CJT15 v Minister for Immigration

[2017] FCCA 1039

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJT15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1039

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant claims denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2A), 91R(2)

Applicant: CJT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2519 of 2015

Judgment of: Judge Hartnett

Hearing date: 4 April 2017

Delivered at: Melbourne

Delivered on: 4 April 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms. Briffa

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Applicant’s oral application for an adjournment is refused.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2519 of 2015

CJT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. By application filed on 12 November 2015 and dated 11 November 2015, the Applicant seeks judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 21 October 2015.  By that decision, the Tribunal affirmed a decision made by a delegate of the First Respondent (‘the delegate’) to refuse to grant to the Applicant a protection (Class XA) visa (‘the visa’).

2. The grounds of application 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 Victoria Legal Aid and am waiting for a decision”

3. Whilst orders were made subsequently and by consent on 13 April 2016, which included that the Applicant, by 21 February 2017, file and serve an amended application, if any, with proper particulars of the grounds of application, the Applicant filed no such amended application wherein he particularised the very general grounds of application, as set out in his initiating application.

4. The First Respondent, in response filed 23 November 2015, sought that the application be dismissed and the Applicant pay the First Respondent’s costs of the proceeding, on the basis that the decision under review was not affected by jurisdictional error.

5. By the 13 April 2016 orders, the Applicant was to file and serve written submissions.  The Applicant has filed no written submissions, but was granted leave this day to make oral submissions to the Court.  The First Respondent was also ordered to file and serve written submissions by 14 March 2017, and did so.  Those submissions are before the Court.  The Court has also before it the evidence as contained in the Court Book, filed 20 May 2016.

6. The Court confirmed with the Applicant at the commencement of the hearing this day that he had translated to him the First Respondent’s submissions.  He indicated in the affirmative.  The Applicant was assisted on the hearing of the matter by an interpreter in the Tamil (Sri Lankan) and English languages.  The Applicant was a litigant in person.

7. The Applicant commenced the proceeding by seeking an adjournment of the proceeding that was opposed by Counsel for the First Respondent.  The Applicant indicated that he wished to obtain some legal advice, and also indicated that he had only recently received the Court Book.  The First Respondent tendered in evidence this day correspondence from the First Respondent to the Applicant, dated 19 May 2016, which was a covering letter enclosing, by way of service, a copy of the Court Book.  The Court concluded that the Applicant has had the Court Book and its contents in his possession for a period of approximately 11 months.  The First Respondent also tendered in evidence correspondence of 19 November 2015 to the Applicant.  Relevantly, in paragraphs 4 and 5 of that correspondence, the First Respondent set out for the assistance of the Applicant, various organisations and their telephone numbers that the Applicant could receive legal assistance from.  Included were Victoria Legal Aid, the Asylum Seeker Resources Centre, the Refugee Immigration Legal Centre, and the Law Institute of Victoria.  The First Respondent suggested to the Applicant that he make contact with those organisations urgently if he proposed to seek legal advice or assistance with his application as:-

   “Our client will not agree to delay the proceeding if you fail to act promptly in this matter.”

8. The Applicant put before the Court no evidence as to any attempts made by him to obtain legal assistance in this period in excess of one year in which his application has been pending.  Furthermore, on 13 April 2016, the Court ordered, by consent, that the application be listed for final hearing on 28 March 2017. That hearing date was subsequently administratively adjourned for a period of one week so the Applicant had knowledge, as at April 2016, of the likely time of hearing of his application on a final basis.  The Court declines the adjournment application, which is unsupported by any evidence.

Background

1. The Applicant is a citizen of Sri Lanka, a Tamil and a Hindu.  He was born in Kandy and resided there until he was eight years old, when he moved to Kilinochchi.  In 1983 he returned to Kandy to study, until 1986.  He then worked with his father in a coconut business in Kilinochchi.  In 1996 he went to Saudi Arabia for 12 years.  He worked as a labourer, digging and pulling underground telephone cables. He returned to Sri Lanka at the end of 2007 before going to India for 6 months in 2011/2012. He then returned again to Sri Lanka.

