CJJ16 v Minister for Immigration

[2017] FCCA 1015

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1015

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to give proper weight to the evidence before it – whether the Tribunal failed to consider an integer of the claims – whether the Tribunal failed to comply with the PAM3 rules – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 499

Applicant: CJJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2306 of 2016

Judgment of: Judge Street

Hearing date: 17 May 2017

Date of Last Submission: 17 May 2017

Delivered at: Sydney

Delivered on: 17 May 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2306 of 2016

CJJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) for a Constitutional writ in respect to a decision of the Administrative Appeals Tribunal “the Tribunal” made on 21 July 2016 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.

Claims for protection

1. The applicant is a Hindu of Tamil ethnicity from the Eastern Province. The applicant claimed to fear harm from the Sri Lankan government or its agents by reason of his imputed political opinions as a support of the LTTE, his Tamil ethnicity, his Hindu religion, his imputed anti-government political opinions as a returned failed asylum seeker, and his membership of one or more political social groups relating to failed asylum seekers, Tamils implicated in a serious criminal offence, and/or Tamils with an existing police file.

2. The applicant provided a statement dated 11 June 2012 in support of his claims, which identified a particular incident in July of 2010 involving the police.

3. On 19 November 2012, the delegate found that the applicant failed to meet the criteria under the Act and refused to grant a protection visa.

The Tribunal Decisions

The first Tribunal’s decision

1. The applicant had a hearing and then determination before a differently constituted Tribunal that affirmed the decision of the delegate on 7 November 2013. That decision was set aside as a result of orders made in this Court on 24 February 2016.

The second Tribunal’s decision

1. The applicant was notified by letter on 10 March 2016 that the matter had been reallocated to a different member of the Tribunal. On 20 May 2016, the applicant was invited to attend a hearing to take place on 22 June 2016. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal identified the applicant’s background and set out the relevant law in an attachment to the decision, which was incorporated in the reasons. The relevant law included reference to Ministerial Direction No. 56 made under s.499 of the Act, identifying the PAM3 guidelines in relation to complementary protection and in relation to refugee law, as well as country information prepared by the Department of Foreign Affairs and Trade.

3. The Tribunal identified the applicant’s claims and evidence, as well as identifying the information that had been provided to the earlier Tribunal and the information provided at the appearance of the applicant before the currently constituted Tribunal on 22 June 2016. The Tribunal identified, having considered all of the evidence, that the Tribunal accepted that the applicant has, in the past, been harassed and subject to extortion whilst working as a fisherman. The Tribunal did not accept that the applicant was ever sought or questioned as a result of the death of a policeman in his village in 2010.

4. The Tribunal found that there were a number of significant problems in relation to the applicant’s claims and evidence and that many of them arose at the most recent hearing. This led the Tribunal to find that his claims to have been harmed in Sri Lanka as a result of the shooting of a policeman in his village had been fabricated. The Tribunal provided detailed reasons in relation to that adverse credibility finding. Nothing has been said to identify any irrationality, illogicality or unreasonableness in those adverse credibility findings. Those credibility findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.

5. The Tribunal, having considered all the evidence, did not accept that the applicant left Sri Lanka in 2012 for the reasons claimed. The applicant arrived on Christmas Island on 11 April 2012. The applicant made an application for protection on 13 June 2012.

6. The Tribunal made express reference to having considered the information provided by the applicant from the Grana Niladhari and the persons from his village. The reference to the Grana Niladhari, was a reference to a person who provided a document addressed to “whom it may concern”, asserting that a policeman was killed by an unknown person at a village on 15 July 2010, alleging as a result that the area was rounded up by the government forces and that 10 innocent people were taken into custody, and also made reference to persons who had been taken into custody being severely attacked.

7. The Tribunal did not accept that these statements overcame the concerns of the Tribunal regarding the inconsistencies in the applicant’s evidence, as identified in the Tribunal’s reasons. The Tribunal notes that the applicant was informed during the hearing of its concerns in relation to his claims and evidence and advised the applicant that the Tribunal must consider the weight to give the documentation he provided.

8. The Tribunal did not accept that the documentation from the Grana Niladhari or the statement signed by persons from his village contains truthful information. The Tribunal did not accept that the applicant was questioned or detained or suspected of involvement in the death of a police officer in 2010. The Tribunal did not accept that the applicant’s father was beaten on the face or his wife sexually assaulted or that police officers came to his home and demanded money. The Tribunal did not accept that the applicant’s wife was moving from place to place to avoid harm. The Tribunal did not accept that the applicant was subject to reporting requirements in Sri Lanka at the time he departed or that he breached any conditions requiring that he remain in the country.

