BRL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 1086
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BRL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 1086
File number(s): MLG 793 of 2017 Judgment of: JUDGE VASTA Date of judgment: 21 January 2022 Catchwords: MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission/s: 21 January 2022 Date of hearing: 21 January 2022 Place: Brisbane Counsel for the Applicant: The Applicant appearing on their own behalf with the assistance of an interpreter Solicitor for the First Respondent: The Australian Government Solicitor ORDERS
MLG 793 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BRL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
21 JANUARY 2022
THE COURT ORDERS THAT:
1.The application filed on 20 April 2017 be dismissed.
2.The Applicant pay the costs of and incidental to the application filed on 20 April 2017 fixed in the sum of $7,853.
3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
IT IS NOTED THAT:
A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex Tempore)JUDGE VASTA
On 27 March 2017, the Administrative Appeals Tribunal (“AAT”) affirmed a decision not to grant the applicant, BRL17, a protection visa. On 20 April 2017, the applicant asked this Court to review that decision.
The background to the matter is that the applicant is a Sri Lankan national of Tamil ethnicity, and he was born in September 1987. The applicant arrived in Australia towards the end of 2012 by boat. He applied for a protection visa on 12 December 2012. This was before the unauthorised maritime arrival regime was put into force by the Federal Government.
The applicant was interviewed by a delegate of the Minister on 26 November 2013. After that interview, his migration agent provided a post-interview submission on 9 December 2013. On 17 November 2014, the delegate of the Minister refused to grant the visa.
On 5 December 2014, the applicant applied to the then Refugee Review Tribunal for a review of that decision of the delegate. The applicant was invited to, and he attended, a hearing before the AAT on 31 March 2016. On 27 March 2017, the AAT refused the visa.
As I have said, the applicant filed his application in this Court on 20 April 2017, and it was on 12 October 2017 that the matter was given a first court listing. On that date, the application for review was listed for a final hearing in mid-2019 before Judge Hartnett on a date to be advised by the Court.
Her Honour was appointed to the Family Court at the beginning of 2019, and it would seem that this matter then went into a large docket which would be looked by a new judge at some future time.
The matter made its way to the National Migration Docket in 2021 and was assigned to me to be heard on 28 October 2021. On that day, there was a problem with the interpreter booking, and it ended up that there was no interpreter available, and so the matter had to be adjourned because of that. It was heard before me today where the applicant appeared with the assistance of an interpreter who, I must say, has done a sterling job in interpreting today’s proceedings.
However, what this means is that the applicant, having arrived in this country in the latter part of 2012, finds himself, in January 2022, still not having had the matters regarding his visa finalised.
While the Court has had no control over the course of events from late 2012 until April 2017, the Court has had control of the matter since April 2017. The fact that it has taken three months short of five years for this Court to finalise the applicant’s matter is a matter for which I apologise, on behalf of the Court, to the applicant.
The applicant’s claims before the AAT were as follows. He is a citizen of Sri Lanka who, when he was nine years old, had his father pass away.
For two years after this, the applicant stayed in a hostel and learnt the skill of making traditional jewellery. The applicant said that he moved to (a place I will name as) NG when he was 11 years of age to live with two of his cousins, and he registered as a resident there.
About eight years later, in 2006, the applicant said he was working making jewellery for a jewellery shop, and he was living in a room behind the shop with a number of other workers. He said that, one night, the army came to check the registration of people who were there, but unfortunately, he had forgotten to renew his registration, and it had lapsed. The army, therefore, caught him without the registration.
The applicant said he was taken to the police station with 13 other people from those rooms, and they were held and questioned. The applicant said, the next morning, he was handed over to the Court, and the Court told him that he was being remanded on suspicion, meaning suspicion of involvement with the LTTE.
He was released from prison after five days when his cousin came forward and vouched for the applicant’s identity, in effect, guaranteeing the applicant. The applicant was not stopped again by the authorities for any reason, and he went back to work at the jewellery shop. The applicant had never had any involvement, or links, with the LTTE and had never been suspected before this time of any links.
About four months after this experience, the applicant said that one of his roommates, a person called S, disappeared, and he later heard, through a news article, that S had been abducted in a white van and had been found dead. The applicant’s other roommate was a person called N.
About four months after S’s death, which meant it was eight months after the incident where the applicant was arrested, the applicant said that some people came and asked him about the whereabouts of N, who had, at that time, gone overseas. The applicant said he does not know who these people were who made these inquiries, but he did not try to find out who they were.
He said that, in some time in 2007, they asked him to meet them at a bus stop, and he went there by himself. He said he does not remember if there were two or three people there, but they asked him where N was, and when he said that he did not know, he was hit on the face but did not incur any major injury.
He said that they then asked him for money, but he did not have any, and because he wanted to get back he told them that he would give them money in the future. The applicant said that after this incident he did not stay in NG much of the time but moved around and stayed in several places mostly in the NG area.
He did not disclose to anyone else where he was staying, and he supported himself by continuing to work at the shop, but he did not work properly because he was not there all the time. The applicant said that, in 2008, his older sister’s husband, that is, his brother-in-law, and his brother-in-law’s friends were seated outside in Batticaloa when two or three people came to the brother-in-law and asked him about the applicant.
