BZA16 v Minister for Immigration

[2018] FCCA 1460

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZA16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1460

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – whether Tribunal failed to comply with s.425 of the Migration Act 1975 (Cth) by failing to give the Applicant an opportunity to give evidence and present arguments in relation to relevant issues – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1975 (Cth), ss.36, 91R, 425.

Cases cited:

ABA15 v Minister for Immigration and Border Protection (2016) FCCA 60.

Minister for Immigration and Border Protection v SZTQS (2015) FCA 1069.

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241.
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.

Applicant: BZA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1586 of 2016

Judgment of: Judge Hartnett

Hearing date: 26 February 2018

Delivered at: Melbourne

Delivered on: 6 June 2018

REPRESENTATION

Counsel for the Applicant: Ms Campbell

Solicitors for the Applicant: Asylum Seeker Resource Centre

Solicitor acting as Counsel for the First Respondent: Ms Stone

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The Application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1586 of 2016

BZA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application under the Migration Act 1958 (Cth) (‘the Act’) seeking relief in the form of constitutional writs against a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 27 June 2006 wherein the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection (Class XA) visa (‘the visa’).

2. Whilst the Applicant filed his application on 25 July 2016, the Applicant proceeds upon an amended application filed the 15^th day of December 2017. The grounds of application relied upon by the Applicant are:

   “1. The Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by failing to give the applicant the opportunity to give evidence and present arguments in relation to:

   (a) the applicant’s capacity to pay any fine imposed under the Sri Lankan Immigrants and Emigrants Act of 1948 by reason of the applicant’s illegal departure from Sri Lanka;  or

   (b) consequences for the applicant of any failure to pay such a fine, including the extent to which default in payment would result in imprisonment and subject the applicant to “significant harm” as those terms are defined in s 36(2)(aa) of the Act.

   2. The Tribunal failed to comply with s 425 of the Migration Act 1958 (Cth) by failing to give the applicant the opportunity to give evidence and present arguments in relation to:

   (a) whether the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail to secure his release from prison arising out of charges likely to be laid under the Sri Lankan Immigrants and Emigrants Act of 1948 by reason of the applicant’s illegal departure from Sri Lanka.”

3. Each of the Applicant and the First Respondent relied upon written submissions filed by them. There was also before the Court the evidence as contained in the Court Book. The First Respondent sought dismissal of the application.

4. In the First Respondent's submissions, filed 19 February 2018, the First Respondent referred to the Applicant bearing the onus of proof as to whether or not the issues on review were discussed at the hearing of the Tribunal, and that the Applicant had failed to file any evidence, such as a transcript of the AAT hearing.[1] The Applicant rectified that deficiency (given the grounds of the application) in the Applicant's subsequent filing of an affidavit affirmed by Ms Stephanie Paraskevi Pashias on 22 February 2018, where in Ms Pashias annexed a transcript of the recording of the Applicant's Tribunal hearing on 27 May 2016 to her affidavit, with such transcript being marked “exhibit SP-1”. 

   [1] NAOA v Minister for Immigration & Multicultural &Indigenous Affairs [2004] FCAFC 241, 21.

Background

1. Before the Tribunal, the Applicant claimed to be a citizen of Sri Lanka who was born in Mampuriya, Puttalam District in the North West Province of Sri Lanka on 31 January 1981.  As set out in his protection visa application, he claimed to live in various houses in Kandakuliya, Kalpitiya and Kudawa in Puttalam District between January 1981 and mid-2012.  He completed his O-levels and is fluent in Sinhalese and Tamil.  He described his occupation before coming to Australia as diving and fishing.  He worked as a fisherman for a person named X from 1989 to 2011 and as a diver for SF from 2002 to 2012.  The Applicant departed Sri Lanka illegally on 25 May 2012.  The Applicant’s wife, three daughters, father, mother, two sisters, two brothers and mother-in-law are residing in Sri Lanka. His elder brother travelled with him to Australia.

2. The Tribunal accepted that the Applicant was a citizen of Sri Lanka and assessed his claims against Sri Lanka as his country of nationality.

3. The Applicant arrived in Australia on 13 June 2012 as an unauthorised maritime arrival and applied for the visa on 19 November 2012.  The Applicant presented his claims in his protection visa application of 19 November 2012; in a departmental interview he attended on 24 June 2013; in submissions from the Applicant’s adviser to both the Department of Immigration and Border Protection (‘the Department’) and the Tribunal, including a post-hearing submission received by the Tribunal on 22 June 2016; and at his Tribunal hearing on 27 May 2016.  Additionally, the Applicant set out his claims in a statutory declaration which was attached to his protection visa application of November 2012.

