Con15 v Minister for Immigration
[2016] FCCA 2283
•1 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CON15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2283 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R |
| Cases cited: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 SZSFF v Minister for Immigration & Anor [2013] FCCA 1884 VBAP of 2002 v Minister for Immigration [2005] FCA 965 |
| Applicant: | CON15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3277 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 1 September 2016 |
REPRESENTATION
| The Applicant appeared in person Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3277 of 2015
| CON15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal). The decision was made on 16 November 2015. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. Background facts relating to the applicant’s protection claims, and the decision of the Tribunal on them, are set out in the minister’s outline of legal submissions, filed on 23 August 2016.
Background
The applicant is a citizen of Sri Lanka who applied for a protection (class XA) visa on 6 June 2013.[1] In a statement accompanying his protection visa application, the applicant claimed to fear harm because of his brother-in-law’s association with the LTTE and paramilitary groups (the Karuna and Pillayan groups). The applicant also claimed to fear harm for reasons of his Tamil ethnicity, illegal departure from Sri Lanka and application for asylum in Australia. He claimed that his brother-in-law was killed by members of the Karuna group after they accused him of misappropriating funds when he left the group to join the Pillayan group. Approximately eight months later the applicant’s sister was also murdered and the applicant was forced to go into hiding for the next five years until he departed for Australia. After arriving in Australia, the CID allegedly contacted his wife and warned her that the applicant must return with a visa.[2]
[1] Court Book (CB) 19-45
[2] CB 46-48
The applicant attended an interview with the Minister’s delegate (delegate) on 26 August 2014.[3] On 5 September 2014, the delegate made a decision refusing to grant the applicant a protection visa because the delegate was not satisfied that the applicant was credible,[4] particularly at CB 109 to 110.
The Tribunal’s decision
[3] CB 102.
[4] CB 101-122
On 9 September 2014, the applicant lodged an application for review of the delegate’s decision.[5] By a letter dated 9 September 2015, the Tribunal invited the applicant to appear before it at a hearing scheduled for 18 September 2015.[6] The applicant attended the hearing[7] and provided copies of identity documents and photographs.[8]
[5] CB 123-124
[6] CB 129-130
[7] CB 149-151
[8] CB 152-164
By a decision dated 16 November 2015, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection (class XA) visa.[9]
[9] CB 167-196
The Tribunal rejected the applicant’s claims on the basis of comprehensive adverse credibility findings and its assessment of the available independent country information (ICI). The Tribunal identified “a number of serious concerns” with the credibility of the applicant’s claims and concluded on the basis of these concerns that he was not a credible witness.[10] For example, the Tribunal found that the applicant provided inconsistent evidence about when he travelled to Qatar and lived there, his reasons for such travel and why he returned to Sri Lanka.[11] The Tribunal also identified various inconsistencies in his evidence about his family members,[12] his parents’ state of mind after their daughter was allegedly murdered[13] and the group to which his brother-in-law purportedly belonged.[14] Furthermore, it did not accept as credible that the Karuna group were seeking revenge but had not sought to harm his wife and child.[15] It also found he had given “inconsistent, changing and unlikely evidence” in support of his claim about why the Karuna group targeted him, including his evidence at the Tribunal hearing that he was no longer of adverse interest to them.[16]
[10] CB 172, 178 [27], [64]
[11] CB 172-174, [28-37]
[12] CB 174-176, [38]-[48]
[13] CB 176-177, [49]-[51]
[14] CB 177, [52]-[54]
[15] CB 177, [55]-[56]
[16] CB 177-178, [57]-[63]
The Tribunal did not accept that the applicant had provided a satisfactory explanation for the identified inconsistencies or that the deficiencies in his evidence could be explained by his claimed nervousness at the hearing or poor memory.[17]
[17] CB 173, [32]; CB 174, [36]; CB 176, [46]-[49]; CB 177, [56]; CB 178, [63]; CB 178-179, [65]-[67]
Given these findings, the accepted ICI before it about document fraud in Sri Lanka and the specific concerns that the Tribunal identified with the reliability of the applicant’s supporting documents, the Tribunal gave his documents no weight.[18]
[18] CB 179, [68]-[73]
On the basis of these concerns, the Tribunal found the applicant had fabricated his claims relating to the events that purportedly occurred in Sri Lanka and rejected those claims in their entirety.[19] Accordingly, it did not accept that the applicant would be targeted by the Karuna group or other paramilitary groups if he returned to Sri Lanka.[20] Nor did it accept that he would be perceived to be an LTTE supporter or would have any political involvement in the future. It also did not accept he would be imputed with any anti-government opinion or that he had a profile that indicated he would be of adverse interest to the authorities.[21]
[19] CB 180, [74], [76]-[80]
[20] CB 180-181, [81]-[82]
[21] CB 181, [83]-[84], [89]; CB 182-183, [92]-[95] and [99]
The Tribunal accepted that the applicant departed Sri Lanka illegally and would be perceived by the authorities as returning involuntarily.[22] However, on the basis of its assessment of the available ICI, the Tribunal did not accept that the applicant would face a real chance of harm as a returnee because of his Tamil ethnicity, illegal departure, status as a failed asylum seeker or for any other reason.[23] Whilst the Tribunal accepted that the applicant would be questioned by the authorities on his return, charged with an offence for departing the country illegally, held on remand for a few days whilst awaiting bail and fined between $400 and $1600,[24] it did not accept that this process would result in him suffering any serious or significant harm.[25] Specifically, it was not satisfied that the applicant would be mistreated or that the poor prison conditions in Sri Lanka meant that he would suffer any serious or significant harm.[26]
