BYK16 v Minister for Immigration
[2017] FCCA 191
•6 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYK16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 191 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – Protection (Class XA) visa – whether the Tribunal failed to take into relevant considerations – whether the Tribunal complied with its statutory obligations – no denial of procedural fairness by the Tribunal – applicant had a real and meaningful hearing – no obligation enlivened under s.424AA – adverse credibility findings made were open to the Tribunal – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 91R, 418, 424A, 424AA, 425, 476, 499 |
| Cases cited: BXB15 v Minister for Immigration & Anor [2017] FCCA 77 |
| Applicant: | BYK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1951 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 6 February 2017 |
| Date of Last Submission: | 6 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2017 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Ms A B Douglas-Baker |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1951 of 2016
| BYK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 June 2016 affirming the decision of the delegate not to grant the applicant a Protection visa. The applicant was found to be a citizen of Sri Lanka. The applicant arrived at Christmas Island on 13 August 2012. The applicant travelled to Qatar by way of a work visa on 16 December 2007 and resided there until 26 May 2009 when the applicant returned to Sri Lanka.
The applicant departed Sri Lanka legally on 2 May 2012 and travelled to the Maldives. The applicant stayed there one month before returning to Sri Lanka on 1 June 2012. On 14 July 2012, the applicant departed Sri Lanka unlawfully by boat and arrived at Christmas Island on 13 August 2012.
The Delegate
The delegate’s decision records that the applicant initially said that he wanted Australia’s protection because he had economic problems. The applicant referred to poverty in Sri Lanka, that his father could not work because of his lost eyesight, that his brother and the applicant had to leave their schooling. The applicant alleges that he left Sri Lanka and because he was a Tamil, the applicant could not go out for work and that the Burghers surrounding his village were Sinhalese.
The applicant claimed to fear harm by reason of the fact that the Sri Lanka authorities may suspect him of being involved with the LTTE. The applicant alleges he was arrested in 2003 on four separate occasions. The applicant alleges he went to Qatar to avoid being arrested. The applicant alleges he had a friend who was shot dead by the police because he was a Tamil.
The applicant alleges that an incident occurred in 2012 when the applicant was travelling from his home village and was stopped by the police. Following that incident, the applicant’s parents sent him to the Maldives. The delegate expressly referred to the applicant departing Sri Lanka legally to go to the Maldives on a visitor visa and the applicant returning to Sri Lanka on 1 June 2012. The applicant alleged he was in constant fear because he was under suspicion of the police.
The applicant also alleged that in 2010 it was decided that it would be safer for the applicant to live with his uncle because his family home was allegedly visited by five men and two armed with shotguns. The men allegedly threatened that they would kill the applicant if they found him. The applicant also alleged that his brother experienced problems in Sri Lanka and he travelled to the Maldives to avoid them.
Credibility
The delegate referred to the four separate occasions on which the applicant was interviewed over the course of one year and referred to the variation of the applicant’s separate accounts of the events. The delegate found that there were large gaps in the applicant’s explanation of his uncle’s involvement to the LTTE, the applicant’s experiences of being detained and interrogated in 2003 and the applicant’s experiences being detained and arrested in 2009. The delegate found the applicant also provided vague information about his whereabouts after returning from the Maldives and before departing Sri Lanka. The delegate referred to raising with the applicant what occurred in 2003 and the applicant’s response.
The applicant was also asked by the delegate about his uncle. The delegate also raised with the applicant the alleged arrest in 2009 after returning from Qatar. The delegate raised with the applicant his travelling to Batticaloa. The delegate raised with the applicant the incident involving the five men. The applicant suggested that his father had been arrested, beaten and tortured. The delegate found the applicant’s claims in respect of his uncle being involved in the LTTE to be vague and lacking in detail.
The delegate did not accept that the applicant was of continuing interest to any branch of the Sri Lanka Government for reasons of being related to his uncle. The delegate referred to the fact that the applicant by his own evidence, has never been politically active or a supporter of the LTTE. The delegate noted that the fact that the applicant was released in 2009 from detention led the delegate to conclude that the applicant was not of ongoing interest to any branch of the Sri Lanka Government at that time.
