CPV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1493

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1493

File number(s):	MLG 1982 of 2016
Judgment of:	JUDGE VASTA
Date of judgment:	8 June 2021
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Cases cited:	N/A
Number of paragraphs:	51
Date of last submission/s:	8 June 2021
Date of hearing:	8 June 2021
Place:	Brisbane
The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Ms S. Cummings
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

MLG 1982 of 2016

BETWEEN:

CPV16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	8 JUNE 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the Application filed 15 September 2016 is dismissed.

2.That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 24 August 2016, the Administrative Appeals Tribunal (“the Tribunal”) affirmed a decision not to grant the Applicant CPV16, a protection visa.  On 15 September 2016, the Applicant asked this Court to review that application.  The fact that it has taken just short of five years for this Court to actually review this application is a fact of which this Court cannot be proud.  The Applicant has been in a virtual limbo since he put in his application, because of delays in this Court hearing the matter.  It is an unfortunate fact of life in this Court, but I wish to apologise to the Applicant for this Court taking so long to actually have a hearing in respect of his application.

2. The background to this matter is that the Applicant arrived as an irregular maritime arrival in the country on the 26 June 2012.  The Applicant was born in the Chilaw District in the north-western province of Sri Lanka.  He has the Tamil ethnicity and his religion is Hinduism.  He had attended a Tamil school and completed year 11 and had worked as an apprentice carpenter before travelling to Australia. 

3. His application for a protection visa was made on 16 October 2012.  The claims that he made in that application were as follows: 

4. The Applicant said that his family had land in Sri Lanka that the Sri Lankan authorities were going to resume so that they could build a rail line.  He had said that he feared the land being forcibly taken from him and his family with no compensation to be paid. 

5. The Applicant gave a detailed discussion of the interactions he and his family have had with three persons of Sinhalese ethnicity.  These persons have been described as “thugs”.  The Applicant was able to name the three of them, but I will not repeat their names for the purpose of this judgment.  He said, though, that these thugs were politically connected to a politician, whom I will call “S”.

6. The Applicant said that, in 2009, the uncle of the three thugs verbally and physically assaulted a cousin, known as “R”.  The Applicant said that another cousin, “RA”, as well as his brother, known as “A”, asked the uncle why he assaulted the person, R.  He said that the uncle began verbally assaulting RA, his brother A and the entire family. And then the uncle left.

7. He said that the three thugs returned with several other Sinhalese men and there was an altercation between the Sinhalese people there and the Tamils, who were mostly members of the Applicant’s family.  The Applicant claimed that his aunt was seriously injured with a cut left hand.  The Applicant said that the matter was reported to police.  The three thugs were remanded in custody, but they were eventually released.

8. The Applicant claimed that this release was politically motivated through the thugs’ influential contacts.  He said that RA and his brother A gave evidence in the Court case.  The Applicant said that the Court case was still going on (I note that these claims were made in October 2012).  The Applicant claimed that the thugs had been quiet, but had threatened to harm the Applicant and his entire family once a decision was made by the Courts, though, there was no temporal aspect to this particular claim.

9. The Applicant said that after he arrived in Australia, he had heard that another cousin was stabbed in the stomach by Sinhalese men, but he does not know anything more about the incident than that.  The Applicant said that it was for these reasons he decided to flee Sri Lanka and travel to Australia, because it was just a matter of time until he was seriously harmed by these thugs or other Sinhalese men.

10. He said that the authorities will not protect him, because these thugs have political connections and can act with impunity.  As I previously said, these claims were the basis of the application that the Applicant originally made to the Department.  I will talk more of the chronology of what occurred later in these reasons. 

11. The Applicant then made some new claims.  These new claims were that, in August 2015, the Criminal Investigation Department (“the CID”), visited his family home on a few occasions and inquired about his whereabouts and that of his cousin, RA.  The Applicant said that his mother advised the CID that she had not seen her son (the Applicant) or RA since 2012 and did not know their whereabouts.  The Applicant said that the CID told his mother that they had information that the Applicant and RA were helping the LTTE.  The Applicant also claimed that later that month, August 2015, his brother-in-law, a person called “B”, was attacked by Sinhalese thugs at a bus stop and he sustained wounds to his face. 

