BTK15 v Minister for Immigration

[2015] FCCA 2586

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2586

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa –procedural fairness – whether the decision of the ITOA was ultra vires – no jurisdictional error – application dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 r.44.12

Migration Act 1958 (Cth), ss.197C, 474(3)(h), 476, 477

Applicant: BTK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 403 of 2015

Judgment of: Judge Street

Hearing date: 18 September 2015

Date of Last Submission: 18 September 2015

Delivered at: Sydney

Delivered on: 18 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr R Hooker

Australian Government Solicitor

ORDERS

1. The Court’s order 1 made on 8 September 2015 is dissolved.

2. The application in a case is dismissed.

3. The application be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

4. The applicant pay the first respondent’s costs fixed in the amount of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 403 of 2015

BTK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of an ITOA assessment made on 30 April 2015 in respect of which the applicant raised three grounds:

   1. Not following the rules of natural justice.

   2. Error of law on the face of the record.

   3. Review of delegated legislation on grounds of ultra-virus.

2. The nature of the relief sought by the applicant included injunctive relief and prerogative relief. The ITOA assessment referred to was made on 30 April 2015 and the application was filed 1 September 2015 and, although not a decision itself a migration decision within s.476, it is clearly a step preparatory to the exercise of the Minister’s powers under s.474 (3)(h).

3. The applicant has also filed an application in the case seeking an interlocutory injunction, which was granted on 8 September 2015 up to 4.15pm today. That application in the case was advanced on the grounds that the applicant has been served with a notice of intention to remove from Australia and I accept that, in those circumstances, there is a step that has been taken which is within this Court’s jurisdiction under s.476 and that the requirements of s.477 are not an impediment in relation to that injunction application.

4. The applicant has a long migration history, including various travel to Malaysia, Vietnam, Hong Kong and travel arrangements for Canada and to India prior to arriving at Christmas Island on 7 February 2010.  Thereafter, the applicant has been the subject of an entry interview conducted on 12 March 2010, a refugee status assessment conducted on 22 July 2010, an independent merits review conducted on 1 April 2011, a request for judicial intervention which was made on 12 May 2011 and an ITOA assessment carried out on 27 June 2011. 

5. An adverse decision on an application for judicial review was made on 29 September 2011 and a further request for appellate review on 12 December 2011. There was an unsuccessful result in relation to that application for a judicial review on 1 May 2012, then reconsideration of protection claims outcome on 7 July 2012. A request for judicial review was made on 16 November 2012 and an unsuccessful outcome of that application for judicial review on 6 February 2013. The ITOA assessment that commenced on 30 October 2014 and gave rise to the preparatory step by the IOTA decision dated 30 April 2015 referred to in the applicant’s substantive application. 

6. The applicant in that ITOA assessment was found to be a citizen of Sri Lanka and his claims are assessed against that country.  The applicant was identified as of Tamil ethnicity and Hindu religion.  The ITOA assessment was one in which the Department informed the applicant of that assessment process on 30 October 2014 and thereafter the department received submissions from the applicant on 17 December 2014 and 13 January 2015.  On 14 January 2015, the applicant was interviewed in relation to the new ITOA assessment. 

7. The ITOA assessment identified the applicant’s claims and set out in detail Australia’s non- refoulement obligations relevantly under Article 32 of the Convention Relating to the Status of Refugees 1951 as follows:

   - Convention relating to the Status of Refugees (Refugees Convention) - Article 32 provides that 'Contracting States shall not expel a refugee [defined in Article 1A] lawfully in their territory save on grounds of national security or public order.' Article 33(1) provides that 'No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom should be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.' (See Part B-Assessment of non-refoulement obligations under the Refugees Convention)

8. Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 Art.3 and International Covenant for Civil and Political Rights 1966 the assessor said as follows:

   - CAT - Article 3 provides 'no State Party shall expel, return (' refouler') or extradite a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to to1ture [defined in A1ticle 1]';

   - ICCPR-Non-refoulement obligations are implied in respect of the fundamental rights contained in Article 6 ('every human being has a right to life') and Article 7 ('no one shall he subjected to torture or to cruel, inhuman or degrading treatment or punishment'). A non-refoulement obligation also arises under the Second Optional Protocol to the ICCPR in relation to persons who will have the death penalty carried out on them.

