CGV15 v Minister for Immigration

[2017] FCCA 2113

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGV15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2113

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: CGV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2448 of 2015

Judgment of: Judge Riethmuller

Hearing date: 19 July 2017

Date of Last Submission: 19 July 2017

Delivered at: Melbourne

Delivered on: 19 July 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr L. Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2448 of 2015

CGV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As corrected)

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 9 October 2015.  The Tribunal affirmed a decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The applicant is a Sri Lankan citizen of Tamil ethnicity.  The applicant arrived in Australia in June 2012 as an irregular maritime arrival.  On

   
   

   6 November 2012, he applied for a protection visa, which was refused by a delegate of the Minister on 10 July 2013.  On 17 July 2013, the applicant sought a review of the delegate’s decision by the Tribunal.  The Tribunal reviewed the delegate’s decision and, after a hearing, refused the application by the applicant on 9 October 2015. 

3. The applicant provided material to the Tribunal, including a Statutory Declaration in support of his visa application, the contents of which are referred to at paragraph [21] of the Tribunal’s decision and a copy of which appears in the court book. 

4. The applicant through his agent also provided written submissions to the Tribunal, setting out his claims.  In substance, the applicant’s claims arise out of an incident he says took place in 2005, when he was studying at university.  The applicant said that while studying at a friend’s house, the army surrounded the area and searched a storage facility at the home and that it contained uniforms, flares and coloured ribbons. 

5. The applicant said that as a result, he was accused of being an LTTE supporter, arrested and detained overnight.  The applicant says that he was released the next day with the assistance of the dean of the university and that charges were ultimately withdrawn.  The applicant claims that, from 2006 to 2009, he would be regularly stopped at checkpoints when returning home on semester breaks and questioned about his association with the LTTE.  The applicant also claimed that his brother was questioned at the family home by the army in relation to him. 

6. The applicant said that after graduating from university, he taught business and accounting at an Institute in Sri Lanka, and in 2011, the applicant says that he took a period of time to work for a soft drink maker, where he and his boss were the only Tamil employees.  The applicant says that, at this time, he was harassed by CID officers and questioned about his history, family and business.  The applicant said that he no longer felt safe and resigned after two months, and thereafter was again questioned by CID officers. 

7. The applicant said that he returned to the teaching position, but that he was asked to leave his post in the institute in April 2012 because of CID officers continuing to question him at work and threats that were made. 

8. The Tribunal accepted that the applicant had been arrested in 2005, along with other students, and was detained overnight by police.  The Tribunal was provided with court documents from the applicant, but did not accept that the applicant was questioned about army uniforms, flares and coloured ribbons, or that he was accused of supporting the LTTE. 

9. The Tribunal did not accept that the charges related to any terrorism offences or being affiliated with the LTTE.  They discuss these matters at paragraphs [30] to [32] of the decision, saying:

   30. The Tribunal accepts on the consistent evidence provided by the applicant that he was arrested along with five other people, detained overnight at the police station and released the following day when the Dean of the university bailed them out. According to the applicant’s evidence in the hearing, he was charged with helping the LTTE and doing propaganda for them. In the delegate’s decision, a copy of which was provided to the Tribunal, it was recorded that the applicant claimed he was charged with aiding and assisting terrorists.

   31. The Tribunal has taken into consideration the copy of the court document submitted by the applicant which suggested that the charges against him related to the Sri Lankan Offences Against Public Property Act No.12 of 1982. The Tribunal finds on the basis of this evidence, which it accepts on its face to be a genuine document issued by the Sri Lankan court, that the applicant was not charged with being affiliated with a Tamil organisation, namely the LTTE, as submitted by his previous adviser, or with being a terrorist or aiding or assisting terrorists. Based on the inconsistency between the court document and the applicant's evidence, the Tribunal does not accept that the army questioned the applicant and his friends about uniforms, flares and coloured ribbons found at his friend's house and that they were accused of supporting the LTTE because the army suspected the items were connected with the LTTE.

   32. The Tribunal has had regard to the submissions made by the applicant's previous adviser that the charges against the applicant were in relation to sections 115 and 120 of the Criminal Procedure Code, which they contended related to 'charges against the state' and 'exciting, or attempting to excite, disaffection'. However, as the Tribunal put to the applicant in the hearing, section 115 of the Criminal Procedure Code refers to 'procedure when investigation cannot be completed in twenty four hours' and section 120 'investigation to be completed without delay'. The Tribunal therefore does not accept on the evidence before it that the applicant was charged with any terrorism offences or with being affiliated with the LTTE.

