Cef16 v Minister for Immigration

[2020] FCCA 2255

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEF16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2255

Catchwords:
MIGRATION –whether claims had been considered – whether there was no evidence to support the findings – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 424A, 425, 476

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Hossain v Minister for Immigration and Border Protection [2018] HCA 34

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802

NABE V Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

SZLPI v Minister for Immigration and Citizenship [2008] FCA 1841

Applicant: CEF16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1679 of 2016

Judgment of: Judge McNab

Hearing date: 1 April 2020

Date of Last Submission: 1 April 2020

Delivered at: Melbourne

Delivered on: 14 August 2020

REPRESENTATION

Counsel for the Applicant: Mr Foster

Solicitors for the Applicant: Senthil Rajan Sinnarajah

Counsel for the Respondents: Mr Grant

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 8 August 2016 and amended on 25 February 2020 be dismissed.

2. The applicant pay the costs of the first respondent fixed in the sum of $8,810.00.

3. The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1679 of 2016

CEF16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By application filed 8 August 2016 and amended on 25 February 2020, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 13 July 2016. The Tribunal’s decision affirmed a decision of a delegate (‘the delegate’) of the first respondent (‘the Minister’) refusing to grant a Protection (class XA) visa (‘the visa’).

2. For the reasons which follow I have concluded that the application should be dismissed.

Background

1. The background to this matter is accurately set out in the submissions filed on behalf of the Minister on 22 March 2019:

   4. The applicant is a citizen of Sri Lanka who first arrived in Australia on 9 August 2012 as an irregular maritime arrival.

   5. On 15 January 2013, the applicant applied for the Visa. In a statutory declaration filed with his Visa application, the applicant claimed to fear harm from the Sri Lankan authorities due to an imputed political opinion in support of the Liberation Tigers of Tamil Elam (the LTTE) arising from his status as a young Tamil male from Mullaitivu; and because his brother had undergone LTTE training and had been detained by the Sri Lankan authorities. He also claimed to fear harm as an failed asylum seeker.

   
   

   The applicant claimed to have been detained in an army camp after the civil war. He claimed to have been tortured but to have escaped the army camp in a water tank and to have bribed airport officials at Colombo airport to flee to Singapore. He claimed that after his departure his parents had been visited by the authorities asking after him, and that his father was served with a summons and questioned about the applicant's whereabouts.

   6. The applicant's registered migration agent provided the department with submissions on 4 November 2013, and 18 March 2014; together with a statutory declaration sworn by the applicant on 18 March 2014. The latter submissions and the statutory declaration responded to concerns raised by the department about inconsistencies in the applicant's reporting of his medical conditions to the department.

   7. On 14 October 2013, the applicant attended an interview before the delegate.

   8. On 10 September 2014, the delegate refused to grant the applicant the Visa. The delegate found that the applicant's testimony was unreliable. The delegate found that the applicant's claims were not consistent and that he had provided unsatisfactory responses to explain the discrepancies. On the basis of the applicant's evidence and country information, the delegate found that the applicant was of no interest to the Sri Lankan authorities. Although the delegate found that the applicant would likely be interviewed and fined as a consequence of his illegal departure from Sri Lanka, the delegate found that treatment would not amount to persecution. The delegate was not satisfied that the applicant faced a real chance of serious harm in Sri Lanka. On the basis of the delegate's antecedent findings, the delegate found that the applicant similarly did not face a real risk of significant harm.

   9. On 17 September 2014, the applicant applied to the Tribunal for review of the delegate's decision.

   Tribunal proceedings

   10. On 19 February 2016, the applicant was invited to attend a hearing before the Tribunal on 22 March 2016.

   11. On 8 March 2016, the applicant's agent provided submissions and a statutory declaration sworn by the applicant on 4 March 2016. The applicant's agent raised an additional claim that the applicant would suffer harm as a result of any questioning, monitoring or harassment by authorities due to his mental health.

   12. On 22 March 2016, the applicant attended the hearing before the Tribunal with the assistance of his agent and a Tamil interpreter. At hearing the Tribunal noted the applicant's agent's submission that the applicant was a vulnerable witness, and consequently repeated questions, provided the applicant's agent with opportunity to comment, and took appropriate breaks. No claim was however raised by the applicant or his agent either during or after hearing regarding his ability to communicate. The applicant confirmed that he understood the interpreter.