The delegate found the applicant’s explanation for his moving to Batticaloa to be inconsistent with the country information if he was a person of interest. The delegate did not accept the applicant’s statements that on return from Sri Lanka from the Maldives, he did not pass through any security check at the airport. The Tribunal found the applicant’s return in that regard to cast significant doubt over the claim that the applicant fears being targeted by the Sri Lankan authorities because he was a person of continuing interest.
The delegate found the applicant left Sri Lanka primarily for economic reasons and that any problems he had experienced for reasons of LTTE suspected involvement during the civil war, was not a driving force in his decision to come to Australia. The delegate found the claim that the applicant was of continuing interest to the authorities to be a fabrication. The delegate did not accept the applicant was of interest to the Sri Lanka authorities and did not accept that the applicant harbours a genuine fear of being harmed by authorities as claimed.
Assessment of protection obligations under the Refugees Convention
The delegate also referred to the applicant claiming that he will be arrested, detained and possibly killed by the Sri Lanka authorities if he returned to Sri Lanka. The delegate did not accept that the applicant had the profile of someone who would have been of interest to the Sri Lanka authorities and did not accept that this was a reason for the applicant’s decision to come to Australia. The delegate did not accept that the applicant harbours a genuine fear of harm because of being a person of interest to the authorities.
In relation to the applicant being a Tamil, the delegate did not accept that the applicant had suffered or will suffer economic harm amounting to serious harm. The delegate found that the country information supported that Tamils do not experience severe economic hardship in the particular area. The delegate was not satisfied that the harm feared by the applicant was serious harm and systematic and discriminatory conduct as required by s.91R(1)(b) and s.91R(1)(c) of the Act. The delegate was not satisfied that the feared harm amounts to persecution.
The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant’s fear was well-founded. The delegate was not satisfied there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that the applicant will suffer significant harm. The delegate found that Australia did not owe the applicant protection obligations and refused to grant a Protection visa.
The Tribunal
The applicant applied for review on 6 May 2014 and provided with the review application a copy of the delegate’s decision. The Tribunal sent the applicant a letter on 2 April 2015 indicating that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone. That letter invited the applicant to attend a hearing.
By letter dated 12 May 2015, the hearing was rescheduled for 9 June 2015. The applicant appeared on that date to give evidence and present arguments and was represented by his migration agent. On 6 July 2015, the applicant was provided with a copy of the recording for the hearing held on 9 June 2015. The Tribunal in its reasons identified the applicant’s background, claims and evidence and referred to the information identified in the delegate’s decision.
The Tribunal referred to the submission received from the applicant’s migration agent on 11 May 2015 and referred to the claims that the applicant feared harm because of his Tamil ethnicity and being a young male, with a known family link to the LTTE, with a long standing interest in the family and suspicion that the applicant was involved in the LTTE, the authorities’ interest in the applicant from 2003-2009, an alleged court requirement for monthly reporting, failure to report as required after 2012 and the forfeiture of bail and warrant for the applicant’s arrest in 2015 and the applicant’s illegal departure and his presence in Australia.
The submissions were noted by the Tribunal as referring to a fear of harm based on the applicant’s Tamil race, his membership of a particular social group comprising Sri Lankan Tamils with known family links to the LTTE, his imputed political opinion as a supporter of the LTTE and the applicant’s membership of a social group comprising Tamils who have fled Sri Lanka illegally and have unsuccessfully made claims for asylum in Australia. The Tribunal referred to the evidence given by the applicant and submissions at the hearing.
The Tribunal referred to the fact that the applicant said he had not been a member or trained with the LTTE. The Tribunal also referred to the fact that the applicant confirmed that he had never spoken out against the government or in favour of Tamil separatism. The Tribunal expressly asked the applicant whether he had other fears of harm if he returned to Sri Lanka, apart from his claimed LTTE links. The applicant made reference to the fact that after he was released, he may be beaten by the Sinhalese people.
The Tribunal also raised with the applicant the opportunity to comment in relation to the findings that have been made by the delegate and in particular, the reasons why the applicant had come to Australia. The Tribunal expressly referred to the delegate’s reasons referring to the fact that the applicant had been interviewed three times by the Department and made no mention of his claimed problems in Sri Lanka and invited the applicant to respond.
