FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUW16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 498 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration not to grant to the applicant a Protection (Class XA) (Subclass 866) visa – applicant asserted that Administrative Appeals Tribunal did not listen to and take into account the material and evidence given at a previous Tribunal hearing before a different member – further asserted that Administrative Appeals Tribunal made wrongful credibility finding – application for judicial review dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.19D |
| Applicant: | BUW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1849 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing dates: | 28 November 2018 & 20 February 2019 |
| Date of Last Submission: | 5 March 2019 |
| Date Reserved: | 13 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser of Counsel appeared on 28 November 2018 and Mr R. Selliah appeared on 20 February 2019. |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the First Respondent: | Ms S. Sangha appeared on 28 November 2018 and Ms A. Carr of Counsel appeared on 20 February 2019. |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
Grant leave to the Applicant to file in Court an Amended Application.
The Amended Application filed in Court on 28 November 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1849 of 2016
| BUW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Sri Lanka aged 40 years.
By Amended Application filed in this Court on 28 November 2018 he seeks to quash and have re‑determined according to law the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 27 June 2016…
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- Case
- [2020] FCCA 498
- Decision Date
CaseChat Overview and Summary
The applicant raised two primary legal issues for determination by the court. First, he contended that the AAT failed to adequately consider and take into account the material and evidence presented at a previous Tribunal hearing conducted by a different member. Second, he argued that the AAT made a wrongful finding regarding his credibility.
Dowdy J dismissed the application for judicial review. The court found that the AAT had considered the relevant material, including the applicant's statutory declaration and his legal representative's detailed submissions, which outlined his history of fleeing Sri Lanka due to attention from the LTTE and the Sri Lankan Army, and later, from the Karuna Group. The AAT's decision was based on its assessment of the applicant's credibility and the evidence presented, and the court found no error in the Tribunal's approach to the evidence or its credibility findings. The court concluded that the AAT had properly applied the relevant legal principles in assessing the applicant's claims.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
At [1], [2] and [27] of a Statutory Declaration dated 15 November 2012 (Statutory Declaration) lodged in support of his Protection visa application, the Applicant summarised the nature of his claims to protection, as follows:1.I am a 33 year-old citizen of Sri Lanka. I was born in 1979 in Suravanaiyadyuththu Thumpankeny Thikkoday, Batticaloa district in the Eastern Province of Sri Lanka. I am of Tamil ethnicity, and my religion is Hindu. My family, including my father, mother two sisters and one of my brothers and my wife and infant son, all remain living in our home. I make this Statutory Declaration in support of my application for a Protection Visa. 2.I respectfully request that the Department of Immigration grant me protection from the harm that I fear in Sri Lanka. My main reasons for seeking the protection of the Australian Government are based on fear of harm at the hands of the Sri Lankan authorities and government parties, on account of my Tamil ethnicity, my particular profile, and because I have left Sri Lanka unlawfully.27.In summary, I fear harm including arrest, detention, physical assault and death at the hands of the Sri Lankan government authorities on account of my Tamil ethnicity and having made a report against the Karuna group. I face an increased risk of this harm as I am a young male Tamil and because I left Sri Lanka illegally. I have been pursued by the Karuna party and experienced death threats. I cannot reasonably relocate anywhere in Sri Lanka to avoid the threat of harm. I further note for consideration below that in the Statutory Declaration the Applicant claimed to fear harm from the Karuna Group which is anti-Tamil, had fought against the LTTE in the war and targets Tamils. He claimed that by 2010 the Karuna Group was ruling Batticaloa when on 20 August 2010 he rode his motorbike to the police station where he intended to seek permission to move to his wife’s area. Two members of the Karuna Group were at the police station and they said to him that they needed his motorbike, which was then collected by a member of the Karuna Group that night named Chandru, who brought the motorbike back to him the next morning. However, the police arrested the Applicant the next morning because the Karuna Group had used his motorbike to commit a robbery (motorbike incident). By letter dated 22 July 2014 Ms Richards made a lengthy and detailed submission of 34 pages to the Tribunal (Ms Richards’ Submissions) which it is convenient to reproduce here in its summary of the Applicant’s claims to protection:1.Outline of Submissions(a)The applicant is Sri Lankan national of Tamil ethnicity. He grew up in the Batticaloa district in the Eastern province of Sri Lanka. The applicant first left Sri Lanka in 2001 because of the attention he and his family were receiving from the LTTE. He travelled to Qatar where he worked for 7 years before returning to Sri Lanka in 2007. [The Applicant] only remained in Sri Lankan for 3 months because he again received adverse attention from the LTTE and from the SLA. He returned to work in Qatar and did not return to Sri Lanka until 2010. In 2010 the Karuna political group that were aligned with the Sri Lankan government had a strong presence in the Batticaloa district. In August 2010 the applicant identified and was a witness against members of the Karuna group that had been involved in a crime. His actions resulted in him receiving death threats and demands for money. The applicant gave evidence against these men in 2011 and then left Sri Lankan again shortly after the court case as he feared being targeted by members of the Karuna political group because of his actions. He returned in February 2012 and he remained in hiding until he departed again in May 2012. (b)The applicant fears that, if he is returned to Sri Lanka, he will suffer persecution and/or substantial discrimination amounting to a gross violation of human rights in the form of forced labour/recruitment, psychological harm, abduction or arbitrary arrest and detention, imprisonment, extortion, physical assault and torture, and possible death, at the hands of the SLA and other pro-government forces such as the Karuna political group on account of, considered separately or cumulatively:(i)his Tamil ethnicity;(ii)his membership of particular social groups 'young Tamil males' and/or 'young Tamil males from Eastern Province’.(iii)his actual/imputed political opinion in support of the LTTE and against the other pro-government militias resulting from;•His identification and evidence as a witness that assisted in the conviction of 2 members of the Karuna faction;•His refusal to pay money after receiving threatening phone calls from the Karuna group;•His Tamil ethnicity;•His profile as a young Tamil male from the east of Sri Lanka;(iv)His actual and/or imputed political opinion in support of the LTTE, and against the activities of the Sri Lankan authorities and the systematically brutal treatment of ethnic Tamils resulting from;•His Tamil ethnicity;•His profile as a young Tamil male from the east of Sri Lanka•His imputed opinion in support of the LTTE;•His illegal departure from Sri Lanka and asylum claim in Australia.(v)His membership of the particular social group 'young Tamil asylum seekers/returnees who have fled Sri Lanka unlawfully' where he will face discriminatory treatment beyond the normal punishment for this crime amounting to persecution on account of his profile outlined in (i) - (iv) above.(c) Where serious harm is carried out by pro-government paramilitary groups, such as the Karuna group the applicant fears he will not be provided with any protection from the Sri Lankan authorities against this serious threat, on account of his profile above. The applicant will thus be discriminatorily denied effective state protection constituting Convention persecution.…(h)In sum, there is a real or substantial possibility, which is not remote or fanciful, that in the current circumstances, the applicant would face harm amounting to persecution, were he returned to Sri Lanka. Accordingly, the applicant meets the definition of a 'refugee' and is owed protection obligations by Australia under the Refugees Convention.(i)Without conceding anything in relation to the applicant's status under the Refugee Convention, the applicant is also owed protection under pursuant to section 36(2)(aa) of the Migration Act 1958.