CFZ15 v Minister for Immigration

[2018] FCCA 1352

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFZ15 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1352

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – oral application for an adjournment to obtain legal assistance – adjournment refused – whether the Tribunal made a jurisdictional error – grounds not particularised – no jurisdictional error discerned.

Applicant: CFZ15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2420 of 2015

Judgment of: Judge Riley

Hearing date: 18 April 2018

Date of last submission: 18 April 2018

Delivered at: Melbourne

Delivered on: 18 April 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Jamie Grant
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

1. The applicant’s oral application for an adjournment be refused.

2. The application filed on 29 October 2015 be dismissed.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2420 of 2015

CFZ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

The applicant’s oral application for an adjournment

[1]     Reasons for judgment were given orally on 18 April 2018. The applicant filed a notice of appeal on 8 May 2018. The registry advised chambers on 22 May 2018 that the applicant had filed a notice of appeal. Chambers ordered a transcript of the reasons for judgment on 22 May 2018. Auscript provided the transcript of the reasons for judgment on 22 May 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 24 May 2018.

1. This is an oral application for an adjournment of the final hearing of an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The applicant filed his application without the benefit of legal assistance on 29 October 2015.  The matter was listed for final hearing before Judge Jones on 28 March 2017.  Due to judicial unavailability, her Honour vacated that hearing and rescheduled the hearing for today.  The matter was to be heard by Judge Jones, but it has been re-docketed to me. 

2. The applicant told the court that he would like an adjournment to enable him to obtain legal assistance. The applicant told the court that he went to Victoria Legal Aid about two months ago, and then again about one month ago.  He said that, at that point, he was told by Victoria Legal Aid that they were unable to assist him. 

3. The applicant said that, subsequently, he saw a private lawyer.  He said that the lawyer told him that:

   a)he should ask for an adjournment; and 

   b)she said that she could represent him. 

4. The applicant said the lawyer asked for money but did not say how much. 

5. The applicant told the court that he could pay for the private lawyer, even though he did not know how much she would charge.  He said that he could ask his family for money and they would give him any amount of money for a lawyer.  The applicant said that he did not know the name of the lawyer that he had seen.  He said that he went with a friend. 

6. When asked why he had not obtained legal assistance two years ago, the applicant said that he was relying on Victoria Legal Aid.  The applicant confirmed that he first went to Victoria Legal Aid two months ago.  However, when asked again when he first went to Victoria Legal Aid, he claimed that he had seen them previously but could not remember when. 

7. The Minister for Immigration and Border Protection (“the Minister”) opposed the application for an adjournment. 

8. In all the circumstances of this case, it is not appropriate, in the interests of the administration of justice, to adjourn this proceeding.  The applicant has had about two and a half years to get a lawyer to represent him in this proceeding.  It is very difficult to believe that, if the applicant had gone promptly to Victoria Legal Aid, he would only have discovered one month ago that he would not be assisted by them. 

9. If the applicant’s family is really able to assist him with any amount of money to pay for a lawyer, the applicant could have organised a lawyer long ago. 

10. It is also difficult to believe that the applicant did in fact see a lawyer recently.  He was unable to name the lawyer, and did not produce a business card or letter from the lawyer to say that he had seen her.  If there really were a lawyer who stood ready to represent the applicant, one would have expected her to come to court today to say that she had only recently been instructed and to ask for more time to prepare for the case.

11. In all the circumstances, I do not accept that the applicant has a realistic prospect of being able to obtain a lawyer in the reasonably foreseeable future.  Consequently, the applicant’s oral application for an adjournment will be refused. 

The applicant’s substantive application

1. This is an application to review a decision of the Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa.  The applicant was represented during the Tribunal process by a registered migration agent. 

2. The applicant and his agent attended a hearing before the Tribunal on 1 September 2015.  At the time of the Tribunal’s decision, the applicant was a 21 year old, single, Sri Lankan male from Kilinochchi in the Northern Province. 

