CAO16 v Minister for Immigration

[2018] FCCA 2387

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2387

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 523; 198 ALR 293; 75 ALD 151

Applicant: CAO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1605 of 2016

Judgment of: Judge Mercuri

Hearing date: 26 April 2018

Date of Last Submission: 26 April 2018

Delivered at: Melbourne

Delivered on: 31 August 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondents: Ms Jackson

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application filed 27 July 2016 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1605 OF 2016

CAO16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision of the

   
   

   second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 30 June 2016. By that decision, the tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicant a protection (class XA) visa (“the visa”) under section 65 of the Migration Act 1958 (Cth) (“the Act”).

The applicant’s claims

1. The applicant is a Sri Lankan citizen of Hindu religion and Tamil ethnicity. As noted in the tribunal’s decision record, the applicant claims to fear persecution on the basis of:

   a)his race as a Tamil;

   b)his imputed political opinion in the Liberation Tigers of Tamil Eelam (“the LTTE”); and

   c)his membership of a particular social group, namely as a returnee from a Western country as a “failed asylum seeker”.[1]

   [1] Court book page 237 at paragraph [8].

2. The applicant’s assertions as summarised in the tribunal’s decision record included:

   a)his father went missing in 2000 although the applicant was unsure of the circumstances in which this occurred;

   b)he has two brothers; one fled to India in 2005, the other lives in Australia;

   c)he cannot live freely in Sri Lanka because of the Sinhalese majority;

   d)since 2006, there has been an army camp near his house where he was regularly stopped, questioned and harassed;

   e)in 2003, his brother assisted in organising an LTTE memorial event and helped with the decorations and used his automobile to assist with transporting goods for the event. His brother was subsequently questioned on two occasions and in 2005 fled to India;

   f)from 2008 to 2009, he was stopped and questioned on his way to work by some officers who were patrolling the area and he was harassed by them;

   g)

   the applicant then moved to Mullaitivu to live with his uncle and he was questioned by the Criminal Investigation Department

   
   

   (“the CID”) about his knowledge of the LTTE and that he was suspected of LTTE involvement because his brother had fled

   
   

   Sri Lanka; and

   h)

   in February 2012, he moved to Batticaloa to work in his other uncle’s jewellery shop and one day while he was alone in the shop, a group of armed men demanded money and the keys to the jewellery cabinets. He refused and told them to leave. The men became angry and after they left they threatened to come after the applicant for not doing what they had asked. He says that the men came back some ten days later and told his uncle that they would kill the applicant. The applicant claimed that he left Batticaloa and these men were associated with the CID so he could not stay in

   
   

   Sri Lanka.[2] 

   [2] Court book page 138 at paragraph [8].

The tribunal’s decision

1. On 30 June 2016, the tribunal affirmed the delegate’s decision.

2. The tribunal set out the applicant’s claims in its decision record[3] and summarised the country information to which it had regard.[4]

   [3] Court book page 238 at paragraphs [14] to [18].

   [4] Court book pages 239 to 244.

3. The tribunal accepted that the applicant’s father went missing in 2000 but stated, “in the absence of any further details, (did) not find that” the father’s disappearance had any connection to the applicant being of interest to the authorities.[5]

   [5] Court book page 244 at paragraph [23].

4. The tribunal also accepted that the applicant would have been stopped at checkpoints or when he passed an army camp from time to time. However, it did not accept that the applicant was of any particular interest to the authorities on the basis of having any connections with the LTTE other than his Tamil ethnicity. The tribunal also had regard to country information which noted that the security situation had changed significantly in Sri Lanka and it did not accept that the applicant would be of any interest to the authorities if he were to return because of these past events.[6]

   [6] Court book page 244 at paragraph [24].

5. The tribunal found that the applicant’s evidence in relation to his brother was embellished and inconsistent.[7] The tribunal concluded that the applicant was stopped and questioned about his involvement with the LTTE in 2006 or 2008 before the end of the war. It did not accept that the applicant had a profile which was of interest to the authorities.[8] 

   [7] Court book page 244 at paragraphs [25] to [27].

