CBQ15 v Minister for Immigration

[2016] FCCA 317

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBQ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 317

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – whether the Tribunal failed to properly apply the wrong test – whether the Tribunal failed to consider an integer of the applicant’s claim - no jurisdictional error – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: CBQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2760 of 2015

Judgment of: Judge Street

Hearing date: 17 February 2016

Date of Last Submission: 17 February 2016

Delivered at: Sydney

Delivered on: 17 February 2016

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Stephen Hodges Solicitor

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2760 of 2015

CBQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 2 September 2015 affirming a decision of the Tribunal not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. On 17 April 2007, the applicant’s previous passport expired and the applicant obtained a new passport in May 2007. The applicant then travelled to Saudi Arabia, where he worked as a driver for six months, before returning to Sri Lanka.

2. After returning to Sri Lanka in 2007, the applicant undertook work as a truck driver until February 2010, when he commenced work as a driver for a Member of Parliament.  After a period of nine months, he returned to working as a truck driver and remained in a particular area from November 2007 until he departed Sri Lanka to commence his journey to Australia in June 2012.  The applicant arrived in Australia as an illegal maritime arrival on 7 July 2012.  The applicant claimed that he feared harm and had experienced past harm, in particular from the Sri Lankan army because of his brother-in-law being an LTTE supporter.

3. The applicant alleged he feared persecution from authorities or one of two political groups, the Tamil Makkal Viduthalai Pulikal (TMVP), or the Karuna Group, because of his support of the Illankai Tamil Arasu Kachchi (ITAK) Party, being part of the Tamil National Alliance.  The applicant also claimed that his cousin was a Member of Parliament and a member of the ITAK Party, whom he had helped campaign from February to April 2010.  The applicant claimed to have received threats from the opposition members both before and after the 2010 election in the form of phone calls as well as two specific incidents in 2010 involving, respectively, a man on a motorcycle and a hand grenade.

4. The applicant said he would be subjected to persecution because he illegally departed Sri Lanka.  By letter dated 9 June 2015, the applicant was invited to attend a hearing before the Tribunal.  The applicant attended that hearing to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent. 

5. The grounds of the amended application are as follows:

   Ground 1

   The AAT committed jurisdictional error by applying the wrong test.

   PARTICULARS

   (i) The AAT listed [3 9] a number of incidents and concluded "which indicates to the Tribunal that he was not seriously imputed with a pro-LTTE political opinion ....... at that time".

   (ii) The insertion of the word "seriously" misdirected the AAT to apply the incorrect test.

   Ground 2 (Amended as follows)

   The AAT committed jurisdictional error by failing to apply the real chance test. In Minister for Immigration & Multicultural Affairs v Rajalingam [ 1999] FCA 719 (3 June 1999) the Court held

   “When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there was a "real substantial basis' f or the applicant 's claimed fear of persecution.

   PARTICULARS

   (i) The AAT accepted that the applicant may have been threatened in the past as a result of political activities [par 31]'

   (ii) The AAT relied on country information from OF AT [28] to the effect that:

   • The number of extra-judicial killings, disappearances and kidnappings have fallen considerably since the end of the conflict;

   • There has been a significant reduction in the number of reports or which van adductions in the north and east.

   (iii) It is an error to conclude, as by inference the AA T did, that country reports to the effect that incidents "have fallen" or "there has been a significant reduction" means that there is no longer a reasonable chance that such incidents will occur to the applicant.

   (iv) Though the tribunal formed the view that the applicant was not of particular interest to the paramilitary groups, the tribunal nevertheless accepted that the applicant "may have been threatened in the past" [CB page 211 paragraph 31]. The tribunal accepted "verbal threats" were made [CB page 209 paragraph 24] in the context of the elections. The tribunal then went onto make a finding that applicant may support parties within the coalition ITAK around election time [CB page 211 paragraph 35]. It is submitted that the tribunal failed to consider the real chance of serious harm that the applicant would face during election time in the future.

   Ground 3 (New)

   PARTICULARS

   (i) At [CB 216 paragraph 56], the applicant claimed that "he fears he will be kept in prison for ever" for the following reasons,

   a. "because they will not simply follow the rules"

   b. "they might find that he was a driver for a Tamil MP"

   c. "his brother in law was an L TTE member"

   The applicant claimed that due to the above reasons the authorities would treat him as a (LTTE suspect which would elongate into a serious crimes, hence would be imprisoned for longer). It is submitted that this claim presented by the applicant to the tribunal was not assessed.

6. In relation to ground 1, the applicant contended that the Tribunal had applied the wrong test by reason of a finding made by the Tribunal in para.39 in relation to the applicant’s legal departure in 2007 from Sri Lanka for six months to work in Saudi Arabia.

7. The Tribunal identified the applicant was able to leave and return on his own passport with no problems from the authorities, and the Tribunal then said:

   39. ...which indicates to the Tribunal that he was not seriously imputed with a pro-LTTE political opinion on account of his brother-in-law’s membership of the LTTE or for any other reason at that time.

8. The Tribunal thereafter continued to make other findings in relation to the applicant after he had returned to Sri Lanka and in respect of a connection through his family to the LTTE.  The Tribunal found in para.40 relevantly:

   40. Taking into account these considerations the Tribunal finds the chance the applicant would be seriously harmed on return to Sri Lanka on the basis of his brother-in-law’s former involvement with the LTTE and/or as a member of a particular social group of ‘family members of LTTE members/supporters/those accused of being a LTTE member/supporter is remote.  His fear of persecution on this basis is not well founded.

