BTD15 v Minister for Immigration

[2016] FCCA 2706

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTD15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2706

Catchwords:
MIGRATION – Judicial review – whether claim not considered by Tribunal – alleged failure to accord procedural fairness – consideration of obligations of procedural fairness at common law – no failure to afford procedural fairness under the Act – no error of law identified – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2)(a), 36(2)(aa), 424AA, 425

Cases cited:
GJ and Others (post-civil war: returnees) Sri Lanka CG v. Secretary of State for the Home Department, [2013] UKUT 00319

Applicant: BTD15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1976 of 2015

Judgment of: Judge McNab

Hearing date: 3 October 2016

Date of Last Submission: 3 October 2016

Delivered at: Melbourne

Delivered on: 3 October 2016

REPRESENTATION

No appearance by the Applicant

Counsel for the Respondent: Ms Tan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 31 August 2015 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1976 of 2015

BTD15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX TEMPORE

1. By an application filed on 31 August 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal, dated

   
   

   11 August 2015 affirming a decision of the Tribunal not to grant the applicant a protection visa. At the commencement of the hearing of this matter, the applicant sought an adjournment of the hearing of his application, on the grounds that he wished to obtain legal advice in relation to submissions that had been filed by the respondent. 

2. The application was opposed by the respondent, and the Court refused to grant the application for an adjournment on the grounds that: 

   i)the applicant was aware of the hearing date as a result of orders being made by the Court on 3 February 2016, which fixed procedural steps and advised the parties of the hearing date; and

   ii)the applicant had a copy of the respondent’s written submissions 14 days prior to the hearing. 

   On that basis, the application for an adjournment was refused. 

3. Moving to the substance of the matter, the criteria of a grant of a visa is set out in s.36 of the Migration Act 1958 (Cth) (“the Act”), in Part 866, Sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant needed to satisfy the delegate or the Tribunal, on review, that under s.36(2)(a) of the Act he was owed protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (together, ‘the Refugee Convention’), or under s.36(2)(aa) of the Act, that there was a real risk that he would suffer significant harm if he returned to Sri Lanka.

4. This required the applicant to demonstrate that he had a well-founded fear of persecution for a reason specified in the Convention, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there is a real risk that he will suffer significant harm.

5. The chronology relevant to the applicant’s visa application is set out in [5] and [6] of the written submissions filed by the first respondent as follows:

   5.The applicant is a 24-year-old citizen of India (sic)(Sri Lanka)[1] who arrived on Christmas Island on 15 July 2012 as an irregular maritime arrival: CB18-28, 115.

   6.On 8 November 2012, the applicant lodged the current application for the Visa with the assistance of Craddock Murray Neumann Lawyers (representative): CB1-77.

   
   

   The applicant’s Visa application attached a statutory declaration summarising his claims for protection as follows (CB53-56):

   [1] The first respondent acknowledged the reference to Indi to be a typographical error.

   (a)he was born in Udappu, Sri Lanka, and is a

   
   

   Tamil Hindu;

   (b)in 2011, when he was working as a fisherman, Sri Lankan Navy (SLN) officers boarded his boat and assaulted him and his friend because they did not have their fishing passes. They were detained when they went back to shore and were told that the SLN would not issue a fishing pass again. They were ordered to report to the SLN twice per week to sign a register and to bring them fish. They were verbally abused when they signed the register;

   (c)he reported to the SLN for 2 months, after which his fishing pass was returned;

   (d)he did not return to fishing because he was too frightened after this incident, and began construction work with his uncle;

   (e)on 11 June 2012, he attempted to board a boat to Australia, however, he was unable to board that boat. He hid in the smuggler’s house for approximately 8 days. Then he went to another place and stayed for 6 days. Whilst in hiding, the Criminal Investigation Department (CID) questioned his mother at her house asking for his whereabouts. The CID told his mother that if he was not there the next time they came, they would arrest his father. A few days later the CID returned to his house and arrested his father. His father was interrogated and he was detained for

   
   

   1 night. The CID came to his house 4 times looking for him; and

   (f)his mother paid the smuggler a deposit of 150,000 rupees on his departure, and was due to pay a further $9,000 AUD on his arrival in Australia. His mother has only paid a further 250,000 rupees and does not have the money to pay the balance. The smuggler calls his mother and demands money and has taken the paperwork for their land.

