CGG17 v Minister for Immigration

[2020] FCCA 824

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGG17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 824

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal gave proper consideration to the applicant’s claims – whether the Tribunal failed to allow the applicant to comment on an aspect of his claim – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: CGG17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 270 of 2017

Judgment of: Judge Street

Hearing date: 9 April 2020

Date of Last Submission: 9 April 2020

Delivered at: Sydney

Delivered on: 9 April 2020

REPRESENTATION

The applicant appeared via video link.

Solicitors for the Respondents: Ms A Ladhams, Australian Government Solicitor, via video link

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The hearing will be recorded by Microsoft on Microsoft Teams and by Auscript on the Judge’s microphone and no other recording of the hearing is to be made.

3. A link to the Microsoft Teams recording will be uploaded to the “Transcript” folder on the Electronic Court File and may be made available to the parties upon request.

4. The application is dismissed.

5. The applicant pay the first respondent’s costs fixed in the amount of $6,000.00.

DATE OF ORDER: 9 April 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 270 of 2017

CGG17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

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) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 May 2017 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“the Protection visa”). 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

3. The applicant arrived in Australia on 15 February 2007 as the holder of a Higher Education Sector visa (subclass 573) valid until 15 March 2010. The applicant was granted further visas on further dates, being 17 March 2010, 7 October 2011, 16 August 2012 and 7 October 2013 and the most recent visa being valid until 15 March 2014.

4. The applicant departed Australia over this period on 14 December 2009 for Sri Lanka and returned on 11 January 2010. The applicant departed on 7 March 2013 for Vietnam and returned on 17 March 2013. On 17 February 2014 the applicant departed Australia for Sri Lanka and returned on 25 February 2014. 

5. It was not until 12 March 2014 that the applicant lodged an application for the Protection visa.

6. The applicant was found to be of Sinhalese ethnicity.

7. The applicant claimed to fear harm by reason of steps that were taken at his behest in relation to a particular person being abducted, and a nephew of his father’s colleague having contacts with the Liberation Tigers of Tamil Eelam (“the LTTE”). The applicant alleged that he was arrested with that particular person after they were released.

8. The applicant alleged that the relevant nephew of the colleague of his father was subsequently arrested and tortured.

9. The applicant claimed that around 2006, he was taken for questioning by the Criminal Investigation Department (“the CID”) regarding that particular nephew. 

10. The applicant spoke about what occurred as a result of his travel and his father telling him that the police were searching for him. The applicant referred to being invited by friends to go to Vietnam, and had communications with his father in relation to his last trip.

11. The applicant alleged that while walking through Sri Lankan immigration clearance in February 2014, an officer detained him, and he was taken to a police station and beaten. The applicant alleged that he was taken to CID headquarters the following day and beaten and told that he would be charged for lending money and collecting money for the LTTE in order to release his Tamil friends.

12. The applicant alleged that he was remanded at the CID and that his father spoke to a minister who spoke to President Rajapaksa’s brother, who ordered the applicant’s release on the condition that the father made a payment to him, and that if the applicant was found again in Sri Lanka, he would be shot and killed.

13. The Delegate found that the applicant did not meet the criteria for the granting of a Protection visa by a decision dated 21 May 2015. 

14. The Delegate found that the applicant had not been truthful in his Protection visa application and had fabricated his claims regarding his imputed political opinion to enhance his refugee status. 

15. The Delegate also did not accept that the applicant was involved in arranging the release of a person from the LTTE or that he had been targeted by the LTTE or government authorities.

16. The applicant filed an application for review on 18 June 2015. By letter dated 9 February 2017, the applicant was invited to attend a hearing on 10 April 2017. The applicant appeared on that date to give evidence and present arguments.

17. The Tribunal, in its reasons, identified the background to the application for review, and summarised the applicant’s claims. 

18. The Tribunal set out the relevant law in the appendix incorporated by pagination in the Tribunal’s reasons. 

19. The Tribunal referred to what occurred at the hearing and, in particular, the applicant tabling a copy of his passport that expired on 5 October 2016 and submitting a letter dated 15 August 2016 in relation to the incomplete application for a new passport and the steps needed to be taken by the applicant in order to make a valid application for a new passport. That included the applicant telling the Tribunal that the High Commission of the Democratic Socialist Republic of Sri Lanka required him to physically go to Sri Lanka to obtain a Citizenship Declaration. 

20. It is apparent that the Tribunal sought to explore with the applicant the significance of the letter and the Tribunal recorded the applicant’s response in that regard.

21. The Tribunal then summarised what occurred at the hearing and the issues raised by the Tribunal with the applicant in relation to the claims that he advanced. 

22. The Tribunal accepted the applicant’s ethnicity and accepted certain of the claims advanced by the applicant in relation to his background. However, in relation to the abduction of the applicant’s classmate, the Tribunal found his evidence to be vague.

