CEY16 v Minister for Immigration

[2017] FCCA 293

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 293

Catchwords:
MIGRATION – Protection (Class XA) visa – the Tribunal had an intellectual engagement with the applicant’s written submissions – the applicant had a real and meaningful hearing before the Tribunal – the Tribunal complied with its statutory obligations – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: CEY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2143 of 2016

Judgment of: Judge Street

Hearing date: 21 February 2017

Date of Last Submission: 21 February 2017

Delivered at: Sydney

Delivered on: 21 February 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr T Galvin

Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2143 of 2016

CEY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 10 July 2016 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a Sri Lankan national and his claims were assessed against that country. The applicant departed Sri Lanka illegally on 6 June 2012 and arrived in Christmas Island on 29 June 2012. The applicant applied for a protection visa on 5 November 2012. 

The Delegate

1. The applicant claimed that while he was still in school his father was kidnapped and tortured. The applicant claimed that the CID and the Sri Lankan Army suspected the applicant’s father of involvement with the LTTE and that the applicant’s father was harmed because he is a Tamil. The applicant alleges that just before 2012 he fled Sri Lanka because the police came to his home making inquiries.

2. The applicant alleges that his father told him he had been detained in a camp because the CID wanted to know why the applicant had been sent to Australia. The applicant claimed to fear harm because of what his father had been doing in Sri Lanka. The applicant feared that he would be detained, kidnapped and killed by the CID and the Sri Lankan army if he returned to Sri Lanka. The applicant feared that he would be harmed because he is his father’s son and would be imputed with a political opinion. The applicant also believed he is at risk and fears harm from the Sinhalese people in the surrounding area and fears he will be harmed because of his Tamil race and that he will not be protected by the authorities.

3. The delegate made adverse findings in relation to the applicant’s evidence and claims on the grounds of credibility. The delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason and was not satisfied the applicant’s fear was well-founded.

4. The delegate was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will be subjected to significant harm. The delegate found that the applicant was not a person in respect of whom Australia had protection obligations under s.36(2) of the Act.

The Tribunal

1. The applicant applied for review of the delegate’s decision by application filed 16 December 2013. Detailed submissions were provided by the applicant’s migration representative to the Tribunal by letter dated 7 March 2014. By letter dated 2 September 2015, the Tribunal informed the applicant that the Tribunal was unable to make a favourable decision on the information before the Tribunal.

2. The applicant was invited to attend a hearing to be held on 17 September 2015. The applicant appeared on that date to give evidence and present arguments. At the hearing, the applicant asked for an opportunity to provide further documents to the Tribunal and the Tribunal agreed that it would delay its decision making in order to provide an opportunity for the applicant to put on further material. The applicant’s migration agent provided further submissions dated 25 September 2015 which indicated the applicant had been unsuccessful in the attempts he had made to speak to his brother to request documentary evidence. A further submission was sent to the Tribunal on 8 February 2016. 

3. The Tribunal identified the applicant’s background and set out the relevant law in an annexure to the decision. The Tribunal expressly referred to the post-hearing submissions dated 25 September 2015 and 8 February 2016 in its reasons. The Tribunal set out the applicant’s claims and evidence.

Consideration of the applicant’s credibility

1. The Tribunal expressed serious concerns about the applicant’s credibility and the veracity of his claims. The Tribunal did not accept that the applicant was a witness of truth concerning his claims of past harm to himself or his father; nor about his father and his business; nor about his brother’s reasons for travel and harm he suffered; nor the applicant’s reasons for travelling to Australia; nor about the applicant’s future fears. The Tribunal provided detailed reasons in support of the adverse credibility findings. Those adverse reasons extend beyond mere inconsistency in relation to the recalling of dates. The adverse findings in relation to the applicant’s credibility cannot be said to lack an evident and intelligible justification. The adverse findings in relation to the applicant’s credit were open on the material before the Tribunal. 

2. The Tribunal expressed concern in relation to the applicant’s changing claims undermining his credibility. The Tribunal found on the evidence before it that it was not satisfied that the applicant was a witness of truth. The Tribunal found having regard to its concerns about the applicant’s credibility, that it was not prepared to accept that there are relevant documents or that the applicant was blocked from obtaining the same by his father.  The Tribunal concluded the applicant is not a witness of truth and that the applicant has exaggerated and fabricated accounts of evidence as well as claimed fears upon which his protection claims are based.

Consideration of past harm and past events

1. The Tribunal did not accept that the applicant’s father was giving political assistance to a candidate and had some problems with the opposition party. The Tribunal did not accept that the applicant’s father had political connections. The Tribunal did not accept that the applicant’s father was visited at the home and asked about who resided there, nor that he was assaulted or harmed or suspected by the authorities of anything, nor that he was detained when the applicant was in detention.

2. The Tribunal did not accept that the applicant’s father runs (or has been or faces being imputed of any involvement in) an illegal smuggling/travel agency/business, nor that when his brother came back, his father organised for his brother to be gaoled. The Tribunal did not accept the applicant’s father has connections to the authorities. 