6. The applicant’s grounds of review of the decision of the Tribunal are (copied exactly):

   1.I said to Immigration of Department that if I returned to Sri Lanka and then I will face Trouble by smugler, but they did not believe that.

   2.I said to them that they SLA arrest my dad and hit him, but they didn’t believe that.

   3.I wory much to return to Sri Lanka, because of race. 

7. Whilst the applicant has failed to articulate a coherent ground of review, the Court has considered the decision under review, with a view to determining whether the Tribunal: 

   i)made any error of law;

   ii)considered the applicant’s case, and;

   iii)afforded procedural fairness at the hearing before the Tribunal. 

Consideration

1. In relation to whether there is any error of law apparent from the Tribunal’s decision, in my view there is no discernible error of law.  The issue which the Tribunal was required to consider was correctly articulated at [12] of the decision, that being that:

   The primary issue in this review is whether there is a real chance that, if the applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of section 36(2)(a) of the Migration Act, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of section 36(2)(aa) of the Migration Act.

2. The Tribunal then went on to consider each of the claims that had been articulated by the applicant. In my view, the articulation by the Tribunal as to its primary concerns and the statutory function that it had to carry out have been correctly identified, and there is no error discernible in the reasons. In relation to any claim or ground that the Tribunal has failed to consider the applicant’s claims, in my view, the Tribunal has, in its reasons from [14] to [41], set out each of the grounds advanced by the applicant and dealt with them in a comprehensive and clear fashion. There is no apparent unreasonableness in either the process or the conclusions reached by the Tribunal in its reasons. 

3. In particular, the Tribunal considered that the applicant’s claims that he would experience trouble from people smugglers.[2] To the extent that ground 1 raises a ground of review, there is no basis to any criticism of the Tribunal’s processes in relation to those matters, in particular to fear of harm from people smugglers. 

   [2] See: CB 193, at [21]; CB 197, [40]; CB 197-198, [44]; CB 199, [51]

4. In relation to a claim that the SLA would arrest his father, that claim was specifically dealt with in [31] and [33] of the decision. In relation to the claim that the applicant feared that he would be arrested and abused because of his race, that matter was considered and rejected by the Tribunal. It did so taking into account the decision of GJ and Others (post-civil war: returnees) Sri Lanka CG v. Secretary of State for the Home Department, [2013] UKUT 00319. At [30], the Tribunal found that the country information before it did not suggest that all Tamils face a real chance of suffering serious harm solely on account of their Tamil ethnicity, nor would it be assumed that all Tamils were connected with the LTTE. 

5. I am of the view that the Tribunal discharged its duty to consider the claims made by the applicant, and did so in a comprehensive and intelligible way. In relation to the unarticulated claim that the Tribunal may have denied the applicant procedural fairness, in my view, a reading of the decision does not disclose the basis of any such a ground. Matters contrary to the position of the applicant were put directly to the applicant in the course of hearing. And, by way of example, I refer to [20] and [21] of the decision, where the Tribunal put adverse information about the applicant’s evidence regarding his mother’s contact with the agent to the applicant for comment, in accordance with s.424AA of the Act.

6. Otherwise, the Tribunal invited the applicant to appear before the Tribunal, and the applicant appeared before the Tribunal with the assistance of a Tamil interpreter to present evidence and present arguments. In my view, there was no basis to any ground that the Tribunal failed to comply with its obligations under s.425 of the Act.

Conclusion

1. In the circumstances, I dismiss the applicant’s application filed

   
   

   31 August 2015 and I order that the applicant pay the first respondent’s costs, fixed in the sum of $7206.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 24 October 2016