Con15 v Minister for Immigration and Border Protection

[2018] FCA 448

FEDERAL COURT OF AUSTRALIA

CON15 v Minister for Immigration and Border Protection [2018] FCA 448

Appeal from:

Application for leave to appeal: CON15 v Minister for Immigration and Border Protection [2016] FCCA 2283

File number:

NSD 1531 of 2016

Judge:

FARRELL J

Date of judgment:

26 March 2018

Catchwords:

MIGRATION – application for leave to appeal a decision of the Federal Circuit Court of Australia – the Federal Circuit Court found no jurisdictional error in the decision of the Administrative Appeal Tribunal– application for further adjournment – whether the Tribunal failed to consider a relevant consideration – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 91R(1)(c) (repealed)

Federal Circuit Court Rules 2001 (Cth) r 44.12(1)(a)

Immigrants and Emigrants Act (Sri Lanka)

Cases cited:

CON15 v Minister for Immigration and Border Protection [2016] FCCA 2283

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; HCA 6

SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; HCA 34

SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; FCAFC 69

Date of hearing:

26 March 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

26

  Counsel for the Applicant:

The Applicant appeared in person

Solicitor for the First Respondent:

Ms S He of Mills Oakley

Counsel for the Second Respondent:

The Second Respondent submitted save as to costs

ORDERS

NSD 1531 of 2016

BETWEEN:

CON15

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	26 MARCH 2018

THE COURT ORDERS THAT:

1.Leave to appeal is refused and the application is dismissed.

2.The applicant must pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

1. This is an application for leave to appeal a decision of the Federal Circuit Court of Australia made under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth): see: CON15 v Minister for Immigration and Border Protection [2016] FCCA 2283. Such decisions are interlocutory in nature so that leave to appeal is required.

2. The primary judge dismissed the applicant’s application for judicial review of a decision made by the Administrate Appeals Tribunal to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection (Class XA) Subclass 866 visa.  The Tribunal’s decision was contained in a decision record (or DR) dated 16 November 2015.

3. These are my reasons for refusing leave and rejecting the applicant’s application for an adjournment which he made orally at the hearing.

   Background

4. The applicant is a citizen of Sri Lanka; he is ethnically Tamil and his religion is Hindu.  He arrived in Australia as an unauthorised maritime arrival on 9 April 2013.  His application for a visa was received by the Department of Immigration and Citizenship (as the Department of Home Affairs was then known) on 1 July 2013. 

5. Attached to the applicant’s application for the visa was a statutory declaration made on 6 June 2013 outlining his claims for protection. The Tribunal summarised these claims in its decision record at [10]. Among other things, the applicant claimed that:

   (1)His brother-in-law was an active member of the Liberation Tigers of Tamil Eelam (LTTE) and joined a faction of the LTTE called the Karuna group and later, the Pillayan group. 

   (2)In May 2007, his brother-in-law was beaten, shot dead and buried because the Karuna group believed he “misallocated” certain of its funds when he joined the Pillayan group.  Eight months later, his sister (who was married to his brother-in-law) was murdered.  The applicant suspected that the Karuna group was also responsible for that death. 

   (3)Because he is the only remaining male family member of his brother-in-law, the Karuna group began to harass him after his sister’s death and accused him of being in possession of the funds his brother-in-law had apparently misappropriated. 

   (4)Heavily armed members of the Karuna group have come looking for him.  To protect himself, he had to move between his house and his mother’s house in the middle of the night.  On other occasions, it would become so dangerous that he left and worked in Colombo.  These were his living arrangements from the time his sister was killed until he left for Australia.  He escaped attacks because members of the Karuna group from his village warned him and they cautioned him that the Karuna group intended to kill him if they found him.

   (5)He fears that he will be killed by members or agents of the Karuna group if he were returned to Sri Lanka, particularly as he cannot produce the funds that the Karuna group believes he now has.

   (6)He will be at risk from people in high levels of the government and from the Karuna group (who opposed the LTTE and joined forces with the government).  He cannot seek protection from the authorities because they will want to kill him.  He could not relocate for the same reason.

   (7)He made claims about failed asylum seekers who have returned to his village.

6. At the interview with the delegate, the applicant said that his family still lives in the regions in and around Batticaloa.  He claimed that the CID were very strict now and are asking about people who are out of the country.  The CID contacted his wife after his arrival in Australia and asked her where he was and said that if he returns to Sri Lanka, he must return with a visa: DR at [13]-[14]. 