[22] CB 182, [91]
[23] CB 184-187, [101]-[111]; CB 191, [130]-[134] and CB 193-194, [143]-[145]
[24] CB 188, [116]
[25] CB 190, [124]-[126]; CB 192 [138] and CB 193 [140]
[26] CB 189, [119]-[120]; CB 190, [123]; and CB 192, [139]
The Tribunal also made an alternative finding under s.91R(1)(c) that the processing of the applicant as a result of his illegal departure would be pursuant to a law of general application that would not be applied to him in a discriminatory manner.[27] Similarly, the Tribunal found that any harm faced by the applicant would be as a result of lawful sanctions that were not inconsistent with the ICCPR.[28] The Tribunal also made a further alternative finding in this respect namely, that s.36(2B)(c) applied to the applicant as the risk of him facing any significant harm was a risk faced by the population of the country generally and not by him personally.[29] Each of the Tribunal’s alternative findings provide a further lawful basis to support its decision.[30]
[27] CB 189-190, [122]-[129]
[28] CB 193, [141]
[29] CB 193, [142] ; citing, SZSPT v Minister for Immigration [2014] FCA 1245. This approach is arguably inconsistent with the Minister’s position in relation to s.36(2B)(c), which is stated in SZSFF v Minister for Immigration & Anor [2013] FCCA 1884 at [33] – [34]. Nevertheless, the Minister accepts that SZSPT is binding upon this Court.
[30] VBAP of 2002 v Minister for Immigration [2005] FCA 965
The Tribunal gave detailed reasons for its adverse credibility findings. The Tribunal’s factual findings about the credibility of the applicant’s claims were open to it on the available materials and for the reasons that it gave.
Present proceedings
These proceedings began with a show cause application, filed on 1 December 2015. The applicant now relies upon an amended application that was filed on 9 August 2016.
There is one particularised ground in that application:
The Tribunal erred with the error being a jurisdictional error is that it failed to consider a crucial aspect of my Convention claims.
Particulars
There was an implicit claim in my application is that I will be seen as a pro-LTTE supporter. The Tribunal failed to analyse the effects of my illegal departure. On my arrival at the airport in Colombo, I would be questioned by the CID and I will be prosecuted for my illegal departure as a Tamil male from the East. There is information before the DIBP that there are potential risks of physical violence in prison for Tamils like me.
More grounds will be given after the receipt of my RRT hearing CDs. I need a RT hearing CD to give particulars of my grounds.
The applicant indicated in that application that more grounds would be given after the applicant had received and listened to the sound recording of the Tribunal hearing. When I raised that with the applicant, he indicated that he had no further grounds to add.
I have before me as evidence the court book filed on 11 February 2016.
The Tribunal decision contains a comprehensive analysis of the applicant’s claims. Most of those claims were rejected on credibility grounds. Such credibility findings were findings of fact for the Tribunal to make par excellence,[31] and the Court cannot review the merits of the Tribunal’s decision.[32] However, the Tribunal accepted that the applicant is a Tamil male from the east of Sri Lanka. The Tribunal also accepted that he left Sri Lanka illegally.
[31] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[32] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
Hence, on return to Sri Lanka he might be prosecuted for breaching the Sri Lankan Immigrant and Emigrants Act. Contrary to the applicant’s assertions, his explicit or implicit claims about those circumstances were considered at length by the Tribunal. The Tribunal expressly considered whether the applicant would face a real risk of significant or serious harm while being questioned or investigated, and including detention at Negombo Prison.
The Tribunal was not satisfied that the applicant would face a real risk of harm. I conclude that there is no basis to the applicant’s ground of review advanced. In that regard, I agree with the Minister’s submissions.
The amended application filed by the applicant on 9 August 2016 fails to raise any arguable case for the relief sought. The sole ground of review fails on a factual level. The Tribunal specifically dealt with the claim that the applicant would be imputed as a pro-LTTE supporter.[33] Further, the Tribunal dealt with the potential consequences for the applicant upon return to Sri Lanka.[34]
[33] CB 181-182, [87]-[91]
[34] CB 187-189, [113]-[121]
The purported grounds seek impermissible merits review.[35] For the reasons outlined above, the Tribunal’s factual findings about the credibility of the applicant and his claims were open to it on the materials before it and for the reasons that it gave. As the application fails to demonstrate an arguable case for the relief claimed, it ought to be dismissed.
[35] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
I conclude that the applicant has failed to advance an arguable case of jurisdictional error by the Tribunal.
Accordingly, I will order that the application be dismissed pursuant to rule 44.121A of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the applicant’s application, the Minister seeks an order for costs in accordance with the court scale in the sum of $3,606. The applicant doubted his capacity to pay but did not otherwise wish to make submissions on costs. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 5 September 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction