BWB17 v Minister for Immigration

[2020] FCCA 1655

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWB17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1655

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal’s decision was effected by bias – whether the Tribunal misapplied the relevant law – whether the Tribunal took into account relevant considerations – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: BWB17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 233 of 2017

Judgment of: Judge Street

Hearing date: 22 June 2020

Date of Last Submission: 22 June 2020

Delivered at: Sydney

Delivered on: 15 July 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Solicitors for the First Respondent: Ms Q Ren via Microsoft Teams
AGS

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 233 of 2017

BWB17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 March 2017 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil. On 29 May 2012, the applicant arrived on Christmas Island. In December 2012, the applicant applied for a Protection visa.

3. The applicant claimed to fear harm, in summary, by reason of his ethnicity, actual or imputed links to the Liberation Tigers of Tamil Eelam (“LTTE”), an alleged complaint made by his uncle, an alleged letter received from the Criminal Investigation Department (“CID”) requiring the applicant to attend their headquarters, his illegal departure from Sri Lanka and being a failed asylum seeker.

4. On 19 March 2014, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. On 27 March 2014, the applicant applied to the Tribunal for review of the Delegate’s decision. The applicant attended a hearing before a differently constituted Tribunal on 16 March 2015 as a result of an invitation sent to the applicant on 11 March 2015. That Tribunal member became unavailable and, accordingly, the applicant was invited to attend a further hearing before the currently constituted Tribunal on 1 August 2016 as a result of invitations sent to the applicant on 27 June 2016 and 1 July 2016. The applicant appeared on that date to give evidence and present arguments.

6. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law in “Attachment A” incorporated by pagination in the Tribunal’s reasons as well as by express reference.

7. The Tribunal accepted that the applicant was from the North Western Province and was born or lived in a particular village in a particular district. The Tribunal accepted that the applicant’s wife, child, parents and sister all remain in that particular district.

8. The Tribunal referred to the applicant’s history as a fisherman and an incident in which he was arrested by the CID around June 2007.

9. The Tribunal referred to the applicant’s departure to Singapore in early 2009 and that he was then returned to Sri Lanka from Singapore shortly after he arrived.

10. The Tribunal identified that the applicant alleged that he was arrested in June 2009 and was released in November 2009.

11. The Tribunal recorded that the applicant referred to travelling to India in December 2009 and then returning to Sri Lanka. The Tribunal identified that, almost a year later, the applicant again travelled to India and then returned to Sri Lanka in December 2010.

12. The Tribunal recorded in its reasons that the applicant alleged that in April 2011 he was stopped by the army and local police and ordered to participate in a demonstration. The applicant alleged that he refused and that he was beaten by the police and that his uncle organised his release.

13. The Tribunal recorded that the applicant alleged that he left Sri Lanka to go to Mali and then returned to Sri Lanka in about September or October 2011. The applicant alleged that his uncle wrote to an MP about the applicant’s treatment when he had been imprisoned and that this was followed by the police coming regularly to his home to threaten him and his family.

14. The Tribunal identified that the applicant alleged that he escaped by plane to India in February 2012 but again returned to Sri Lanka in March 2012.

15. The Tribunal recorded that the applicant alleged that in March 2012 the police transferred his matter to the CID and that the applicant was required to attend a particular headquarters in Colombo allegedly known for torture.

16. The Tribunal recorded that the applicant alleged that he then arranged for a Sinhalese agent to help him leave the country to travel to Australia.

17. The applicant alleged that since his arrival in Australia his mother has received a further letter from the CID requiring him to attend the CID headquarters.

18. The Tribunal accepted that the applicant was a Tamil from the North Western Province.

19. The Tribunal accepted that the applicant had been arrested on suspicion of terrorist related activities in June 2007 and that he was required to report monthly until January 2009. The Tribunal found that the applicant’s evidence was that he was no longer required to report to the local court or police station. The Tribunal did not accept that the applicant stopped reporting out of fear.

20. The Tribunal accepted the applicant’s travel history in and out of Sri Lanka and noted that the applicant did not claim to have suffered any harm during his departures and return to Sri Lanka.

21. The Tribunal referred to the applicant’s claims to have been of continuing interest to the authorities after being cleared of charges in January 2009. The Tribunal accepted that the applicant was taken for questioning and detained at a bunker. The Tribunal found that the applicant was of no further interest to the authorities after approximately October 2009.

22. The Tribunal referred to the applicant’s travel to India.

23. The Tribunal also referred to the events alleged by the applicant to have occurred in April 2011 and the applicant being told to attend a demonstration. The Tribunal found that the applicant had been inconsistent in his evidence about the events in April 2011. The Tribunal did not accept that the applicant was ordered to attend a rally in support of a particular person, that the applicant was detained because of his refusal and beaten, that the applicant’s uncle arranged for his release and that the applicant’s uncle made a complaint about the applicant’s treatment.

24. The Tribunal accepted that the applicant travelled to Mali but did not accept that he sought to be registered as a refugee.