Applicant’s claims

1. The Applicant claimed to fear harm in Sri Lanka due to the following:-

   a)his involvement with the United National Party (UNP);

   b)because he had been detained before leaving Sri Lanka and was on bail and under reporting requirements;  and

   c)because he would return to Sri Lanka as a failed asylum seeker from Australia who left illegally.  

   Further, the Applicant’s claims included that he was involved in a brawl with members of the ruling party, the People’s Alliance, and was subsequently arrested and detained for 14 days.  He claimed subsequently, he was arrested again, taken to a police station, his clothes were removed, and he was beaten and thrown into the cells.  He was detained for approximately two days before being sent to Negombo Prison and then Mahara Prison for about one and a half years, a time “split between the two prisons”.  He claimed that after about one year in prison, he began to be taken to court, and some eight months later was released on bail.  Additionally, the Applicant claimed that he worked as a scuba diver for a man with links to the Liberation Tigers of Tamil Eelam (‘LTTE’) and would be imputed with a pro-LTTE opinion because of his status as a failed asylum seeker and because he departed Sri Lanka illegally.  Further, the Applicant claimed that he was kidnapped in January 2012 by the Navy, was tortured, and after two days, released.  He claimed he was rendered unconscious and, as a result of the beating which he had sustained, was in hospital for some three weeks.  He did not file a complaint against the Navy members who he claimed had beaten and tortured him.

The Tribunal

1. The Applicant’s application was refused by a delegate of the Minister on 24 July 2014.  The Applicant applied to the Tribunal for a review of the delegate’s decision on 21 August 2014 and appeared at the Tribunal hearing on 27 May 2016.  The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.  The Applicant was represented in relation to the review by his registered migration agent.  The representative attended the Tribunal hearing.

2. On 27 June 2016, the Tribunal affirmed the decision under review.

3. As set out in paragraph 22 of the Statement of Decision and Reasons (‘the Decision Record’), the Tribunal correctly stated the primary issue in the review before it was whether there was a real chance that if the Applicant returned to Sri Lanka, he would be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Act and, if not, whether there were substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm for the purpose of s.36(2)(aa) of the Act.

4. The Tribunal set out early in its reasons, namely, in paragraph 27, that it had:-

   “…serious concerns about the credibility of the applicant’s claims regarding his fear of returning to Sri Lanka, namely because of his association with a former employer who was allegedly accused of supporting the LTTE and because of his support of the UNP.”

5. The Tribunal noted, in respect of the claim made by the Applicant that he had a bad memory due to head injuries he allegedly sustained, that it did not accept on the evidence before it that the Applicant had memory problems as a result of an alleged serious head injury sustained when he was beaten in the head with guns by the military/police as claimed in his statutory declaration.  The Tribunal said in paragraph 28 of the Decision Record, relevantly:-

   “... The Tribunal has taken into consideration the medical evidence that was submitted by the applicant’s previous adviser to the Department, as evidence of the significant head injuries he allegedly received during his abduction and the resulting difficulties he claims to have with his memory.  As the Tribunal put to the applicant in the hearing, the records do not indicate that he suffered any such head injuries or any difficulty with his memory, either because of the injury to his head or for any other reason. What the records do refer to are issues with the applicant’s knee which was exacerbated by his engagement in volleyball and other sports and activities, including the gym while in detention.  X-rays of the applicant’s knee reportedly shows a moderate degree of osteoarthritis.  While the applicant’s adviser submitted in the post‑hearing submission that one of the medical reports indicated the likely cause of this knee injury was due to a previous beating that the applicant had reported, the Tribunal places little weight on this in light of the fact this was self‑reported and its concerns with the applicant’s credibility...”

6. The Tribunal also did not accept on the evidence before it that the Applicant had never been to school as claimed, or that he was illiterate.  The Tribunal expressed serious doubts about the Applicant’s claims that he was abandoned by his family when he was five years old and as such was unable to go to school. The Tribunal said further in paragraph 29 of the Decision Record, relevantly:-

   “… The Tribunal notes in the hearing the applicant claimed that he did not have a proper place to live after he was five years old and lived with many.  When asked if his parents left him with anyone in particular, he stated no-one really looked after him after he was five years old.  However, as the Tribunal put to the applicant in the hearing, this was not what he claimed in his statutory declaration attached to his protection visa application where he stated that his aunt living close by looked after him when his parents decided to move back to his father’s village of Venapur.  He claimed that he grew up with his aunt and her husband and their children. Yet the applicant insisted in the hearing that there was no one place he lived and that there were many who looked after him, including an elderly person who he used to call aunt. The Tribunal has also taken into consideration the independent information which provides a school education is compulsory in Sri Lanka from the age of five to 13/14 years old and also free.  When the Tribunal put this to the applicant and questioned how it was possible, in light of this information, that he never went to school, the applicant stated that his first priority was to survive and feed himself. In contrast, in his statutory declaration he claimed he was not able to go to school because he did not have a birth certificate. Based on the above, the Tribunal does not accept that the applicant is illiterate or that he never went to school in Sri Lanka.”

