BRW15 v Minister for Immigration
[2016] FCCA 2470
•1 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRW15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2470 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R(1)(c), 414, 425 |
| Cases cited: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143; [2016] FCAFC 74 |
| Applicant: | BRW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2303 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 1 September 2016 |
| Date of Last Submission: | 1 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Applicant: | Success Lawyers & Barristers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2303 of 2015
| BRW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Administrative Appeals Tribunal made on 21 July 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. By orders made by consent on 30 September 2015, the applicant was given leave to file and serve any amended application giving complete particulars of each ground of review relied upon by 3 December 2015. In spite of those orders and without any explanation, the applicant filed, on 9 February 2016, a document purporting to be an amended application even though leave had not been granted to do so. At the hearing counsel for the applicant handed up a document entitled Proposed Amended Application and sought leave to rely upon the grounds set out in that document. Once again, there was no explanation for the delay given in evidence.
I will consider the strengths of the grounds in determining whether or not to grant leave, but I note this: there appears to be a growing attitude at the New South Wales Bar that, when acting for applicants in refugee matters, or indeed any migration matters, court orders do not need to be complied with and if they are not complied with then no explanation has to be given. In my view, that is entirely inconsistent with the professional obligations of a barrister and those instructing them, inconsistent with the duties owed to the Court, both under the rules and at common law. It is a practice that is ill founded and should cease. If it continues, no doubt sooner or later it will result in costs orders being addressed to those who continue in the practice. I do not propose to consider such costs orders in this matter.
Before turning to the proposed amended grounds and then to the grounds as they are in the original application, it is necessary to set out a brief history of the application and the background to it.
The applicant arrived in Australia from Sri Lanka on 1 August 2012 and lodged an application for a protection visa on 19 December 2012. His claims in support of his protection visa application were summarised by the Tribunal at [10] to [12] of its reasons. Those paragraphs were as follows:
[10]Based on his statutory declaration and protection visa application, the applicant's claims can be summarised as below.
a)After getting married in 1999, he moved to Vaaddakkachchi, which was then under LTTE control.
b)From 2000 to 2002 he worked in the civilian administration in one of the LTTE offices, known as the traffic pass or travel management office, handing out passes for the families wanting to travel from Killinochchi to Vavuniya. In that office there were some 50 LTTE and 30 civilians.
c)While working with the LTTE and up to 2008, he partook in festivities, encouraging Tamils to object to the discrimination of the Sri Lankan government and attended rallies.
d)He left the job in 2002 as the office moved further away from his home and took up farming.
e)In May 2009 he and his family fled their area and were displaced for one month. Eventually they were taken in by the army and placed into the camp. When someone reported to the army that he had worked for the LTTE, he was taken away to a separate camp where he was detained for a month, beaten and tortured and interrogated about his work with the LTTE.
f)Eventually an officer named [Mr A] asked the applicant to work for him and he agreed to do so to stop the beatings. He was later asked by an officer named [name] to identify those he knew of being LTTE supporters. He agreed, but managed to avoid doing so.
g)After he was resettled in his home in 2010, the CID questioned the applicant about his work with the LTTE and asked him to identify other LTTE members. He was able to avoid answering their questions by telling them to see [name].
h)In 2012, the army was recruiting former LTTE workers but the applicant refused to work for them. Even though his work with the LTTE was a civilian role, the CID and army considered him to be in possession of important information about the LTTE.
i)In early 2012 the applicant's former colleague, [name] was taken by the CID for questioning and has not been seen since and he suspects he was taken to the 4th floor where [Mr A] is a head officer. Following this, the applicant feared that [Mr A] would no longer protect him but demand that he work for him again, which he did not want to do; and that he would be killed if he refused.
j)The army kept coming on a regular basis to check where the applicant was and what he was doing; and would threaten him and say he should work for them. He would also be questioned about his involvement in the rallies against the government, information that was reported by other Tamils to seek favour with the army. Fearing that he would soon be abducted because of the regular pressure from the army and CID, the applicant decided to leave Sri Lanka.
k)He is certain that if he returns to Sri Lanka he will be killed as his illegal departure from Sri Lanka would have confirmed in the mind of the army and CID that he was not just a civilian, but an active LTTE member.
l)He cannot relocate to other parts of Sri Lanka as he would have to register his details and this would become known to the CID and army, who are everywhere with access to all information.