   [8] Court book page 245 at paragraph [28].

6. The tribunal also accepted that the applicant’s brother participated in decorating an LTTE event and transported LTTE and Sinhalese persons in his ‘tuk tuk’, but did not accept that these activities of the applicant’s brother gave the applicant a profile which was of interest to the authorities.[9] Moreover, given the inconsistencies in his evidence, the tribunal did not accept that his brother was taken by the authorities with two friends and beaten or that one of his friends was killed.[10]

   [9] Court book page 244 at paragraph [27].

   [10] Court book page 245 at paragraph [29].

7. The tribunal also found that there were significant inconsistencies between the applicant’s evidence regarding his move to Mullaitivu in 2010 to 2011. The tribunal found that the applicant went to Mullaitivu because he had a job there and whilst he may have been stopped and questioned at checkpoints, this did not give him a profile of interest to the authorities. The tribunal did not accept that the applicant left Mullaitivu due to any fear of harm.[11]

   [11] Court book page 245 at paragraph [31].

8. After considering the applicant’s evidence in relation to the alleged incident at the applicant’s uncle’s jewellery shop, the tribunal did not accept that the incident occurred at all.[12]

   [12] Court book page 246 at paragraphs [33] to [36]; and page 247 at paragraph [37].

9. The tribunal then discussed the country information to which it had regard and concluded that the applicant’s overall profile was not one which would be of interest to the authorities.[13]

   [13] Court book page 247 at paragraph [38] to [41]; and page 248 at paragraph [42].

10. Therefore, the tribunal concluded that the applicant did not face a real chance of persecution on account of:

    a)his Tamil race;

    b)his actual or imputed political opinion;

    c)his brothers who were said to have fled Sri Lanka; or

    d)for any other convention reason either now or into the reasonably foreseeable future.[14]

    [14] Court book page 248 at paragraph [43].

11. The tribunal also considered the applicant’s claim that if he were to return to Sri Lanka, he faced a real chance of harm as a

    
    “failed asylum seeker”.

    After considering the applicant’s submissions and the country information, the tribunal concluded that there have been changes in Sri Lanka which have significantly improved and normalised the situation for Tamils.[15] The tribunal concluded that the applicant did not face a real chance of persecution now or into the reasonably foreseeable future if he were to return to Sri Lanka.[16]

    [15] Court book page 248 at paragraphs [44] to [46]; and page 249 at paragraphs [47] to [49].

    [16] Court book page 249 at paragraph [51].

12. The tribunal also considered and rejected the applicant’s claim that he faced a real chance of harm as a young Tamil male.[17]

    [17] Court book page 249 at paragraphs [50] to [51].

13. As the applicant had departed Sri Lanka illegally, the tribunal accepted that on return he would face questioning about his activities whilst outside the country. It also accepted that he might be charged and convicted under Sri Lanka’s departure laws. However, the tribunal also noted country information which indicated that detained people were released on bail following a personal surety issued by the magistrate.[18]

    [18] Court book page 250 at paragraph [54].

14. The tribunal also considered whether the applicant would face any real chance of serious or significant harm on the basis of his religion even though the applicant did not expressly make any such claim. It concluded that there was nothing on the facts before it that would suggest that he would.[19]

    [19] Court book page 250 at paragraph [55].

15. The tribunal therefore concluded that considering the applicant’s claims individually and cumulatively, the applicant did not face a real chance of persecution for a convention reason and any fear the applicant held was not well-founded.[20]

    [20] Court book page 250 at paragraph [56].

16. The tribunal also considered whether the applicant met the complementary protection criteria and concluded that he did not.[21]

    [21] Court book page 250 at paragraphs [57] to [59].

17. Consequently the tribunal affirmed the delegate’s decision.[22]

    [22] Court book page 251 at paragraph [63].

Ground one

1. The applicant’s first ground of review is:

   The decision of the Tribunal:

   (a)     is affected by an error of law; and

   (b)     denied the applicant procedural fairness.[23]

   [23] Applicant’s application filed 27 July 2016 at page 3.

2. As stated, although given leave by the orders made on 18 January 2017 to file any amended application, no further grounds were raised by the applicant.