9. The Tribunal was not satisfied upon considering the application’s claims and circumstances individually and cumulatively that there is a real chance on return of the applicant to Sri Lanka and return to his village that he would suffer serious harm amounting to persecution for reasons of an imputed political opinion in support of the LTTE, his Tamil race, his religion Hinduism, his imputed political opinion and membership of various political social groups including returned failed asylum seekers, Tamils implicated in a serious criminal offence, and Tamils with an existing police file. The Tribunal was not satisfied the applicant will suffer serious harm for any other Convention reason.

10. The Tribunal identified that it had regard to the submissions that the applicant claims are such that the totality of his circumstances establish a well-founded fear upon his return. The Tribunal had considered all of the evidence, and as stated above, when the applicant’s claims are considered cumulatively and the totality of his circumstances assessed, the Tribunal was not satisfied there is a real chance that the applicant will suffer serious harm if he returns to Sri Lanka. The Tribunal found that it was not satisfied the applicant had a well-founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.

11. The Tribunal accepted the possibility that the applicant may have to spend a period of time in a prison on remand. The Tribunal took this into account when considering whether this amounts to cruel  inhumane treatment or punishment or degrading treatment or punishment. The Tribunal had express regard to PAM3: Refugee and Humanitarian Complementary Protection Guidelines, which state that in certain circumstances, it may be appropriate to infer an intention to inflict pain or suffering or extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted.

12. The Tribunal did not accept that such an inference can be drawn having regard to the applicant’s circumstances. The Tribunal was not satisfied that the fact the applicant may spend up to a fortnight in remand on his return to Sri Lanka establishes that the pain and suffering caused by severe overcrowding and poor and unsanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhumane treatment or punishment. The Tribunal did not accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of degrading treatment or punishment. The Tribunal was not satisfied that the evidence indicates that during a period in remand, there is a real risk the applicant will suffer intentionally inflicted torture, the death penalty, or arbitrary deprivation of life.

13. The Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail or remand.

14. The Tribunal found that the applicant failed to meet the criteria under s.36(2)(a) of the Act and failed to meet the criteria under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Proceedings before this Court

1. On 17 November 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

Grounds of the application 

1. The grounds in the application are as follows:

   1. The Administrative Appeals Tribunal erred in not attaching the necessary weight in considering the documents issued by a Public Officer confirming the arrest of the Applicant in relation to shooting a police officer

   Particulars

   a. The Applicant submitted a letter issued by the Village Officer, a public officer confirming the arrest of the Applicant.

   b. The AAT rejected the letter without attaching the due weight to the letter

   2. The AAT erred in not considering the full integers of the application

   3. The AAT erred in not complying with section 499 of the Migration Act and the PAM3 rules made thereunder

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and the matter sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed. The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from counsel for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. The applicant, from the bar table, maintained that he could not go back to Sri Lanka because of the current situation. The applicant made reference to a letter that he said was true and that should have been accepted by the Tribunal as being genuine. It was a matter for the Tribunal to determine what weight to give the documents provided by the applicant. The Tribunal clearly considered the documentary material provided by the applicant and gave cogent reasons for giving the documents no weight in light of the adverse credibility findings made by the Tribunal against the applicant. Those adverse credibility findings cannot be said to lack an evident and intelligible justification.  Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration of the grounds

Ground 1

1. In relation to ground 1, it was a matter for the Tribunal to determine what weight to give the documents adduced in evidence before it. The Tribunal took into account the document purportedly corroborating the applicant’s claims in respect of the shooting incident of the police officer in 2010. It was open to the Tribunal not to give the document any weight in light of its adverse credibility findings concerning the applicant. No jurisdictional error was made out by ground 1 of the application.

Ground 2

1. In relation to ground 2, the Tribunal’s reasons reflect an orthodox approach to the applicant’s claims and evidence. On the face of the Tribunal’s reasons, the Tribunal addressed the full integers of the claims advanced by the applicant and made adverse findings open to the Tribunal. Ground 2 fails to identify any jurisdictional error.

Ground 3

1. In relation to ground 3, this is a case where the Tribunal has identified that it had express regard to the PAM3 and, indeed, referred to the same in its reasoning in respect to the prison conditions. There is no basis to infer that the Tribunal did not comply with s.499 of the Act and no basis to hold that the Tribunal failed to have regard to the PAM3 consistent with Ministerial Direction No. 56. The reference to the PAM3 in the attachment to the Tribunal’s reasons and the express reference to the same in the body of the Tribunal’s reasons means that ground 3 has no proper foundation. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

1. The application fails to make out any jurisdictional error. The application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  16 June 2017