CEY15 v Minister for Immigration

[2016] FCCA 1310

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEY15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1310

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – real chance test – whether the Tribunal asked itself the wrong question – whether the applicant had a genuine hearing – no jurisdictional error – identified – application for extension of time dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 476, 477

Prevention of Terrorism Act 1978 (Sri Lanka)

Applicant: CEY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2904 of 2015

Judgment of: Judge Street

Hearing date: 31 May 2016

Date of Last Submission: 31 May 2016

Delivered at: Sydney

Delivered on: 31 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms B Rayment
Mills Oakley Lawyers

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2904 of 2015

CEY15

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 16 September 2015 affirming the decision of the delegate 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. The applicant arrived by boat as an unauthorised maritime arrival on 20 June 2012 and applied for protection on 22 November 2012.

2. The delegate refused to grant the application on 12 September 2013.  In summary, the applicant claimed to fear harm from Special Task Forces and the Sri Lankan authorities on the basis of his Tamil ethnicity, involvement with the Liberation Tigers of Tamil Elam (LTTE), illegal departure from Sri Lanka and his residence in Batticaloa.  The applicant claimed to fear harm by the government, who he claimed disregarded the rights of Tamils.  The applicant said that his brother was killed in 1990 during a conflict with police, and the applicant’s whole family was displaced.

3. The applicant says after he returned to Batticaloa, the Special Task Forces harassed all the fishermen in his area, and threatened their livelihood by taking their fish when they returned to shore.  The applicant claimed the authorities took his fish once in 2011, and twice in 2012.  The applicant says that he spoke Sinhalese, and persuaded the Special Task Forces on many occasions not to take his or others’ fish, but also suffered harassment on three occasions in November 2011, April 2012, and May 2012.  The applicant claimed he was beaten twice, and threatened with a gun, and told to telephone the Special Task Forces, and report to the Special Task Force’s camp.

4. The applicant did not report to the Special Task Force’s camp because he feared he would be detained and mistreated, and he went to a relative’s house where he stayed in hiding until he left Sri Lanka illegally by boat.  On 12 September 2013, the delegate refused the applicant’s application and, although accepting the applicant’s evidence on certain aspects, did not accept the applicant as credible in relation to the claims concerning his family members, or links, or association with the LTTE, or that the Special Task Forces approached the applicant’s family home with the intention of killing, and the delegate was not satisfied that the applicant faced a real chance of serious or significant harm.

5. By a letter dated 5 August 2015, the applicant was invited to attend a hearing on 27 August 2015.  The applicant attended on that date to give evidence, and present arguments, and was assisted by his migration agent, as well as an interpreter.  The Tribunal considered the applicant’s claims, and expressed concerns in relation to the applicant’s credibility. The Tribunal concluded that the applicant was not a witness of truth, and the applicant had exaggerated and fabricated accounts of events, as well as claimed fears upon which he based his protection claims.

6. The Tribunal did not accept that the applicant went into hiding, or fled Sri Lanka for Australia in fear of his life, or because he was in danger, or because he was targeted, or harmed by anyone, any groups, or authorities.  The Tribunal did not accept that anyone has an adverse interest in the applicant since he left Sri Lanka.  The Tribunal was not satisfied, on the evidence before it, that the applicant faced any real chance of serious harm, or real risk of significant harm, from Sinhalese people.

7. The Tribunal noted the applicant did not claim, to the Tribunal, to have had any involvement in the LTTE.  The Tribunal found that for the whole of the conflict the applicant was not of particular interest to authorities or any groups of persons.  The Tribunal did not accept that the applicant has ever previously come to the adverse attention of Sri Lankan authorities, or any groups, or organisations, or that he has ever had any previous, past political involvement.  The Tribunal did not accept that there was any reason, at the time he left Sri Lanka, for him to be imputed with any antigovernment opinion or to have been suspected of any involvement with the LTTE.

8. The Tribunal found that it did not accept the applicant’s brother had a profile with the authorities other than that he was a Tamil during the war.  The Tribunal did not consider there was any chance or risk that the applicant’s brother’s death would affect the applicant’s profile such that he would be of any adverse interest by the authorities upon return to Sri Lanka.  The Tribunal did not accept the applicant’s claims in relation to speaking out on behalf of other fishermen who did not speak Sinhalese, and did not accept that the applicant had any political involvement, or has been suspected of any antigovernment political involvement in the past in Sri Lanka.

9. The Tribunal was not satisfied, on the evidence before it, that there was a real chance or a real risk the applicant would wish to have any political involvement in the future, and the Tribunal did not accept the applicant’s claims in relation to his imputed political opinion. The Tribunal found the applicant has never been involved with, or accused, or imputed, of being involved with the LTTE in the past, whether for reason of his ethnicity, his place of origin, or his past employment.