   Review by Tribunal

7. The Tribunal found that the applicant was not a witness of truth due to concerns it had arising out of inconsistencies in evidence given in his visa application, before the delegate and before the Tribunal cumulatively: DR[74].

8. The Tribunal was not prepared to give any weight to photocopied documents which the applicant produced on the basis of inconsistencies between his testimony and information provided in the documents and having regard to the availability of fraudulent documents in Sri Lanka: DR[68]-[71]. Because of its credibility concerns, the Tribunal also gave no weight to photographs he produced: DR[73].

9. The Tribunal went on to note country information that in the past a person’s Tamil ethnicity and place of origin could be enough for Sri Lankan authorities to impute the person as having an adverse profile related to the LTTE, putting them at risk of harm. However, the UNHCR’s December 2012 guidelines indicate that that is no longer the case but each case must still be assessed on its merits: DR[92]-[93]. Individuals with certain kinds of LTTE links and their relatives and certain other listed categories remained at higher risk but the Tribunal was not satisfied that the applicant had any such risk profile: DR [94].

10. While the Tribunal accepted that the authorities may regard the applicant as a failed asylum seeker of Tamil ethnicity from the eastern province, it did not accept that this was a reason for the applicant to be considered of adverse interest to anyone in Sri Lanka: DR[104]. Having regard to country information, the Tribunal was not satisfied that the applicant’s profile was such that he faced a real chance of serious harm or a real risk of significant harm from the Sri Lankan authorities, including as a person who left Sri Lanka by boat and was returned from Australia as a failed asylum seeker: DR[96], [103], [108], [111].

11. In light of country information, the Tribunal considered the applicant’s claim that failed asylum-seekers who returned to Sri Lanka were arrested at the airport and detained until bailed: DR[113]-[115]. The Tribunal accepted that there was a real chance that the applicant would be questioned and investigated if he were to return to Sri Lanka, charged with an offence, held in custody for between 24 hours and a few days, and, once at court, he would be released on bail (with a family member acting as guarantor) and would later be fined between $400 and $1,600. The Tribunal noted that the applicant did not suggest that he could not pay the fine: DR[116]. Based on a report from the Department of Foreign Affairs and Trade in February 2015, the Tribunal did not accept that, as a mere passenger on a people smuggling venture, the applicant would be subjected to a custodial sentence: DR[117]. On that basis, it also did not accept that he would face a real chance of serious harm or a real risk of significant harm on arrival (although he will be questioned at the airport), or as a result of being held in custody during investigation and the court process (although conditions may be overcrowded and unsanitary): DR[119]-[120], [126]. It found that the conditions imposed on those in remand and the fine imposed are not discriminatory, and standard procedures applied under laws of general application. The Tribunal was not satisfied that the applicant would be singled out or treated differently because he is a Tamil, a failed asylum seeker, because he would be imputed with an anti-government opinion or for any Convention related reason. The Tribunal did not accept that processing of this kind had the necessary discriminatory element to satisfy s 91R(1)(c) of the Migration Act1958 (Cth) (as then enacted): DR[121], [123], [127]- [129].

12. Having regard to the applicant’s claims individually and cumulatively, the credibility findings the Tribunal made and country information, the Tribunal rejected all claims the applicant made and concluded the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act: DR[134].

13. The Tribunal then considered whether the applicant was owed “complementary protection”. The Tribunal rejected that the applicant has experienced any of the harm that he claimed he had in the past: DR[137]. It accepted that if the applicant was to return to Sri Lanka he would be charged for departing Sri Lanka illegally, detained briefly and fined: DR[138]. It did not accept that this would amount to any form of significant harm: DR[139]-[141]. It found that the applicant did not face significant harm if he was to return to his home region and he could reside and work there: DR[143]. The Tribunal again found that the applicant would not face a real risk of significant harm from the Sri Lankan authorities because he is a Tamil male from the east who left Sri Lanka by boat and claimed asylum in Australia: DR[144]. The Tribunal found that the applicant was not owed “complementary protection” and did not satisfy the requirements of s 36(2)(aa) of the Migration Act: DR[146]. 

14. It affirmed the delegate’s decision not to grant the applicant a visa: DR[150].

    Federal Circuit Court

15. The applicant filed an amended application to the Federal Circuit Court for judicial review of the Tribunal’s decision on 9 August 2016.  The grounds of that application were (as written):

    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.

