CFK15 v Minister for Immigration
[2016] FCCA 2022
•11 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFK15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2022 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – Sri Lankan Tamil – failure to particularise grounds – whether lack of procedural fairness – whether error of law – whether excess of power – whether jurisdictional error. |
| Legislation: Immigrants & Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), pt.7, div.4, ss.46A, 422B, 425, 474, 476 |
| Cases cited: AQN15 v Minister for Immigration & Anor [2016] FCCA 58 |
| Applicant: | CFK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 489 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 July 2016 |
| Date of Last Submission: | 28 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 11 August 2016 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms A Ladhams |
| For the Second Respondent: | Submitting appearance, save as to costs |
Counsel for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 489 of 2015
| CFK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 26 October 2015 the applicant filed an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 6 October 2015. The Tribunal affirmed a decision of a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration & Border Protection (“Minister”), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant. The Tribunal Decision is at Court Book (“CB”) 236-263.
Factual and procedural background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia as an unlawful maritime arrival on 31 July 2012: CB 157-158;
b)on 21 November 2012, the first respondent lifted the bar under s.46A(1) of the Migration Act, which allowed the applicant to make an application for the Protection Visa: CB 157;
c)on 17 December 2012, the applicant applied for the Protection Visa: CB 1 and 154;
d)on 12 August 2014, the Delegate refused to grant the Protection Visa: CB 143;
e)on 18 August 2014, the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 177;
f)the Tribunal held a hearing on 19 August 2015: CB 236
g)on 6 October 2015, the Tribunal Decision affirmed the Delegate’s Decision: CB 236; and
h)the applicant filed the Judicial Review Application with this Court on 26 October 2015.
Tribunal Decision
The Tribunal Decision sets out the claims made by the applicant in a statutory declaration on 11 December 2012, including that:
a)he was forced to flee his home in Trincomalee during the war in Sri Lanka and go to India, and was in fact displaced twice (together with his family) in 1990 and 2006, but returned to Sri Lanka in 2007;
b)the applicant’s uncle was President of the Tamil Fishing Society and supported the Liberation Tigers of Tamil Eelam (“LTTE”);
c)he was detained in April 2008 by the Sri Lankan Army (“SLA”), accused of being an LTTE sympathiser only because he was a young Tamil who spoke only Tamil, but was released 15 days later after being blindfolded, interrogated and beaten;
d)he was again detained by the SLA for two days on the same basis four months later;
e)he was arrested in 2011 for not having the national identification card (“ID Card”), and claimed that he was only arrested because he was a Tamil;
f)in August 2011 a friend of his uncle was taken in a white van and nobody has heard from him since, and the applicant assumes that he has been tortured and killed by an anti-LTTE group such as the Karuna group;
g)men in plain clothes have:
i)in November 2011 gone to the applicant’s house and questioned his mother about the whereabouts of his uncle;
ii)in December 2011 come to the applicant’s house demanding to know where his uncle was and abusing the applicant’s mother and hitting the applicant; and
iii)questioned the applicant whilst he was walking to the shops a few days later and threatened that if his uncle did not return from India then the family would be harmed;
h)he was abducted in May 2012 while playing cricket in Trincomalee by five people in a white van, from which he managed to escape, and that he suspects that the attempt to abduct him was by members of anti-LTTE groups such as the Karuna group, and that they were seeking to abduct him because he was a Tamil;
i)men in plain clothes have visited his family home and asked about him since he has arrived in Australia, and have told his mother that if he returns to Sri Lankan they will abduct him;
j)he fears serious harm because of his Tamil ethnicity and because of his perceived support for the LTTE;
k)he fears being harmed in Sri Lanka as a returning asylum seeker as the Sri Lankan authorities do not tolerate their citizens seeking asylum; and
l)he fears the authorities, along with the Karuna group, and that the authorities are unable or unwilling to protect him, and that he would not be safe anywhere in Sri Lanka.
See CB 237-238 at [3].