25. The Tribunal did not accept that the police or any other authorities came to the applicant’s home threatening him and his family. The Tribunal in that regard took into account that the applicant’s family had not been harmed.

26. The Tribunal also raised with the applicant his willingness to travel being inconsistent with his claims.

27. The Tribunal expressly referred to the letter from the CID said to have been sent to the applicant. In that regard, the Tribunal referred to the existence of a s 438 certificate which the Tribunal identified and regarded as invalid and referred to discussing the information with the applicant. The existence of the s 438 certificate and the documents the subject of the certificate gave rise to no practical injustice in the conduct of the review in these circumstances. No jurisdictional error arises by reason of the existence of the invalid s 438 certificate and the documents the subject of that certificate.

28. The Tribunal gave the letter no weight, taking into account the high prevalence of fraud in Sri Lanka and the Tribunal not accepting the applicant’s claims relating to the events that lead to the same.

29. The Tribunal did not accept that the applicant’s case was transferred to the CID or that the CID visited the applicant’s house and left a note for him. The Tribunal did not accept that the applicant was of any interest to the CID for any reason.

30. The Tribunal did not accept that the CID came to speak with the applicant’s mother after he left Sri Lanka, nor that the local police came to speak to his wife for any reason connected to his claims for protection.

31. The Tribunal found that the applicant’s pattern of travel out of and return to Sri Lanka to be inconsistent with his claimed fear of harm and threats. The Tribunal did not accept that the CID and the local police on behalf of the CID came looking for the applicant at any stage either when he was still in Sri Lanka or after he departed.

32. The Tribunal found that there is no real chance or a real risk that the applicant would be seriously or significantly harmed on return to Sri Lanka for his past imputed LTTE links, which were suspected by the authorities until the end of 2009.

33. The Tribunal found that there is not a real chance that the applicant will be harmed for any political or imputed political opinion or any other 1951 Refugee Convention reason related to his claims if he returns to Sri Lanka now or in the reasonably foreseeable future.

34. The Tribunal found that the applicant does not have a well-founded fear of persecution for any of these reasons. The Tribunal also found that the applicant does not have a real risk of significant harm for any of these reasons.

35. The Tribunal referred to the applicant’s claim concerning participating in a volleyball match and a photo being taken and posted on Facebook. The Tribunal accepted that the applicant took part in those activities and that there is some visible links to the Tamil diaspora and Tamil identity, such as the Tamil flag.

36. The Tribunal did not, however, accept that the applicant’s family or families of any others involved had been questioned. The Tribunal did not accept that the photo has come to the attention of Sri Lankan authorities, nor that it is likely to, and found that the photo is of poor quality. The Tribunal did not accept that any harm will befall the applicant for reasons of his participation in the volleyball match and photograph and Facebook post. The Tribunal found that there is not anything more than a fanciful or remote risk of harm to the applicant by reason of the photo and video.

37. The Tribunal found that the applicant does not have a well-founded fear of persecution for any of these reasons and that there is no real risk of the applicant facing significant harm for reason of these activities on return to Sri Lanka.

38. The Tribunal referred to country information in relation to the applicant’s ethnicity and origin and did not accept that there is a real chance that the applicant will be imprisoned, detained or harmed in any way by the authorities or anyone else for reasons of being a Tamil or a young Tamil male from the North West. The Tribunal found that the applicant does not have a well-founded fear of persecution for reasons of his race or as a young Tamil male from the North West and that there is no real risk of the applicant facing significant harm for these reasons if he returns to Sri Lanka.

39. The Tribunal accepted that the applicant departed Sri Lanka illegally. The Tribunal found that the applicant is not a person with whom the authorities would have any interest and did not have a relevant profile.

40. The Tribunal accepted that the applicant would be identified as a failed asylum seeker but did not accept that there is a real chance or real risk the authorities would have any concerns in relation to his imputed asylum claim that would lead them to harm him at any stage on his return and questioning, being charged, remanded and bailed, or him being possibly convicted and sentenced for his unlawful departure or on his return to his home area or because of his residence in a Western country, seeking asylum in a Western country, or because of his illegal departure from Sri Lanka, whether considered individually or cumulatively.

41. The Tribunal did not accept that the applicant would be of adverse interest to the authorities on return to his home area. The Tribunal found that the applicant faces no real chance of serious harm or real risk of significant harm as a Sri Lankan young Tamil male from the North West or as a returned failed asylum seeker. The Tribunal found that the applicant did not have a well-founded fear of persecution.

42. The Tribunal found that the applicant had departed Sri Lanka illegally. The Tribunal found that the imposition of a fine or the process of being charged and possibly convicted do not constitute serious or significant harm. The Tribunal took into account that the applicant would not spend more than a brief time in remand. The Tribunal found that the applicant does not have a real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure.

43. The Tribunal found that the applicant does not face a real chance of serious harm, considering his claims individually and cumulatively, from the police, army, CID, other authorities or anyone else arising from his past suspected LTTE involvement, his detention towards the end of 2009, his activities in Australia, his race or his status as a failed asylum seeker or returnee from a Western country who left Sri Lanka illegally, now or in the reasonably foreseeable future.

