BYR16 v Minister for Immigration
[2017] FCCA 611
•29 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYR16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 611 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka on various bases – applicant not believed – whether the Tribunal applied the wrong text or failed to engage with relevant material or made findings of fact unreasonably considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth) ss.5, 36, 46A, 91R |
| Abebe v Commonwealth (1999) 197 CLR 510 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZMDS v Minister for Immigration (2010) 240 CLR 611 |
| Applicant: | BYR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1963 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms C Alexander of Sparke Helmore |
ORDERS
The application filed on 25 July 2016 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1963 of 2016
| BYR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 28 June 2016. The Tribunal affirmed a decision of the delegate of the Minister (Delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s written submissions filed on 22 March 2017.
The applicant, a citizen of Sri Lanka, entered Australia as an irregular maritime arrival on 20 June 2012.[1] On 22 November 2012, the Minister lifted the bar under s.46A of the Migration Act 1958 (Cth) (Migration Act) and the applicant lodged an application for a protection visa on 28 December 2012.[2] On 9 October 2013, the Delegate refused to grant the visa.[3] On 17 October 2013, the applicant applied to the Tribunal for review of the Delegate’s decision.[4] On 28 June 2016, the Tribunal affirmed the Delegate’s decision.[5]
[1] Court Book “CB” 115
[2] CB 23 – 100
[3] CB 109 – 140
[4] CB 141 – 147
[5] CB 268 – 285
Applicant’s claims
The applicant’s claims to fear harm in Sri Lanka were advanced at an entry interview on 13 August 2012; in his visa application and accompanying Statement of Claims dated 30 November 2012;[6] at an interview with the Delegate on 26 June 2013;[7] in written submissions to the Tribunal dated 13 November 2013;[8] at a hearing before the Tribunal on 20 March 2015[9] and in undated submissions provided to the Tribunal on 24 March 2015.[10] The applicant claimed to fear harm on the basis of his Tamil ethnicity (being a young male Tamil from the Northern province of Sri Lanka), an imputed political opinion or connection to the Liberation Tigers of Tamil Eelam (LTTE), as a failed asylum seeker and as a result of having left Sri Lanka illegally.
[6] CB 17
[7] CB 117 – 118
[8] CB 151 – 218
[9] CB 274 – 284
[10] CB 252 – 267
In support of his claims to fear harm, the applicant made a number of factual claims, which may be summarised as follows:
a)The applicant was of Tamil ethnicity and Hindu faith. He lived in Uddappu but worked as a fisherman in Mullaitivu.[11]
b)In May 2012, when he was fishing in Mullaitivu, he was investigated by Navy officers. The Navy officers asked him whether he supported the LTTE and took his ID card.[12]
c)Two days later, the Navy officers came to his house and questioned his aunt and uncle. They demanded that the applicant report to the head officer at the Navy camp the following day, or they would come and arrest him. He complied, but the head officer was not there.[13]
d)The Navy officers returned to his home, accused him of not complying with their orders and demanded that he report to the Navy camp the next day.[14] The Navy officers returned his ID card to him on this occasion.[15]
e)His uncle told him that remaining in Mullaitivu was dangerous, so he arranged to depart Sri Lanka.[16]
f)Members of the applicant’s family were members of the LTTE, including his sister-in-law who had been released from jail.[17]
g)He had been asked by the LTTE to unload foodstuffs from their boats.[18]
h)He feared he would be detained and severely beaten by the Sri Lankan Army, the Navy and associated paramilitary groups, such as the Karuna Group and the Elam People’s Democratic Party (EPDP).[19]
[11] CB 12
[12] CB 87
[13] CB 87
[14] CB 87
[15] CB 276
[16] CB 87
[17] CB 275
[18] CB 275
[19] CB 156
Tribunal proceedings
On 20 March 2015, the applicant appeared before the Tribunal with the assistance of a Tamil interpreter to give evidence and present arguments.[20] On 28 June 2016, the Tribunal affirmed the Delegate’s decision not to grant the applicant a protection visa.[21] The Tribunal acknowledged the passage of time between the hearing and the decision and noted that it had listened to an electronic recording of the hearing prior to finalising the decision.[22]
[20] CB 272 at [6]
[21] CB 285 at [64]
[22] CB 272 at [6]
On the basis of the basis of the Tribunal’s finding that the evidence revealed inconsistencies, implausible claims and non-persuasive explanations, the Tribunal found that the applicant was not a credible witness.[23]
[23] CB 277 at [28]
The Tribunal considered the applicant’s claims with respect to his investigation by Navy officers, the confiscation of his ID card and his visits to the Navy camp. The Tribunal identified a number of inconsistencies between the applicant’s written statements and his oral evidence before the Tribunal.[24] The Tribunal found it implausible that, as someone suspected of being connected to the LTTE, the applicant had his ID card returned to him and was able to leave the Navy camp because the head officer was absent.[25] In rejecting the applicant’s claims, the Tribunal considered that the applicant had fabricated them to create a profile upon which to apply for protection.[26]