   The non-refoulement obligations under the ICCPR or CAT arise where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a relevant country, there is a real risk that the non-citizen will suffer significant harn1. (See Pm1 C - Assessment of non-refoulement obligations under the ICCPR and CAT)

9. At the interview on 14 January 2015, the ITOA interview raised with the claimant why he had not been honest about owning a passport and travelling to Vietnam and Malaysia and the applicant informed the ITOA assessor that he had been chatting with other guys in detention and they were telling him that if he said he had been to these countries, he would be returned to Sri Lanka.  It was in those circumstances that the assessor concluded the applicant had been dishonest about living in India because he was influenced by others in detention who coached his claim regarding being in a particular camp.

10. On 23 March 2015, a letter was sent to the applicant regarding his claims and, in particular, his claims concerning LTTE.  The ITOA assessor received a submission from the claimant dated 31 March 2015 which was in response to the concerns raised in that letter.  The applicant also raised his issues concerning his mental health which were taken into account by the assessor.  The assessor also sent correspondence to the applicant in relation to the issue of being a failed asylum seeker.  The ITOA assessor noted that the applicant now claimed he lived in India during 2007 to 2010, which negates his previous claims that he was arbitrarily detained and tortured at a particular camp from 2009 to 2010.  The applicant presented a new claim to the assessor that he was tortured at a different camp in 2004.

11. The ITOA assessor rejected the claims in relation to the 2004 camp and identified the reasons why he found the applicant not to be credible in that regard.  Those reasons were clearly open on the material before the assessor.  The ITOA assessor also addressed how the applicant alleged bribes were paid at a particular airport and found (p.18):

    I consider the claimant obtained his genuine passport and has entered and exited Sri Lanka on multiple occasions with this passport and without repercussion due to his low profile as a Tamil man.  For these reasons, I do not accept the claimant has been credible about his paying bribes when entering and exiting Sri Lanka.

12. The assessor addressed a claim concerning having worked for a particular group and found that those claims were not credible.  The assessor addressed the applicant’s brother in Switzerland and found that it was not accepted that the claimant’s brother is a person of interest on the basis of his migration to Switzerland. The assessor addressed the alleged support from 2000 to 2004 in relation to LTTE, and whilst the assessor found that the applicant had been living in LTTE area, did not accept that the applicant had been the subject of any torture in that regard, and the assessor found that the applicant was not a person who could be relied upon to speak truthfully about his personal experiences. 

13. The assessor found the applicant was able to fabricate his initial material claims, including his denial of travel, and when presented with evidence he then changed his story to suit his purpose.  The assessor found that the claimant had manufactured his new claim specifically for the purpose of trying to engage Australia’s international treaties obligations.  Relevantly, the assessor found:

    Having regard for the claimant’s lack of credibility about his previous claims and my findings regarding his new claims, I do not accept the claimant is someone who can be relied upon to speak truthfully about his personal experiences.  I consider the way in which the claimant was able to fabricate his initial material claims including the denial of his travel when presented with refutable evidence suggests that the claimant is able to change his story to suit his purpose.  I consider the claimant has manufactured his new claims specifically for the purpose to engage Australia’s International Treaties Obligations.

    - I accept  the claimant’s confession that he was not held in [X] camp as previously claimed because he was living in India during 2007-2010.

    - I accept that the claimant’s brother is living as a refugee in Switzerland.

    - I accept that that the claimant assisted the LTTE for a sporadic period of time.

    - I do not accept the claimant’s brother was arrested and jailed for 18 months on suspicion of being an LTTE member and is a person of interest.

    - I accept that the claimant was confused when providing his family composition.

