CMP15 v Minister for Immigration

[2018] FCCA 543

FEDERAL CIRCUIT COURT OF AUSTRALIA

CMP15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 543

Catchwords:
MIGRATION – Protection visa – review of decision of AAT – no failure to consider integer of applicant’s claims – no failure to review all country information submitted by the applicant – merits review – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.65

Cases cited:

NAHI v Minister Immigration [2004] FCAFC 10
SZTAL v Minister for Immigration [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: CMP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2619 of 2015

Judgment of: Judge McNab

Hearing date: 19 April 2017

Date of Last Submission: 6 September 2017

Delivered at: Melbourne

Delivered on: 8 March 2018

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application filed on 3 April 2017 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2619 of 2015

CMP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 26 November 2015 and amended on 3 April 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 28 October 2015. By that decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia as an unauthorised maritime arrival on approximately 15 July 2012.

3. The applicant applied for the visa on 20 November 2013. A delegate for the Minister refused to grant the visa on 31 December 2013.

4. The applicant applied to the Tribunal for review of the delegate’s decision on 8 January 2014 and appeared before the Tribunal on 11 May 2015.

5. The applicant made a number of claims for protection, including that:

   a)He is of Tamil ethnicity and Tamils have been targeted;

   b)His uncle was killed in a bomb blast in 2000;

   c)He was thought to be a supporter of the Liberation Tigers of Tamil Eelam;

   d)In 2009 he attempted to flee Sri Lanka and was imprisoned for three months and signed documents that were not translated to him;

   e)In 2010 after being released with the assistance of Red Cross he went into hiding and his brother subsequently received threats;

   f)He was involved in assisting the Tamil National Alliance;

   g)In 2011 he purchased a tipper and received threats that his tipper would be burned; and

   h)He will be returning to Sri Lanka as somebody who departed unlawfully.

6. The Tribunal member, by decision dated 28 October 2015, raised credibility concerns in relation to the inconsistency in the claims that he made regarding what had happened to the applicant in the past at [27].

Grounds of review

1. The grounds of review stated in the applicant’s amended application were that the Tribunal decision was affected by jurisdictional error by:

   a)failing to consider a relevant consideration, or an integer of the claim, or a material question of fact, namely “whether the applicant’s previous punishment by fine and imprisonment for having attempted to leave the country illegally before his successful illegal departure may affect the risk he may suffer persecution or significant harm”;

   b)misunderstanding the law or applying the wrong legal test by:

   i)referring to the status of the work of DFAT as “specifically charged with giving advice to the Australian government” when assessing whether the DFAT report carried weight as evidence;

   ii)considering that the risk of detention and punishment for illegal departure from Sri Lanka was a real risk faced by the general population within the meaning of s.36(2B)(c) of the Act; and

   iii)failing to consider the requirements as to “intention” in relation to the applicant’s claim for complementary protection.

   c)taking an irrelevant consideration into account by referring to DFAT’s status as a body that had been “specifically charged with giving advice to the Australian government” in the context of giving greater weight to the DFAT report than to country information submitted by the parties.

2. The first respondent submits that the decision of the Tribunal was not affected by jurisdictional error.

Tribunal decision and finding

Ground 1

1. At [26] the Tribunal accepted that the applicant had tried to leave Sri Lanka illegally in November 2009, had been caught by authorities and was detained for a period of two months. The Tribunal also accepted that he had signed a number of documents in Sinhalese and was released with the help of the Red Cross. It also accepted that the applicant was fined 25,000 rupees for attempting to depart the country unlawfully.

2. The Tribunal at [27] then went on to make quite specific findings in relation to inconsistencies given in the evidence of the applicant in relation to what occurred to him following his release from detention in early 2010. These were findings of fact which were explained in a clear and intelligible way by the Tribunal.

3. At [30] the Tribunal stated:

   The applicant was released from detention in early 2010 which indicates that he was not of continuing adverse interest to the authorities. A long period of time has elapsed since his detention and I have found that he did not suffer any adverse attention in the period until he departed Sri Lanka in mid-2012. The war itself ended in 2009. He has not claimed ever to have been involved in the LTTE. I accept that an uncle was killed by a roadside bomb however this was a very long time ago and I do not consider this event would create any suspicion concerning the applicant. Considering all the circumstances, I find it remote that he will in the reasonably foreseeable future be suspected of any association with the LTTE by the authorities.

4. The Tribunal specifically took into account the applicant’s claims to have been caught by authorities attempting to leave the country illegally in November 2009, and considered the risk to the applicant as a result of accepting that that had occurred. There was no failure on the part of the Tribunal to consider a relevant consideration in relation to this aspect of the applicant’s claims.

Ground 2

1. Ground 2 of the applicant's grounds of review assert that the Tribunal fell into error in making the statement:

   I have considered the country information submitted by the agents but I have given greater weight to the report of DFAT as it is recent, authoritative and they have been specifically charged with giving advice the Australian government.[1]

   [1] Tribunal decision [39].

2. It is asserted by the applicant that there was a failure on the part of the Tribunal to review all the material that was put before it in relation to country information regarding the treatment of Tamil failed asylum seekers. The Tribunal specifically stated at [39] that it had considered the country information submitted by the agents of the applicant. The decision also refers to country information compiled by a group called Freedom From Torture (see footnote 6 to paragraph [39] of the Tribunal decision). That the Tribunal preferred the country information provided by DFAT is a matter within its fact-finding function. No error is discernible in the approach taken by the Tribunal (see NAHI v Minister Immigration [2004] FCAFC 10 at [11]).

3. In relation to ground 2(b), the Tribunal considered a claim that the laws of Sri Lanka were applied selectively and found that all returnees who departed illegally are dealt with equally and there was no evidence of the selective enforcement of the laws against any particular group.[2] The applicant is effectively seeking merits review in relation to this aspect of the decision which is impermissible.

   [2] Tribunal decision [48].

4. In relation to paragraph (c) of the applicant's grounds, counsel for the applicant made a formal submission that the full Federal Court's judgement in SZTAL v Minister for Immigration [2016] FCAFC 69 was wrongly decided. Given that the High Court upheld the full court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, the applicant's grounds of review on this basis cannot succeed.

Ground  3 

1. Ground 3 asserts that the Tribunal fell into a jurisdictional error by taking into account an irrelevant consideration by giving greater weight to the report of DFAT in [39] of its decision. For the reasons set out in relation to ground 2(a) there is no error in the approach taken by the Tribunal in its consideration of country information, including the weight that it gave to the DFAT report.

2. For these reasons the application shall be dismissed with the applicant to pay the first respondent’s costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 8 March 2018