[24] CB 275 – 277 at [22], [24] – [28]
[25] CB 277 at [28]
[26] CB 277 at [29]
The Tribunal accepted that the applicant’s sister-in-law was a member of the LTTE and that she had been released from detention a few months prior to his interview with the Delegate.[27] However, noting inconsistencies between the applicant’s evidence to the Delegate and the Tribunal, the Tribunal expressed doubts that the applicant was genuinely recalling events from his memory.[28] In any event, the Tribunal was not satisfied that the applicant had a sufficient profile so as to bring him to the adverse attention of Sri Lankan authorities.[29] The Tribunal accepted that most Tamils experienced a degree of harassment and discrimination, but, having regard to the applicant’s individual circumstances, found that he would not face serious harm as defined in s.91R of the Migration Act.[30]
[27] CB 275 at [23]
[28] CB 275 at [23]
[29] CB 278 at [34]
[30] CB 278 at [36]
In considering the applicant’s claims with respect to his illegal departure and status as a failed asylum seeker, the Tribunal found that the applicant would not be imputed with an anti-government or pro-LTTE opinion because he had applied for asylum overseas.[31] The Tribunal considered the processes that the applicant would be required to go through upon return to Sri Lanka under the Immigrants and Emigrants Act (IEA), finding that the IEA was a law of general application which did not contain any element of persecution for the purpose of s.91R(1)(c) of the Migration Act.[32]
[31] CB 279 – 280 at [40] – [43]
[32] CB 281 at [45]
Further, the Tribunal did not consider that the short-term nature of the imprisonment that the applicant would likely face as part of the return process amounted to serious harm, or that any difficulties faced by the applicant due to poor conditions in remand were aimed at the applicant for a Convention reason.[33] In relation to the likelihood that the applicant would have to pay a fine under the IEA, the Tribunal noted that there was no evidence before it to suggest that the applicant would be unable to pay it, or that he was without any relative able to provide surety.[34] On this basis, the Tribunal considered it likely that the applicant would receive a suspended sentence and that there was no real chance the applicant would face an extended period of imprisonment arising from his illegal departure.[35]
[33] CB 281 – 282 at [47] – [48]
[34] CB 282 at [49]
[35] CB 282 at [49]
The Tribunal acknowledged a claim raised in written submissions filed before the hearing regarding a threat of harm from the Karuna group and the EPDP.[36] The Tribunal found the applicant’s claims in this regard to be vague and lacking in detail and was not satisfied that the applicant faced serious harm on this basis if he were to return to Sri Lanka.[37]
[36] CB 283 at [52]
[37] CB 282 at [53]
In respect of the complementary protection criterion, the Tribunal referred to its anterior findings in concluding that there was no real risk that the applicant would face significant harm in relation to any of his claims.[38] In considering the treatment that the applicant might receive as a result of his illegal departure, the Tribunal did not accept that the applicant’s questioning, bail conditions, detention on remand or fine would involve significant harm as defined in s.5(1) of the Migration Act. Further, the Tribunal was not satisfied on the evidence before it that the pain or suffering caused by overcrowding and other prison conditions in Sri Lanka is “intentionally inflicted” on prisoners as required by the relevant definitions in the Migration Act.[39]
[38] CB 284 at [59] – [60]
[39]CB 284 at [58]
Considering the applicant’s claims individually and cumulatively, the Tribunal found that he did not satisfy the criteria in ss.36(2)(a) or 36(2)(aa) of the Migration Act.[40]
[40]CB 285 at [61] – [63]
Present proceedings
These proceedings began with a show cause application filed on 25 July 2016. The applicant continues to rely upon that application. There are three grounds in the application:
1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2)(a) of the Migration Act( which is a mandatory jurisdictional requirement for the Tribunal to do), as a failed asylum seeker and as a person illegally departed Sri Lanka. The Tribunal’s failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal
2. The Tribunal constructively failed to exercise its jurisdiction:
Particulars
a. The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents.
3. The Tribunal erred in making unreasonable findings that the applicant did not have a material profile
Particulars
b. Unreasonable finding that neither the applicant nor any family members were suspected of being a member of, associated with, or supportive of the LTTE (except for the fact of their Tamil ethnicity)
I have before me as evidence the applicant’s affidavit filed with his application which I received subject to relevance. I also received the court book tendered by the Minister which had been filed on 3 November 2016.
Only the Minister filed written submissions in accordance with procedural orders made by a registrar. I invited oral submissions this morning from the applicant after explaining to him the purpose of today’s hearing. He referred briefly and simply to his claims for protection. He was unable to say anything in support of the grounds in his judicial review application. The Minister’s submissions deal appropriately with those grounds. I agree with those submissions.
