CJA15 v Minister for Immigration

[2017] FCCA 2377

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJA15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2377

Catchwords:
MIGRATION – Claim that the Tribunal had failed to consider evidence – no point of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.91R(2)

Applicant: CJA15

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2491 of 2015

Judgment of: Judge McNab

Hearing date: 26 September 2017

Date of Last Submission: 26 September 2017

Delivered at: Melbourne

Delivered on: 26 September 2017

REPRESENTATION

The Applicant in person

Solicitors for the Respondents: Mr Grant, Sparke Helmore

ORDERS

1. The application filed 9 November 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2491 of 2015

CJA15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 9 November 2015, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 October 2015, not to grant him a Protection visa.  The grounds of the application are as follows:

   That my RRT review was refused since the RRT found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of me being removed from Australia to Sri Lanka that I would suffer significant harm as a result of my political involvement and also due to the fact as a failed asylum seeker.  I provided evidence to the contrary that as a consequence of returning back to my home country the alleged offenders who had already caused harm to me would cause me harm once again due to my political involvement with the UNP party in Sri Lanka.  I had been significantly abused before.  There is foreseeable harm upon my return.  I provided evidence to that effect.  The RRT did not consider this evidence in making a decision.  Accordingly the RRT erred in not giving consideration to the evidence before it as a matter of law.

2. No particulars have been provided by the applicant as to what particular evidence the Tribunal failed to consider. 

Background

1. The applicant set out his claims in his visa application, which are reproduced at pages 46 to 48 of the court book.  The detail of those claims has been helpfully and accurately summarised by the respondent in written submissions filed in this proceeding.  Adopting that summary, those claims were as follows:

   (1)The applicant is a Christian fisherman of Singhalese ethnicity born in Chillaw, Puttalam, Sri Lanka.

   (2)He was finding it difficult to earn a good living from fishing because if he ever went outside Sri Lankan waters he was harassed by Indian fishermen.

   (3)His father supported the United National Party (‘UNP’) and the applicant got a casual job assisting the UNP campaign for the 2002 election.  The UNP lost the election to the Freedom Party of Sri Lanka (‘FPSL’) and he started getting problems from the supporters of the FPSL.

   (4)One night, shortly after the election (in 2002), shots were fired at his house breaking windows.  He recognised a car as belonging to someone who worked for the Minister.  He and his family fled out a back door to a neighbour’s house.  He complained to the police but they took no action due to the attacker’s political associations.

   (5)About 18 months later he was attacked and beaten by the Minister’s people in the street.  He was freed by his family who lived nearby. 

   (6)In the 2010 local election his paternal uncle was a UNP candidate but did not win.  A few days later, about 7.30 pm, some men raided the applicant’s house while he was watching TV and started beating him.  One of them tried to stab him and when he put his hand up they stabbed him in the arm.  He carries a scar from the incident and has lost some movement in his right hand. 

   (7)He was scarred after that incident and stayed at friends’ homes to avoid further attacks before going to Chilaw where he arranged through a people smuggler to come to Australia.

   (8)He is afraid that he will be harassed, attacked and possibly killed by supporters of the FPSL if he returns to Sri Lanka. The authorities will not protect him as his enemies are supported by the authorities. He does not know anyone in other parts of Sri Lanka and his enemies will find him anywhere he goes within Sri Lanka.

2. Those claims were summarised and dealt with at considerable length by the Tribunal.  From paragraphs [2] – [32] of the Tribunal decision, the Tribunal identified each of the matters raised by the applicant in his initial visa application, set out further explanations and evidence given by the applicant, and submissions made by the applicant’s representative at the hearing in relation to those claims.  It has not been identified and nor is it apparent that the Tribunal did not identify or consider any of the claims made by the applicant, either in his written application or in his evidence before the Tribunal.

3. In relation to the Tribunal proceedings, the applicant was invited to appear before the Tribunal on 11 December 2014 and did so with the assistance of his registered migration agent and a Sinhalese interpreter. 

4. On 23 January 2015, the applicant’s migration agent provided written submissions to the Tribunal addressing credibility concerns raised during the hearing, and explained that the applicant was suffering from severe depression, which had affected his ability to recall certain events. It was also submitted that while the applicant may be a low profile UNP member, he was still at risk of persecution.[1] 

   [1] Court book 143 – 154.

5. On 18 August 2015, a reconstituted Tribunal invited the applicant to attend a further hearing on 23 September 2015. The applicant appeared with the assistance of his migration agent and a Sinhalese interpreter. 

6. On 2 October, further written submissions were filed, which dealt with or made submissions in relation to the then current political situation in Sri Lanka.[2] 

   [2] Court book 177 – 179.

The Tribunal decision 

1. It is apparent from reading the Tribunal decision that the Tribunal had concerns in relation to what it regarded as the applicant’s embellishment of his claims.  At paragraph 4, the Tribunal stated:

   As I put to CLA15 in the course of the hearing before me, on each occasion on which he has given evidence in relation to his application he has added in new claims, both with regard to his involvement in politics and the problems which he claims to have had as a result.

