BYR15 v Minister for Immigration

[2019] FCCA 642

FEDERAL CIRCUIT COURT OF AUSTRALIA

BYR15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 642

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal breached s.425(1) of the Migration Act 1958 by failing to bring to the applicant’s attention a novel matter which was determinative of the review.

Legislation:

Migration Act 1958, ss.36, 425, 474

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Minister for Immigration & Border Protection v SZTQS (2015) 148 ALD 507

Applicant: BYR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2624 of 2015

Judgment of: Judge Cameron

Hearing date: 12 March 2019

Date of Last Submission: 12 March 2019

Delivered at: Sydney

Delivered on: 15 March 2019

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitors for the Respondents: Mr T. Hillyard of Sparke Helmore

ORDERS

1. A writ of certiorari issue bringing into this Court to be quashed the decision of the second respondent dated 31 August 2015.

2. A writ of mandamus issue directing the second respondent to determine according to law the applicant’s application made to it on 22 May 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2624 of 2015

BYR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 20 June 2012.  On 14 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his race, religion, imputed political opinion and membership of two particular social groups.  On 8 May 2014 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to be determined according to law.

BACKGROUND FACTS

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  As summarised by the Tribunal, the applicant relevantly made the following claims:

   a)he was born in Batticaloa in the Eastern Province of Sri Lanka and was a Hindu Tamil;

   b)he was a jeweller and goldsmith by trade, as were his siblings and their father.  Together, they ran a prominent family business in an area which was itself prominent for its goldsmiths;

   c)jewellers and goldsmiths in Batticaloa were known to be wealthy and in the period 1996 to 2008 they were regularly asked by the police to pay an informal tax.  The applicant always refused as the police were Sinhalese and had tortured and killed Tamils in his area; 

   d)in 1996 he was detained and beaten for three days for refusing to pay.  He was released when he agreed to pay 10,000 rupees;

   e)he moved to Colombo in 2007 because of the Criminal Investigation Department’s (“CID”) extortion demands.  Whilst there, he was detained and tortured by the authorities (for two months) because he had come from an area controlled by the Liberation Tigers of Tamil Eelam (“LTTE”).  He returned to Batticaloa in about late 2008;

   f)in 2011 a soldier demanded a ride with him and stole a jewellery order which he had been on his way to delivering;

   g)in 2012 military groups associated with the army called him twice, trying to extort money.  Later, they came to his home in a “white van” and told his wife, while he hid, that they would abduct or shoot him on sight if he did not pay.  He left Sri Lanka shortly afterwards;

   h)he had been told by his family in Sri Lanka that the CID had since come to the house to look for him; and

   i)he feared harm in Sri Lanka because of his Tamil race, Hindu religion and membership of the particular social groups comprised of successful and wealthy Tamils and returned failed asylum seekers.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. The Tribunal did not accept that the applicant was a credible, truthful or reliable witness because:

   a)the applicant was unable to explain how he managed to avoid paying bribes and extortion to the authorities for 11 years;      

   b)the Tribunal was sceptical and unconvinced by the applicant’s claimed reasons for moving to and from Colombo;  

   c)the applicant provided inconsistent evidence about the value of the gold and jewels which he said had been stolen from him by a soldier in 2011; and   

   d)the applicant provided inconsistent evidence on a number of other important issues.

3. On the basis of its adverse credibility finding, the Tribunal was not satisfied that the applicant had ever been harmed or been of adverse interest to the authorities in Sri Lanka.  The Tribunal did not accept that the applicant fled Sri Lanka for Australia because he feared for his life.

4. The Tribunal did not accept that the applicant and his family were prominent goldsmiths/jewellers in Batticaloa or that the applicant had the level of expertise and experience claimed because his knowledge of jewellery-making was general and basic and not commensurate with someone who claimed to have worked for a living as a jeweller/goldsmith for some 33 years.  The Tribunal’s concerns were heightened by the fact that the applicant had made no efforts to obtain work in the jewellery field in the three years he had been in Australia.  For these reasons, the Tribunal did not accept that the applicant and his family had been anything but low level, low profile jewellers/goldsmiths in a village and province full of jewellers/goldsmiths.  Further, given their low profile and the scale of the competition in the immediate area, the Tribunal considered it likely that the applicant and his family had engaged in other occupations to make money throughout the years while still calling themselves goldsmiths as a matter of tradition. 