7. The Tribunal otherwise, and as set out in various parts of the Decision Record, found the Applicant’s evidence to be vague and confusing, to be internally inconsistent, to be contradictory, to have contained within it a number of discrepancies, to be not credible and to be unreliable.

8. The Tribunal did not accept that the Applicant was a supporter of the UNP or that he experienced any problems in the past in Sri Lanka because of his political opinion,  rejecting his claims of being detained following an altercation with opposition party members and being imprisoned. As a consequence, the Tribunal did not accept that the Applicant had been released on bail with reporting conditions or that there were warrants against him.

9. The Tribunal did not accept that the Applicant had ever been of any interest to the authorities in Sri Lanka in the past and did not accept that he faced a real chance of persecution or a real risk of significant harm as a failed asylum seeker. In particular, in respect of the application under consideration, being one of judicial review on the grounds stated, paragraph 61 of the Decision Record is relevant.  That is as follows:

   “61. The Tribunal accepts that there is a real chance that the Applicant will be questioned at the airport on his arrival in Sri Lanka in relation to his illegal departure from the country. The Tribunal notes the information it put to the applicant in the hearing from the DFAT report on Sri Lanka, dated 18 December 2015, which provides that people who departed Sri Lanka irregularly are questioned by police at the airport and are photographed. They are transported by police to the closest Magistrates court at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. The Court then makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time – for example, because of a weekend or public holiday – those charged may be held at a nearby prison. DFAT was informed in July 2015 by Sri Lanka’s Attorney General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts can vary on a case-by-case basis and can be paid by instalments. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of people smuggling ventures. Looking at the applicant’s particular circumstances, if there was any such requirement, he has his mother, father and siblings in Sri Lanka who he claims to have had contact with, who can stand as guarantor for him and there is nothing to suggest that they would not do so. The Tribunal also finds that there is nothing to suggest that the Applicant would be unable to pay any fine which may be imposed on him as [a] penalty for departing Sri Lanka illegally.”

Other findings of the Tribunal are, relevantly, as accurately summarised in the First Respondent's outline of submissions, which I adopt below:-

“ (5) The AAT did not accept the applicant's account of having worked for a man with LTTE links, and of being kidnapped as a result of this. 

…

(10) The AAT found … that the process of questioning on the applicant's arrival in Sri Lanka did not amount to serious harm.  The AAT did not accept that the applicant would be mistreated during the airport checks or if he was held in remand, or that any period held in remand would result in serious harm to the applicant.

(11) Moreover, the AAT found that what the applicant would face on return to Sri Lanka, being questioning, charge, remand, conviction and punishment through the imposition of a fine, did not amount to persecution pursuant to section 91R(1)(c) of the Act, as it was the result of a law of general application.

(12) With respect to complementary protection, the AAT did not accept that the applicant faced a real risk of being significantly harmed during the process of questioning, brief detention, being bailed and facing a penalty. Moreover, the AAT found that any treatment that the applicant may face, including a fine and detention and poor prison conditions, was a risk faced by the population generally and not the applicant personally. There was therefore taken not to be a real risk of significant harm, pursuant to section 36(2B)(c) of the Act.”

Consideration

1. Neither of the grounds of the Applicant's application can succeed for the following reasons. 

Ground One

1. The Applicant argued that the Tribunal did not have any evidence before it capable of supporting the factual findings expressed by the Tribunal as to the Applicant’s ability to pay a fine as set out in paragraph 61 of the Decision Record (which is referred to in paragraph 17 above). The Applicant claimed the finding was an unsupported assumption of the Tribunal and not logically supported by the material before the Tribunal. As a consequence, the Tribunal committed jurisdictional error as this “misplaced factual assumption” led the Tribunal to not consider the harm that may have arisen by the Applicant’s failure to pay the fine.

2. The Applicant also argued that the ability to pay the fine was not an issue raised in the delegate’s decision such that the Applicant would otherwise have been on notice of the assumption “forming a critical plank” in the Tribunal’s decision.

3. The First Respondent argued that the Tribunal decision did not rest upon its finding that the Applicant would be able to pay a fine or that he would receive a fine, rather than a custodial sentence. The First Respondent argued the Tribunal disposed of the Applicant's claim on the basis that any treatment the Applicant faced due to his illegal departure from Sri Lanka, including a fine, detention and poor prison conditions, was the result of a generally applicable law, which would apply to all Sri Lankans. Therefore regardless of whether the Applicant received a fine or a sentence of imprisonment, and regardless of whether the Applicant could pay any fine imposed, the ultimate view of the Tribunal was that this would not amount to persecution or significant harm by virtue of ss.91R(1)(c) and 36(2B)(c) respectively. The Court accepts this argument and its correct interpretation of the Tribunal Decision Record.