The Tribunal raised with the applicant that his failure to raise alleged claims in the context of his assertion that he came to Australia to claim protection. The Tribunal raised with the applicant his uncle’s involvement in the LTTE. The Tribunal raised with the applicant how it was that the applicant was able to obtain a passport if he was suspected of having links to the LTTE. The Tribunal referred to the applicant’s assertion that there was a warrant for his arrest and that he was supposed to report every month.
The Tribunal raised with the applicant its concern because of the applicant returning to Sri Lanka from Qatar where the applicant claims he was at risk of serious harm in Sri Lanka. The applicant’s explanation was that his grandmother was sick. The Tribunal also raised with the applicant whether he had experienced problems leaving Sri Lanka or returning from the Maldives. The Tribunal referred to the delegate’s decision which recorded that the applicant said he returned from the Maldives because his mother was ill and the Tribunal pointed out that that would be inconsistent with what the applicant told the tribunal.
The Tribunal also raised with the applicant information concerning his stay at Batticaloa. The Tribunal expressly raised with the applicant what appeared to be an inconsistency in his attempts to avoid the police at the same time going out with his uncle and having his address registered with the police. The Tribunal also raised with the applicant why he could not sign in at Batticaloa in relation to the police. The applicant referred also to the Sinhalese people in his village and his fear that they would beat him. The Tribunal also asked the applicant about his friend who was allegedly killed because he supported the LTTE.
The Tribunal raised with the applicant whether he had engaged in any activity in support of the LTTE whilst in Australia and the applicant said that he had not. The Tribunal also raised with the applicant the country information and raised with the applicant his apparent breach of the Sri Lankan Immigrants and Emigrants Act. The Tribunal records raising with the applicant the country information supporting that the applicant would be questioned about his departure, detained, presented before a magistrate, granted bail and ultimately released and fined around Rs.50,000. The applicant responded that he was not sure how long he would be detained for.
The applicant’s representative submitted that the applicant should be given the benefit of the doubt in relation to his fear of being harmed for reasons of links with the LTTE. The applicant alleged he had been charged with giving three days shelter to an LTTE member. The Tribunal raised with the applicant where he was supposed to report in relation to the police and asked the applicant about the men in the white van incident.
The Tribunal noted that the applicant’s representative submitted that the Sri Lankan Immigrants and Emigrants Act, imposed a fine of up to Rs.50,000 applies where a person has no previous dealings with the authorities or is of no interest to them. The applicant’s representative submitted that there was interest in the applicant and there was a warrant for his arrest. The applicant’s representative submitted that the applicant would be held in prison for longer than average.
At the hearing, the applicant’s representative asked for further time to put on submissions in relation to complementary protection. The Tribunal provided a further opportunity to put on further submissions and documents. The Tribunal reasons noted on 12 June 2015, that it received further documents and submissions and summarised the same. Those submissions expressly refer to the applicant being detained, questioned, and imprisoned upon his return because of his Tamil ethnicity and being a young male, with known family link to the LTTE, long standing interest in the family and suspicion by the authorities that the applicant was involved in LTTE activities, the authorities’ interests in the applicant from 2003 to 2009, police and CID arrests, the court requirements for monthly reporting from 2009, failure to report as required after 2012, illegal departure from Sri Lanka leading to forfeiture of bail and a warrant for the applicant’s arrest in 2015, the applicant’s illegal departure from Sri Lanka and presence in Australia for three years which it was submitted could lead to further speculation as to the nature of his activities overseas. It was submitted that this was the reason why the applicant would not be granted bail or be detained for a longer period.
The submissions by the applicant to the Tribunal, expressly referring to the applicant’s Tamil race, his membership of a particular social group comprising Sri Lankan Tamils with known family links to the LTTE, his imputed political opinion as being supportive of the LTTE for the reasons mentioned by the Tribunal, his risk of being seriously harmed being exacerbated because he is a member of a particular social group of Tamils who have fled Sri Lanka illegally and have unsuccessfully claimed asylum in Australia.
The Tribunal referred to a bail notice, a surety document provided to the Tribunal and an alleged warrant of arrest. The Tribunal summarised the independent country information to which the Tribunal had regard in Appendix 1 to the Tribunal’s reasons. Consistent with the obligation of the Tribunal under s.499 of the Act, included the DFAT Country Report, Sri Lanka, 16 February 2015 and in particular, the Tribunal summarised extracts from the report in relation to illegal departees and the application of the Immigrants and Emigrants Act. The Tribunal also summarised in its reasons the relevant law which was incorporated as Appendix 2 to the Tribunal’s reasons.