5. Having regard to country information and the individual circumstances of the applicant, particularly his lack of any real profile, the Tribunal was not satisfied that the applicant faced a real chance of persecution in Sri Lanka because of his Tamil ethnicity, Hindu religion, place of origin or occupations, or because he would be suspected of having links to the LTTE, or because he had travelled to Australia illegally by boat and would be presumed to be a failed asylum-seeker.    

6. The Tribunal accepted that there was a real chance that the applicant would be charged for illegally departing Sri Lanka, that he would be held in custody for up to a few days, released on bail with a family member acting as a guarantor, and then later fined.  However, the Tribunal was satisfied that these processes were applied on a non-discriminatory basis under a law of general application and that the applicant would not be mistreated during these processes, singled out or treated differently for any Convention reason or face a risk of significant harm and thereby engage Australia’s complementary protection obligations.

THE PROCEEDING IN THIS COURT

1. The applicant relied on the following grounds in his further amended application:

   1. The Tribunal denied the Applicant procedural fairness and/or failed to comply with s.425 of the Act.

   Particulars

   (a)     The Tribunal found that the applicant “would be detained for questioning, security and character checks” and would be remanded and charged: (CB285 at [151]).

   (b)     The Tribunal stated that bail would be given qualified that statement by finding that “a family person acting as guarantor”: (CB282 at [131]) and presume that the Applicant would be able to pay the fine.

   (c) The Tribunal concluded that between 24 hours and a and “a few days”: (CB282 at [133]) and thereby implicitly concluding or assuming that someone would be able and willing to provide the surety required for the applicant’s bail.  On that basis that the Tribunal concluded that the applicant would be released within very short time.

   (d)     The “issues arising in relation to the decision under review” therefore included whether the applicant or his family or someone else would be able and willing to provide the “guarantee” required for the applicant’s bail so as to cause him to be released from the prison.

   (e) The Tribunal’s conclusion or assumption that the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail was “adverse” to the applicant was not “not obviously … open on the known material.”

   (f)     The Tribunal committed jurisdictional error by not giving the applicant “the opportunity of ascertaining” that issue or the opportunity “to be informed of the nature and content of adverse material” in relation to that issue.

   2.     The Tribunal fell into jurisdictional error when it asked the incorrect questions or failed to ask the correct questions regarding the Applicant’s jewellery business.

   Particulars

   a.  The Tribunal failed ask the correct question whether the Applicant being a person who supplied jewellery to shop owners had the same type of exposure to other jewellers.

   b.  The Tribunal erred in that it found other jewellers were paying bribes and the Applicant who made the jewelleries and supplied the finished product had a different business model:

   i.       failed to ask correct questions regarding the Applicant’s business of supplying finished products;

   ii.       failed to address business model of other business operators family members;

   iii.         assumed that all the goldsmiths and jewellers were at the same risk;

   c.      The Tribunal erred in asking itself the correct question and failed to address the correct question.

   3.     The Tribunal stated that “… if the applicant was prominent jeweller from a prominent family, he would have at least enquired about using this to support himself in Australia …” (CB270 at [81]) and the conclusions reached is by process of irrationality/illogicality and/or the conclusions reached is unreasonable.  The Tribunal failed to ask correct question or asked incorrect question.

   Particulars

   a.  The Applicant repeats particulars contained in Ground 2. 

   b.  The Tribunal did not ask whether the type of jewellery that the Applicant prepared or sold in Sri Lanka was being sold in Australia and whether there was ready market.

   c.  The Tribunal failed to address whether the Applicant who does not hold any type of permanent visa would engage in such profession claimed by the Applicant (as opposed to working in a position he has whilst his visa application is pending). 

   d.  The Tribunal presumed that the Applicant would be operate in similar fashion to his operation in Sri Lanka and has made findings without supporting evidence and on the basis of presumptions.

   e.      Did not otherwise correct questions. 

   (Without alteration)

Ground 1

1. The substance of the first ground of the further amended application was that the Tribunal had based its conclusion that the applicant would not face a real risk of significant harm if held on remand following a return to Sri Lanka, in part because he would be released if a family member acted as guarantor. The applicant contended that an issue integral to that finding was the presumption that he would be able to find a family member willing to provide the necessary guarantee. He submitted that the Tribunal had never raised this issue with him and, as it was determinative of his review given its significance to the Tribunal’s finding that Australia did not have complementary protection obligations to him under s.36(2)(aa) of the Act, that failure amounted to a breach of s.425(1) of the Act. The Minister did not contend that the Tribunal had raised this matter with the applicant. In very broad terms, that subsection requires the Tribunal to bring to an applicant’s attention issues dispositive of the review which had not been in issue before the delegate but are nevertheless in issue before the Tribunal.