9. The finding of fact by the Tribunal in para.39 using the word “not seriously imputed” was in the context of the past events and was not an application of the test of whether the applicant had a well-founded fear of persecution.  The correct test was clearly applied in para.40, taking into account the Tribunal’s attachment, which correctly summarised the relevant law, and the identification of the issues in para.5, and the Tribunal’s conclusion in para.63:

   63. Having considered the applicant’s claims individually and cumulatively, for reasons set out above, the Tribunal finds that the applicant does not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future and that his fear of persecution is not well-founded.

10. Ground 1 fails to make out any jurisdictional error. 

11. In relation to ground 2, it is alleged that the Tribunal failed to consider the real chance of serious harm that the applicant would face during election time in the future, and that the Tribunal had failed to take into account the findings that it had made.  Whilst it is clear that the Tribunal did accept certain of the applicant’s evidence, the Tribunal proceeded to make findings in respect of the applicant’s alleged fears referable to the matters identified in paras.28 and 31 and 34 that the chance that the applicant may be seriously harmed because of the facts accepted was remote.

12. It is clear that the Tribunal took into account those findings in the application of the correct test in para.63 of its reasons, referred to above.  There is no ground to infer that the Tribunal failed to take into account the favourable findings that it made in relation to the applicant’s evidence.  I accept the first respondent’s submission that the Tribunal was in fact applying the correct test as to whether the fear was well founded, in the context of the findings made, that the chance of the applicant being seriously harmed as a result of those particular findings was remote.  Ground 2 fails to make out any jurisdictional error.

13. In relation to ground 3, it was suggested that the Tribunal had failed to take into account an integer of the applicant’s claim in relation to his fears in respect of imprisonment.  The applicant submitted that the matters identified in para.56 of the Tribunal’s reasons were an integer that was not the subject of findings by the Tribunal.

14. The matters raised in para.56 are reasons in respect of which the applicant feared he would be treated as an LTTE suspect. That issue of being an LTTE suspect was squarely identified in para.55 of the Tribunal’s reasons and was the subject of adverse findings, relevantly as follows:

    61. The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system.   However in this case the Tribunal has found, for the reasons set out above, that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system. The Tribunal finds the chances remote the applicant will be targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison.  As discussed, the Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand, the Tribunal finds it speculative and the chances remote that he will face serious harm in this context.

    62. For these reasons, the Tribunal is not satisfied that the treatment faced by Sri Lankan returnees who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka.  Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.

    …

    67. For reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm if he returns to Sri Lanka now or in the foreseeable future on the basis of his Tamil ethnicity, his actual or imputed political opinion, his membership of a particular social group of ‘Tamil returned failed asylum seekers’, or the fact that he departed Sri Lanka illegally. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.   For the same reasons the Tribunal does not accept that there is a real risk the applicant will suffer significant harm for any of those reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka. 

    68. In his written submission the representative states, among other things, that whilst he concedes that under Australian law prison conditions alone may not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment without an intention element, the fact of imprisonment may lead to a real risk of further significant harm, as it gives rise to a risk of that person being tortured. The fact that the remand period may be short does not mitigate against this risk.  He submits that intention may be inferred from the circumstances when it is evident from the facts that it was evident that pain or suffering was or may be knowingly inflicted (and refers to the Tribunal’s Complementary Protection Training Manual).  He also refers to various country information which, he argues, indicates that despite prohibition under Sri Lankan law, torture and mistreatment of detainees remains widespread in Sri Lanka, particularly in respect of Tamil detainees, citing a 2012 periodic report of the Committee against Torture  and a 2013 report by Amnesty International.   Other reports  documenting torture since the end of the war are cited as well as reports about poor prison conditions.

    69. The Tribunal has had careful regard to these submissions as well as the applicant’s evidence about his concerns in this respect.  For the reasons set out above, the Tribunal has accepted that the applicant will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he could be held on remand for a brief period usually being less than 24 hours but possibly as long as several days while awaiting a bail hearing.  In view of the DFAT advice cited above, the Tribunal does not accept on the information before it there to be a real risk that the applicant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.  The Tribunal has found that the applicant will be granted bail on his own recognisance and that if convicted of charges under Sri Lanka’s I&E Act, he will likely face a fine of between LKR 5,000 and 50,000.  The Tribunal does not accept that the applicant will be unable to pay such a fine if it is imposed upon him.  Nor does it accept on the evidence before it that there is a real risk the applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in section 36(2A), either during his questioning at the airport or during the short period that he would spend on remand awaiting a bail hearing.  The Tribunal has accepted that prison conditions in Sri Lanka are generally poor, but it does not accept that there is a real risk that the applicant would be subject to particularly harsh prison conditions to constitute significant harm (such as a violation of Article 7 of the ICCPR as set out in PAM3 Refugee and humanitarian – Refugee Law Guidelines) while on remand for a short period of time as a result of those conditions. 

15. The Tribunal dealt with the whole of the applicant’s claims, and no jurisdictional error is made out as alleged in ground 3.  The amended application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 February 2016