BQH15 v Minister for Immigration

[2017] FCCA 1171

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQH15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1171

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider all claims raised by the applicant – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: BQH15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2232 of 2015

Judgment of: Judge Emmett

Hearing dates:

5 April 2017

31 May 2017

Date of Last Submission: 31 May 2017

Delivered at: Sydney

Delivered on: 31 May 2017

REPRESENTATION

The Applicant appeared in person with the assistance of a Tamil interpreter.

Solicitors for the Respondents: Thomas Liu
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2232 of 2015

BQH15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 6 July 2015 (“the Tribunal”).

2. The background of this matter, the applicant’s claims and a summary of the Tribunal’s decision record are accurately reflected in the first respondent’s submissions as follows:

   “3. The applicant is a Sri Lankan national. On 31 May 2012, he arrived in Australia as an unauthorised maritime arrival. On 21 November 2012, he applied for a protection visa. On 3 October 2013, the Delegate refused to grant the protection visa.  

   4.  On 15 October 2013, the applicant sought merits review of the Delegate's decision by the Tribunal. On 2 July 2015, the applicant appeared at a hearing before the Tribunal. The applicant was represented before the Tribunal by his registered migration agent. As noted above, the Tribunal affirmed the Delegate's decision on 6 July 2015.

   Applicant's claims

   5.  The bases of the applicant's claim to fear harm from the Sri Lankan authorities are his:

   (a) Tamil ethnicity;

   (b) imputed political opinion (as a supporter of the LTTE); and

   (c) membership of a particular social group (as a failed asylum seeker from a Western country).

   6.  In summary, the applicant claimed protection on the following grounds:

   (a) he is a Tamil male who worked as a staff assistant at a Tamil government school from 2007 until May 2012 when he left Sri Lanka;

   (b) he had several encounters with the Sri Lankan authorities in the past, in particular:

   (i) in 2005, he was beaten by Sinhalese 'thugs' after he reported election irregularities to the police while acting as an election observer;

   (ii) in 2009, he was beaten, tortured and accused of working with the LTTE by police;

   (iii) in January 2012, he was arrested and beaten by the navy for playing cricket on common land;

   (iv) he was harassed by a navy officer; and

   (v) in March 2012, he was beaten by the navy for refusing to participate in an anti-UN demonstration.

   (c) his brother also had several encounters with the Sri Lankan army and Criminal Investigation Department (CID), namely:

   (i) after being deported from Australia to Sri Lanka in 2010, his brother was arrested by police, detained for 5 to 6 days and tortured. His father ultimately secured his release by paying a bribe;

   (ii) in August 2011, his brother was caught and detained in a navy camp after he chased a 'grease man' into the grounds; and

   (iii) in February 2012, his brother fled Sri Lanka and went to India. On two occasions, the CID went to the applicant's family home looking for his brother but his wife told the CID that his brother had gone to Dubai.

   (d) on 8 May 2012, the CID returned to his brother's house and told his wife that they did not believe he was in Dubai.  They also gave her a letter summoning her husband to appear within three days. They then went to the applicant's house and told him that, if his brother did not appear within three days, they would arrest him.  On 10 May 2012, the applicant fled Sri Lanka.

   (e) after the applicant left Sri Lanka, the authorities enquired as to the whereabouts of the applicant and his brother. In June 2012, they went back to his family home and beat his parents after they saw a photograph of the applicant in a Tamil newspaper.

   Tribunal decision

   7.  The Tribunal found the applicant was not a truthful and credible witness. It concluded that the applicant manufactured his account in order to achieve a positive migration outcome. The summary hereunder adopts the italicised headings used by the Tribunal in setting out its conclusions and findings.

   Applicant's experiences in Sri Lanka prior to his departure in May 2012

   8.  The Tribunal found that the applicant's evidence about the circumstances surrounding the key incident on which his claims were based, namely his assertion that in May 2012 the Sri Lankan authorities threatened to arrest him if they could not find his brother, was “implausible, vague and not supported by independent country information”. Specifically, the Tribunal:

   (a) found the circumstances of the August 2011 incident (see paragraph 6(c)(ii) above) involving his brother and the navy implausible;

   (b) did not find credible the timeframe of key events leading up to the CID threatening him (see paragraph 6(d) above);

   (c) found it incongruous that, if the authorities associated him with his escapee brother, the applicant was able to remain a government employee throughout the nine months in which the authorities were looking for him and up until the time he left Sri Lanka;

   (d) doubted the truthfulness of the applicant's evidence regarding a camp shared by the army and navy, where he claims his brother was held in August 2011. Referring to independent country information, the Tribunal did not accept that the camp existed after the end of the civil war in 2009; and

   (e) noted that evidence given to the Tribunal that the applicant was never arrested or detained by the authorities was inconsistent with the claim in his statement that he was 'arrested' and beaten by the navy for playing cricket in January 2012.