12. The Applicant said that when he heard about these two incidents, he spoke to his friend called “K” in September 2015.  He said that K told him the reason that B was attacked, and that the CID visited his home was because of the three Sinhalese thugs who told the CID that the Applicant and RA have links to the LTTE and were helping the LTTE. 

13. The Tribunal looked at all of these claims and thoroughly assessed them.  The Applicant told the Tribunal at the hearing that he was threatened by three thugs, who were the bodyguards of a local minister. 

14. The Tribunal referred the Applicant to his original statement where he talked of threats being made in 2008 or 2009 by these three thugs.  The Applicant explained that the problems commenced in 2008 but they continued until 2012.  The Applicant explained who the person S was, and what political party he was from.  The Applicant then said that, with regard to the assault in which his aunt was injured, he was at his friend’s house at the time of the assault.  He said that on his way back home, he was accosted by those same three thugs. 

15. He said that he was assaulted by these men and his friend, K, was able to help him escape.  He said his uncle worked as a nurse and was able to attend to him, so he did not need to seek any further medical treatment. 

16. The Tribunal said to the Applicant that he had previously said that he was in another town when the attack occurred.  The Applicant explained that he and his friend had previously been in that other town, but they travelled back to his friend’s house and that he was subsequently attacked on his way home.  The Tribunal said this at paragraph 47:

    [47] The Tribunal finds the applicant’s claims that he was subsequently assaulted by the same thugs surprising in the light of the fact he was not present during the attacks on his family and knew nothing about them at the time.  The Tribunal also notes that the applicant did not state in his original claim that he was assaulted by the thugs.  The Tribunal finds that if the applicant was attacked this would have been central in his claims.

17. The Tribunal also noted that the Applicant said that he did not witness the attack on the family and was not a witness in Court proceedings, but if he had been attacked afterwards, it would be surprising that he is not a witness in those Court proceedings.  The Tribunal noted that the Applicant’s description of the political party that the person S was a member of, was incorrect according to country information.  The Tribunal noted that the Applicant and his family were not involved in politics and were not a threat politically to anyone.  The Tribunal did not accept that the attacks were politically motivated or that those three thugs work for a Sri Lankan politician. 

18. The Tribunal noted that it would not only be because of political connections that the persons may have been released after two weeks as they may have been given bail.  The Tribunal said that the fact that the brother, A, and the cousin, RA, gave evidence in Court proceedings suggested that the authorities were taking the charges seriously.  The Tribunal questioned the Applicant about the current status of those proceedings and the Applicant was unable to confirm what happened, but claimed that the proceedings were still ongoing. 

19. The Tribunal said that it found it surprising that the Applicant would be unaware as to what was happening with those proceedings, given his claim that he is in regular contact with his family.  The Tribunal also found it surprising that the assault proceedings that commenced in 2008 would not have been completed by the time the Tribunal was looking at the matter in 2016.  The Tribunal noted that the Applicant had no problems in Sri Lanka since that initial attack in 2008, but the Applicant said that while things are quiet, his family is still in danger from those thugs. 

20. The Applicant spoke of his cousin who had been stabbed after the Applicant arrived in Australia.  Whilst he had originally claimed, as I have previously recounted, that he knew nothing more of this incident, the Applicant claimed before the Tribunal that the stabbing was done by those same three thugs.  The Applicant also said that the three thugs were responsible for the attack on the brother-in-law, B, in August 2015. 

21. The Tribunal did not accept those claims.  The Tribunal described the evidence as vague and lacking in detail.  At paragraph 63, the Tribunal said:

    [63] The Tribunal does not accept the applicant’s claims that his family in Sri Lanka has continued to be targeted by the same Sinhalese thugs since he departed Sri Lanka. 