Consideration of credibility
The Tribunal identified credibility concerns in relation to the applicant’s evidence. The Tribunal identified, having considered the applicant’s evidence carefully and the inconsistencies and vagueness, that significant parts of the applicant’s claims had been fabricated. The Tribunal gave logical reasons explaining the inconsistencies in making adverse credibility findings. Those adverse credibility findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Nothing said from the bar table establishes any illogicality or unreasonableness in the Tribunal’s reasoning in respect of credibility.
The Tribunal was satisfied that the applicant had been able to participate in the hearing in a meaningful way and did not accept that the inconsistencies in the applicant’s evidence were explicable by reference to any incapacity on his part.
Assessment of Refugee Protection claims
The Tribunal referred to the applicant’s fear by reasons of his Tamil ethnicity, being imputed with links to the LTTE, his illegal departure from Sri Lanka and being a failed asylum seeker returnee.
Consideration of the applicant’s Tamil ethnicity
The Tribunal expressly referred to the applicant’s claims that he would be targeted because of his Tamil ethnicity, being a male from a particular area. The Tribunal referred to the country information and the Tribunal did not accept that the killing of the applicant’s friend gave rise to a real chance now, or in the reasonably foreseeable future of harm to the applicant if the applicant returns to Sri Lanka. The Tribunal did not accept that people in white vans, or the Sri Lankan Government generally, would target or persecute the applicant or Tamil people generally and rejected the applicant’s claim in that respect.
The Tribunal found that the applicant will not be denied the right to earn a livelihood such that it would threaten the applicant’s capacity to subsist if he returns to Sri Lanka now in the reasonably foreseeable future. The Tribunal found that the chance that the applicant will suffer serious harm for reasons of his Tamil ethnicity is not more than a remote chance. The Tribunal did not accept that there is a real chance that the applicant would suffer serious harm for reasons of his Tamil ethnicity, or because he is a Tamil from the north of Sri Lanka now, or in the reasonably foreseeable future if the applicant returns to Sri Lanka.
Consideration of the applicant’s imputed links with the LTTE
The Tribunal referred to the applicant’s alleged actual or imputed links with the LTTE. The Tribunal did not accept that the applicant will be imputed with an antigovernment or pro-LTTE or pro-Tamil separatist political opinion if he returns to Sri Lanka now or in the reasonably foreseeable future. The Tribunal did not accept that the applicant was arrested, detained and beaten by the CID as the applicant claims. The Tribunal found that the applicant was not a person of interest to the Sri Lanka authorities now or in the reasonably foreseeable future for reasons of his actual or perceived political opinion. The Tribunal did not accept that the applicant would continue to be of interest to the Sri Lankan authorities now or in the reasonably foreseeable future in Sri Lanka.
The Tribunal referred to the applicant’s travel to Qatar. The Tribunal did not accept that the applicant on return from Qatar was arrested or handed to the CID or that he was asked about his uncle’s whereabouts and why he had gone to Qatar. In light of the adverse credibility findings, the Tribunal rejected that in 2009 after re-entering Sri Lanka, having left it lawfully that the applicant would have been prosecuted as he claims. The Tribunal did not accept that the applicant moved to live with his uncle to escape harm.
The Tribunal did not accept that the incident occurred involving the five men as claimed, or at all. The Tribunal did not accept that the applicant was of any interest to the Sri Lanka authorities, or to anyone else at that time, or that the five men with shotguns would turn up at the house of the applicant without a profile or history of any relevant association with the LTTE and threaten to harm the applicant or harm his father. The Tribunal referred to the documents relied on in relation to the alleged reporting to the police and the prevalence of fraudulent documents in Sri Lanka. In light of the adverse credibility findings, the Tribunal placed little weight on the documents submitted to it in connection with that claim, including the claimed arrest warrant.
The Tribunal expressly found that the applicant did not move to Batticaloa for reasons of holding a fear of serious harm if he stayed in his home area. The Tribunal found that the applicant would not have moved about with his uncle as he claimed if in fact the applicant was in fear of the authorities. The Tribunal rejected the applicant’s proposition that he faces a real chance of serious harm for reasons of living in close proximity and in a minority amongst Sinhalese people.