2. The Applicant arrived in Australia as an unauthorised maritime arrival on 1 August 2012. 

3. On 6 December 2012, the Applicant applied for the visa.  In support of his application, the Applicant provided a statutory declaration setting out his protection claims.

4. On 9 October 2013, a delegate of the Minister refused to grant the visa.

5. On 16 October 2013, the Applicant applied to the Refugee Review Tribunal (as it then was) (‘the Tribunal’) for review of the delegate’s decision. 

6. On 29 September 2015, the Applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant was represented in relation to the review by his registered migration agent. The Tribunal also received general credibility post-hearing submissions and further country information from the Applicant’s representative.  That post-hearing submission from BMA Lawyers, dated 16 October 2015, noted that the Tribunal had raised concerns with respect to the Applicant’s credibility at the Tribunal hearing. The Applicant’s authorised representative said, relevantly:-

   “It was contended his (the Applicant’s) evidence was confused and lacked detail”

7. On 21 October 2015, the Tribunal affirmed the delegate’s decision not to grant to the Applicant the visa.

Protection claims

1. The Applicant claimed to fear harm because of his Tamil ethnicity and as a returnee from a western country.

2. The Applicant’s claims to the Department of Immigration and Border Protection (‘the Department’) were as set out in paragraph 19 of the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal.  Those claims were as follows:-

   “a) He is a 43 year old Tamil Hindu from Kandy.  He lived between Kandy and Kilinochchi until 1996, when he fled to Saudi Arabia for 12 years.  He returned to Sri Lanka in 2008 and moved to Vavuniya and returned to Kilinochchi to be with his mother.

   b) All Tamil men are suspected of LTTE support, even though he has never been involved with the LTTE.  He was harassed many times by the Sri Lankan Army (SLA), which is why he fled to Saudi Arabia.  While there, his mother told him that the SLA came to his home several times inquiring about his whereabouts.  They warned his family that they would harm his younger brothers; one moved to the UK for safety, while the other lives in fear in Sri Lanka.

   c) His time in Saudi Arabia would have increased the SLAs suspicions that he was involved with the LTTE.  He was detained a number of times at SLA camps in Vavuniya, verbally abused, and asked why he had come from Kilinochchi.  He continued to be stopped, verbally abused and threatened by the SLA and possibly the CID when he returned to Kilinochchi.

   d) At the end of 2011/beginning of 2012 he fled to India to escape harassment and also to take care of a sick cousin, but was only able to stay there for six months.  He fled to Australia soon after his return.  He continued to be questioned by the SLA up until the time he fled to Australia.

   e) He fears harm the SLA and CID because he is a Tamil male, perceived to be involved with the LTTE, and as a failed asylum seeker to a western country.  He also fears Sinhalese civilians who target Tamils due to their ethnicity and religion. This has happened to him.”

3. The Tribunal also noted, in paragraph 21 of it’s Decision Record, that it had received submissions from the Applicant’s representative, raising the following reasons why the Applicant would face harm:  his Tamil ethnicity, imputed political opinion, including that he will be accused of being a spy, and his membership of the particular social group of “returnees from western countries”. 

Tribunal decision

1. The Decision Record is extensive and thorough.  It sets out at some length the history as provided by the Applicant and claims made by him, and the questioning of those claims by the Tribunal.  It also sets out instances of where the Tribunal explained to the Applicant why it was that it was questioning factual matters asserted by the Applicant, including the putting to the Applicant of country information and inconsistencies in the history as provided by the Applicant.

2. The Tribunal accepted that the Applicant was a Sri Lankan national and assessed his claims against Sri Lanka as the country of reference. 

