findings.

21. Counsel for the respondent relied on her written submissions and said that the applicant’s brother-in-law’s case has no bearing on this case.  The Tribunal considered the applicant’s claims with respect to his brother-in-law, and also put adverse material to the applicant.  The Tribunal did not accept that the applicant was a person of interest to the authorities, and that that finding was open on the evidence before it, and that based on that it did not accept his claims, and therefore whatever happens in his brother-in-law’s case does not affect the findings in this case.

22. The applicant, in response to that, again referred to his brother-in-law’s case, and saying if that is not accepted he cannot say anything else.  It is necessary to look to the Tribunal’s decision to consider whether or not the decision reveals any jurisdictional error.  The decision is detailed. 

23. The written submissions provided by the respondent’s counsel argue that the Tribunal correctly applied the legislative framework and noted that the assessment of the applicant’s credibility was the exclusive domain of the Tribunal and not a matter for this Court.

24. The respondent also argues that the Tribunal correctly assessed the issues of significant harm arising under the complimentary protection regime, then turned to the procedural fairness complaints and argued that the Tribunal complied with its obligations under Part 7, Division 4 of the Migration Act 1958. 

25. I am satisfied that the Tribunal did meet its obligations under Part 7, Division 4 of the Migration Act 1958, and that the findings it made were open on the evidence before it. I am also satisfied that the Tribunal correctly assessed the applicant’s claim against the legislative criteria.  For these reasons, I dismiss the application and will make an order for costs in favour of the respondent.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 21 June 2016