The Tribunal referred to the applicant’s claims that he was forced to pay a bond and to report to police monthly. The Tribunal referred to the incidents of fraudulent documentation and placed little weight on the documents submitted which suggest that the applicant had to pay a bond or which indicate the applicant is being prosecuted for a failure to report monthly, or for any other reason.
The Tribunal placed little weight on the document that purported to be a Magistrates Court notice and did not accept that a warrant for the applicant’s arrest had issued as claimed, or at any other relevant time. The Tribunal rejected the proposition that the applicant is a person of adverse interest to the Sri Lanka authorities from the time he was released after his initial questioning about his uncle and the Tribunal rejects the proposition that his absence from Sri Lanka from 2007 to 2009, or indeed his absence since he has been in Australia, has caused increased interest in him or that this has given rise to an issue of a warrant for the applicant’s arrest.
The Tribunal rejected the claim that the applicant’s father was arrested and rejected that the applicant had to sign in every month. The Tribunal rejected the claim that a warrant had been issued for the applicant’s arrest and rejected the claim that things had become more serious.
Consideration of the applicant’s illegal departure
The Tribunal turned to the applicant’s illegal departure and the application of the Immigrants and Emigrants Act. The Tribunal expressly referred to raising with the applicant that according to the country information, he will be questioned about his departure, detained, presented before a magistrate, granted bail and ultimately released and fined around Rs.50,000.
The Tribunal referred to the applicant’s uncertainty as to how long he would be detained and to the submissions of the representative that the applicant would be a person of greater interest, including as a result of the alleged warrant. The Tribunal found on the evidence before it and having regard to its findings that the applicant is not a person of interest to the Sri Lankan authorities for reasons of his Tamil ethnicity or for any actual or imputed anti-government or pro-LTTE political opinion or for any other reason, the Tribunal rejected the claim that the applicant will be placed under greater scrutiny upon return to Sri Lanka or, that he will be detained for longer, or treated in any way different to other persons that are being detained in Sri Lanka for contravention of the Immigrants and Emigrants Act. The Tribunal found that the Immigrants and Emigrants Act was a law of general application and involved a non-selective enforcement of a law of general application reasonably adapted for the purpose of preventing the unauthorised departure of persons from Sri Lanka.
The Tribunal found that the applicant was likely to be questioned about his departure, detained for a brief period of one or several days, presented before a magistrate, granted bail and ultimately released and fined around Rs.50,000. The Tribunal found that there was no evidence that the applicant would not be able to pay the fine or make arrangements for its payment such that he would not be granted bail or would otherwise be detained for a longer period which might expose him to a greater chance of serious or significant harm.
Consideration of the applicant being a failed asylum seeker
The Tribunal referred to the applicant being a failed asylum seeker and as a returnee from a Western country. The Tribunal found that those circumstances were not ones where the applicant faces a real chance of serious harm having regard to the definition of “serious harm” in s.91R(2) of the Act, now or in the reasonably foreseeable future by reason of being returned to Sri Lanka as a failed asylum seeker or as a person returning from a Western country.
Additional considerations
The Tribunal referred to the submissions that had been advanced in relation to fear for reason of being a member of other social groups. The Tribunal found that the applicant does not face a real chance of serious harm in all the circumstances of his case regardless of how the Convention nexus to the claimed harm is characterised. The Tribunal referred to the applicant’s submission about the cooperation of the Australian Government with the Sri Lanka authorities. The Tribunal did not accept that the endeavour to coordinate activities between the two countries was relevant in any way or that the applicant’s particular circumstances elevates those circumstances to a condition where he faces a real chance of serious harm if he returns to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal referred to the applicant’s claims cumulatively. The Tribunal referred to the fact that the Tribunal had considered each of the claims and does not accept that the applicant faces a real chance of serious harm on each ground. The Tribunal found that having considered the circumstances in combination, the applicant still does not face a real chance of serious harm. The Tribunal found that the applicant does not face a real chance of serious harm amounting to persecution for any of the reasons claimed or for the cumulative effect to the reasons and circumstances claimed.
The Tribunal found the applicant’s claimed fear of Convention persecution if he returns to Sri Lanka was not well-founded. The Tribunal found the applicant does not face a real chance of serious harm for any of the reasons claimed. The Tribunal found that the applicant was not a person in respect of whom Australia had a protection obligation.