2. The Tribunal then identifies what it sees as the embellishments.  It does so throughout its commentary on the claims of the applicant. The Tribunal reiterated the concerns that it had in relation to what it regarded as the embellishment of his claims or the addition of new claims on each occasion that he recounted his claims.[3] The Tribunal noted submissions that the applicant may have found it difficult to articulate his claims and took into account his level of education, his socio-economic background and the fact that like many people appearing before the Tribunal, he may be suffering from stress, although the Tribunal noted there was no evidence before it that he was diagnosed with depression or post traumatic stress disorder.

   [3] Tribunal decision [58], [64].

3. Notwithstanding that it considered those matters, the Tribunal formed the view that, particularly towards the end of the second hearing, the applicant engaged in a “wholesale embellishment of his claims”.

4. The Tribunal noted at paragraph [64]:

   …He has been assisted by his representatives at all relevant times and, as I noted, he clearly thought that it was relevant to mention in the statement accompanying his application that his relative whom he described as his uncle had stood in the election in 2010 but he did not mention, as he claimed at the hearing before me, that he claimed that his two older brothers had contested elections as well. 

5. The Tribunal considered that raising the claims so late was significant in relation to undermining the credit of the applicant.[4]

   [4] Tribunal decision [65].

6. The Tribunal did not accept that the applicant had ever suffered persecution involving serious harm for reasons of his real or imputed political opinion in support of the UNP for the purposes of section 91R(2) of the Act.[5] The Tribunal did not accept that given the applicant’s relatively limited involvement with UNP campaigns, he would have been singled out to be attacked in the way that he claimed.[6]  Most importantly, the Tribunal did not accept the applicant had told the truth about the attacks that he said had occurred in 2002 and 2011.[7]

   [5] Ibid [66], [70].

   [6] Ibid [67].

   [7] Ibid [69].

7. The Tribunal set out in detail the basis of its misgivings in relation to the credibility of the applicant.[8] The Tribunal had regard to country information and made reference to that and submissions filed on behalf of the applicant.[9] The Tribunal considered the submissions of the applicant against the background of the country information that had been provided. The Tribunal did not accept that there was a real chance the applicant would be persecuted for reasons of his real or imputed political opinion in support of the UNP, nor his membership of a particular social group comprising his family as supporters of the UNP. 

   [8] Ibid [64] – [70].

   [9] Ibid [71] – [74]; see also country information from [75] – [88].

8. Similarly, the Tribunal did not accept there was a real risk or a real chance that the applicant will be persecuted for reasons of his arrest or his religion, his membership of a particular social group of failed asylum seekers or an imputed political opinion being opposed to the Sri Lankan Government because he had sought asylum in Australia.[10] 

   [10] Ibid [76].

9. The Tribunal considered the applicant’s situation if he was to be returned to Sri Lanka and accepted that he would be charged under the Sri Lankan Immigrants and Emigrants Act and that he may face a fine for having departed Sri Lanka illegally.  The Tribunal considered that his treatment under that Act was part of the enforcement of the law which applies to everyone in Sri Lanka and therefore did not amount to persecution.[11]

   [11] Tribunal decision [79] – [80].

10. Paragraph [81] the Tribunal decision made reference to statements that the applicant had made that he had been finding it difficult to make a living as a fisherman because if he went outside Sri Lankan waters he would be harassed by Indian fisherman. The Tribunal did not accept that those sorts of difficulties bring him within the definition of refugee. I can see no error in that view.

11. The Tribunal, by way of conclusion in relation to consideration of the claims regarding the applicant’s work as a fisherman, did not accept on the evidence before it that there was a real chance the applicant would be denied the capacity to earn a livelihood or that he would otherwise suffer persecution involving serious harm due to being harassed as a fisherman.[12]

    [12] Ibid [81].

12. The Tribunal considered whether the applicant was owed complementary protection obligations and did not accept that he would suffer significant harm as a result of his limited political involvement as a result of returning to Sri Lanka as a failed asylum seeker.[13]

    [13] Ibid [82].

13. Otherwise the Tribunal considered the claims in relation to what may occur to him upon his return to Sri Lanka.  Given that there is no particular claim made in relation to that part of the decision, it is not necessary to deal with it in great detail, other than to note that the Tribunal had considered that there was only a remote chance the applicant would have to spend any longer than a fortnight in jail on remand on his return. It also considered that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there was a real risk that he would experience torture or inhuman treatment or punishment, or degrading treatment or punishment, during any period which he may spend in gaol on remand.[14]

    [14] Ibid [84].

14. As is apparent from the Tribunal’s decision, the applicant made numerous claims and the Tribunal, in my view, comprehensively detailed those claims and considered each of them. For those reasons the Court is of the view that the Tribunal has not fallen into jurisdictional error as it appears that there is no failure on the part of the Tribunal to consider the applicant’s claims.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 27 September 2017