[11]Based on the recording of the applicant's hearing before the first Tribunal, key relevant points were:
a)The applicant was not involved in ·any political activities against the Sri Lankan government in Australia.
b)From 2000 to 2002, he worked in an office that issued passes to people, run by the LTTE, which was the government in the region. However, only his boss was from the LTTE. It was a low level job and he did not meet people from the LTTE.
c)The applicant was not a member of the LTTE and was not required to do training. Apart from working in the office for two years, he had no other association with the LTTE.
d)Between 21 May 2006 and 2009 after the Sri Lankan army captured them in Mullaitivu, he lived in an Internally Displaced Persons (IDP) camp in Vauvuniya, where he was interrogated, tortured and beaten. He was asked to identify LTTE members but said he did not know where they were and was unable to identify people.
e)After a person named [name] was taken by the CID in 2010 and did not return, the applicant was afraid that it was not safe for him to remain so he decided to go overseas and obtained a passport in August 2010 but did not travel on it as he heard that people who worked for the LTTE were being targeted and shot so he decided to leave illegally.
f)He was scared when people from the CID and Army came to his house but no one actually threatened him and nothing happened to him between 2010 and 2012.
[12]Ahead of his hearing before the second Tribunal, the applicant's representative provided a submission dated 18 June 2015 positing that the applicant has a well-founded fear of persecution arising from his imputed political opinion as a result of his LTTE links, his Tamil ethnicity and his membership of a particular social group of failed asylum seekers who departed Sri Lanka illegally. Her submission elaborated on these issues, including references to country information regarding the situation in Sri Lanka.
On 23 August 2013, the delegate of the Minister decided not to grant the applicant a visa and he applied to the Refugee Review Tribunal[1] for a review of that decision. The Tribunal made a decision on 30 May 2014 affirming the decision of the delegate; however, that decision was set aside by orders of this Court in December 2014 and the matter was remitted to the Tribunal for further consideration.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Tribunal decision
On 1 July 2015 the Administrative Appeals Tribunal took over the functions of the Refugee Review Tribunal and on 15 July 2015 the Administrative Appeals Tribunal conducted a hearing at which the applicant attended and gave evidence and made submissions in support of, and in relation to, the issues arising under the review. The Tribunal made its decision on 21 July 2015 affirming the delegate’s decision. In its statement of reasons, it explained the reasons for that decision.
First, it considered the applicant’s claims as to his experiences in Sri Lanka prior to his departure in July 2012. The Tribunal did not find that the applicant was a credible witness and found that he had fabricated his claims. It gave a number of detailed reasons for that based upon inconsistencies in his evidence, amongst other things, and concluded that the applicant had “fabricated his account in order to achieve a migration outcome”. The Tribunal found at [24] to [26] that:
[24]The Tribunal is not satisfied that the applicant ever worked in one of the LTTE offices of the civilian administration or under its intelligence wing, as claimed; nor, that he was reported to the army in 2009 for having worked for the LTTE, detained in a separate camp for a month, beaten, tortured and interrogated about his alleged LTTE work; nor that he was asked by any CID or Army officers to work with them to identify LTTE members on the basis of this work experience, thereby gaining protection from further targeting at any time while living in Sri Lanka. In the Tribunal's view, the applicant concocted and embellished his evidence in an attempt to establish that he had significant LTTE links, which would make him of interest to the Sri Lankan authorities.
[25]The Tribunal is not satisfied that since the applicant's departure from Sri Lanka, his wife has been assaulted by the Army in October 2012, a claim noted in the representative's submission but not mentioned in the statement of claims submitted with his protection visa application, nor at any of his hearings. The Tribunal does not find it credible, given the applicant's evidence that his wife told them he had gone to Australia in 2012 (paragraph 14.c), that the authorities continued to come to question his family about his whereabouts or how he left Sri Lanka, most recently in May 2015 (paragraph 14.c). Nor is the Tribunal satisfied, in light of its concerns about the applicant's overall credibility, the applicant recently received a call from a CID officer asking why he left Sri Lanka. As the Tribunal has not accepted that the applicant worked for the LTTE in its civilian administration or intelligence wing, it finds it dubious that he would be of such interest to the authorities.
[26]As the Tribunal does not accept that the applicant was of interest to the Sri Lankan security authorities at the time he left Sri Lanka in July 2012, it follows that the Tribunal is not satisfied that, if he returns to Sri Lanka in the reasonably foreseeable future, the applicant will face serious harm, including being arrested, detained, interrogated, beaten, tortured, subjected to inhuman conditions and killed by the Sri Lankan authorities, including the CID and the army, because of his past association with the LTTE or for any other reason. In the Tribunal's view, the applicant fabricated his account in order to achieve a migration outcome.