3. With his protection visa application, the applicant filed a statutory declaration in which he said that: 

   a)he had spent his whole life in the Northern Province of Sri Lanka; 

   b)his area had a wholly Tamil population and was controlled by the Liberation Tigers of Tamil Eelam (“the LTTE”) during the war;

   c)the area remained of considerable interest to the Sri Lankan authorities;

   d)since the war, the authorities have continued to monitor the activities of suspected LTTE affiliates in the area;  

   e)his family was displaced towards the end of the war, but returned after the war ended; 

   f)in the first year after their return to their town, the authorities controlled the movements of people;

   g)fishermen were not allowed to go to sea but were only allowed to fish in the river;

   h)if fisherman travelled too far up the river, they would be brutally punished by the Sri Lankan authorities;

   i)later, the fisherman were able to fish in the sea, but to get there, they had to pass through checkpoints and, at each checkpoint, they had to sign in and out; 

   j)one day he forgot to sign the register as he passed through the checkpoint;

   k)the next day, he was punished for having failed to sign;

   l)he was forced to kneel on the hot sand;

   m)the Sri Lankan army suspected that applicant was involved with the LTTE because he was a young Tamil man, he only spoke Tamil and he had spent his entire life in an LTTE controlled area;

   n)members of the army would go to his house and require him to go to the army camp;

   o)if he was not at home, the army would tell his mother that he had to report to the army camp when he returned;

   p)when the authorities took him away, his parents were not allowed to ask where he was being taken, why he was being taken or for how long he would be away;

   q)at the camp, he would be interrogated about his involvement with the LTTE;

   r)it was difficult for the applicant to defend himself because he only speaks Tamil and the army people only speak Sinhalese;

   s)the applicant was interrogated about his involvement with the LTTE repeatedly, even though he always denied any involvement; and

   t)the applicant left Sri Lanka, saying that he feared for his life.

4. The delegate substantially accepted the applicant’s basic claims.  However, the delegate did not accept that the applicant faced a real chance of serious or significant harm for the reasons that the applicant had given.  The delegate noted country information to the effect that people such as the applicant did not face a real risk of serious or significant harm.

5. The Tribunal considered the applicant’s claims under a number of headings.  The first was Perceived links with the LTTE.  The Tribunal essentially accepted the applicant’s claims. However, the Tribunal considered that the matters raised by the applicant did not indicate that he would suffer persecution on the basis of a perceived link with the LTTE.  The Tribunal accepted that the applicant had suffered some ill treatment in the past. However, given that the applicant had always been released, the Tribunal did not consider that he was of any particular ongoing interest to the authorities.

6. The Tribunal accepted that the army may have visited the applicant’s parents’ house since the applicant came to Australia.  However, the Tribunal considered that this was only an example of ongoing monitoring by the army and did not constitute serious harm and did not indicate that the applicant would face serious harm.

7. The Tribunal accepted that the applicant’s home town was one of the worst affected areas during the war.  The Tribunal expressed sympathy for the applicant having lived through some very difficult years in Sri Lanka.  However, the Tribunal did not accept that the applicant faced a real chance of harm for reasons of an imputed political opinion.

8. The Tribunal then considered the applicant’s Tamil ethnicity under the heading Tamil ethnicity.  This was linked to the claim about an imputed political opinion.  The Tribunal accepted that Tamils in the past had experienced widespread discrimination and harm. However, the Tribunal referred to a 2014 report from the Department of Foreign Affairs and Trade (“DFAT”), indicating that people in Sri Lanka did not face a real chance of serious or significant harm solely on the basis of their Tamil ethnicity.

9. The Tribunal accepted that Tamils in Sri Lanka faced harassment, discrimination and sometimes persecution during the war.  However, since the end of the war in May 2009, the Tribunal considered that the country information indicated that Tamils did not face a real chance of serious harm solely on account of their ethnicity. 

10. The Tribunal then considered the claim that the applicant faced persecution as a young Tamil male from the Northern Province.  The Tribunal noted UNHCR guidelines from 2012, which indicated that originating from an area that was previously controlled by the LTTE did not, in itself, result in a need for protection.  The Tribunal also noted the 2014 DFAT report, which was to the effect that Tamils who were not members of the LTTE, even though they may have provided low-level support to the LTTE, may be monitored by the Sri Lankan authorities, but are at low risk of being detained or persecuted.