3. The Tribunal found generally, in respect of the Applicant’s credibility, that which it stated in paragraphs 53 and 54 of its Decision Record:-

   “53. The Tribunal has considered submissions put forward by the Applicant’s representative regarding the general factors to be taken into consideration in assessing the Applicant’s credibility, namely, his lack of familiarity with the immigration process, his fears of authorities, and the articulation of his claims through an interpreter.  No specific submissions were made indicating that there were, for example, any interpreting errors at the hearing or throughout the protection application process that would have affected the Applicant’s ability to give evidence. Although the Tribunal found various aspects of the Applicant’s evidence confused and difficult to follow, the Applicant appeared to understand and respond appropriately to the Tribunal’s questions, and the Tribunal is satisfied that he was able to effectively participate in his Tribunal hearing. Despite some aspects of his evidence being confused and unreliable, the Tribunal found the Applicant’s evidence at the hearing before it generally open and forthright.

   54. There were, however, various discrepancies between his evidence to the Tribunal and to the Department. For example, the Applicant’s written statement refers to having been detained several times at SLA camps, which he denied at hearing and did not offer an explanation as to why this claim was made to the Department.  Given the Tribunal’s view that his evidence before it about past events was generally credible, the Tribunal prefers and gives greater weight to his evidence at hearing than previous evidence to the Department, which it finds was exaggerated.”

4. The Tribunal did not accept that the Applicant was of any ongoing interest to the Sri Lankan authorities.  It noted the Applicant’s evidence that neither he nor his family had ever been involved with the LTTE.  While it was prepared to accept that the authorities visited the Applicant’s family home when he was in Saudi Arabia, it found this was nothing more than routine questioning of Tamils by the authorities at the time.  In making that finding, it noted country information and the Applicant’s evidence that “everyone was facing those problems” and that the Applicant was able to visit Sri Lanka on two or three occasions while working in Saudi Arabia without any problems.  It was the view of the Tribunal that had the Applicant been of any adverse interest to the authorities, he would have been detained, questioned further and not allowed to depart Sri Lanka.

5. The Tribunal accepted that the Applicant was questioned on numerous occasions after returning from Saudi Arabia, including about his travel.  However, it noted that on the Applicant’s own evidence he was not threatened or abused during those encounters.  It also placed weight on the Applicant’s evidence that he was able to obtain a new passport and enter and depart Sri Lanka on three trips to India without problems.  It did not accept that the Applicant would have been able to do so if he were of adverse interest to the authorities.

6. Based on the country information before it, the Tribunal found that being a Tamil, a Tamil male or even a Tamil male from formerly LTTE-controlled areas no longer gave rise to a risk profile or to an imputed pro-LTTE political opinion in Sri Lanka.  It accepted:-

   “That some level of discrimination towards Tamils, such as greater scrutiny at checkpoints, may continue to exist.”

   However, the Tribunal found, on the evidence before it, that any such discrimination did not amount to serious harm, as set out in s.91R(2) or to significant harm, as set out in s.36(2A) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal also considered the country information provided by the Applicant, but did not accept that the information supported the conclusion that Tamils were targeted for harm because of their religion or ethnicity.

7. Having regard to the evidence before it, the Tribunal did not accept the Applicant would face a real chance of serious harm or a real risk of significant harm due to being a Tamil, a Tamil (man) from the north, due to his previous prolonged period of residence abroad or travels, or due to his actual/imputed political opinion arising as a result of his profile.

Returnee from western country

1. The Tribunal considered country information as to this claim and canvassed same with the Applicant.  The Tribunal noted the country information indicated that Tamils were subject to the same entry procedures as others when returning to Sri Lanka.  Based on the Tribunal’s assessment of the country information before it, the Tribunal found that not all returnees/asylum seekers faced risk.  Rather, it appeared that only those who had a profile of interest to the authorities prior to leaving Sri Lanka would be of interest upon return.  Relying on its previous findings, the Tribunal found the Applicant would not be subjected to any detention or interrogation on arrival in Sri Lanka other than standard questioning and other procedures, described by the Department of Foreign Affairs and Trade (‘DFAT’).  It was not satisfied, on the evidence before it, that there was a real chance or risk that the Applicant would be subjected to serious or significant harm during such questioning, either upon his arrival in Sri Lanka or at any other time after he was released from detention upon arrival, given that the Tribunal did not accept that the Applicant had a profile that would be of interest to the Sri Lankan authorities.