    - I do accept that the claimant was detained, tortured and sexually abused at [Y] camp in 2004.

    - I do not accept that the claimant had an agent travel with him on multiple occasions, in and out of Sri Lanka and paid bribes to Customs officials.

    - I do not accept that the claimant worked for the [Z] Group. 

14. The assessor went on to address whether the applicant was otherwise a person in respect of whom Australia had a non-refoulement obligation, and relevantly found (p.26):

    With regard to the abovementioned country reports, I accept that all returnees go through an interview process upon return at Colombo airport. I accept that identity and security checks are formalised in keeping with Sri Lanka's laws. I acknowledge that fines or possible jail terms can be imposed for those who departed Sri Lanka through irregular means, however in the claimant's case, this is not relevant. I consider that the actions taken by airport officials are not discriminatory to any particular ethnic group, including Tamils. I consider Australia will organise suitable travel documents in keeping with Sri Lank.an law, which will enable Sri Lankan immigration authorities to identify the claimant. This will mitigate any further detainment due to identity concerns. I have regard to the claimant's ability to enter ru.id exit Sri Lanka on multiple occasions on his genuine passport without repercussion or detainment by officials. These actions suggest that the claimant does not have an adverse profile with the authorities and that he is not wanted in connection to a criminal matter or LTTE involvement. I consider when further checks are initiated the authorities will discover that the claimant departed Sri Lanka before the height of the war in 2007 and has no criminal record.

15. The later assessment concluded (p.29):

    In the present case, I am not satisfied the claimant has a real chance of being subject to significant harm should he be returned to Sri Lanka. 

    Accordingly, I am not satisfied that the claimant is a person with respect of whom Australia has non-refoulement obligations under CAT and ICCPR.

16. Nothing has been identified to support the proposition that that ITOA assessment was not carried out in accordance with procedural fairness, and ground 1 of the application fails to identify a sufficiently arguable ground of jurisdictional error as to identify an arguable case within r.44.12. In relation to ground 2, nothing has been identified by the applicant that identifies any error of law in relation to the ITOA assessment, and ground 2 fails to make out any sufficiently arguable case within r.44.12.

17. In relation to ground 3, there is nothing identified to support there being any arguable ground of the legislation being ultra vires, and ground 3 fails to make out a sufficiently arguable case within r.44.12. In the course of the hearing, the applicant identified that he wanted an adjournment to obtain the benefit of instructing lawyers and obtaining legal input, as well as repeating part of his migration history and his fears if he were returned to Sri Lanka. The adjournment was opposed.

18. Nothing said by the applicant identified any basis upon which there is a sufficiently arguable jurisdictional error within r.44.12 in respect of the applicant’s application. The adjournment sought by the applicant was opposed by the first respondent. There is no utility in granting an adjournment if the grounds failed to identify a sufficiently arguable case, as to say will unnecessarily increase the cost of the parties and utilise limited Court time.

19. Further, it is clear from the long migration history that has been identified that this is a case where the applicant has had ample opportunity to advance the contention that the applicant is a person in respect of whom Australia has a non-refoulement obligation, and that the applicant has been unsuccessful in that regard. Further, there is evidence of the steps that have been taken by the Department for the purpose of removing the applicant from Australia. That time and evident cost will all be wasted if a further adjournment is granted in circumstances where there appears to be no sufficiently arguable case under r.44.12.

20. The first respondent relies upon s.197C, and says that there is no sufficiently arguable case identified to make out a prima facie case for the granting of an injunction, and that this is a case where the application should be dismissed under r.44.12, and that the applicant in the case for an injunction should be dismissed. Even if s.197C had no application, nothing has been identified to suggest that the applicant has been the subject of any denial of procedural fairness or other jurisdictional error in relation to the ITOA assessment so as to make out a prima facie case, and there has been no prima facie case made out as to why the removal of the applicant is not in accordance with the obligations under the Migration Act 1958 in the present case.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 23 September 2015