   13. On 24 March 2016, the applicant's agent provided post-hearing submissions to the Tribunal.

   14. On 13 July 2016, the Tribunal affirmed the delegate's decision.

   (errors in original)

Grounds of review

1. The applicant’s amended application filed 25 February 2020 provides the following grounds of review:

   1. The decision of the Tribunal:

   a. is affected by an error of law; and

   b. denied the applicant procedural fairness.

   2. The AAT erred when it failed to consider a composite claim made by the Applicant that:-

   i. Mullaitivu is not safe for Tamils.

   ii. The military presence is oppressive and Tamil people cannot live their lives free from surveillance and threats of harm,

   iii. I would not be able to find a job or housing in any other place (other than Mullaitivu) as I would be treated with suspicion,

   i. I also cannot speak Singhalese which means I could not easily survive very well in non-Tamil speaking areas.

   iv. My family lives in Mullaitivu. I cannot return there because the CID has attended our home looking for me. They continue to take young Tamil males from Mullaitivu and I have no doubt that I would be taken and hurt badly by the CID and SLA in Mullaitivu;

   v. I cannot live anywhere else in Sri Lanka. If I am forced to relocate, I would need to register with the local authorities with my national identity card. My card shows I am from Mullaitivu. As soon as this becomes known I will not be safe as young Tamil Males from Mullaitivu are targeted and hurt by Sri Lankan authorities and the military throughout Sri Lanka. Further as I have explained I am wanted for questioning by the CID because I escaped them and because they believe I am linked to the LTTE. The authorities would know my whereabouts in Sri Lanka.

   vi. If I am forced to relocate, I do not think I could survive. My identity card shows I am from Mullaitivu and that I am Tamil. This will make it very hard for me to find a job and obtain housing. Tamil people are discriminated against throughout Sri Lanka especially Tamils from Mullaitivu;

   vii. I have suffered a lot in Sri Lanka and I cannot bear the thought of returning. I do not think I would be able to cope psychologically with a return to Sri Lanka. I believe the emotional and psychological harm I have experienced and continue to experience would be increased severely if I had to go back to Sri Lank and I do not think I could function in these circumstances.

   Such error amounting to a constructive failure to exercise its jurisdiction and/or as a result of which the Tribunal came to conclusions that were unreasonable, and therefore amounts to jurisdictional error.

   Particulars

   ii. The AAT did not consider the Applicant’s composite claim i-vii above, and so erred when it found the Applicant did not have a well-founded fear of persecution for a Convention reason and in affirming the decision under review.

   iii. The Applicant’s claim that he would have an ‘Inability to find housing or a job’ and ‘could not survive’ would clearly fall within S 5J (5) (e) and/or (f) of the Migration Act “5J Meaning of well founded fear of persecution” and constitute grounds of persecution:

   S 5J (5)(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   3. The AAT erred when it took into account material which was not before it.

   Particulars

   i. The AAT considered the Applicant ‘will have the support of his parents and siblings and community’ and ‘the applicant will be in a supportive environment of his parents and family and community’ when considering the Applicant’s future should he return to Sri Lanka.

   ii. There is no evidence which appears support these statements,

   iii. The consideration of material not before the Tribunal, and/or as a result of which the Tribunal came to conclusions which were unreasonable, amounts to jurisdictional error.

   (citations omitted, errors in original)

Consideration

Ground 1(a) & (b)

1. The applicant advances a claim that the Tribunals decision is affected by an error of law and a failure to accord procedural fairness. The ground is unparticularised and no submission was made in support of the ground. This ground has been effectively taken over by grounds 2 and 3. There is no error apparent in the Tribunal’s decision and there was no failure on the part of the Tribunal to accord procedural fairness. The applicant was assisted by a Tamil interpreter and a registered migration agent.  

   
   

   At [26] the Tribunal made reference to the agent’s submission that the applicant was a vulnerable witness and that he had suffered trauma and accordingly took this into account when conducting the hearing.