   9.  For these reasons, the Tribunal did not accept that the applicant was of interest to the Sri Lankan authorities at the time he left Sri Lanka in May 2012. It was not satisfied that, if he returns to Sri Lanka in the reasonably foreseeable future, the applicant will face serious harm at the hands of the Sri Lankan authorities because he is wanted by the CID in relation to his brother; or as a result of any previous incident with the Sri Lankan authorities or for any other reason.

   Applicant's Tamil race/ethnicity and political profile

   10. The Tribunal accepted that up to the end of the civil war in May 2009, Tamils in Sri Lanka were at risk of persecutory harm simply because of their ethnicity.  However, it referred to country information indicating that the security situation in Sri Lanka had stabilised since the end of the civil war in May 2009. It then considered the applicant's individual circumstances. Although the Tribunal accepted that his ethnicity may have contributed to the applicant suffering some discrimination or harassment, the Tribunal was not satisfied that the conduct was systematic or amounted to serious or significant harm. 

   11. The Tribunal also found it significant that the applicant was a government employee for all his working life until he left Sri Lanka. The Tribunal further found that the applicant did not have a “risk profile” and neither he nor any of his direct family members were ever involved with the LTTE. It, therefore, found that there was not a real chance that the applicant would face any difficulty amounting to serious harm as an ethnic Tamil or that he would be imputed as being pro-LTTE or opposed to the Sri Lankan government;  

   Applicant's illegal departure from Sri Lanka and his status as a failed Asylum seeker

   12. Referring to independent country information, the Tribunal found that any questioning or monitoring that the applicant would be subjected to as a failed asylum seeker from a Western country with no LTTE connections would not constitute serious or significant harm. Although the Tribunal accepted that if the authorities had been able to identify him as the asylum seeker in Cocos Island in the newspaper photograph they would know he had departed the country illegally, it observed that this information would be known to them anyway on his return to Sri Lanka.

   13. The Tribunal considered the applicant's submission as well as country information which indicated that returnees in breach of Sri Lanka's immigration laws were routinely arrested at the airport, held on remand for a short period, brought before a Court, granted bail, fined and questioned on return to their home area.  However, the Tribunal found that Sri Lanka's immigration laws, and the processes they gave rise to, applied to the general population and not in a discriminatory manner.

   Complementary protection criteria

   14. The Tribunal also considered whether the applicant satisfied the complementary protection criteria in s 36(2)(aa) of the Act. The Tribunal was not satisfied the applicant would suffer harm by reason of his ethnicity or political opinion. Further, the Tribunal reiterated its findings based on independent country information to conclude that the applicant did not face a real risk of suffering significant harm if returned to Sri Lanka.

   15. Further, the Tribunal was not satisfied that there was a real risk that the applicant would be subjected to ‘torture’ if held on remand for a brief period. In reaching this conclusion, the Tribunal considered that:

   (a) s.5(1) of the Act requires pain or suffering to be "intentionally inflicted" on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission cause, “and is intended to cause, extreme humiliation”;

   (b) mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation.

   16. The Tribunal was not satisfied on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons, or while the applicant would be on remand in Sri Lanka, would be “intentionally inflicted” as required by s.5(1) of the Act.

   17. In light of these findings, the Tribunal affirmed the decision under review.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The proceeding before this Court

1. On 5 April 2017, the applicant appeared before this Court unrepresented but with the assistance of a Tamil interpreter. On that occasion, the applicant sought an extension of time pursuant to s.477 of the Act to rely on the grounds of his initiating application filed on 12 August 2015 seeking judicial review of a decision of the Tribunal dated 6 July 2015.

2. On 5 April 2017, the first respondent consented to time being extended to the applicant to rely on those grounds and the applicant was invited to say whatever he wished in support. Those grounds are as follows:

   “1. The Tribunal erred in failing to consider a claim squarely raised.

   Particulars

   a) At paragraph 12 the applicant claimed “He will be interrogated, tortured and killed by Sri Lankan authorities, namely the CID, the Army and Navy because he is wanted by the CID and left Sri Lankan illegally and had been taken away and tortured by the authorities before; and

   b) The Tribunal only considered the treatment that the applicant would suffer immediately upon return to Sri Lankan in relation to the Immigrants and Emigrants Act.”

3. The applicant submitted that he was the subject of an arrest warrant and he had mentioned it to the Tribunal at the hearing, to which the Tribunal responded that it did not need to see the arrest warrant. The applicant stated that the Tribunal did not ask for a copy of the arrest warrant, so he did not give it to the Tribunal. The applicant further stated that he had told a delegate of the first respondent (“the Delegate”) about the arrest warrant at an interview. 

4. In response, the first respondent submitted that there had been no mention of the arrest warrant in either the Delegate’s decision or the decision record of the Tribunal.  However, the applicant was offered an opportunity to file further evidence in the nature of a transcript or tapes of the recording of the Tribunal hearing, so that he may pursue that ground if he chose to do so.

5. The applicant stated that he did wish to have an adjournment for that purpose. Accordingly, directions were made by me on 5 April 2017 directing the first respondent to provide the applicant with an audio recording of the Tribunal’s hearing conducted on 2 July 2015. The applicant was also given leave to file and serve an Amended Application, any further evidence and submissions in support of the grounds of his application. The applicant was also provided with the contact details of translating and interpreting services in documents headed in his own language, together with a copy of the applicable costs schedule of this Court. 