Ground One
Ground One contends that the Tribunal failed to properly consider whether the applicant would suffer serious harm (with reference to s.91R(2)(a) of the Migration Act) as a failed asylum seeker and a person who departed Sri Lanka illegally. The applicant has not particularised this ground, nor is the asserted error apparent on a fair reading of the decision record. To the extent that the applicant seeks to assert the error identified by North J of the Federal Court in WZAPN v Minister for Immigration,[41] the reasoning in that decision has since been overturned. As the High Court has made clear in Minister for Immigration v WZAPN,[42] the Tribunal does not fall into error in treating a period of imprisonment in a qualitative way; such imprisonment does not, of itself, necessarily constitute serious or significant harm and it is open to the Tribunal to evaluate the circumstances of such imprisonment. Ground One fails to reveal an error in the Tribunal’s decision.
[41] [2014] FCA 947
[42] (2015) 254 CLR 610
Ground Two
By Ground Two, the applicant contends that the Tribunal failed to engage in an active intellectual process with respect to corroborative documents provided by the applicant, and erred in giving the documents no weight on the basis of its credit findings. The applicant has not particularised which documents he asserts the Tribunal did not engage with. Further, there is no evidence that the applicant provided corroborative material to either the delegate or the Tribunal. As such, this ground has little practical relevance to the present case and cannot succeed.
Insofar as the applicant intends to assert that the Tribunal did not have regard, or adequate regard, to the applicant’s written submissions, such a complaint cannot succeed. The Tribunal evidently engaged with the material before it, including the applicant’s written submissions and made findings that were open to it on the evidence. It is well-established that matters of weight to be given to evidence are generally for the Tribunal alone.[43] Further, credibility findings while not immune from judicial review, are generally matters for the Tribunal also.[44]
[43] Abebe v Commonwealth (1999) 197 CLR 510 at [197] (Gummow and Hayne JJ); Minister for Immigration v SZJSS (2010) 243 CLR 164 at [33]) (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).0
[44] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J.
Ground Three
Ground Three contends that the Tribunal’s findings in respect of the applicant’s real or imputed LTTE profile, in particular the finding that neither the applicant nor any family members were suspected of being associated with the LTTE, were unreasonable. On a fair reading of the decision record, the Tribunal accepted that the applicant’s sister-in-law was involved with the LTTE and did not reject the claim that the applicant assisted with unloading boats for the LTTE when questioned.[45] However, in light of relevant country information, the Tribunal found that the applicant’s involvement in LTTE activities did not rise to such a level so as to attract the adverse attention of the authorities.[46] The Tribunal also put to the applicant that it was “unsure he had sufficient profile” to be targeted by Sri Lankan authorities, to which he had no comment.[47] The Tribunal’s finding was clearly open to it on consideration of the claims and evidence before it.
[45] CB 275 at [23]
[46] CB 278 at [34]
[47] CB 278 at [34]
Further, the Tribunal was entitled to rely on country information to support its finding in respect of the applicant’s profile.[48] Nor can the Tribunal’s reasons be said to lack a logical connection with the evidence.[49]
[48] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13].
[49] SZMDS v Minister for Immigration (2010) 240 CLR 611 at [133].
The Minister’s submissions also deal with the issue arising from the decision of the Full Federal Court in SZTAL v Minister for Immigration (SZTAL).[50] The issue is whether a positive intention to cause harm is required in order to establish the criterion for complementary protection. I agree with the Minister’s submissions on that issue and accept that I am bound by the decision of the Full Federal Court on the issue.
[50] [2016] FCAFC 69
In the present matter, the Tribunal did not accept that the applicant would be singled out or intentionally harmed by the authorities while waiting for his bail, or that there was any intention on the part of the authorities to significantly harm the applicant while he was detained. In particular, the Tribunal found that there was no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant. The Tribunal’s findings accord with the Full Court of the Federal Court’s decision in SZTAL in which Kenny and Nicholas JJ held that the expressions “intentionally inflicted” or “intended to cause” require actual subjective intention.
I note that SZTAL is the subject of a pending appeal to the High Court.[51] However, I consider that I should determine this matter on the basis of the Full Court’s decision in SZTAL.
[51] S272/2016; S273/2016
In addition, on a fair reading of [58] of the Tribunal’s decision record, it is clear that in addition to a finding that any pain or suffering caused by poor prison conditions is not “intentionally inflicted” as required by the definition of “cruel or inhuman treatment or punishment”, the Tribunal was also not satisfied that any aspect of the applicant’s treatment as a result of his illegal departure, including his experience in detention, would reach the level of severity required to amount to significant harm as defined in the Migration Act. As such, the Tribunal provided an alternative, independent basis for rejecting the applicant’s claim of harm based on his illegal departure. That being so, the outcome of the pending appeal in SZTAL will not affect that in the present case.
Conclusion
I conclude that the applicant is unable to establish that the decision of the Tribunal is affected by any jurisdictional error. Given that the applicant is self-represented and plainly is unable to engage with the legal issues, I have considered for myself whether any jurisdictional error is apparent on the face of the available material. I can see none. I will, accordingly, order that the application, filed on 25 July 2016, be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5800. That amount is significantly below the prescribed amount in the Court rules. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5800.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 6 April 2017
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