22. The Tribunal then looked at the Applicant’s claim regarding his ethnicity and religion.  The Applicant had claimed that the whole of Sri Lanka was unsafe for Tamils and he had also claimed that Buddhist nationalists were a threat to people of the Hindu religion. 

23. The Tribunal looked at quite a deal of country information as to what were the positions of Hindus and Tamils within Sri Lankan society.  At paragraph 77, the Tribunal said that:

    [77] Having considered the country information the Tribunal finds there is not a real chance that the applicant will face persecution in Sri Lanka in the reasonably foreseeable future because of his Sri Lankan Tamil ethnicity (race) or his Hindu religion. The Tribunal finds that the applicant’s fear of persecution because of his race and religion are not well-founded.

24. The Tribunal then looked at the new claim that was made regarding the visitation of the CID upon his family.  The Applicant said that the CID attended his home and said to his mother, “you should inform us immediately as soon as your son comes back because we need to inquire with him about his links with the LTTE”.

25. The Tribunal said that they found it unusual that the CID would inform the Applicant’s mother about the nature of their inquiries rather than keep them confidential.  The Tribunal noted that there was no statement given by the Applicant’s mother to support any of those claims. 

26. The Tribunal also said it is unclear why the same three thugs who were involved in the assault on the Applicant’s family in 2008, would inform the CID seven years later that the Applicant and his cousin RA were associated with the LTTE.  The Tribunal said it is also unclear how the person, K, could become privy to such information.

27. The Tribunal did not accept the Applicant’s claims that the CID had made inquiries with his mother.  The Tribunal did not accept that the Applicant or his family had any links with the LTTE.  The Tribunal noted that the Applicant had never been arrested, charged or detained by the Sri Lankan authorities in the past. At paragraph 89, the Tribunal said:

    [89] The Tribunal is not satisfied there is a real chance that the applicant will face persecution in Sri Lanka in the reasonably foreseeable future because of his actual or imputed political opinion as a supporter of the LTTE on account of his Tamil ethnicity and/or because he travelled to Jaffna for a few weeks. The Tribunal finds that the applicant’s fear of persecution because of his actual or imputed political opinion are not well-founded.

28. Similarly, looking at the complementary protection criterion, the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

29. The Tribunal accepted that the cousin, RA, and A may have been victims of a criminal assault in 2009, but the Applicant did not witness the assault.  He was not a witness in Court proceedings and his evidence about the circumstances and motivations of the assault were vague and lacking in credibility.

30. The Tribunal did not accept that the perpetrators of the assaults were bodyguards of the local Minister or that this was politically motivated.  The Tribunal found that the Applicant’s family were not denied protection by the Sri Lankan authorities.  The Tribunal found that the perpetrators were arrested and charged.

31. The Tribunal was not satisfied that there was a real chance the Applicant would face persecution because of any involvement in the dispute with these Sinhalese persons.  Similarly, there was no complementary protection claim that satisfied the Tribunal in relation to the same matter.

32. The Tribunal then looked at the claim that the Applicant would be persecuted, or fear harm, because he left Sri Lanka illegally.  The Tribunal acknowledged that the Applicant was in breach of the Sri Lankan law for leaving the country.  The Tribunal also accepted that it would become known that the Applicant had unsuccessfully sought asylum in a western country.  The Tribunal then looked at the DFAT country report on Sri Lanka and used information from that report to discuss with the Applicant his situation. 

33. The Tribunal accepted that the Applicant would be questioned as per the standard procedures when he returned to Sri Lanka, and he may even be detained for up to a few days.  The Tribunal accepted that the Applicant would probably have to pay a fine.  The Tribunal did not accept that this would amount to serious harm. 

34. The Tribunal had recourse to more country information when looking at how the Applicant would be treated having returned as a failed asylum seeker.  Having reviewed that country information, the Tribunal did not accept that there was a real chance he would be persecuted if he returned to Sri Lanka because of his being a failed asylum seeker. 