10. The Tribunal turned to consider whether the applicant’s involuntary return as a failed asylum seeker from Australia would give rise to any real chance or risk of harm.  The Tribunal found it was not satisfied there was any reason for the applicant to be on the stop list, nor was there any reason for the authorities to suspect the applicant of being involved in separatist or criminal activities, nor that he is on a watch list.  The Tribunal found the applicant was not questioned, or harassed, or harmed for the three years post conflict period in Sri Lanka.

11. The Tribunal did not accept, on the evidence before it, that there was a real chance, or a real risk, that the applicant has been or is suspected in involvement in a resurgence of the LTTE, including for the reason that he has been in Australia, a Western country, where there is a Tamil diaspora.  The Tribunal was not satisfied, on the evidence before it, that the applicant faced a real chance, or a real risk, of being rounded up as a suspect who has been involved in antigovernment activities.

12. The Tribunal rejected the assertion that there was a risk, as a failed asylum seeker, that the applicant would be suspected of organising the journey to Australia and supporting the LTTE.  The Tribunal did not accept that the applicant was of sufficient interest to the authorities that warranted being monitored or detained in the first three years after the conflict ended. The Tribunal was not satisfied on the evidence before it that the applicant’s profile means that he faces a real chance, or a real risk, of such harassment.

13. The Tribunal was not satisfied the applicant faces a real chance, or a real risk, of being monitored, or being detained, or prosecuted, having regard to his profile.  The Tribunal was not satisfied, on the evidence before it, and taking into account the applicant’s profile, that the applicant faces a real chance or a real risk of being imputed with an antigovernment political opinion, or being considered as someone who may be involved in the LTTE or protest movements.

14. The Tribunal was not satisfied, on the information before it, that the applicant faces a real chance or a real risk of being detained under the Prevention of Terrorism Act 1978 (Sri Lanka) or, having regard to all the current information, that his profile is such that he faces a real chance, or a real risk, of arbitrary arrest, or detention, or disappearance.  The Tribunal did not accept that, because the applicant left Sri Lanka by boat, travelled to Australia, claimed asylum, and will return from Australia, that this will lead to a real chance, or a real risk, of him being imputed with a certain political profile which would lead to him facing harm.

15. The Tribunal referred to the applicant being a person who departed Sri Lanka illegally, and a failed asylum seeker from Australia, and found that it does not consider this is a reason for him to be considered of adverse interest either to the authorities or to the population in general.  The Tribunal found, having regard to the applicant’s profile, that the applicant does not face a real chance of serious harm, or real risk of significant harm, having regard to the changed country conditions since the end of the conflict.

16. The Tribunal was not satisfied, on the basis of the available country evidence, that being a young male Tamil from Batticaloa/Ampara District who travelled to a western country, being Australia, where he claimed asylum, leads to an imputation is antigovernment, or has links with the LTTE, or other separatist organisations, or the active political diaspora.  The Tribunal said that it was not satisfied, with the country information before it, to support the assertion that just because the applicant departed illegally and claimed asylum in Australia, and is a young male Tamil from Batticaloa/Ampara District, he will be imputed as having anti-Government opinion, pro-LTTE opinion or involvement in the reformation of the LTTE or politically active diaspora or will be otherwise of adverse interest to the authorities.  The Tribunal said it was not satisfied that the applicant had suffered harm in the past as a result of his ethnicity, gender, age, place of origin nor does it accept that he suffered harm because he has been imputed with any pro-LTTE or anti-Government political opinion.

17. The Tribunal found that the applicant had not previously come to adverse attention of Sri Lankan authorities or other organisations. The Tribunal found that the applicant does not face being suspected of involvement in the politically active Tamil diaspora. The Tribunal did not accept that the applicant will have an increased or bigger profile due to being a failed asylum seeker, given the significant number of failed asylum seekers returned to Sri Lanka.

18. The Tribunal found that it was not satisfied there is a real risk of persecution to the applicant now or in the reasonably foreseeable future or a real risk of significant harm because of his Tamil ethnicity, his place of origin or return, his work including that he was or may be again a fisherman, his suspected links to the LTTE or other Tamil or anti-Government organisations or because he travelled to Australia illegally by boat or is presumed to have claimed asylum or because he had a brother who died during the conflict in 1990 or because he was a Tamil in the wrong place at the wrong time at the hands of the authorities.