The Tribunal then turned to consider the applicant’s Tamil race or ethnicity and his political profile. It considered the issues arising in light of country information available to it and concluded at [31], in light of that information, that the applicant did not have a profile that would put him at risk of harm in Sri Lanka today.
The Tribunal next turned to consider the consequences of the applicant’s illegal departure from Sri Lanka and his status as a failed asylum seeker. In this respect, once again, it had close regard to country information concerning the circumstances of people in the same position as the applicant. It accepted at [40] that the applicant departed Sri Lanka unlawfully and that it would be known upon his return that he had unsuccessfully sought asylum in a Western country. However, having considered the country information available to it, the Tribunal was not satisfied that the applicant had any particular profile such that there would be a real chance of serious harm upon his arrival, even having regard to that illegal departure and the authorities’ awareness that he had applied for asylum in a Western country.
The Tribunal accepted that the applicant would face questioning at the airport and be placed in remand for a short period and charged because he left Sri Lanka illegally, and that there was a possibility that he would be held for a limited period in remand while awaiting bail in conditions that could be poor due to overcrowding and unsanitary conditions. However, the Tribunal found that the evidence did not establish that the applicant would be singled out or treated any differently because he had left Sri Lanka illegally and was not satisfied that he would be imputed with political opinion because of that or because he had applied for asylum overseas, or because he was a member of any particular social group of failed asylum seekers. It found that any problems that the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand were aimed at the applicant not for any Convention reason and found that the factors were applied generally to the general population. The Tribunal concluded that these conditions did not amount to any systematic and discriminatory conduct, as required under sub-s.91R(1)(c) of the Migration Act 1958 (Cth).
For those reasons, the Tribunal was not satisfied that the applicant would suffer serious harm amounting to persecution in Sri Lanka for a Convention reason, including his Tamil race, his imputed political opinion of support for the LTTE or his member of the particular social group of failed asylum seekers returning to Sri Lanka from a Western country. In other words, it was not satisfied that the applicant met the criteria in sub-s.36(2)(a) of the Act.
It then turned to consider the complementary protection criterion in sub-s.36(2)(aa) of the Act. In this respect, it considered again the question of the possible treatment of the applicant upon return having departed illegally and having unsuccessfully applied for asylum in Australia. First, however, it did not accept that spending up to a fortnight in conditions which were cramped, uncomfortable or unsanitary amounted to significant harm or that such treatment was intentional, as required by the law in Australia. It noted that the applicant would not be subject to torture while he was in remand for a relatively short period, and that the definition of “inhuman treatment or punishment” required that there be pain and suffering intentionally inflicted, and that mere negligence or indifference was not sufficient.
For those reasons, the Tribunal was not satisfied that the applicant satisfied the criterion in sub-s.36(2)(aa) and so affirmed the decision under review.
Consideration
I will deal first with the grounds in respect of which the applicant seeks leave to rely on.
Ground three
The first is ground 3. In this ground the applicant points to the claim made by him in written submissions to the Tribunal dated 3 September August [sic] 2013 at p.152 of the court book:
…
According to up to date country information enforced disappearances and “white van” abductions remain a real fear for many in Sri Lanka, while some are the result of criminal activity including extortion, most are linked to racial or political motivations.
…
Ground 3 is that the Tribunal failed to consider that ground. In my view the ground is not reasonably arguable. As counsel for the Minister submitted, the “white van” abductions and extortion were one of the types of harm that the applicant claimed he might face upon return to Sri Lanka for the various reasons that he had given, including his links to the LTTE; however, at [31] of the Tribunal’s decision, the Tribunal conclusively dealt with any type of harm that might arise to the applicant upon return to Sri Lanka. It is my view it was of sufficient generality to deal with the claim concerning the white vans. For those reasons, including the fact that there was no explanation for the lateness in the application for amendment, I do not give leave to the applicant to raise ground 3.
Ground four
Proposed ground 4 concerns a failure to consider a claim of particular social group. In his oral submissions at the hearing, counsel for the applicant said that the claim for the particular social group was raised implicitly in a submission made on behalf of the applicant set out at court book p.210, dated 18 June 2015 and, in particular, at [A], [B] and [C] on the following page; however, nothing in those paragraphs gives rise to any arguable claim concerning a particular social group. The first paragraph in [A] deals with the applicant’s past association with the LTTE; the second deals with his links with the LTTE; the third refers to his clear history to LTTE links; the fourth deals with his claim to have worked in an administrative position under the control of the LTTE; and the fifth is a submission based upon those matters and the risk arising from them. Paragraph [B] concerns the illegal departure from Sri Lanka. Paragraph [C] deals with the fact that the applicant’s family had fled their home and sought refuge in an army camp and the applicant was detained there due to his work for the LTTE. I can see no arguable claim for the particular social group submitted by the applicant. The only potential social group that was actually claimed related to the return as a failed asylum seeker, and that was clearly dealt with by the Tribunal. For those reasons, I do not give leave to the applicant to raise ground 4.