44. The Tribunal found that the applicant did not meet the criteria in ss 36(2)(a) or 36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 1 May 2017. On 5 July 2017, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. Submissions were annexed to the applicant’s originating affidavit and otherwise no such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. The applicant orally referred to the letter from the CID and disagreed with the Tribunal’s adverse findings in that regard. The adverse findings by the Tribunal were not based on the misspelling of “headquarters” but took into account the adverse credibility findings made in respect to the applicant’s claims that were open for the reasons given by the Tribunal. The Tribunal also took into account the prevalence of fraud. No jurisdictional error arises by reason of the Tribunal giving no weight to the letter from the CID nor, for the reasons already identified, does any jurisdictional error arise in relation to the conduct of the review by reason of the existence of a s 438 certificate and documents the subject of the s 438 certificate that were discussed with the applicant at the hearing and which the Tribunal treated as being an invalid certificate. The applicant suffered no practical injustice in the conduct of the review in those circumstances.

4. The applicant also referred to his problems not coming to an end in 2009. This, in substance, reflects disagreement with the adverse findings by the Tribunal. This Court does not have power to review the merits.

5. The applicant also referred to the incident involving the volleyball match, which was expressly considered by the Tribunal and the Tribunal made adverse findings in that regard dispositive of the applicant’s claims that were open for the reasons given by the Tribunal.

6. Nothing said by the applicant orally identified any jurisdictional error.

Grounds in the application

1. The grounds in the application are as follows:

   1. Jurisdictional error.

   2. Bias based on conscious or unconscious prejudice by ignoring relevant material.

   3. Identifying a wrong issue on a wrong question.

2. Unparticularised, each of the above grounds is incapable of giving rise to any jurisdictional error.

Ground 1

1. In relation to ground 1, on the face of the material, the Tribunal complied with its statutory obligations in the conduct of the review and had a real and genuine intellectual engagement with the applicant’s claims and evidence and made dispositive findings that were open for the reasons given by the Tribunal. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, there is no conduct that has been identified that supports any basis by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No relevant material has been identified that was ignored. Further, on the face of the Tribunal’s reasons, the Court finds that the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, as referred to above, unparticularised, this is incapable of giving rise to any error. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and on the face of the Tribunal’s reasons the Tribunal correctly applied the relevant law, making findings that were open to the Tribunal for the reasons given by the Tribunal. No jurisdictional error arises by reason of ground 3.

Applicant’s affidavit

1. The submissions by the applicant in the applicant’s affidavit are as follows:

   1) I am the applicant for a judicial review of a decision made by the Administrative Appeals Tribunal decision made in regard to my application for a Protection Visa dated 30th of March 2017.

   2) In furtherance of my application for a Judicial Review reference is made to the Tribunals decision contained in folios 11, 12, 13, 16, 17, 18, 19, 24, 25, 28, 35, 53 and 74.

   3) The Tribunal did not pay adequate attention to the facts and the law in determining my case and therefore fell in to jurisdictional error.

   4) The Tribunal did not take into account the prevalent laws and regulations in Sri Lanka which relates to Tamils and their aspirations for self-determination.

   5) As a young Sri Lankan Tamil with suspected links to the LTTE I will be taken into custody and subjected to human right abuses under the Prevention of Terrorism Act.

   6) I submit therefore that I have a well-founded fear of retuning to Sri Lanka as I will not be protected by the state or government of that country.

2. Paragraphs 1 and 2 do not in themselves identify any basis upon which any error could be made out.

3. In relation to paragraph 3, this reflects a generalised assertion of a failure to pay adequate attention to facts and law. There is no fact that has been identified that the Tribunal failed to refer to and the Tribunal has correctly identified the relevant law. No jurisdictional error arises by reason of paragraph 3.

4. In relation to paragraph 4, it is apparent that the Tribunal took into account the applicant’s illegal departure and the processes to which the applicant would be subjected on his return and made adverse findings that were open. Further, insofar as paragraph 4 is referring to the volleyball incident and the subsequent activities, it is apparent that the Tribunal took those matters into account and made adverse findings dispositive of the applicant’s that were open to the Tribunal. It is further apparent that the Tribunal took into account the applicant’s Tamil ethnicity and his claimed fear of harm in that regard and made adverse findings that were open. No jurisdictional error arises by reason of paragraph 4.

1. In relation to paragraph 5, the Tribunal again considered the applicant’s claims in relation to imputed LTTE links and made adverse findings that were open to the Tribunal. No jurisdictional error arises by reason of paragraph 5.

2. Paragraph 6 reflects a disagreement with the adverse findings inviting merits review and does not identify any jurisdictional error.

3. As nothing said by the applicant identified any jurisdictional error and as the grounds in the applicant’s application and the paragraphs in the applicant’s submissions in the applicant’s affidavit failed to make out any jurisdictional error, the application is dismissed.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 15 July 2020