2. The Tribunal relevantly said:

   As noted above, it is an offence to depart Sri Lanka illegally, and this usually includes boat departures. DFAT provided this information in its February 2015 Report:

   …

   5.28 DFAT was informed in March 2014 by Sri Lanka's Attorney-General's Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future.  The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats.  However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.  In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor.  Sometimes returnees then need to wait until a family member comes to court to collect them.

   …

   The Tribunal accepts the DFAT report concerning what it considers is likely to occur on return.  The Tribunal accepts that there is a real chance (and real risk) that on return, the applicant will be questioned and investigated … , there will be no reason for him to be considered of adverse interest to the authorities, he will be charged with an offence for illegally departing Sri Lanka, he will be held in custody, for a period of between 24 hours and a few days (either at the airport or transferred on remand to the prison, depending on whether it is a weekend, pending his transfer to the court), and once at court he will be released on bail with a family person acting as guarantor, and later he will be fined between $400 and $1600.  The applicant did not suggest that he could not pay the fine, and the Tribunal is not satisfied that the applicant will not be able to pay the fine.

3. It was implicit in the applicant’s submissions that the length of time in detention was a factor material to deciding whether the conditions which he would have to confront while on remand would amount to significant harm.  In this regard, it should be noted that when specifically considering questions of complementary protection the Tribunal had said:

   ·    The Tribunal considers the conditions in which the applicant might be remanded could be very basic, uncomfortable, unsanitary, and crowded, but having regard to the evidence overall including the shortness of any detention, the Tribunal is not satisfied that these conditions would constitute significant harm.  The Tribunal has taken account of PAM3 Refugee and humanitarian – Complementary Protection Guidelines. …

   ·    The Tribunal accepts that conditions in prison or detention may be poor, but the evidence does not suggest that they would pose a real risk to the applicant’s life for the short period he would be detained.  

4. The materiality of the length of the applicant’s potential detention cannot therefore be doubted and so the availability of a family member to stand guarantor for the applicant’s release on his own recognisance, and apparently be a pre-condition for it, must be understood to have been similarly material. That is to say, the length of the applicant’s postulated detention, and thus the risk that he would suffer significant harm, was dependent on the availability of a guarantor. As the presumed availability of a guarantor was central to this issue it must be viewed as having been determinative of the issue concerning whether the applicant faced a real risk of significant harm in a Sri Lankan prison. As such, it was an issue which engaged the operation of s.425(1) of the Act and was one which the Tribunal should have brought to the applicant’s attention so he could address the Tribunal’s presumption on this topic and possibly disabuse the Tribunal of it.

5. Because the Tribunal did not do that, its decision was made in excess of jurisdiction and is therefore affected by jurisdictional error.  A similar fact situation and outcome are to be found in Minister for Immigration & Border Protection v SZTQS (2015) 148 ALD 507.

Ground 2

1. Despite the second ground of the further amended application appearing to raise issues of legal error, in reality it was an invitation to review the Tribunal’s fact finding concerning the risk of harm faced by the applicant in his home village.  The fact that this complaint was framed by reference to the harm likely to be faced by other jewellers in the applicant’s home village only served to underscore the merit-based nature of this allegation.  It discloses no jurisdictional error on the Tribunal’s part.

Ground 3

1. The third ground of the further amended application also invited merits review.  The Tribunal’s assessment of the applicant’s account and of his behaviour concerns matters of fact within the Tribunal’s exclusive jurisdiction.  Although pleaded as an allegation of unreasonableness, the applicant’s complaint is really that the Tribunal made a finding of fact with which he disagrees.  This can be seen from the particulars of the allegation which distract from and do not engage with the finding in issue, which was that the applicant did not make any attempt to gain employment for which he might possibly have been suited by reason of his years of work as a jeweller.  The matters raised in the particulars are irrelevant to the matter which concerned the Tribunal.

2. The finding in question was open on the evidence and it has not been shown to be affected by jurisdictional error.

CONCLUSION

1. The Tribunal’s decision is affected by jurisdictional error.

2. Consequently, it will be set aside and the matter remitted to be determined according to law.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 15 March 2019