19. The Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution.  The Tribunal considered what may occur for the applicant upon arrival at the airport in Sri Lanka and relevantly found that it was not satisfied there is a real chance or real risk that he will be detained by security services.  The Tribunal said it was not satisfied that there is a real chance the applicant faces persecution or a real risk of significant harm during the process at the airport, being held on remand or the legal process or after return home to Sri Lanka.

20. The Tribunal identified the application of the Sri Lankan law and considered whether or not the processing of the applicant under that law occurred under a law of general application and whether it appeared to be applied in a non-discriminatory manner.  The Tribunal found that the processes to which the applicant would be subjected was a result of a non-discriminatory law of general application.  It was in those circumstances that the Tribunal did not accept that the applicant faced serious or significant harm in his home area in the past nor did the Tribunal accept that he faces a real chance of serious harm or a real risk of significant harm from authorities or organisations or communities in the reasonably foreseeable future.

21. The Tribunal did not accept that the applicant is of adverse interest to any of the authorities or other organisations.  The Tribunal did not accept there is any reason for him to be of adverse interest to such authorities or organisations in his home area.  The Tribunal was not satisfied on the evidence before it that if the applicant chose to be a fisherman, he faces a real chance or real risk of his livelihood being adversely affected in Batticaloa or suffering serious or significant harm.

22. The Tribunal was not satisfied that the applicant faces a real chance or real risk of being abused, threatened, extorted or mistreated by the special task forces.  The Tribunal noted that it had considered the applicant’s claims individually and cumulatively, having regard to the findings that the applicant was not a credible witness concerning past or future harm feared. The Tribunal found that the applicant did not have a well-founded fear of convention-related persecution for any of the reasons put forward by the applicant or on his behalf.

23. The Tribunal turned to the issue of complementary protection and found that it was not satisfied that there are substantial grounds for believing that as a necessary foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm. It was in those circumstances, the Tribunal found that the criteria under s.36(2) of the Migration Act 1958 was not made out and affirmed the decision of the delegate. 

24. On 3 December 2015, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

25. The grounds of the application are as follows:

    1. The Tribunal made a legal error in [110] in asking itself the wrong question.

    Particulars

    a) In considering whether the appellant may be subjected to harsh treatment or penalties while being investigate/held on remand. The Tribunal failed to consider whether the poor conditions were persecutory as the poor conditions applied to persons in remand generally and not specifically to Tamils or any other aspect of the appellant's profile.

26. At the commencement of the hearing, the Court explained to the applicant that the hearing was determined whether or not the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant.  The Court explained in summary, this meant the Court had to determine whether the Tribunal’s decision was lawful or whether the Tribunal’s decision was fair.

27. The solicitor for the first respondent raised with the Court that the applicant’s application was five days late and that an extension of time was required under s.477. The Court indicated to the applicant that it would treat the application before it as an application for an extension of time which the applicant confirmed as the course he wished to take.

28. The Court explained to the applicant prior to the applicant giving evidence that the issues under s.477 involved whether the applicant had a satisfactory explanation for the delay and whether there was a sufficiently arguable case to warrant an extension of time in the interest of the administration of justice. The applicant confirmed that he understood the nature of the case as explained by the Court.

29. The applicant gave sworn evidence in relation to the delay and explained that his migration agent had contacted him on 22 September 2015 and that he lived a long way away and gave the evidence that he received the actual decision in a covering letter a few days later.

30. The applicant gave evidence that he did not file the application because he was looking for somewhere to live that he could put on the application.  The applicant gave evidence that he did find somewhere prior to the date on which he filed the application.  The applicant’s explanation for the delay was not satisfactory.  However, the critical issue in the present case is the merits of the application and whether the applicant has a sufficiently arguable case of jurisdictional error that warrants an extension of time in the interests of the administration of justice. 

31. From the bar table, the applicant said that he did not have any knowledge to advance any particular errors and did not develop any other submissions.  In relation to the ground in the application, it is apparent from the Tribunal’s reasons in paras.108, 115 and 116 that the Tribunal considered the conditions to which the applicant would be exposed.  Ground 1 fails to make out any jurisdictional error.  Nothing said by the applicant from the bar table identified any jurisdictional error.

32. I am satisfied that the applicant had a genuine hearing and that the adverse findings by the Tribunal were open on material before the Tribunal. I am satisfied on the material before the Court that the Tribunal’s decision was made in accordance with the statutory regime. I am not persuaded that there was any denial of procedural fairness to the applicant in the conduct of the hearing or decision-making process by the Tribunal. I am not satisfied that there is a sufficiently arguable case that warrants an extension of time in the interest of the administration of justice. The application for an extension of time under s.477 is dismissed.

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

Date: 6 June 2016