At the Tribunal hearing on 19 August 2015 (conducted with the assistance of an interpreter) the applicant gave evidence (sometimes in response to questions by the Tribunal), as follows:
a)that he was previously tortured because his uncle was a leader in the community and raised money and gave it to the LTTE: CB 238 at [10];
b)in response to the Tribunal’s query as to why anyone would want to harm him given his uncle had left Sri Lanka and the civil war (with the LTTE) had ended six years previously, the applicant told the Tribunal that men had come to his home to beat his mother and that they had broken his tooth, and that he thinks that they were Karuna: CB 239 at [11];
c)that when the SLA detained him in 2008 it was because he was a Tamil youth, suspected of being an LTTE supporter, but that he does not now believe that this would be the case: CB 239-240 at [15];
d)the applicant confirmed that he had never been an LTTE supporter, spoken out against the Sri Lankan Sinhalese government or in favour of a separate Tamil state, and said that he had never been an active member of a political party in Sri Lanka: CB 240 at [16];
e)said that he no longer thinks that it is the case that he would face harm if he returned to Sri Lanka as a failed asylum seeker: CB 240 at [17];
f)said that he was not safe if he returned to his usual place of residence in Trincomalee, and that wherever he goes in Sri Lanka he will be caught: CB 240 at [18];
g)the applicant was unaware that he might be fined for illegally departing Sri Lanka under the terms of the Immigrants & Emigrants Act 1949 (Sri Lanka) (“I&E Act”): CB 240 at [19];
h)the applicant said that he had committed no crime in Sri Lanka and there is no other reason why the authorities in Sri Lanka would want to detain him: CB 240 at [20];
i)indicated that he did not think that the SLA was any longer a concern but that “his concern now is the Karuna”: CB 240 at [22];
j)when it was put to the applicant that the Tribunal might not accept that the Karuna would want to harm him as he was not involved in the LTTE, he replied that they were angry with his uncle and that they would harm him: CB 140 at [23], and that it was because of his uncle that the Karuna were “chasing him”: CB 241 at [25]; and
k)when questioned by the Tribunal as to the delay between the threats to him commencing in 2011 and his not leaving Sri Lanka until the middle of 2012, said that the threats were intermittent: CB 241-242 at [35].
The Tribunal assessed the country of reference as being Sri Lanka and observed that the applicant had no right to enter and reside, permanently or temporarily in any third country: CB 242 at [37]-[38].
In relation to the applicant’s credibility the Tribunal expressed some doubt as to his credibility, but proceeded generally on the basis that he was to be given the benefit of the doubt in relation to his retreat from certain claims in relation to the manner of his treatment by the SLA because country circumstances had changed since the relevant events occurred: CB 243 at [44], but the Tribunal nevertheless found that:
… the applicant has fabricated or embellished significant parts of his claim, including his claim that while playing cricket he was abducted by men in a white van …, and certain other claims involving subsequent visits by unidentified persons to his mother’s home.
CB 243 at [44].
In relation to the applicant’s claim of a fear of harm in Sri Lanka for reasons of his Tamil ethnicity and because he was a youth at the relevant time the Tribunal:
a)accepted that the applicant was born in Trincomalee in the north of the Eastern Province of Sri Lanka, and was of Tamil ethnicity, and was forced to flee his home in Trincomalee to India and that his family was displaced twice, once in 1990 and again in 2006, due to the war between the Sri Lankan government and the LTTE: CB 243-244 at [46];
b)accepted the applicant’s claim that in 2007 the applicant and his family returned to Trincomalee because they assessed they would not be granted refugee status in India: CB 243-244 at [46]; and
c)based on country information cited at CB 244 at [47], and on evidence provided by the applicant, was not satisfied that the applicant would face a real chance of serious harm for reasons of his Tamil ethnicity now, or in the reasonably foreseeable future, if he returns to Sri Lanka. In making this finding, the Tribunal considered a 2011 incident in which the applicant claimed that he was arrested for not having an ID Card on him only because he was a Tamil: CB 244 at [48].