The brother-in-law got angry and asked these people why they were asking about the applicant, and these people then beat the brother-in-law. The brother-in-law told the applicant that these people belong to the Karuna Group because they were carrying weapons openly. The applicant believes, then, that the people who spoke to him on the phone and at the bus stop about the person N may have been connected to the Karuna Group because the Karuna Group were the people who asked the brother-in-law about the applicant’s whereabouts.
About three years later, the applicant left Sri Lanka from the airport using a passport in his own identity. The departure was a lawful departure. The applicant sold land in his village to help pay for the travel and the applicant travelled to Indonesia.
The applicant claimed that, after he went to Indonesia, some unknown people asked his younger brother about the applicant’s whereabouts. The applicant felt he would get in trouble if he returned to Sri Lanka because these people were searching for him. The applicant got on a boat with a people smuggler and came to Australia.
The applicant says that, if he returns to Sri Lanka, he will have to register his address, and these unknown people will access his old records, and they will get to know of his old case and harm him.
The applicant said that he is the oldest person in his family, and he considers himself responsible for caring for his family members. He wants to remain in Australia where he can work and send money back to Sri Lanka to support those family members.
The AAT then assessed the claims of the applicant.
The AAT was prepared to accept that the applicant had been arrested with 13 other people from his lodging because he had not registered. The AAT accepted, however, that the authorities were taking action as part of enforcement of generally applicable laws rather than taking discriminatory action against the applicant for any reason. On that basis, the AAT found that the arrest in 2006, in NG, arose because the applicant had not abided by the generally applicable residence registration regulations.
The AAT then considered whether the applicant had a real chance of serious harm, or a real risk of significant harm, on return to Sri Lanka because of the government imputing him with an adverse anti-government or LTTE profile because of this arrest. The AAT noted that according to the applicant’s evidence, he was released upon the guarantee of his cousin and did not have any further contact with the army or authorities of any kind.
Looking at the country information, from a time between the arrest and the applicant’s leaving Sri Lanka lawfully, there were many instances of, to use the vernacular, rounding-up of persons who were suspected of being LTTE sympathisers.
Because of this, the AAT was of the view that, if the authorities actually thought that he had an LTTE connection, the applicant would have been rounded-up before he left in 2011. This made the AAT satisfied that the applicant was not imputed with an LTTE profile or an anti‑government profile because of his arrest in 2006.
The AAT noted that the applicant was able to leave Sri Lanka using his own identity and his passport, which would not have occurred if the authorities actually imputed him with a profile that was anti-government or LTTE connected.
The AAT then looked at the claim that the applicant would fear harm from unidentified people who impute him with an adverse profile. The AAT accepted that S and N were roommates of the applicant and that they were arrested at the same time, and for the same reason, as the applicant in 2006. The AAT accepted that S disappeared about four months after the arrest and that he had been found dead.
The applicant claimed that, whilst he did not know why this happened to S, he assumed that S was considered linked to the LTTE and that maybe because he had not registered his residence in NG.
The applicant claims that other people may believe that he, the applicant, is also linked to the LTTE because he was a roommate of S. The AAT found that the applicant had remained working at the shop and living in the NG area at the time of S’s disappearance, and he would not have been difficult for the authorities, or anyone else, to locate if they suspected that he had links with S or any activities of S.
Because of this the AAT did not accept that the applicant was of interest to anyone because he was imputed with a profile because of his connection to S as a roommate.
With regard to N, the AAT accepted that it was plausible that N had left the country and that there would be people who may have been interested in where N was. Because of this, it was plausible that persons may have approached the applicant and asked him about N’s whereabouts.
However, what the applicant had said, about these approaches, was vague and inconsistent, according to the AAT. When the AAT asked the applicant about how people made these inquiries, the applicant told the AAT he received two or three inquiries by phone from people who asked about N’s whereabouts, and he inferred that they got his phone number from other people at work.
But when the applicant had been interviewed by the delegate, he had told the delegate that he was visited at the shop by people inquiring about N and also that N had been tortured, and that is why he went overseas. The AAT formed the view that, whilst the applicant may have received inquiries about N, there was no basis for a claim that people interested in finding N suspected the applicant of LTTE associations or anything else for any reason.
As far as fearing return to Sri Lanka because unidentified people were looking for him, the AAT went through this particular claim in detail.
The applicant said that these fears arose from the incident he described as happening at the bus stop, but the applicant could not be any more clear as to the timing of this other than it occurred at some time in 2007.
The tale of the applicant was that he went to meet strangers by himself at a bus stop. He did not know who these people were nor did he ask who they were, that he was not aware that he was going to meet anyone dangerous, yet these are people who were inquiring about N after S had disappeared and turned up dead.
The AAT did not consider it plausible that the applicant would agree to meet someone in those circumstances.
The AAT had trouble accepting that the applicant was hit by persons who then asked him for money. The applicant said that these same people released the applicant because they thought that if the applicant did not give them money in the future, they could catch him at a later stage.
The AAT found that it was far-fetched that these people would not tell the applicant who they were if they wanted him to give money to them in the future, and it was also far-fetched that the applicant would not make any inquiry of any kind to establish who he should be looking out for if he had concerns about them.
The AAT did not accept the applicant’s evidence about what happened at the bus stop.
Similarly, the applicant’s tale, that he stayed in several different locations after this and did not disclose to others where he was staying, was vague, shifting and lacked specificity expected of someone who was recounting their own experience.
The AAT noted that the applicant still stayed in the area, though not in one place, but continued to be employed at the jewellery shop. This meant that if people were truly after him, or targeting him, there was ample time and opportunity by these people to find the applicant before he departed Sri Lanka in 2011.
The AAT found that there was no ongoing interest in the applicant from anyone arising from any incident at the bus stop, nor was the applicant targeted by anyone in Sri Lanka. As far as the incident with his brother-in-law was concerned, the AAT was not satisfied that the Karuna Group were interested in him and that such a theory was purely speculative based upon conjecture by his brother-in-law. The AAT did not accept that people from the Karuna Group asked the brother-in-law in Batticaloa about the applicant.
The AAT considered all of the matters that the applicant had said to them and did not accept that the applicant could have either a real, or imputed, pro-LTTE, anti-government or any other such profile arising from his personal circumstances in Sri Lanka.
The applicant said that he could not return to Sri Lanka because he is Tamil, and he claimed that he will be imputed with a pro-LTTE and anti-government political opinion on account of his race. The AAT had regard to quite a deal of country information, including a recent DFAT report published in January 2017 which spoke about the treatment of Tamils in Sri Lanka at that time.
On looking at all of that information, and taking into account what the applicant said, the AAT found that the applicant would not face a real chance of serious harm because of any political opinion, or reasons of his Tamil race, or as a young Tamil male or a young Tamil male from the east.
Even though it was not part of the applicant’s claim, the AAT looked at whether the applicant faced a well-founded fear of significant harm, or serious harm, by reason of him returning to Sri Lanka as a failed asylum seeker. The AAT was very thorough in their examination, again, of country information and came to the conclusion that the applicant would not face harm for this reason.
Having gone through all of those findings, the AAT concluded that the applicant did not satisfy the requirements of the refugee criteria, nor of the convention criteria.
For this reason, the AAT affirmed the decision not to grant the applicant a protection visa.
The grounds of this application were that:
1. The decision of the Tribunal:
(a) Is affected by an error of law; and
(b) Denied the applicant procedural fairness.
The grounds have no particularity and are somewhat meaningless as they stand. When the applicant appeared before me today I asked him what he wanted to say about the grounds and his application generally. He said to me that he is not sure about what error of law there was, but that the decision was contrary to what he did say, though he does not know why.
I asked the applicant to expand on this, and he said that he had told the AAT that, after 2007, he could not stay in one place, but they said that he was in the area. He said that the AAT said that he was contacted by phone, but he had told them that he was contacted by other means as well, and he told them that he was attacked at the bus stop, and this did not seem to be accepted.
He said that the AAT had repeatedly talked about there being no evidence, but he said that he was not ever asked to give evidence, and that if he was asked he would have gotten evidence, but he was not asked.
He said that, because the AAT missed these issues, the overall tale that was told became diminished and the seriousness of his situation was not fully understood. He said that he just knows that something is wrong; he cannot pinpoint what it is because he does not know if it is an interpreter issue, but he just knows that it is wrong.
The reason that I was so thorough in my recitation of the AAT’s reasons, was to show that the claims of the applicant really have very little merit. The AAT correctly summarised the applicant’s claims about his not staying in one place, but staying in the area, because he was still working at the jewellery shop; they just did not accept that this was what, in fact, occurred.
The AAT accepted that the applicant had said that he was contacted by other means and not just the phone, but that he did not say that to the AAT. He actually gave the other instances to the delegate.
It would seem to me that the AAT understood exactly the seriousness of what it was that the applicant was putting to them, but, upon their thorough analysis of what he said, they did not accept that it was a truthful account.
The applicant says that he was never asked for evidence, but it seems to me that that has been exactly what was asked at each step of the process, especially given the long delays between each step. For example, the applicant was interviewed by the delegate and then gave a post-interview submission. There is no reason why further evidence could not have been given at that time.
Similarly, after the delegate had given the decision, the applicant would have known exactly why the delegate would say that there was not any evidence, yet the applicant did nothing to put any evidence before the AAT between then and the 15 months before the AAT heard his review.
Therefore, it has not been established that the decision of the AAT was affected by an error of law, and it has not been established that the AAT denied the applicant procedural fairness.
The Minister, in his role as the model litigant, has pointed out to the Court that the post‑interview submission was not given by the Secretary to the AAT when the AAT was looking at this matter. That submission is found at CB 106 to 109, and it covers a number of submissions and country information. It seems to me that all of the matters that were raised in that submission were covered, and covered extensively, by the AAT in its reasons.
Therefore, there is no materiality to the error of the AAT of failing to consider this particular submission.
For these reasons I dismiss the application with costs fixed in the sum of $7,853.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 22 August 2023
0
0