16. At the hearing on 1 September 2016, the applicant indicated that he did not have further grounds to add to those set out in the amended application he filed on 9 August 2016 despite the statement that he would have further grounds following review of the record of proceedings before the Tribunal: J[15].

17. The primary judge held that the Tribunal decision contained a “comprehensive analysis of the applicant’s claims” which were open to it to make, particularly in relation to the applicant’s credibility.  His Honour also noted that the Tribunal accepted that the applicant was a Tamil male from the east of Sri Lanka and he left that country illegally: J[17].

18. In relation to the applicant’s sole ground of review, the primary judge held (as written, footnotes inserted into text):

    18.Hence, on return to Sri Lanka he might be prosecuted for breaching the Sri Lanka 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.

    19.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.

    20.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 factual level.  The Tribunal specifically dealt with the claim that the applicant would be imputed as a pro-LTTE supporter. [DR [87-[91]] Further, the Tribunal dealt with the potential consequences for the applicant upon return to Sri Lanka. [DR [113]-[121]

    21.The purported grounds seek impermissible merits review. [Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272] 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.

    22.I conclude that the applicant has failed to advance an arguable case of jurisdictional error by the Tribunal.

    Application to this Court

19. The applicant filed an application for leave to appeal to this Court and an affidavit in support on 13 September 2016.  The grounds of the application were (as written):

    I still rely on the arguments, grounds and particulars that were provided with my previous Federal Circuit Court Application and in the Form 121.

    I will file and serve a detailed submission after I have lodged my Federal Circuit Court application with the detailed grounds and why I do not agree with the RRT decision.

20. A draft notice of appeal was annexed to the supporting affidavit.  The sole proposed ground of appeal was (as written):

    Grounds of appeal

    The Federal Circuit Court Judge erred in the judgment as the Judge failed to find that the Tribunal erred in law when the Tribunal had reviewed my review application.

    1.The Federal Circuit Court failed to find that the RRT erred in law and declined its jurisdiction on the basis of grounds and particulars stated below.

    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 analyze 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.

21. A Judge of this Court made orders on 30 January 2017 adjourning the application pending the determination an appeal to the High Court of the Full Court of the Federal Court’s decision in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; FCAFC 69. The High Court delivered judgment dismissing the appeal on 6 September 2017, see: SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; HCA 34.

22. This application for leave to appeal was set down for hearing on 13 February 2018.  However, it was stood over until to today on the basis that the applicant had measles and was not able to appear.  At the hearing today, the applicant asked that the matter again be adjourned on the basis that he is diabetic and he is now in a position to obtain legal assistance from a lawyer he has identified.  

23. The Court refused the application on the basis that the applicant has had since September 2016 to obtain legal advice and it was not obvious that a condition such as diabetes would prevent him from obtaining such advice.  The applicant responded that the fact that he is diabetic was relevant because he has lost much of the use of one of his legs and he has had a stroke.  No evidence was provided in support of his medical condition and the applicant did not suffer from any obvious impairment in the course of presenting his submissions.  Ultimately, I accept the Minister’s submission that this ground has no merit so that a further adjournment could not be justified. 

24. The ground relied on in this Court is essentially the same ground as that relied on in the Federal Circuit Court.  The primary judge’s reasons set out above correctly identify that the Tribunal considered, but did not accept, that the applicant would be viewed as a pro-LTTE supporter.  The Tribunal considered the applicant’s claims to fear harm by reason of his illegal departure and as a Tamil male from the east.  It considered the fact that he would be questioned on his arrival at the airport, the conditions which would apply to him during remand and the likelihood of him receiving a custodial sentence.  It rejected the applicant’s claims in this regard, both under the Refugees Convention and under complementary protection provisions, based on country information and having regard to the facts that his personal profile was not such as to cause him to be of interest to the authorities and the Immigrants and Emigrants Act of Sri Lanka is a law of general application.  Having regard to these matters and the High Court’s decision in SZTAL, the applicant’s ground identifies no jurisdictional error by the Tribunal or appellable error by the primary judge.

25. The applicant made further oral submissions which repeated his claims to protection.  As explained to the applicant at the commencement of the hearing, the Court has no jurisdiction to address the merit of his claims.

    Conclusion

26. Leave to appeal should be refused and the application must be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate: 

Dated:        3 April 2018