3. At the hearing before this court, the applicant represented himself and was assisted by a Tamil interpreter. At the commencement of the hearing, the applicant was asked to explain in his own words the errors that he said the tribunal made. The applicant handed up to the court a document which he sought to rely upon entitled Applicant’s Outline of Submission[s].

4. The first respondent did not object to that document being given to the court. 

5. In addition to handing up a written outline, the applicant made the following further submissions:

   a)he told the tribunal that he was working in Mullaitivu for a year but the tribunal refused to consider that;[24]

   b)he had to leave his job because of the pressure he received from the authorities but the tribunal refused to accept that he was working there;[25] and

   c)

   the tribunal did not consider the fact that one of his brothers left

   
   

   Sri Lanka and came to Australia because he worked for the LTTE and then had problems so he came to Australia and is now a citizen of Australia.[26]

   [24] Transcript page 4 at lines 8 to 12.

   [25] Transcript page 4 at lines 8 to 12.

   [26] Transcript page 5 at lines 21 to 27.

6. In the applicant’s outline of submissions, he stated that during the first interview, he was unwell, he suffers from post-traumatic stress disorder and therefore his ability to address his claim was affected by his mental health which was not taken into account.[27]

   [27] Applicant’s outline of submissions dated 26 April 2018 page 1 at paragraph [4].

7. At the hearing, the applicant was asked to explain what he meant by this and he responded with:

   When people ask me questions, I find it difficult to answer. That is because I get tense. And in that occasion I was unable to compose my sentences properly. And I couldn’t answer to questions properly… things were unclear to me and sometimes…it becomes very unclear when people start asking me questions. But after I attended by AAT hearing, I was wondering if people were unable to understand what I was saying. And I decided to go for counselling.[28]

   [28] Transcript page 8 at lines 12 to 18.

8. In response, the Minister correctly pointed out that there was no medical evidence before this court about the applicant’s health. The evidence before the court as set out in the court book reveals:

   a)the applicant, through his migration lawyers, made detailed written submissions in support of the applicant’s case;[29]

   b)the applicant was invited to a hearing before the tribunal;[30] and

   c)the applicant attended that hearing and was assisted by his migration lawyers.[31]

   [29] Court book pages 172 to 221.

   [30] Court book page 222 to 226.

   [31] Court book page 227.

9. There is no evidence before this court that the applicant was unable to properly present his evidence in support of his claims due to ill health. The tribunal’s hearing record also indicates that the hearing lasted for over 3 hours.[32] Notwithstanding that the applicant was represented by migration lawyers before the tribunal, no evidence was led or submissions made on behalf of the applicant that he was unwell or otherwise unable to participate in the hearing process.

   [32] Court book pages 231 to 233.

10. To the extent that the tribunal made findings of credit, those findings were open to it on the basis of the material before it. It was open to the tribunal to make adverse findings of credit on the basis of the inconsistencies of the applicant’s evidence.   

11. Counsel for the Minister referred to the decision in

    
    Minister for Immigration & Multicultural & Indigenous Affairs v SCAR

    [2003] FCAFC 126; 128 FCR 523; 198 ALR 293; 75 ALD 151 (“SCAR”) in which the court considered whether there was a jurisdictional error in the tribunal proceeding to deal with a matter where, unbeknown to the tribunal, the applicant was not fit to participate in the proceedings. In SCAR, the Full Court concluded that there was, in fact, jurisdictional error in that case. However, it is noted that in SCAR:

    a)the applicant was unrepresented before the tribunal;

    b)the applicant gave his evidence by video link as he was in detention at Woomera Detention Centre and the tribunal was sitting in Sydney; and

    c)the tribunal made adverse credibility findings largely on the basis of the manner in which the applicant gave evidence.

12. On judicial review, the applicant in SCAR put evidence before the court that his father had died some four days before the tribunal hearing and that between being notified of his father’s death and the tribunal hearing, he had required significant medical treatment. This evidence suggested that one of the reasons why his evidence to the tribunal may have been vague or confused was because of his distress at the news of his father’s death.[33] 

    [33] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 523; 198 ALR 293; 75 ALD 151 at [12].