Ground five
Ground 5 is again a claim that the Tribunal failed to deal with a claim made by the applicant. This claim was that, while working with the LTTE and up to 2008, the applicant partook in festivities encouraging Tamils to object to the discrimination of the Sri Lankan Government and attended rallies. It is true that the Tribunal did not make any express finding aimed at that claim; however, he was clearly aware of the claim, having referred to it at [10(c)] of its decision. Further, in my view, the findings at [31] did deal conclusively with the claim so made. For that reason, I do not think that this argument is sufficiently arguable to warrant a grant of leave, particularly in light of the failure to explain the delay and the fact that it was raised on the morning of the hearing without notice.
Ground six
Ground 6 is, in essence, that the Tribunal erred by relying exclusively or too extensively on country information to make credit findings. There are a number of difficulties with that ground.
There is nothing wrong with the Tribunal relying on country information in its decision. As McHugh J said in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, 428:
… It is unlikely, therefore, that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State’s understanding of conditions in his or her country of nationality. …
In other words, country information such as that relied upon by the Tribunal is an obvious source of information for decision-makers concerning the status of persons as refugees under the Convention.
The applicant relied upon the decision of the Full Court in AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143; [2016] FCAFC 74 at [10] to [11]; however, that case has little, if nothing, to do with this case. The Tribunal here did not make any blanket reflex or exaggerated adverse credit findings but rather, in my view, engaged in a proper examination of the applicant’s claims as required by s.414 of the Act.
That is linked to the third difficulty with this ground; namely, that the applicant’s claims about his experiences prior to his departure in July 2012 were essentially rejected by the Tribunal because of inconsistencies in the applicant’s evidence about those matters – see [18] through to [23] of the Tribunal’s reasons. The fact that, at [16], the Tribunal had said that it had considered and weighed a range of independent material including the latest information from the Department of Foreign Affairs and Trade says nothing about the individual findings made in those later paragraphs.
For those reasons, ground 6 is, in my view, entirely unarguable and leave to raise it is refused.
Ground one
I turn then to ground 1, which was in the original application. This ground is to the effect that the Tribunal denied the applicant procedural fairness because it did not give the applicant the opportunity to address the possibility that it might not make the same findings as made by the first Tribunal, before that Tribunal’s decision was set aside by a decision of this Court. The critical difficulty for the applicant in this case is that he has not established the factual basis for the argument, namely, that the Tribunal did not give the applicant the opportunity to address that possibility, and the ground fails for that reason.
Secondly, however, the applicant has not brought the Court’s attention to any authorities that in fact support the proposition underlying the claim. He sought to rely upon a decision of Bromberg J in SZTKE v Minister for Immigration & Border Protection [2015] FCA 1002; however, accepted that that was a decision that related to the findings made by a delegate. His Honour in that case, at [36], referred to and relied upon a decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, which found to the effect that the obligation under s.425, in light of the words of the section, required the Tribunal, effectively, to give notice of the possibility that it might come to a different conclusion on factual or other matters than the delegate before it.
I can see no obvious connection between the decision of a delegate which is the subject of a review under s.414 by the Tribunal and the previous decision of a Tribunal which has been set aside by orders made on judicial review. In any event, I do not need to come to a firm view about that and the Minister has not had the opportunity to properly research the matter as the applicant had in his written submissions abandoned the ground and only sought to revive it at the hearing. The first ground is rejected.
Ground two
The second ground concerns the way in which the Tribunal dealt with the possibility that the applicant might face significant harm because of his illegal departure from Sri Lanka and, in particular, in light of the prison conditions in Sri Lanka. Counsel for the applicant conceded at the hearing that that ground was inconsistent with the decision of the Full Court in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 (“SZTAL”) and in particular Kenny and Nicholas JJ at [67] to [68] and Buchanan J at [97] to [98], but only raised it as a formal matter in light of the possibility that that decision might be set aside if special leave were granted to appeal to the decision. For those reasons I am bound to apply the decision in SZTAL to the facts of this case and the second ground must be rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision and the application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 26 September 2016
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