11. The applicant confirmed to the Tribunal that he was not an LTTE member.  The Tribunal asked the applicant about any harm his brother, who was 18 years old at the time of the Tribunal hearing,, had experienced as a young Tamil male from the north.  The Tribunal noted that the applicant did not provide any particular details about any harm that his brother may have suffered. 

12. The Tribunal also noted that, in January 2015, a new government had appointed two retired senior civil servants as governors in the Northern and Eastern Provinces to replace military personnel who had previously been in charge of those areas.  The Tribunal concluded that the applicant did not face a real chance of serious harm as a young Tamil male from the Northern Province.

13. The Tribunal then considered whether the applicant faced a real chance of harm as a Tamil fisherman.  The Tribunal accepted that the applicant had to report to the army with a daily pass system every time he went fishing.  The Tribunal accepted that the applicant had to kneel in the hot sand for 15 minutes one day because he had failed to sign the register.  The Tribunal noted that the applicant said that he had had no other problems as long as he showed his ID and he registered properly when he went fishing.  The Tribunal considered that, even if these requirements were still in place, they did not amount to persecution. 

14. The Tribunal then considered whether the applicant faced persecution as a failed asylum seeker.  The Tribunal noted the claim that Sri Lankans who have sought asylum abroad may be imputed with dissident or pro-LTTE views by reason of their attempts to gain protection in other nations.  The Tribunal accepted that the applicant came to Australia in mid-2012 by boat without a visa and that the applicant might be identified as a person who had unsuccessfully sought asylum. 

15. The Tribunal, however, considered that in the absence of any anti-government activity prior to his departure from Sri Lanka, it was unlikely that any concerns about the applicant would crystallise into a concern that he was a security risk.  The Tribunal accepted that the applicant was likely to face questioning at the airport upon his return.  However, the Tribunal considered that, given the applicant’s profile and circumstances, there was not a real chance that he would be persecuted for being a Tamil who has sought asylum in Australia.

16. The Tribunal then considered whether the applicant faced persecution by reason of his illegal departure from Sri Lanka.  The Tribunal accepted that the applicant was likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act.  The Tribunal considered, however, that the applicant did not face a real risk of serious harm for that reason. 

17. The Tribunal considered relevant country information and concluded that the applicant would be granted bail based on a personal recognisance with the requirement for a family member to stand guarantor.  The Tribunal noted that the applicant’s family was available to stand guarantor for him.  The Tribunal considered that the applicant did not face a real risk of persecution on that basis.

18. The Tribunal also considered the complementary protection provisions.  However, again, the Tribunal did not accept that the applicant faced a significant risk of harm based on country information.  The Tribunal affirmed the decision under review.

19. In his application to this court, the applicant relied on grounds as follows:

    1.The decision of the Tribunal:

    (a)is affected by an error of law; and

    (b)denied the applicant procedural fairness.

    2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

20. The second ground in the application is not a proper ground of review.  In any event, as the applicant explained to the court today, Victoria Legal Aid has declined to provide him with legal assistance.  

21. The matters set out in ground 1 are not particularised.  I have closely considered the Tribunal’s processes and reasons for decision.  I have been unable to discern any jurisdictional error. 

22. The Tribunal invited the applicant to a hearing, which he attended with the assistance of his migration agent.  The Tribunal considered all of the applicant’s claims.  The Tribunal essentially, in fact, accepted the applicant’s claims but differed from the applicant in the consequences of the facts that he had stated.  Basically, the Tribunal did not accept that the circumstances described by the applicant would cause him to face a real risk of serious or significant harm.

23. The Tribunal appears to have correctly applied the law and did not take into account any irrelevant considerations.  The Tribunal’s conclusions were rational and based on probative evidence.  All in all, I am unable to detect any jurisdictional error in the Tribunal’s reasons for decision or decision-making process. 

1. Consequently, the application must be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 24 May 2018