CDF16 v Minister for Immigration
[2017] FCCA 2038
•1 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDF16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2038 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider the claims of the applicant – whether the Tribunal erred by failing to comply with Ministerial Direction No.56 in contravention of s.499 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.414, 477, 499 Ministerial Direction No.56 |
| Cases cited: Nigam v Minister for Immigration & Border Protection [2017] FCA 106 SZTMD v Minister for Immigration & Border Protection (2015) 150 ALD 34; [2015] FCA 150 |
| Applicant: | CDF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2061 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 1 August 2017 |
| Date of Last Submission: | 1 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 August 2017 |
REPRESENTATION
| The applicant appeared in person with interpreter |
| Solicitors for the Respondents: | Ms S Sangha, Mills Oakley |
ORDERS
The period for bringing an application for review of a decision of the second respondent dated 20 June 2016 be extended pursuant to s.477(2) of the Migration Act 1958 (Cth) to 2 August 2016.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2061 of 2016
| CDF16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The applicant is a citizen of Sri Lanka who arrived in Australia on 16 July 2012. He lodged an application for a protection visa on 9 November 2012. That application was refused by a delegate of the Minister on 26 September 2013. The applicant applied to the Refugee Review Tribunal[1] (RRT) for review of that decision. On 1 July 2015, the Administrative Appeals Tribunal (Tribunal) took on the function of the RRT in respect of decisions made in respect of protection visas.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 23 February 2015, the Tribunal conducted a hearing at which the applicant attended and gave evidence. The Member then constituting the Tribunal was no longer able to complete the review of the delegate’s decision, and so a new member was then constituted to the Tribunal. On 27 January 2016, the applicant attended a hearing conducted by the Tribunal as newly constituted. On 20 June 2016, the Tribunal made a decision to affirm the delegate’s decision.
On 29 July 2016, the applicant lodged an application for judicial review. That application was made outside the time required by s.477(1) of the Migration Act 1958 (Cth) (Act). The period was however, extended by order of this Court under s.477(2) of the Act, and these are the reasons dealing with the grounds of the application raised on a final basis.
In order to understand the grounds of review and the reasons of the Court in respect of them, it is necessary to have regard to the applicant’s claims made in support of the protection visa application and the Tribunal’s reasons. The applicant’s claims may be summarised as follows.
The applicant made two specific claims. First, that he was detained and beaten by soldiers in 2006; and secondly, that the Sri Lankan Army (Army) and the Criminal Investigation Department (CID) were interested in him because in 2011 he had identified a grease man who was connected to, and protected by the army. The applicant also made a number of more general claims including that he would be harmed because:
i)he was a young Tamil male;
ii)he was a fisherman from the north and northeast of Sri Lanka;
iii)he had sought protection in Australia; and
iv)he had left Sri Lanka illegally by boat.
The Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and gave extensive and detailed reasons for its conclusion in that respect. Those reasons are summarised accurately from [20] to [26] of the respondent’s submissions, which I set out below:
20. On 20 June 2016, the Tribunal affirmed the delegate's decision not to grant the applicant a Protection (Class XA) visa (CB 274-307). The Tribunal accepted that in 2006, whilst traveling for work between Mullaitivu and Mannar, the applicant and work colleagues were prevented from travelling due to road blocks imposed by the SLA and stayed at school premises for about 23 days (CB 290, [111]). The Tribunal accepted that after this, he returned home to Udappu by bus with his colleagues and their identity cards were checked. It also accepted that the applicant and his colleagues were later picked up, detained and interrogated about why they were in an LTTE controlled area and released after one and a half days, on condition that they would return to the police camp if requested (CB 290, [112]).