10. The Tribunal considered the applicant’s claims about having to produce documents at checkpoints and being stopped from time to time, but noted at paragraph [34] that, during the conflict in Sri Lanka, checkpoints were located all over the country and were a “constant feature of life at that time”. 

11. The Tribunal found, at paragraph [36]:

    36. Based on the applicant’s regular travel to and from Vavuniya and Negombo over a period of several years without any problems other than being stopped at checkpoints and questioned, which the Tribunal does not accept constitutes serious harm, the Tribunal finds the applicant was of no particular interest to the authorities, including because of the charges against him that were subsequently dismissed.

12. The Tribunal found inconsistencies in the applicant’s evidence regarding his employment at the soft drink maker.  The relevant passage of the Tribunal’s decision is lengthy, but important to have regard to, given the arguments that the applicant raises.  The Tribunal said:

    41. Firstly, the Tribunal does not accept the applicant worked at [the soft drink maker] as he claimed. The Tribunal notes that in the applicant's protection visa application, his statutory declaration attached to his protection visa application and the most recent hearing, he claimed he began working at [the soft drink maker] in January 2011.  In contrast, in the hearing with the previous Member, the applicant claimed he started working at [the soft drink maker] in January 2012. The Tribunal notes, as it did in the hearing, that the previous Member had specifically raised the discrepancy in the applicant's evidence regarding the year he started working in [the soft drink maker] and the applicant had confirmed that it was 2012 and not 2011. While the applicant responded stating that he told the previous Member he was finding it difficult to recall the dates, the Tribunal has listened to the recording of the earlier hearing and does not accept the applicant's assertions as he clearly stated he started working in [the soft drink maker] in January 2012 and that he worked there for two or two and a half months. The Tribunal notes that the previous member referred the applicant to his statutory declaration and the specific paragraphs in which he discussed his employment in Sri Lanka, particularly paragraphs 21, 22 and 24 (para 21 in which the applicant referred to working at Jupiter Institute from 2009 to January 2011, para 22 in which he stated he resigned from Jupiter Institute and got a job at [the soft drink maker] in January 2011 and para 24 in which he stated he resigned from [the soft drink maker] in March 2011) and asked the applicant to confirm which was correct, if he worked at [the soft drink maker] in 2011 or 2012. The applicant responded 2012 or something like that. When asked to explain why his written statement said 2011, the applicant responded stating that he did not know why he said 2011. The Tribunal has taken into consideration the applicant's explanation that he was giving answers according to the questions asked and that he had told the previous Member that he was finding it difficult to recall exact events. The Tribunal does not accept that if the applicant had been employed at [the soft drink maker], particularly for a relatively short period of time, he would not be able to recall with some consistency at least the year that he worked there, even if he was having difficulty recalling exact dates, as he asserted.

    42. The Tribunal notes the significant difference in the timeline of these events based on the applicant's inconsistent evidence regarding the years in which he was allegedly employed at [the soft drink maker]. As the Tribunal put to the applicant in the hearing, if he started working at [the soft drink maker] in January 2011, there was a period of 15 months between when he began working there and when he departed the country, during which time he allegedly received the attention of the authorities. Whereas, if he had started working at [the soft drink maker] in January 2012 there was only a period of five months up until he left Sri Lanka.

    43. The Tribunal notes that in addition to the discrepancy in the applicant's evidence as to the year he worked at [the soft drink maker], the applicant has also provided inconsistent evidence regarding his length of employment there. In his protection visa application the applicant claimed he worked at [the soft drink maker] until June 2011. In the recent hearing he stated that he worked at [the soft drink maker] for about five or six months. However, in the statutory declaration attached to his protection visa application, the applicant claimed that he resigned from his job at [the soft drink maker] in March 2011. Similarly, in the earlier hearing with the previous Member, his evidence was that he stopped working at [the soft drink maker] around February or March.

    44. Also, in relation to his employment at Jupiter Institute, the Tribunal notes that in his protection visa application the applicant stated that he was employed there from 2009 to 29 May 2012. Whereas, he claimed in his statutory declaration attached to his protection visa application that he resigned from his position at Jupiter Institute in January 2011 when he allegedly got a job with [the soft drink maker] and that he resumed working at Jupiter Institute after he stopped working at [the soft drink maker]. Additionally, he claimed that he was asked to leave Jupiter Institute in about April 2012. The Tribunal prefers the applicant's evidence in his protection visa application and accepts that he was employed at Jupiter Institute from 2009 until just before his departure from the country.