   
   

   The Tribunal also noted that the applicant confirmed that he understood the interpreter and agreed to advise the Tribunal if he did not.

   
   

   This ground is not made out.

Ground 2

1. By this ground the applicant submits that the matters set out in grounds 2 (i) – (vii) of the amended application constitute a composite claim which was not considered by the Tribunal when it found that the applicant did not have a well-founded fear of persecution for a convention reason. In particular, it is said that the Tribunal failed to consider whether the applicant had a well-founded fear of persecution as defined by section 5J (5) (e) and (f) of the Migration Act 1958 (Cth)

   
   

   (‘the Act’) because it not did not consider the applicant: finding a job, obtaining housing, being able to speak Sinhalese; being able to survive; suffering from psychological harm rendering him unable to perform (taken from the applicant’s submissions).

2. The Tribunal is not required to consider a claim not made or one which cannot be said to clearly arise on the material before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [58] and [61]. The claims that the Tribunal is said to have failed to consider are found in the Court Book at page 82 to 87 and pages 276 to 278. They were set out in statutory declaration submitted to the Department and in the second submission to the Tribunal both those declarations referred to by the Tribunal indeed were set out in full in the Tribunal’s decision at [20] and [22].

3. The applicant’s claims were in fact considered, both individually and cumulatively, to the extent they were required to be.  The applicant’s unauthorised departure from the camp and the question of whether he or his parents were of interest to the authorities was considered at [56] – [60] of the Tribunal’s decision.

4. The Tribunal considered the applicant’s status and vulnerability as Tamil from northern Sri Lanka having regard to country information which was discussed with the applicant at the hearing: [76] – [79]. At [80] - [84] the Tribunal considered the position of the applicant as a young Tamil and noted that he had some engagement with the authorities in 2009 – 2010 and had been mistreated in 2009 but that did not have a profile such that he would face a real chance of serious harm because of his Tamil ethnicity.

5. The Tribunal considered the applicant’s claims that the military continue to have a heavy presence in his home area in northern Sri Lanka: [110] - [118].

6. Otherwise the Tribunal rejected the applicant’s claims to fear harm for each of the reasons raised by the applicant arising from his past circumstances and his characteristics as a Tamil: [43], [48], [50] – [60] , [61], [69] , [80] – [84], [89], [91] – [95], [93] – [94] and [106].

7. Given the Tribunal found that the applicants claims to fear harm were not accepted, the Tribunal was not required to consider the issue of relocation or the matters raised by the applicant regarding relocation. 

   
   

   At [51] the Tribunal did consider the applicant’s vulnerability as a result of his experiences through the civil war and at [52] found that the applicant’s vulnerabilities would not result in serious or significant harm.

8. On a fair reading of the Tribunal’s reasons, which are comprehensive, the applicant’s claims have been dealt with individually and cumulatively.  The claim set out the grounds review that the applicant would: be unable to obtain housing; be unable to find work; and would have language difficulties that were not made amongst the myriad of claims that were raised.  There is no error in the manner in which the Tribunal approach this task considering the claims now raised as a composite claim which were not clearly put before the Tribunal.

Ground 3

1. In considering the claim regarding the applicant’s vulnerabilities and the impact those vulnerabilities would have on his return to Sri Lanka, the Tribunal stated at [52]:

   “The Tribunal has taken into account the applicant will have the support of his parents and siblings and his community in general on return to Sri Lanka”. 

2. The applicant raises the ground that this finding was made without evidence.

3. For the applicant to succeed on a ‘no evidence’ ground he must show that there was no evidence at all upon which the finding could have been based: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

4. The applicant’s oral evidence at the hearing regarding his active relationships with family in Mullaitivu and written evidence (confirmed at hearing) regarding his father as “well-respected and trusted” provides a sufficient basis for the Tribunal’s finding: see [28(b)]. There is no claim of any breakdown of the relationship between the applicant and his family. There was also evidence of the applicant’s brother unnamed living with his family and that the applicant keeps in touch with his family: [41], [43] and [49].

5. For the reasons, ground 3 must be dismissed and otherwise the amended application filed 25 February 2020 shall be dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 14 August 2020