21. The Tribunal accepted that from 2006 to 2010 the applicant continued to work as a fisherman, but found that security checks on the civilian Tamil population became more frequent and difficult towards the end of the conflict in May 2009 (CB 290, [113]). The Tribunal also accepted that the applicant was questioned by a man known as Mankumar about whether he had hit one of the greaseman and that he had confirmed that he did (CB 291, [117]). However, the Tribunal did not accept that Mankumar came looking for him about one year after he left Sri Lanka (which was in early to mid-2013) (CB 291, [120]). The Tribunal was concerned that the applicant had first raised this claim with the Tribunal in February 2015; it was not raised before the delegate; and the applicant could not explain why Mankumar would look for him almost 2 years after the greaseman incident took place (CB 291, [122]-[123]). The Tribunal found that the applicant's evidence surrounding the circumstances of the visit was “vague” and there was nothing to indicate that the person, who visited (if indeed anyone visited) was Mankumar (CB 291, [123]). The Tribunal doubted this claim as the applicant had not made any enquiries about Mankumar, his whereabouts or his conduct since 2011 and could not satisfactorily explain why he had not made any enquiries. The Tribunal found that this claim had been “contrived to strengthen the applicant's refugee claims” and that the evidence was inconsistent with other evidence given by the applicant, which was generally coherent and detailed (CB 291, [124]).
22. On the basis of independent country information (ICI), the Tribunal did not accept that the applicant faced a real chance of serious harm because he was a Tamil or a young Tamil male (CB 293, [136]-[137]). Regarding the applicant's claims to fear harm for being imputed with pro LTTE opinions for reasons of his occupation as a fisherman, the Tribunal found that as the LTTE no longer existed as an organised force, there is no plausible or logical reason why being a Tamil fisherman would give the applicant a profile as a supporter of Tamil separatism or possible re-emergence of the LTTE (CB 296, [148]).
23. The Tribunal accepted that the applicant was subjected to adverse attention by authorities in 2006 and 2011, but did not accept that either or both of those incidents together would give the applicant a profile which would subject him to a real chance of serious harm for reasons of imputed anti-government opinions or a perception that he is an LTTE member or supporter (CB 296, [149]-[150]). On the basis of ICI and the length of time since these incidents, the Tribunal did not accept that living in or travelling through LTTE controlled areas would put the applicant at risk of serious harm (CB 296-297, [151]).
24. The Tribunal noted that the applicant’s wife, his child and parents had continued to live in Udappu without any apparent difficulties or problems with the Sri Lankan authorities or Mankumar (CB 297, [154]). The Tribunal had regard to the fact that the applicant could not explain why Mankumar did not harass or question members of his family if he had a continuing interest in the applicant. On the basis of its findings, the Tribunal did not consider there was a real chance that the applicant would be harmed by Sri Lankan authorities, Mankumar or anyone else for imputed political opinion if he returned to Sri Lanka now or in the immediate future (CB 297-298, [158]).
25. The Tribunal accepted that the applicant would return as a failed asylum seeker and may be charged with an offence under the Immigration & Emigration Act, but that he would not face a real chance of serious harm on this basis (CB 300, [167] and CB 302, [179]). The processing of returnees and any penalties that would be imposed on the applicant were the result of the non-discriminatory enforcement of a law of general application (CB 302, [178]). On the basis of ICI, the Tribunal found that being a Tamil or a Tamil male who has lived overseas for a number of years does not "of itself" result in different or discriminatory treatment following arrest and detention (CB 302, [176]). After finding that the applicant did not face a well-founded fear of persecution for any Convention reason, the Tribunal assessed his claims against the complementary protection criterion (CB 302-304, [180]-[189]). The Tribunal accepted that the applicant might face arrest on charges for illegal departure and could be briefly detained and fined (CB 303, [186]). The Tribunal found that any fine for his illegal departure would not amount to significant harm (CB 303, [187]). The Tribunal also found, on the basis of country information that any short period of detention where there was “overcrowding and poor sanitary conditions” would not amount to significant harm (CB 304, [189]). The Tribunal noted that there was no evidence to suggest that “the authorities would intend to cause suffering by virtue of these conditions” (CB 304, [189]). The Tribunal's “intention” reasoning will be impacted by the reserved High Court judgment in SZTAL v Minister for Immigration and Border Protection (S272/2016) (SZTAL). However, given the Tribunal's finding that any brief detention would not amount to serious harm, the first respondent contends that there is an independent basis for the Tribunal’s conclusion which is unaffected by any decision in SZTAL.