    45. Taking into consideration the inconsistencies and discrepancies in the applicant's evidence regarding his employment in Sri Lanka, the Tribunal does not accept that the applicant ever worked at [the soft drink maker] for any period of time. It therefore follows that the Tribunal does not accept that the applicant was questioned by some Sinhalese customers who he suspected were army officers. It does not accept that these people checked his ID and questioned him about what he had done before. The Tribunal also does not accept that either the army or the CID later came to his area and asked questions about him from his neighbours including where he came from, his activities and about the charges against him.

13. As a result of the Tribunal not accepting that the applicant worked at the soft drink maker, a number of the other claims by the applicant necessarily failed and, ultimately, the Tribunal did not accept the applicant’s claims with respect to harassment by the CID. 

14. The Tribunal concluded:

    52. Based on the above, the Tribunal does not accept that the applicant was of any interest to either the army, the police or the CID, prior to his departure from Sri Lanka or since his arrival in Australia for reasons of his Tamil race or because of that charges that were dismissed against him in 2006. For the reasons provided above, the Tribunal finds that the applicant’s claims regarding the repeated enquiries and visits made about him by the army and the CID, both prior to and after his departure from the country, are not credible, and as such, it does not accept that there is a real chance that he will face persecution on his return to Sri Lanka, now or in the reasonably foreseeable future as a result of these alleged events that occurred prior to his departure from the country.

15. The Tribunal also turned its mind to other bases for the applicant’s claim, which were not in dispute in the proceedings before me.  Ultimately, the Tribunal rejected the applicant’s claims, saying, at paragraph [68]:

    68. Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faced a real chance of being persecuted by the army, the CDI, any other authorities or anyone else because of his Tamil ethnicity, an imputed political opinion of supporting the LTTE and opposition to the government of Sri Lanka based on his Tamil ethnicity, or his membership of the particular social groups of ‘failed asylum seekers returning to Sri Lank” or “young single educated Tamil males”. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.

16. The Tribunal also had regard to the applicant’s complementary protection visa claims, but rejected them on the same basis.  A further matter that was raised and dealt with by the Tribunal was whether or not the potential of detention by the applicant arose, with the Tribunal concluding at paragraph [73]:

    73. The Tribunal notes the applicant's illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal's earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Nor does the Tribunal accept, for the reasons discussed above, that the applicant would be singled out for mistreatment, and suffer significant harm as a result, during any period he is held in remand.

Grounds of the application

1. The applicant’s grounds for judicial review are 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.

2. When appearing before me today, the applicant articulated two arguments in support of his claim and counsel for the Minister, quite properly, identified a potential further argument. 

Argument One

1. The first argument the applicant articulated was that the findings at paragraph [44] of the Tribunal decision (as quoted above) were as a result of the Tribunal being confused about the employment evidence and potentially as a result of him having some confusion when he recounted that evidence. 

2. It is clear from paragraph [44] that the Tribunal considered all of the evidence concerning employment history and the applicant’s potential employment with the soft drink maker at some length, and had regard to the various inconsistencies that were provided.  Ultimately, this is a finding of fact by the Tribunal after having regard to the evidence.  It was a finding that was open to them.  I see no basis for judicial review in this regard. 

Argument Two

1. The second complaint by the applicant was that the Tribunal made findings against him at paragraph [31]. These findings, however, were based upon evidence that was inconsistent between a court document and the applicant’s own evidence. Again, it seems to me that this was a finding of fact by the Tribunal based upon the various pieces of evidence before it. It was certainly open on the evidence for the Tribunal to make these findings. In substance, the applicant is seeking a merits review of the findings, rather than a judicial review relating to questions of law or process. In these circumstances, this ground cannot succeed.

Argument Three

1. The third matter that was identified was a complaint about the finding, as set out above at paragraph [73] of the decision, as to whether or not the applicant might suffer harm in the relevant sense for the purpose of the visa as a result of being detained if he returns to Sri Lanka, due to him having left the country illegally.  The Tribunal concluded that he may be detained briefly, but that he did not face a real risk of being significantly harmed during that process. 

2. The Tribunal has expressed in their reasons at paragraph [73], that the potential harm in a prison in Sri Lanka was not significant enough to meet the threshold, and that is any event such harm would not be intentionally imposed.  On the existing law, it is necessary that there be a relevant intention, as set out by the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.

3. On this basis, it seems that the Tribunal has made findings within the confines of the existing law and, therefore, there is no judicially reviewable error. 

4. In the circumstances, I therefore dismiss the current application

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 14 September 2017

Corrections

The Applicant’s pseudonym has been amended from “CVG15” to “CGV15” on page 1 of the Cover Sheet, page 1 of the Reasons for Judgment and in the citation.