Assessment of Complementary Protection claims
The Tribunal turned to the issue of commentary protection and the submission that the applicant faces a real risk of significant harm if he returns, as the applicant will be detained on arrival and that there is a risk that those who have a prior history with the CID will not be released quickly. The Tribunal did not accept that the applicant was a person of interest to the police, the CID or that the applicant had a relevant police history such that he would be detained for a period which would expose the applicant to a real risk of significant harm. The Tribunal referred to taking into account the country information in relation to the procedures under the Immigrants and Emigrants Act.
The Tribunal found that the applicant did not face a real chance of serious or significant harm as a result of the questioning he may undergo on his arrival in Sri Lanka, or as a result of the detention/remand for one or several days, his conviction, or through the imposition of a fine pursuant to the Immigrants and Emigrants Act. The Tribunal did not accept that the applicant would be detained or mistreated due to his uncle’s past activities. The Tribunal did not accept that the applicant would be detained or mistreated due to his uncle’s past activities. The Tribunal did not accept that the applicant faced a real risk of significant harm for reasons of his Tamil ethnicity, or for living in close proximity to Sinhalese, or for reasons of societal discrimination.
The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Tribunal was not satisfied that the applicant met the criteria under s.36(2)(a) or s.36(2)(aa) of the Act and affirmed the decision of the delegate not to grant the applicant a Protection visa.
Before this Court
On 29 September 2016, a Registrar of the Court fixed the matter for hearing and provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file submissions but no other documents were filed. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained in summary, that this meant the Court was considering whether the Tribunal’s decision was unlawful or whether the Tribunal’s decision was unfair. The Court explained to the applicant that if the Court was satisfied the Tribunal’s decision was affected by relevant legal error, it would set aside the decision and send it back for further hearing. The Court explained to the applicant that if the Court was not satisfied the Tribunal’s decision was affected by relevant legal error, it would dismiss the applicant’s application.
The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from Counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant raised a letter from a Reverend Father of the St Francis Xavier Church dated 21 June 2013 which had not been provided by the Department to the Tribunal. That letter in substance appeared to be a character reference in relation to the applicant being a good Catholic from the Father’s parish and an active member of the Church with a good Catholic background. The evidence before the Court is that that document was provided before the application for protection was made and was not provided to the Tribunal.
The applicant was asked whether or not he raised any claim to fear harm because of his Catholicism. The applicant, from the bar table, accepted that he did not raise religious problems before the Tribunal. There is a reference in a statement provided by the applicant in the context of his primary education to being a Roman Catholic. Nowhere in the submissions advanced on behalf of the applicant through the applicant’s migration representative was there any claimed fear to harm by reason of the applicant’s religion. No such claim arose on the material before the Tribunal. There is no jurisdictional error by the Tribunal in failing to address a claim that was not raised by the Tribunal and that did not fairly arise on the material before the Tribunal.
The applicant also raised from the bar table that the Tribunal had referred to country information similar to that of the delegate. The Tribunal is required, under s.499 of the Act, to take into account the DFAT country information. The weight to be given to the country information is a matter for the Tribunal. The taking into account of country information by the Tribunal that was country information referred to by the delegate, is not a basis for any conclusion as to a want of independence by the Tribunal. The country information taken into account by the Tribunal is 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 reason of the Tribunal referring to the country information.
Grounds of the application
The grounds of the application are as follows:-
1. The Tribunal failed to take into relevant considerations when assessing my claims for a protection visa.
Particulars
a. In my legal representative's submission dated 11 May 2015, it was submitted that in page 12 that given the reported use of torture and sexual violence against Tamil prisoners that I would face significant harm. It was submitted that I would face sexual violence in Sri Lanka due to my particular circumstances. The Tribunal failed to consider this relevant consideration when assessing my claim for a protection. If the Tribunal had looked at this particular claim, it would have come to a different conclusion in my case.
b. In my statutory declaration dated 5 September 2013 in para 5.5 and 5.7, I mentioned that I have a scar due to the attack on me which is visible. The Tribunal failed to ask relevant questions regarding the above material issue and overlooked my evidence in my statement regarding future harm I would face in Sri Lanka on my return as a result of the visible scar.