In relation to the applicant’s claim of fear of harm from the SLA because he would be imputed with a pro-LTTE political opinion the Tribunal:
a)accepted that the applicant had been detained and questioned in April 2008 and some four months later, as he suggested, but found that since the end of the Sri Lankan civil war, being a Tamil who had lived in the previous LTTE controlled areas of Sri Lanka did not of itself create a risk profile, and that some significant involvement with the LTTE, or family links or dependence upon persons with such a risk profile were necessary before a Tamil person was at risk of persecution from the Sri Lankan authorities post the civil war: CB 244-245 at [50];
b)found that the applicant was not a member or supporter of the LTTE, although it accepted that his uncle may have been a supporter, and that the applicant may have been under some suspicion in the past because of his relationship with his uncle: CB 245 at [51];
c)considered that any past suspicion of LTTE involvement through his uncle would have now been removed because of the past questioning of and inquiries about the applicant: CB 245 at [51]; and
d)was not satisfied that the applicant’s chance of harm was a real chance for reasons of his association with his uncle, or because of the disappearance of the secretary of the Tamil Fishing Society, or for their past involvement with the LTTE, and considered that the applicant had fabricated that part of his claim: CB 245 at [52];
e)was prepared to accept that men in plain clothes visited the applicant’s house and questioned his mother in November 2011 concerning the whereabouts of his uncle, and then left when told that the uncle was in India, but was not prepared to accept that there were subsequent visits because, based on country information, it considered that the applicant’s circumstances and profile were such that the authorities would not have visited again at that time, particularly in circumstances where they had been told that the uncle was in India, and the Tribunal concluded that this aspect of the claim was fabricated, and that the applicant was not of adverse interest to the Sri Lankan authorities, or the Karuna group, or to anyone else by reason of the activities of his uncle six or more years ago: CB 245-246 at [53];
f)did not accept that the applicant had been questioned by men in plain clothes on his way to the shops towards the end of 2011: CB 246 at [54];
g)considered the applicant’s claim to have been abducted while playing cricket in Trincomalee by men in a white van, and his subsequent account that he escaped whilst the van was in motion and travelling around a bend, but considered that the claim lacked credibility and was highly improbable, based upon its assessment that the applicant had no relevant profile of interest to the Sri Lankan CID, or anyone else who might have been in a position to abduct him in a white van, and that it was exceedingly unlikely that the applicant would have been able to escape in circumstances where he was being detained in a moving van by at least four men, with a fifth man as a driver: CB 246 at [55];
h)found that he was not a person with a profile identified by the country information as being one who was perceived to have a significant role in relation to post-civil war Tamil separatism, or a political activist opposed to the Sri Lankan government, and that there was therefore not a real chance that he would become a political activist now or in the reasonably foreseeable future, and therefore did not face a real chance of serious harm for reasons of actual or imputed political opinion if he returned to Sri Lanka: CB 246-247 at [56]; and
i)found that if the Sri Lankan government or authorities had wished to persecute the applicant they had ample opportunity to do so in the period between when he claimed the threats began in 2011 and his departure from Sri Lanka for Australia in mid-2012: CB 247 at [57].
In relation to the applicant’s alleged fear of the Karuna group the Tribunal was not satisfied that the applicant faced a real chance of serious harm from members of the Karuna group. The Tribunal accepted the existence of the Karuna group and accepted that its roots were in the separatist movement and politics, but found, based on country information, that to the extent that it still exists, it focuses on criminal activities, rather than political activities. The Tribunal considered that the applicant was at no greater risk of harm from the Karuna group than any other Sri Lankan citizen, and that chance was remote, but found that if it did exist then the applicant could avail himself of adequate police protection in Sri Lanka: CB 247-248 at [58]-[59].
In relation to the applicant’s alleged fear of harm as a failed asylum seeker and by reason of his illegal departure from Sri Lanka, the Tribunal found that there was no real chance that the applicant would be imputed with anti-government opinion for having made a claim for asylum in Australia and that there was not a real chance that he would suffer serious harm as a result of being a failed asylum seeker: CB 248 at [61]. In considering this aspect of the claim, the Tribunal also found that the applicant is likely to have departed Sri Lanka in a way that breached the I&E Act, and based on country information, considered that he could incur a fine of approximately Rs 50,000, and that the country information did not support the applicant’s claim that the Sri Lankan authorities do not tolerate their citizens seeking asylum: CB 248-249 at [63].