13. In SCAR, the Full Court concluded that as the applicant was not in a fit state to represent himself before the tribunal, the tribunal had not afforded him a meaningful opportunity to attend a meeting as required by section 425 of the Act. This consequently amounted to a jurisdictional error on the part of the tribunal.[34] 

    [34] Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 523; 198 ALR 293; 75 ALD 151 at [41].

14. The reasoning in SCAR does not apply in this case as there is no evidence before this court, nor did the applicant seek to tender any material which addressed his capacity to participate in the hearing before the tribunal. In any event, the applicant was represented by a migration lawyer in the hearing before the tribunal. Further, the applicant was accompanied by his representative to the tribunal hearing. It is to be expected that if the applicant’s representative was concerned about his client’s capacity to participate in the hearing due to ill health or other concerns, the representative would have raised these matters at the time. No such issues were raised.

15. This submission does not support a finding that the tribunal engaged in jurisdictional error. 

16. The applicant then went on to make the following further written submissions:

    5.I advise that the tribunal erred by reaching the wrong conclusion due to the following issues:

    (a) It failed to consider my integral claim being a member of social group, particular a young male from the north east.

    i.     The tribunal failed to consider my claim that I established a profile whilst working is Mullaitieevu (sic).  I was staying with my uncle who was a former LTTE member.  He was paralysed from hip.  I was continuously questioned whether I was a member of the LTTE and as to my intention.  The Tribunal found that this would not give me a profile to have ongoing interest in Sri Lanka

    ii.     I submit that my profile was established in that area, as 98% of the people living in Mullaitheevu were LTTE members or associates in one way or other.  It is how I was also suspected and labelled as a LTTE.  During that time in question, the Sinhalese authority would automatically assume that I was associated with the LTTE and such created a profile.

    iii.     I submit that such profile is ongoing, which I have put to the AAT, however they refused to accept this without clarifying as to how they reached such a conclusion.  I submit that the AAT has failed to provide me with an opportunity to explain this.

    iv.      I then left a good job in Mullaitheevu due to the ongoing harassment that the authorities have given me.[35]

    [35] Applicant’s outline of submission dated 26 April 2018 page 2 at paragraph [5].

17. It was submitted on behalf of the Minister that the tribunal did in fact consider and reject these claims. Firstly, it did not accept the applicant’s claim that the period in which the applicant worked in Mullaitivu gave him any particular profile which made him of interest to the authorities.[36] Moreover, it was submitted that the tribunal was clearly aware of the applicant’s profile as being a Tamil male from the north of Sri Lanka, having regard to the fact that it acknowledged his living in the north whilst working in Mullaitivu. 

    [36] Court book page 245 at paragraph [31].

18. It is apparent from a fair reading of the tribunal’s reasons, and I find, that:

    a)the tribunal noted the applicant’s claims relating to his time in Mullaitivu,[37] considered these claims[38] and found that the applicant “had moved to Mullaitivu because he had a job there”;[39]

    b)the tribunal accepted that the applicant was stopped and questioned in Mullaitivu when he passed checkpoints but did not “accept that these events gave… a profile of interest to the authorities”.[40] The tribunal also stated that it “did not accept that the applicant left Mullaitivu due to any fear of harm (and found) this to be an embellishment to his claims.”[41] Moreover, the tribunal noted that the circumstances and security situation in the north of Sri Lanka have changed;[42]

    c)relevantly, the tribunal noted after discussing the applicant’s claims:

    I consider the inconsistencies in the applicant’s evidence to be highly significant inconsistencies which question the applicant’s credibility and I do not find him to be a witness of truth.[43]

    [37] Court book page 238 at paragraph [17].

    [38] Court book page 245 at paragraphs [30] to [31].

    [39] Court book page 245 at paragraph [31].

    [40] Court book page 245 at paragraph [29].

    [41] Court book page 246 at paragraph [31].

    [42] Court book page 245 at paragraph [31].

    [43] Court book page 246 at paragraph [32].