2. The Tribunal, therefore, did not accept the Applicant would face a real chance or risk of serious or significant harm as a result of being a failed asylum seeker or returnee from a western country.

Illegal departure

1. The Tribunal accepted that the Applicant had departed Sri Lanka without a valid travel document.  Based on country information, it accepted that he would be charged for that illegal departure under the Immigrants and Emigrants Act (1949) (Sri Lanka). The Tribunal was, however, satisfied that the Immigrants and Emigrants Act (1949) was a law of general application and did not give rise to persecution under the Refugees Convention. 

2. The Tribunal, in paragraph 87 of its Decision Record, noted that it placed weight on the DFAT advice before it and was satisfied:-

   “That the Applicant will be held in remand for a short period from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act, before appearing before a court hearing regarding bail.  The Applicant’s parents and siblings are present in Sri Lanka to guarantee his bail, and the Tribunal finds, on the evidence before it, that they will be able to do so.”

3. The Tribunal found that the penalty most likely to be imposed on the Applicant, if convicted of an offence under the Immigrants and Emigrants Act (1949) (Sri Lanka), was a fine of between 5000 and 50,000 rupees (on the basis of DFAT country report Sri Lanka 16 February 2015).

4. The Tribunal found, on the evidence, that the risk that the Applicant would be imprisoned instead of fined was remote. The Tribunal did not accept that the imposition of a fine of that amount constituted significant harm, as defined in the Act.

5. The Tribunal further considered whether the Applicant would face a real chance of serious harm or a real risk of significant harm during the few days that he would spend on remand.  It referred to country information and found that Tamils and Sinhalese prisoners face the same conditions in Sri Lanka.  It also did not accept that prison conditions would amount to significant harm.

6. In paragraph 98 of the Decision Record, the Tribunal said further:-

   “The Tribunal does not accept that any anxiety and discomfort that the Applicant would face while on remand between one and several days only, where the evidence indicates that such discomfort and anxiety is not caused by an intention by the authorities to inflict severe pain or suffering or to cause extreme humiliation, amounts to significant harm, as set out in s.36(2A) of the Act.”

7. The Tribunal found, further, that mere negligence or a lack of resources in terms of prison conditions did not give rise to cruel or inhuman or degrading treatment or punishment under Australian law.  The Tribunal noted that country information indicated that the poor prison conditions in Sri Lanka were due to a lack of resources:-

   “...which the Government appears to have acknowledged and is taking steps to improve rather than an intention by the Sri Lankan Government to inflict severe pain or suffering or to cause extreme humiliation.”

8. Having considered the Applicant’s claims, both individually and cumulatively, the Tribunal affirmed the delegate’s decision.

Consideration

1. There was clearly no denial of procedural fairness afforded to the Applicant. The Tribunal’s procedural fairness obligations are codified in Part 7 Division 4 of the Act, which includes an exhaustive statement of the natural justice hearing rule. The Minister submitted, and the Court finds, that the Tribunal complied with the codified procedural fairness requirements in part 7 of the Act, and this ground of review cannot be made out. Specifically, the Applicant was invited to attend a hearing before it to give evidence and present arguments. The Applicant did so with the assistance of his migration agent and a Tamil interpreter. The Tribunal’s findings were based on the Applicant’s own evidence and on country information discussed with the Applicant by the Tribunal at the hearing. The Applicant was on notice of the determinative issues in the review. There is no basis at all to assert jurisdictional error because the Applicant was denied procedural fairness.

1. The Minister submits that there is no error of law in the Tribunal’s decision. The Minister submits the Tribunal clearly and correctly identified and applied the statutory criteria for the grant of a protection visa.  The Court accepts that submission. The Tribunal made findings open to it on the evidence before it.  There was no illogicality in the decision-making process. The Applicant was unable in these proceedings to particularise this ground in any way, nor to point to what it was that he thought wrong with the Tribunal decision. His only submissions were that he had provided the Tribunal with incorrect dates.

2. The application shall be dismissed, and costs follow that event.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 19 May 2017