35. Having looked at each of those claims individually, the Tribunal was not satisfied that the Applicant met either the refugee criteria or the complementary protection criteria.  The Tribunal looked at all of the grounds in combination with each other and still came to the same conclusion. 

36. For those reasons, the Tribunal affirmed the decision of the delegate not to grant the Applicant a protection visa. 

37. The grounds of this application, filed on 15 September 2016, were:

    1.The decision of the Tribunal:

    (a)is affected by an error of law; and

    (b)denied the applicant procedural fairness. 

38. The matter was first mentioned on a first court date before Registrar Caporale on 15 March 2017 in Melbourne. The usual orders were made by the Registrar.  The Registrar listed the matter for final hearing on 9 August 2019 at 10:00 AM.

39. That hearing, some two and a half years after the Registrar’s first mention of the matter, was to go before Judge Wilson, as he then was.  His Honour was appointed to the Family Court in February 2019, which meant that his migration matters were then delisted and were waiting for another judge to hear the matters. 

40. On 3 June 2019, the Applicant filed a notice of address for service which indicated that he had moved from Melbourne to Perth.  He then filed an application in the case on 5 May 2020 asking for the matter to be transferred from the Melbourne Registry to the Perth Registry.  The application was granted by Registrar Carlton on 30 June 2020.

41. On 23 July 2020, the matter was listed for hearing on 25 May 2021.  In April 2021, the matter was administratively moved to come before me today - 8 June 2021.  That seems to be the chronology and why it has taken so long to be actually heard. 

42. I should also note that the Applicant’s original application was heard before the Refugee Review Tribunal in 2015 and that the Applicant sought a review of that decision in 2016.  The Minister conceded that there had been a jurisdictional error in that decision and Judge Heffernan issued the writs and sent the matter back to the Tribunal, who heard the matter as I have previously recounted.

43. As a result of this history, when the Applicant appeared before me today unrepresented, but assisted by an interpreter, I asked him what error he could identify from the Tribunal’s decision.  The Applicant told me that he did not know what the error was.  He said that he knows that the Tribunal rejected his claims but he does not know why.

44. I summarise what he said to me as this: 

    I don’t know what mistake the AAT made but they must have made a mistake because if they did not make a mistake they would have given me the visa.  The fact they didn’t give me the visa shows that they did make a mistake.

45. I interpret that as being that the error that the Applicant relies upon, is that the findings of the Tribunal were simply not open on the evidence. 

46. Having gone through the Tribunal decision in some detail, it seems to me that all conclusions made by the Tribunal were open on the evidence.  It also seems to me that the Tribunal has complied with all of the legislative requirements in the exhaustive statement of natural justice and procedural fairness. Therefore, it would seem to me that there is no jurisdictional error illustrated by the grounds of this application. 

47. The Applicant made this submission to me; that his cousin RA came to Australia with him and also made claims for asylum.  He said to me that his claim and his cousin’s claim were similar however, his cousin’s claim was also not accepted by Australian authorities and his cousin was returned to Sri Lanka.  However, he said that when his cousin returned to Sri Lanka he was not able to live in Sri Lanka and has since gone to France and has been accepted as a refugee in France.  He said that because their claims were similar it is obvious that he, the Applicant, would not be able to live in Sri Lanka if it is that he were returned. 

48. Of course, this claim was not before the Tribunal.  The Applicant correctly points out that he could not have put this before the Tribunal because his cousin going off to France to live was something that occurred after the Tribunal’s decision of August 2016. 

1. However, as the Minister said, the claims of the cousin are irrelevant to what it is that I have to decide.  I have to decide, on a review of the Tribunal’s decision, whether, upon the evidence that was before the Tribunal, the conclusions made by that Tribunal were open or not.

2. As I have found that they were open, there is no jurisdictional error that has been illustrated.

3. Therefore I dismiss the application. 

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       6 July 2021