4. The First Respondent argued further that even if the Tribunal had relied on a finding that the Applicant could pay a fine, he was not denied the opportunity to present arguments on this point. He was invited to and attended a hearing before the Tribunal.  The Tribunal was only obliged to raise with the Applicant at the hearing any issues which the Applicant was not already on notice.  The Applicant was taken to be on notice of any dispositive issues from the delegate's decision.[2]

   [2] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.

1. In the present case, as submitted by the First Respondent, the delegate relied on country information to find that the Applicant would not be imprisoned as a result of his illegal departure, that he could receive a fine of between 50,000 and 200,000 rupees, and that any such fine would be able to be paid, given his and his family's work history.  The Applicant was therefore plainly on notice that the Tribunal may find that he would be able to pay any fine imposed as a result of his illegal departure. The transcript of the Tribunal hearing also reveals that the contents of paragraphs 61 and 62 of the Decision Record were put to the Applicant for comment. He responded “I have nothing to say.”

2. The Applicant clearly could have addressed the delegate's findings as to his ability to pay a fine, had he wished to do so. He did not. Instead his post-hearing submissions addressed the illegal departure claim arguing that the Applicant would be imprisoned, rather than fined, as his brother was the skipper of the boat on which he departed (a claim which was rejected by the Tribunal in paragraph 60 of the Decision Record).

3. The Applicant’s argument that the Tribunal's findings that the Applicant could pay the fine were not open to it on the evidence before it cannot succeed.  It is clear, from a reading of the delegate’s decision, the Decision Record and the transcript, that the findings made by the Tribunal were reasonably open to it on the evidence before it

Ground Two

1. The Applicant argued that the Tribunal did not have evidence before it capable of supporting the factual findings expressed in paragraph 61 of the Decision Record (which is referred to in paragraph 17 above).  The Applicant submitted that there was no reference in the reasons of the Tribunal to any fact, matter or circumstance upon which the Tribunal relied in support of its finding that the Applicant personally, or a relative, or someone else would be able and willing to provide surety for his bail. 

2. The Applicant submitted it was not reasonably open to the Tribunal to find that a relative of the Applicant would provide surety for his bail. 

3. The Applicant submitted that whilst it was open to the Tribunal to conclude on the country information before it that bail would likely to be given upon the provision of surety, that same material was not capable of supporting its finding that the Applicant himself would likely be granted bail.[3]

   [3]ABA15 v Minister for Immigration and Border Protection (2016) FCCA 60, 52.

4. At paragraph 61 of the Decision Record, the Tribunal found that returnees were granted bail on personal surety immediately or that they might have been required to have a family act as guarantor.  Unlike the decision in Minister for Immigration and Border Protection v SZTQS (2015) FCA 1069 (‘SZTQS’), which was relied upon by the Applicant, the First Respondent submitted it could not be assumed that a payment of money was required in order to secure the Applicant's bail.  The First Respondent noted that in SZTQS there was a finding that the Applicant's family would be able to pay a surety (which included the deposit of money).  This, it was submitted, is to be distinguished from the findings in the facts of this case that the Applicant's family could act as guarantor. The Court accepts that argument.

5. The First Respondent further submitted that the Tribunal's findings that the Applicant's family could act as guarantor were plainly open to it on the basis of the Applicant's own evidence. The Court agrees with that submission. In his visa application, the Applicant listed a large number of family members who remained in Sri Lanka, including his wife.  His account included a claim that he had previously been arrested and was bailed out by his wife. The Applicant did not suggest that his wife would no longer wish to bail him out or would no longer be able to do so, as she had done previously.

6. The First Respondent noted that the Applicant's written submissions asserted that there was no evidence for the Tribunal's finding at paragraph 61 of the Decision Record that the Applicant claimed to be in contact with his family in Sri Lanka. The First Respondent submitted that the Tribunal was likely referring to the Applicant's oral evidence at the hearing before it.  The transcript of the Tribunal hearing, in evidence before the Court, made clear that the Tribunal relied upon the Applicant’s own evidence to support such a finding. When asked whether he was in contact with his wife and children, the Applicant replied “Yes”. When asked by the Tribunal how often, the Applicant replied “Two to three times a week I do speak to her”.

7. There being no merit in the grounds of judicial review, the application shall be dismissed and the Applicant is to pay the costs of the First Respondent.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 6 June 2018