c. In my legal representative's submission dated 11 May 2015 in page 13, it was submitted that I would face a real risk of significant harm as a result of deprivation of cultural freedom, land rights and freedom of expression. The Tribunal failed to consider the above relevant consideration.
d. The Tribunal failed to consider my activities in Australia which creates imputed political opinion against the Sri Lankan government.
e. The Tribunal failed to consider the letter from Rev Father of the St Francis Xavier's Church dated 21 June 2013 which I submitted to the Australian authorities when I arrived in Australia. In the letter Rev Father mentioned that I am a catholic and due to situations in Sri Lanka I left Sri Lanka. This letter and my evidence that my village is surrounded by Sinhalese and my fear from Sinhalese people mention (at least implicitly) my fear due to my religious back ground. The Tribunal failed to consider my religious claim.
2. During the Tribunal hearing the Tribunal mentioned that it is a totally an independent body from the Department of Immigration and Border Protection. However, in its decision the Tribunal mentioned that it has taken into consideration of the report of the Depart of Foreign Affairs and Trade. As a result of that, the Tribunal has failed its basic principle of independency from the same institution I challenge my decision.
3. The Tribunal failed to provide its concerns under s424 (AA) in a particular way mentioned in the Act.
a. Tribunal in para 47 of its decision noted that I had been interviewed three times by the Department and I did not metion of my claimed problems in Sri Lanka. The Tribunal failed to provide above information under section 424 A or 424 AA to invite me to 'respond'.
b. Tribunal in paragraph 58 referred to the delegate's decision record and my evidence to the Tribunal and mentioned it is inconsistent. The Tribunal failed to provide such information under s424 A or 424 AA to get my response.
c. Tribunal in paragraph 94 mentioned my three bio-data interviews and said there were inconsistencies. Any information the Tribunal received from my bio-data interviews should have been put to me under s424 A or 424 AA to get my comments or response because I never provided information in the bio-data interviews to the Tribunal. In such situation, the Tribunal has an obligation to put such information under s424A , 424AA.
Consideration
Ground 1(a)
I accept that the first respondent’s submissions that the reference to fear by the applicant of torture and sexual violence was based on the suspicion of the applicant being a member or supporter of the LTTE and that there was no independent claim in that regard. The Tribunal made adverse findings that were open to it in relation to the applicant’s claimed membership or support or imputed support of the LTTE. There was no failure by the Tribunal to take into account a relevant consideration, as alleged in Ground 1(a). The reference to sexual violence and torture was subsumed within the applicant’s claim of fear as an actual or imputed supporter of the LTTE, in respect of which the Tribunal made adverse findings that were open to the Tribunal. No jurisdictional error is made out by Ground 1(a).
Ground 1(b)
In relation to Ground 1(b), the Tribunal referred to the applicant’s scar however, no independent claim was advanced of a fear of harm because of a visible scar. The alleged incident in respect of which the applicant suffered mistreatment was not accepted by the Tribunal. There was no failure to take into account a relevant consideration as alleged in Ground 1(b). The Tribunal’s reasons reflect a detailed and orthodox approach in respect to the applicant’s claims and submissions and there is no basis to support any finding that the Tribunal overlooked the applicant’s statement in the conduct of its review. Ground 1(b) fails to make out any jurisdictional error.
Ground 1(c)
In relation to the applicant’s claimed fear of a deprivation of cultural freedom, land rights and freedom of expression, that was subsumed by the claim and part of the claim advanced by the applicant that he would face significant harm as a Tamil and failed asylum seeker. There was no separate claim that the applicant feared harm as a result of deprivation of cultural freedom, land rights and expression. The Tribunal rejected the applicant’s claim to fear harm as a Tamil and as a failed asylum seeker. There was no failure by the Tribunal to take into account a relevant consideration as alleged in Ground 1(c). Ground 1(c) fails to make out any jurisdictional error.
Ground 1(d)
The Tribunal expressly considered in relation to Ground 1(d), whether the applicant would be imputed with a pro‑LTTE or anti‑government opinion by reason of his seeking asylum or having an extended presence in Australia. Having regard to the country information and the credibility findings, the Tribunal found the applicant would not suffer a real chance of serious harm. The applicant acknowledged that he engaged in no political activities in Australia which might impute to him a pro‑LTTE or anti‑government political opinion. There was no failure by the Tribunal to take into account a relevant consideration as identified in Ground 1(d) of the Tribunal’s reasons. Ground 1(d) fails to make out any jurisdictional error.
