CHB16 v Minister for Immigration
[2017] FCCA 2685
•6 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHB16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2685 |
| Catchwords: MIGRATION – Claim that Tribunal decision is affected by an error of law and denied the applicant procedural fairness – no error of law – no failure to accord procedural fairness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 |
| Applicant: | CHB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1755 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 6 September 2017 |
| Date of Last Submission: | 6 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 September 2017 |
REPRESENTATION
| The Applicant in person |
| Solicitors for the Respondent: | Ms He, Mills Oakley |
ORDERS
The application filed 18 August 2016 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The Applicant pay the First Respondent’s costs fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLG 1755 of 2016
| CHB16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(delivered ex-tempore)
By an application filed on 18 August 2016 the applicant seeks review of a decision of the Administrative Appeals Tribunal dated 1 August 2016 which affirmed a decision of the delegate of the first respondent dated 3 February 2014 not to grant the applicant a Protection (class XA) visa. The hearing was a show cause application filed in accordance with the rules of the Federal Circuit Court.
Background
The applicant is a male citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 18 July 2012.
On 15 January 2013, the applicant lodged an application for a Protection visa. By that application, he claimed to have been harmed by and to fear future harm from a variety of groups on the basis of his Tamil ethnicity, an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (‘the LTTE’), as a failed asylum seeker who applied for protection in Australia, and due to his illegal departure from Sri Lanka.
The applicant appeared in person before the Court today with the assistance of a Tamil interpreter.
Grounds of review
The applicant’s grounds of review are:
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.
At the hearing before this Court the applicant was asked whether he had any further submissions to make or grounds to advance. The applicant referred to documents, including a transcript from a police report and an autopsy report, which were referred to in the decision of the Tribunal and found in the Court book. He also referred to a police report which he said relates to a report that his auntie’s son was shot in Sri Lanka. I understand the new report is from 2017 and post-dates the Tribunal’s decision. I did not receive that report into evidence.
No further ground was advanced by the applicant in his address to the Court. No particulars or details of the grounds have been provided such as would raise an arguable ground for review. In relation to procedural fairness, nothing has been pointed to in relation to the conduct of the Tribunal such as to raise an arguable ground. Notwithstanding the lack of grounds raised, the Court has reviewed the decision for the purpose of determining whether there is an arguable ground that has not been articulated by the unrepresented Applicant.
The second ground, being ‘I have made an application for assistance through Victorian Legal Aid and am waiting for a decision’ is not a ground for review.
The Tribunal’s Decision
The Tribunal identified the applicant’s claims, including that his brother had been abducted and not found at paragraphs [24] to [27] of the Tribunal decision. At paragraph [28] the Tribunal rejected those claims on the grounds, amongst others, that they were:
…vague, lacking in details and at times inconsistent with his written claims.
At paragraph [47] of the decision the Tribunal made findings that it did not accept that the applicant had faced a real chance of serious harm on the basis of an imputed political opinion as a Tamil, a failed asylum seeker or as a result of his time spent in Australia or because he was from the eastern region of Sri Lanka.
The Tribunal also considered the claims in relation to mental health concerns and did so at paragraphs [8] to [15] of the decision. The Tribunal accepted that the applicant had suffered from mental health conditions including depression linked to PTSD which affected his ability to concentrate.
In relation to a claim that the applicant faced persecution as a member of the social group of returned failed asylum seekers, the Tribunal considered country information and at paragraph [69] accepted that upon return to Sri Lanka, the applicant is likely to face questioning at the airport as to his activities during the time he had been abroad. The Tribunal found that as a result of his Tamil ethnicity, he may also face questioning about any links that he may have with the LTTE. The Tribunal did not accept that he would face a real chance of persecution on the basis of his imputed political opinion.
Further the Tribunal did not accept that the treatment to which the applicant would be subjected on his return to Sri Lanka as an illegal departee amounted to significant harm. The Tribunal was not satisfied that there were substantial grounds for believing, 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 as a consequence of the poor conditions in prison. Further, the Tribunal was not satisfied that there was a necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation.[1] That approach was correct having regard to the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 at [27].
[1] Tribunal decision [90].
In relation to a claim of a failure to accord procedural fairness, as noted above the Tribunal accepted that the applicant suffered from PTSD and depression and stated that it had been mindful of “these vulnerabilities in the manner in which the review and proceedings had been conducted and in consideration of the evidence advanced, including in its assessment of the credibility of that evidence.” Nothing has been raised by the applicant that supports an arguable claim that he was denied a real and meaningful opportunity to present his claims to the Tribunal by reason of his mental health or that the Tribunal failed to comply with its obligations under s.425 of the Act. The applicant gave oral evidence to the Tribunal expanding on his claims for protection,[2] and the applicant was put on notice of concerns about his evidence.[3]
[2] Tribunal decision [24] – [26], [32], [36], [38].
[3] Ibid [23].
It is apparent from the Tribunal’s decision that the Tribunal identified the applicant’s claims, considered them in detail and rejected those claims in a comprehensive and intelligible decision.
For these reasons, the Court is not satisfied that the applicant has raised an arguable case for the relief claimed. I dismiss the application pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab.
Date: 2 November 2017
2
1
2