6. I further explained to the applicant at the hearing on 5 April 2017 that if the matter was adjourned and he was unsuccessful, there may be an increase in the costs that may be sought and awarded against him. I explained to the applicant the consequences for him may be that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia.  As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.

7. As stated above, the applicant confirmed that he wished to have the adjournment and the opportunity to listen to the audio tapes, and to file any amended application, evidence and submissions.

8. The applicant remained unrepresented before the Court this morning, although had the assistance of an interpreter. 

9. The applicant confirmed that he had received the audio tapes from the first respondent, but he had not filed any other document either in accordance with the directions made by me on 5 April 2017 or otherwise. The applicant confirmed that he continued to rely on the ground of his initiating application as identified above. The applicant had nothing more to say in support of that ground.

10. The ground of the application raises a contention that the Tribunal failed to consider a claim squarely raised. However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal appreciated the claims raised by the applicant’s evidence and submissions. 

11. In paragraph 14 of the Tribunal’s decision record, the Tribunal identified various encounters the applicant claimed to have had with Sri Lankan authorities as follows: 

    “14. The applicant had other encounters with the Sri Lankan authorities, including being:

    a. Beaten by Sinhalese thugs in 2005 after he reported election irregularities to police while acting as an election observer.

    b. Held for a few hours, strip searched, beaten and accused of working with the Liberation Tigers of Tamil Eelam (LTTE), by police in Kurunagal in 2009

    c. Arrested/taken to the camp and beaten by the navy in January 2012 for playing cricket on common land until his father brought the applicant’s identity card;

    d. Harassed into giving a daily lift to a navy officer on his bicycle until he stopped living at home for a month until his mother told him the navy officer was transferred; and

    e. Beaten by the Navy for refusing to participate in an anti-UN demonstration in March 2012 and told off for speaking Tamil.

1. The Tribunal decision record also referred to the applicant’s claim that if he returned to Sri Lanka, he feared the authorities would interrogate him, beat him and burn him with a cigarette, as they had done to his brother. The Tribunal noted that the applicant acknowledged that he had never been arrested or detained by police or security. The Tribunal noted that there was an inconsistency between the applicant’s evidence to the Tribunal that he was never arrested or detained and his claim in his statement of claims that he was arrested and beaten by the Navy for playing cricket in January 2012. 

2. Ultimately, the Tribunal rejected the applicant’s claim of ever having been of adverse interest to the Sri Lankan authorities for any reason at the time he left Sri Lanka in May 2012.

3. Having made that finding, the Tribunal was not satisfied that if the applicant returned to Sri Lanka in the reasonably foreseeable future, he would face serious harm, including being interrogated, beaten, burnt with a cigarette, tortured or killed by the Sri Lankan authorities, namely, the Criminal Investigation Department (“CID”), the Army and the Navy, for the reasons claimed. 

4. The Tribunal found that the applicant had fabricated his account in order to achieve a migration outcome. Those findings were open to the Tribunal on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings.  Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

5. In the circumstances, the applicant’s claim in Ground 1(a) that the Tribunal had not considered his claims that he would be interrogated, tortured and killed by Sri Lankan authorities (including the CID, the Army and the Navy); that he had left Sri Lanka illegally; and that he had been taken away and tortured by authorities before, was considered and rejected by the Tribunal.

6. The applicant’s second complaint in Ground 1(b) that the Tribunal only considered the treatment the applicant would suffer immediately upon his return to Sri Lanka in relation to the Sri Lankan Emigrants and Immigrants Act does not demonstrate any jurisdictional error on the part of the Tribunal.

7. The Tribunal was considering the applicant’s claim to fear harm because of his illegal departure from Sri Lanka and his status as a failed asylum seeker, as it was bound to do. 

8. The Tribunal noted that it had regard to country information provided by the applicant’s representative. The Tribunal found that the applicant did not have any adverse political profile before he departed Sri Lanka. The Tribunal also found that, by his own evidence, the applicant did not have any outstanding criminal matters that might make him a person of interest to the authorities. 

9. The Tribunal accepted that the applicant would face questioning at the airport and may be placed in remand for a short period and prosecuted because he left Sri Lanka illegally. However, the Tribunal identified what the applicant may be exposed to as a result, and found that it did not amount to serious or significant harm. The Tribunal further found that any penalty imposed on the applicant for his illegal departure from Sri Lanka did not amount to systematic and discriminatory conduct. The Tribunal made similar findings in relation to whether the applicant met the complementary protection criterion. 

10. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

11. In the circumstances, the ground of the application does not demonstrate any jurisdictional error on the part of the Tribunal.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant and explored those claims with the applicant at a hearing and had regard to all material provided in support, including submissions provided by the applicant’s adviser. 

2. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard, and also identified country information provided by the applicant’s adviser.  It is well established that the country information and the weight it gives that information is ultimately a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

3. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

4. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

5. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

6. The proceeding before this Court should be dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  8 June 2017