Ground 1(e)
In relation to Ground 1(e), for the reasons already given, the said letter was not before the Tribunal and no claim to fear harm by reason of Catholicism was advanced by the applicant before the Tribunal. I am satisfied that the applicant had a genuine and meaningful hearing and that the applicant had a genuine opportunity to advance the applicant’s evidence and arguments. The applicant was on notice because of the delegate’s decision of the need to establish his claimed fears. The letter inviting the applicant to attend a hearing informed the applicant on the material available to the Tribunal, that the Tribunal could not at that stage grant the applicant a protection visa.
There was no suggestion from the Tribunal that it had received any letter from the Reverend Father dated 21 June 2013. There was no reference to such letter in the submissions by the applicant’s migration representative or in the evidence before the Tribunal, on the material before the Court. For the reasons already given, it is not apparent that the letter was relevant to the claims advanced by the applicant. I am not satisfied that there was any breach of s.418 of the Act. Even if there had been a breach of s.418 of the Act, such breach would not give rise of itself, to a jurisdictional error.
On the material before the Court, the applicant had a genuine and meaningful hearing and a proper opportunity to present the applicant’s claims and submissions. The absence of the provision of the letter dated 21 June 2013 did not give rise to any breach of s.425 of the Act.
On the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the material before the Court, the absence of the letter dated 21 June 2013 did not give rise to any denial of procedural fairness to the applicant in the conduct of the review. On the material before the Court, there is no other basis for finding that the Tribunal failed to comply with its obligations of procedural fairness. In the circumstances of the present case, there was no obligation upon the Tribunal to take into account a document that was not before it. No jurisdictional error is made out by Ground 1(e).
Ground 2
In relation to Ground 2, for the reasons already given, it was a proper matter for the Tribunal to take into account the Department of Foreign Affairs and Trade report consistent with its obligations under s.499 of the Act. Ground 2 fails to make out any jurisdictional error.
Ground 3
In relation to Ground 3, I accept the first respondent’s submissions that the information referred to by the applicant in Ground 3(a) was information provided by the applicant, being the delegate’s decision for the purpose of the application for review under s.424A(3)(b) of the Act. Accordingly, the information obtained by the Tribunal from the delegate’s decision does not give rise to any obligation under s.424A or s.424AA of the Act. The inconsistencies in the applicant’s evidence do not enliven any obligation under s.424A or s.424AA of the Act.
It is apparent from the delegate’s decision that the applicant’s credibility was a live issue before the Tribunal. It is apparent from the Tribunal’s reasons that the Tribunal raised with the applicant credibility issues in respect of the applicant’s claims. I do not accept that there was any information identified in Ground 3 paragraphs (a), (b) or (c), or from anything said by the applicant from the bar table that enlivened any obligation under s.424A of the Act. Ground 3 fails to make out any jurisdictional error.
The applicant’s written submissions refer in substance to the same grounds but also include a reference to the decision in BXB15 v Minister for Immigration & Anor [2017] FCCA 77. I accept the submissions of the first respondent that the decision in BXB15 v Minister for Immigration & Anor [2017] FCCA 77 is clearly distinguishable from the circumstance of the present case. It is apparent that the Tribunal expressly raised the Immigrants and Emigrants Act with the applicant in the course of the hearing and received submissions in relation to the issues that arose under that Act. There was no breach of s.425 of the Act in the present case. There is no jurisdictional error in the present case of the kind that arose in BXB15 v Minister for Immigration & Anor [2017] FCCA 77. Nothing in the applicant’s written submissions identified any jurisdictional error.
From the bar table, the applicant also raised the assertion that his scars had not been properly considered by the Tribunal. For the reasons already summarised, the Tribunal rejected the applicant’s claims that he was detained and mistreated by Sri Lankan authorities. There was no separate independent claim made by the applicant or that arose on the material before the Tribunal that the applicant feared harm because of his visible scar. There was no failure by the Tribunal to deal with each of the integers of the claims advanced by the applicant.
Conclusion
Nothing said by the applicant in the applicant’s written submissions or from the bar table or in the application makes out any jurisdictional error.
Accordingly, the application is dismissed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 10 February 2017