1. The applicant further stated in his written submissions:

   (b)Imputed political opinion as LTTE member due to my brother’s dealings with the LTTE.

   i.     The UNHCR eligibility guidelines for Sri Lanka note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection.  We note that potential people with links to the LTTE can include:

   A.Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control;

   B.   Former LTTE combatants or cadres;

   C.Former LTTE combatants who due to injury or other reasons were employed by the LTTE in functions with the administration, intelligence, etc.

   D.Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport goods for the LTTE.

   E.LTTE fundraisers ad propaganda activities and those with or perceived as having links to the Sri Lankan diaspora that provided funding and other support to the LTTE.

   F.Persons with family links or those who are dependent on otherwise closely relation to person with the above profile. 

   …

   ii.      I submit I fall under ‘persons with family links or those who are dependent on otherwise closely relation to persons with the above profiles.[44]

   [44] Applicant’s written submission dated 26 April 2018 page 2 at paragraph [5].

2. It was submitted on behalf of the Minister that the tribunal considered this claim and rejected it both having regard to inconsistencies in the evidence given by the applicant and also by reference to country information.

3. A fair reading of the decision record demonstrates that the tribunal recounts the applicant’s claims in relation to his brother and his involvement in the LTTE[45] and sets out, among other things, the

   
   

   United Nations High Commissioner for Refugees (“the UNHCR”) 2012 Eligibility Guidelines for Sri Lanka noting the types of individuals who might have actual or perceived links to the LTTE.[46] The tribunal then considered the applicant’s claims which arose from his connection to this brother and stated “the applicant has sought to embellish or raise the significance of his brother’s involvement with the LTTE.”[47]

   [45] Court book page 238 at paragraph [16].

   [46] Court book pages 241 to 243 at paragraph [21].

   [47] Court book page 244 at paragraphs [25] to [27].

4. Relevantly, the tribunal concluded that although it accepted that the applicant’s brother had some involvement in decorating an LTTE event and transporting LTTE people in his ‘tuk tuk’, it did not:

   …accept that these activities gave his brother a profile to make him a person of interest to the authorities.… Much less do I accept that his brother’s activities as described gave rise to the authorities having interest in the applicant.[48]

   [48] Court book page 245 at paragraph [29].

5. It is apparent from this analysis of the decision record, and I find, that the tribunal did in fact consider the brother’s situation and the potential for the applicant to have developed a profile making him of interest to the authorities as a consequence. 

6. This part of the applicant’s submissions does not establish any jurisdictional error on the part of the tribunal.

7. The applicant also went on in his written submissions to argue that the tribunal member was not open to be persuaded but rather had a pre-determined view of the outcome of the review and took irrelevant considerations into account.[49] Although the applicant did not expand on this submission, there is nothing in the tribunal’s reasoning or in the material contained in the court book which could properly be said to meet the test of actual or apprehended bias. 

   [49] Applicant’s written submission dated 26 April 2018 page 3 at paragraph [8].

8. The applicant also submitted that the tribunal improperly focused on the inconsistency in his evidence rather than properly assessing his claims of a well-founded fear of persecution.[50]

   [50] Applicant’s written submission dated 26 April 2018 page 3 at paragraph [9].

9. This last aspect of the applicant’s submissions impermissibly seek merits review and does not disclose any jurisdictional error.

10. At the hearing before this court, the applicant sought to file further documents which were not before the tribunal as they did not exist at the time. The Minister objected to the applicant filing this further material. Given the limited role of this court in an application for judicial review, I did not permit the applicant to file those further documents on the basis that it would not be appropriate for this court to have regard to material in a judicial review application which was not before the initial decision maker.[51] 

    [51] Transcript page 2 at lines 36 to 44.

11. For each of these reasons, ground one is therefore not made out.

Ground two

1. The applicant’s second ground of review is:

   I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.[52]

   [52] Applicant’s application filed 27 July 2016 page 3 at paragraph [2].

2. This ground clearly does not raise any potential jurisdictional error and therefore fails.

Conclusion

1. As neither of the grounds of review are made out, I dismiss the application with costs.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:  31 August 2018