The Tribunal also considered other matters such as the applicant’s mothers concern about him returning to Sri Lanka, the evidence that he is engaged to be married to a person who is also seeking a Protection Visa in Australia, and that men in plain clothes had visited his family home since he had arrived in Australia, but found that none of these constituted a real chance of serious harm for one or more of the Convention grounds if the applicant was returned to Sri Lanka now or in the reasonably foreseeable future: CB 249 at [64]-[67].
The Tribunal also assessed the complementary protection claims of the applicant, and in particular his concern that he would be arbitrarily deprived of life, tortured or subjected to cruel, inhuman or degrading treatment by the authorities in Sri Lanka if returned, and even though the applicant said he had no submissions to make, the Tribunal nevertheless considered this issue, but found that there was not a real risk of such treatment and not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that he would suffer significant harm: CB 249 at [68]-[70].
The Tribunal was therefore not satisfied that the applicant met the criteria for the Protection Visa on Convention grounds or under the complementary protection provisions of the Migration Act: CB 250 at [71]-[73], and affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 250 at [74].
Judicial Review Application
The Judicial Review Application contained the following grounds:
1. Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra-virus.
(Transcribed verbatim from the Judicial Review Application).
The grounds of review were not supported by particulars.
The applicant filed an affidavit with the Judicial Review Application which did no more than annex the Tribunal Decision.
Pursuant to orders made by a Registrar of the Court on 25 November 2015, the applicant was entitled to file any amended Judicial Review Application, affidavits in support and an outline of submissions, but had not done so by the time of hearing.
The applicant’s oral submissions at hearing amounted to no more than factual assertions concerning his alleged kidnapping in Sri Lanka and his treatment at the hands of the Sri Lankan authorities. In reply to submissions made on behalf of the Minister the applicant again referred to factual matters going to his kidnapping and treatment at the hands of the Sri Lankan authorities.
The Minister’s submissions asserted that there was no jurisdictional error on the grounds outlined, and that the failure to particularise the grounds warranted their dismissal in any event.
Consideration
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Failure to particularise
The failure to particularise a ground of review is itself sufficient to warrant dismissal of a ground of review. In WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (“WZAVW”) the Federal Court observed as follows:
Ground two is, I agree, an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection[2014] FCA 969.
In this case, the applicant has failed to particularise any of the grounds of review. Moreover, there is no evidence from which any particulars might be drawn by the Court, and, in the circumstances, that is sufficient to warrant the dismissal of the Judicial Review Application: WZAVW at [35] per Gilmour J, and the cases there cited. See also AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard.
Ground 1
With respect to ground 1 the Court notes that:
a)the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case: CB 215-221;
b)the Tribunal notified the applicant that the hearing had been rescheduled: CB 222-223;
c)the applicant attended the hearing with the assistance of a Tamil interpreter: CB 230;
d)the Tribunal put to the applicant information that would comprise the reasons for affirming the Delegate’s Decision and invited him to respond. The Tribunal listened to and considered the applicant's claims; and
e)the Tribunal addressed the claims made by the applicant in the Tribunal Decision
As this was a case to which s.422B of the Migration Act applied, the applicant was entitled only to the rights afforded him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the applicant was invited to and attended, and gave evidence at, the Tribunal hearing, and had matters which concerned the Tribunal put to him for comment. Thereby, the applicant was afforded procedural fairness: Migration Act, s.425(1); SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
For the sake of completeness, the Court notes that there is no specific allegation of bias, and further notes that any allegation of bias must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J, a test which has not been met in this case. In the Court’s view there is no actual or apprehended bias demonstrated in the Tribunal Decision.
Ground 1 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
With respect to ground 2 the Court’s view is that the Tribunal has identified and applied the correct legal principles. The Tribunal's analysis of the applicant's claims reveals no error of law, on the face of the record or otherwise, in the Tribunal Decision. At hearing the applicant was not able to identify any error of law upon which he relied.
Ground 2 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
With respect to ground 3, in circumstances where the applicant has failed to identify any delegated legislation upon which he relies or which was applied by the Tribunal, and where no delegated legislation was applied by the Tribunal, ground 3 is entirely baseless and must fail. No jurisdictional error in the Tribunal Decision is therefore established by ground 3.
Conclusion and orders
In relation to each of the three grounds of the Judicial Review Application the Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 11 August 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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