23. The Tribunal did not accept the applicant’s claim that he or his father were asked to facilitate the release of the applicant’s classmate or anyone else. The Tribunal did not accept that the applicant was involved in facilitating the release of that classmate or anyone else with links to the LTTE, and the Tribunal did not accept that the applicant is a person of interest to the Sri Lankan authorities as a person with relevant links to the LTTE.

24. The Tribunal found that the applicant was not involved in facilitating the release of his classmate or anyone else with LTTE links. The Tribunal did not accept the applicant’s claims that he was arrested by the police as he claims to have been arrested, or that he was taken to CID and interrogated or mistreated. The Tribunal did not accept that the police, the CID or anyone else threatened to contact the applicant if the need arose, as claimed.

25. The Tribunal did not accept that the nephew of the relevant person was arrested and tortured for the reasons associated with the release of the applicant’s classmate. The Tribunal did not accept that the nephew of the relevant person was arrested and tortured for reasons associated with the applicant or for being involved in the release of an LTTE or Tamil sympathiser. The Tribunal did not accept the claim that the applicant’s father approached a particular minister, who released the applicant and did not accept that the applicant had ever been detained.

26. The Tribunal referred to the applicant’s incidents alleged in 2006 and did not accept that the applicant was involved in facilitating the release of his classmate through his father or others, including the nephew of his father’s colleague.

27. The Tribunal found the applicant’s evidence to lack credibility in relation to the alleged false allegations by the monks. The Tribunal did not accept the applicant’s claims in relation to involvement with the monks and facilitating the release of someone associated with the LTTE.

28. The Tribunal referred in detail to the applicant’s explanation in relation to his return to Sri Lanka after speaking with his father. The Tribunal did not accept that the applicant was told that the authorities had been planning to arrest him for a long time or that they escorted him home, where they checked for bank details. The Tribunal did not accept that the applicant was remanded at the CID headquarters or that his father spoke with a certain minister who, in turn, spoke to the former President’s brother to enable the applicant’s release. The Tribunal rejected the applicant’s claim that the former President’s brother ordered his release on the condition that the applicant’s father paid 50 lakhs to him, or that the applicant was told that if he was found in Sri Lanka in the future he would be shot and killed.

29. The Tribunal accepted the applicant’s evidence that he had no affiliations with the LTTE and found that the applicant is not perceived to be an LTTE supporter or sympathiser in a relevant way that would give rise to being targeted for detention, arrest or harm now or in the reasonably foreseeable future in Sri Lanka. The Tribunal did not accept the applicant’s claim that, because of his past dealings with the police and the CID in Sri Lanka, he would not be able to make a life in Sri Lanka. 

30. The Tribunal did not accept the applicant’s evidence as to his departure from Sri Lanka being for reasons of fearing serious harm.

31. The Tribunal found that the applicant’s delay in applying for protection further undermines his credibility of fears in respect of returning to Sri Lanka now or in the reasonably foreseeable future. 

32. The Tribunal turned to the applicant’s evidence given at the hearing about the tabling of the letter and referred to the incomplete application for a new passport. The Tribunal found that the information requiring the applicant to apply for a new passport does not suggest that the applicant is of adverse interest to the Sri Lankan authorities now or in the reasonably foreseeable future. The Tribunal found that the letter reflects the procedural requirements for renewing a Sri Lankan passport. The Tribunal found that there was nothing sinister in the required procedure. 

33. Taking into account the Tribunal’s assessment that the applicant is not a person who is of any interest to the Sri Lankan authorities, the Tribunal did not accept the applicant’s circumstances in relation to his expired passport or the procedure necessary for him to renew it gives rise to a real chance of serious harm now or in the reasonably foreseeable future if he returns to Sri Lanka.

34. The Tribunal found that the applicant departed Sri Lanka legally using his own passport and was not in breach of the Sri Lankan Immigrants and Emigrants Act. 

35. The Tribunal found that the applicant does not have a well-founded fear of persecution. The Tribunal found that the applicant failed to meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act. 

36. The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court   

1. These proceedings were commenced on 25 May 2017. On 4 November 2019, orders were made fixing the matter for hearing today. On 2 August 2017, orders were made by a Registrar of the Court giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. From the bar table, the applicant took issue with the adverse credibility findings made by the Tribunal. 

4. The Tribunal provided detailed reasons in support of the adverse credibility findings, including the substantial delay in the applicant applying for the Protection visa and the applicant’s return to Sri Lanka.

5. The Tribunal found the applicant not to be a reliable witness and that his core claims were not credible. The Tribunal, in that regard, found that the applicant had been an unsatisfactory witness and unsatisfactorily explained inconsistencies as well as the implausibility in his evidence. 

6. The adverse credibility findings by the Tribunal were open for the reasons given by the Tribunal as summarised above. Those adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error arises by reason of the applicant’s disagreement with the adverse credibility findings.