26. The Tribunal concluded that the applicant did not meet s 36(2)(a) or s 36(2)(aa) (CB 304, [190]-[192]).
(Emphasis in original)
Consideration
There are two grounds in the application as filed by the applicant. The applicant explained at the hearing today that those grounds were formulated on his behalf by a lawyer. The applicant neither filed any written submissions in support of those grounds, nor was able to address them orally today at the hearing. The applicant made no further claims in support of his application.
Ground One
The first ground of the application is that the Tribunal erred in failing to consider each integer of the claims of the applicant.
The particulars of that first ground are:
a.The Tribunal failed to consider the claim of the applicant that he is a witness to “grease devil” phenomenon as a tool of intimidation used by the Sri Lankan Army;
b.At [36] the AAT had noted the claim that the Grease Men were assaulted by the applicant and pursued to the local Army Camp;
c.The RRT had failed to consider what implication his status as a witness to the local Army camp hosting grease devils
The first ground however, must fail. The Tribunal refer to the claim as acknowledged in particular ‘b’ to the ground, and also explained in some detail from [152] to [156] of its reasons, why it did not accept that the incident upon which the applicant relied, would give rise to any real risk of future harm. The reasoning and findings in those paragraphs deals with the claim relied upon by the applicant in his application. For that reason; the Tribunal did not fall into the error asserted in ground 1 of the application.
Ground Two
The second ground is that the Tribunal failed to comply with Ministerial Direction No.56 (Direction), in contravention of s.499(2A) of the Act. The particulars of that ground are that the Tribunal failed to take into account the ‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’ and ‘PAM3: Refugee and Humanitarian – Refugee Law Guidelines’ (Guidelines), when it made a finding on whether the treatment that the applicant would face on being detained in Sri Lanka was degrading treatment or punishment, or was cruel or inhuman treatment.
Section 499(1) of the Act authorises the Minister to issue directions to persons having functions or powers under the Act. Section 499(2A) of the Act provides that:
A person or body must comply with a direction under subsection (1).
There have been many directions issued by the Minister under s.499(1) of the Act. This includes the Direction referred to at [12] above which applies to decisions made under s.414 of the Act; the section under which the Tribunal was acting. That Direction was not before the Court; however, it has been the subject of a number of decisions in both this Court and the Federal Court. I take notice therefore, that cll.2 and 3 of the Direction are what is relied upon by the applicant in the second ground. In effect, cl.2 of the Direction required the Tribunal to take account of the Guidelines “to the extent that they are relevant to the decision under consideration”.
The Guidelines are not before the Court and the applicant has not identified anywhere, the relevant part of the Guidelines which he says the Tribunal failed to take into consideration.
Leaving that to one side, there appears to be two insuperable difficulties with this ground. The first is that the Tribunal referred expressly to its obligation under s.499 of the Act in respect of the Direction: see [209] of the Tribunal’s reasons.
Secondly and in any event, the difficulty for the applicant is that the obligation to consider the matters in the Guidelines only arises in respect of what the Tribunal considers relevant: see SZTMD v Minister for Immigration & Border Protection (2015) 150 ALD 34; [2015] FCA 150 at [20] and Nigam v Minister for Immigration & Border Protection [2017] FCA 106 at [17].
Thus, it is not enough for the applicant to show no express consideration of any part of the Guidelines in order to establish a breach of s.499(2A) of the Act. The applicant must also show that the Tribunal considered those parts of the Guidelines were relevant to the review. The applicant has not done that. There is nothing on the material to suggest that the Tribunal thought any aspect of the Guidelines were relevant and yet failed to consider it. For those reasons, the second ground must fail.
Given that the applicant is unrepresented, I have also had regard broadly to the Tribunal’s reasons and to its conduct of the review in general. I have observed the Tribunal’s reasons to be both careful and detailed in its analysis of the applicant’s claims. The applicant was invited to not one, but two hearings. It appears from the Tribunal’s reasons, that the applicant was given an opportunity to address his concerns in respect of his application.
Conclusion
There is nothing in either the process, or the outcome, of the review that constitutes a jurisdictional error. For that reason, the application must be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 30 August 2017
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