3. The Tribunal did not accept that the applicant fled Sri Lanka in fear of his life or because he was in danger or because he was targeted for harm by anyone, any groups, or any authorities. The Tribunal did not accept that the applicant was fearful, that the applicant was at risk from Sinhalese people who may report him or harm him themselves. The Tribunal did not accept that anyone had any adverse interest in the applicant while he was in Sri Lanka or since he left Sri Lanka.

4. The Tribunal did not accept that the applicant’s father has the claimed profile and does not accept that the applicant faces a real chance of serious harm or real risk of significant harm for reasons of his claimed profile or the claimed profile of his father. The Tribunal did not accept that the applicant’s father or any of the applicant’s relatives ever had an involvement with the LTTE, nor that they were ever suspected of an involvement with the LTTE, nor that there was any reason to believe that the applicant faces a real chance or real risk of being imputed as involved with the LTTE either himself or as a result of anyone else’s activities or perceived profile.

Consideration of the fear of Sinhalese people and the authorities

1. The Tribunal was not satisfied on the evidence before it that the applicant faced a real chance or real risk of facing harm such that he will need protection from the authorities. The Tribunal did not accept the applicant’s claims that because he is a Tamil and/or his father’s son that he faces a real chance or real risk of being detained, kidnapped, shot or killed by the CID and the Sri Lankan Army or of being imputed with a political opinion or of being reported to authorities or being harmed by Sinhalese people.

Consideration of country information

1. The Tribunal accepted that the applicant had departed Sri Lanka illegally. The Tribunal was not satisfied the applicant or his family had any connection to the LTTE, nor that there is any reason for the authorities to so impute him with such a connection. The Tribunal did not accept on the evidence before it that the applicant faces being suspected of LTTE involvement because he has been out of Sri Lanka. The Tribunal was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, or a real risk of significant harm because of his Tamil ethnicity, his place of origin and return, because he spent time out of Sri Lanka having travelled to Australia illegally by boat and is presumed to have claimed asylum, or that he would be suspected of having links to the LTTE or other Tamil or anti-government organisations, or otherwise of adverse interest to the authorities.

2. The Tribunal was not satisfied that these factors (as well as the applicant’s youth and gender), whether individually or cumulatively, support a finding that there is a well-founded fear of persecution for the applicant, nor that the applicant faces a real risk of significant harm. In relation to the detention of the applicant as a result of his illegal departure, the Tribunal considered whether the law that would be applied, would be applied discriminatorily. 

Refugee Convention Assessment

1. The Tribunal was not satisfied there was any evidence to suggest that people are being subjected to the law for a Convention reason. The Tribunal rejected the various claims made by the applicant and found that the applicant did not have a well-founded fear of a Convention related persecution for any of the reasons put forward by him, or on his behalf.

2. The Tribunal did not accept the applicant face persecution for reasons of his race, imputed political opinion, or membership of a particular social group or for any other Convention reason. 

Complementary protection assessment

1. The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that the applicant would suffer significant harm. The Tribunal found that the applicant did not meet the criterion under s.36(2) of the Act and found that the applicant is not a person in respect of whom Australia has a protection obligation.

Before this Court

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

2. The Court explained that if the Court was satisfied the Tribunal’s decision was unlawful or unfair it would set aside the decision and send it back for a further hearing. The Court explained that if the Court was not satisfied the Tribunal’s decision was unlawful or unfair it would dismiss the application.

3. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. On 27 October 2016 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. 

5. The ground in the application is as follows:-

   1. The Tribunal fell into jurisdictional error in failing to consider all integers of the claim

   Particulars

   a. The Tribunal failed to consider post-hearing submissions made by the applicant’s agent on 25 September 2015 and 8 February 2016.

Consideration

1. The Tribunal’s reasons expressly refer to the submissions dated 25 September 2015 and 8 February 2016. Further, in the body of the reasoning of the Tribunal it is apparent that the Tribunal has addressed the submissions by the applicant’s migration representative in relation to the additional country information. On the face of the material before the Court, the Tribunal had an intellectual engagement with the applicant’s written submissions. No jurisdictional error is made out by Ground 1 of the application.

2. On the face of the material before the Court, the applicant had a real and meaningful hearing and the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. 

3. From the bar table, the applicant suggested that the adverse credibility findings were based solely on his being unable to recall particular dates. The Tribunal’s reasons in support of the adverse credibility findings are not so confined and reflect logical and reasonable grounds upon which it was open to the Tribunal to reject the applicant’s credit.

4. The applicant made reference to wanting an opportunity before the Tribunal to put on further material. It is apparent that the Tribunal did provide the applicant an opportunity following the hearing to put on further material and the applicant’s migration representative identified that the applicant had been unable to obtain such information in relation to his brother. It was reasonable for the Tribunal to proceed to make a determination in relation to the review. There was no unreasonable conduct or denial of procedural fairness by the Tribunal to the applicant in relation to the opportunity given to the applicant to provide further information concerning his claims and his brother and the determination of the review. 

5. The applicant also raised difficulties in relation to his claims concerning his father. It is apparent that the Tribunal made adverse findings having considered those claims and that the Tribunal addressed the claims advanced by the applicant in relation to his father.   The adverse credibility findings made by the Tribunal in that regard were open to the Tribunal.

Conclusion

1. The application is dismissed.

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

Date: 23 February 2017