7. The applicant also advanced that he believed that the Tribunal had pre-determined the matter at the commencement of the hearing. No evidence has been put on by the applicant in support of the allegation of bias. Bias is a serious allegation that must be clearly alleged and properly proved. The applicant referred to questions being asked by the Tribunal in relation to the applicant’s claims such as, “How is that possible?”  Such a question is not a basis or conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

8. The applicant referred to the proposition that the Tribunal suggested that there was a guarantee that he would be safe in Sri Lanka. There is no evidence to support that assertion despite the applicant being given an opportunity to put on affidavit evidence. The Tribunal’s reasons are not consistent with any such proposition being advanced. The Court does not accept any such guarantee was advanced by the Tribunal.

9. The applicant also referred to the Tribunal responding to a concern by the applicant about a future change in government. The applicant asserted that he had made a claim to fear harm because of a future change in government and that the Tribunal member had said that that government is not in power. There is no evidence to support the applicant’s allegations in that regard. Further, the applicant suggested that it was identified in his statement made in 2014. The Court was taken to his statement of 2014 and on its face it does not advance any claim by the applicant to fear harm by reason of a future change of government. No such claim fairly arises on the material before the Tribunal.

10. In these circumstances, no jurisdictional error can arise by reason of the Tribunal not considering a claim that was not advanced and did not fairly arise on the material before the Tribunal. The future change of government after the Tribunal’s decision is not a matter that can give rise of itself to a jurisdictional error by the Tribunal. The applicant’s submission invites merits review. This Court is not in a position to receive fresh evidence in relation to the applicant’s claims. No jurisdictional error arises by reason of the applicant’s concerns expressed in relation to the future change of government. 

11. The Court does not accept that there is any evidence to support the applicant’s assertion that there was a claim to fear harm by reason of a future change of government. No such claim fairly arose on the material before the Tribunal. Accordingly no jurisdictional error arises by the Tribunal in that regard.

12. On the face of the Tribunal’s reasons, the Tribunal explored with the applicant its concerns and issues in relation to the applicant’s claims and evidence.

13. On the face of the Tribunal’s reasons, the applicant had a real and meaningful hearing. 

14. There is nothing on the face of the Tribunal’s reasons by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

15. There is no basis on the evidence before this Court to support the assertion of predetermination by the Tribunal. The Tribunal’s hearing process, as identified in its reasons, and the reasoning process as revealed by the reasons, are inconsistent with any such predetermination.

16. Further, the Tribunal’s adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, there is nothing to suggest that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits. 

17. No jurisdictional error arises by reason of the applicant’s concerns expressed in relation to the conduct of the review.

18. The applicant also raised concern in relation to what he described as “his main claim” concerning the passport, and it was suggested that this had not been given proper consideration. The applicant also advanced that this was the subject matter of his ground 1.

19. It is apparent from the Tribunal’s reasons that the Tribunal did address the applicant’s concern in providing a letter in response to his endeavour to obtain a renewed passport. The Tribunal did directly consider and raise with the applicant what the concern was in relation to it. The Tribunal made an adverse finding in relation to the applicant’s concern and found that there is nothing sinister in that process. That was the finding that was open to the Tribunal and was logical and reasonable. There was no failure by the Tribunal to have a real and meaningful engagement with the applicant’s claims and evidence concerning the passport.

20. The applicant suggested that there had been an aspect of his case upon which he had not been given an opportunity to comment and that was the claim he alleged that there would be a future change in government. For the reasons already given, no such claim was advanced or fairly arose on the material before the Tribunal. 

21. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1.The assessor failed to properly consider all of my claims.

   2.The assessor didn’t give me a chance to comment on one aspect of my case.

Ground 1

1. In relation to ground 1, the Tribunal’s reasons reflect a thorough and proper consideration of the applicant’s claims and evidence. 

2. There is no claim that has been identified in relation to which there has not been a proper consideration given by the Tribunal. For the reasons given above, the applicant’s submissions concerning a change in government was not a claim that fairly arose on the material before the Tribunal. The applicant’s submissions concerning the process in relation to his passport were the subject of real and genuine intellectual engagement. The adverse findings by the Tribunal were open for the reasons given by the Tribunal as summarised above.

1. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, for the reasons already given, the Court does not accept that there was an aspect of the applicant’s claim that was advanced that he feared a future change of government. No such claim fairly arose in the material before the Tribunal. 

2. The Court does not accept the applicant’s submission that the reference to the communications between his father and the President’s brother gives rise to any such claim. 

3. Accordingly, the Court does not accept that the applicant had other than a real and meaningful hearing before the Tribunal. 

4. No jurisdictional error as alleged in ground 2 is made out. 

5. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 9 April 2020

Associate: 

Date: 28 May 2020