CQR15 v Minister for Immigration
[2018] FCCA 3276
•24 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQR15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3276 |
| Catchwords: MIGRATION – Protection (class XA) visa – tribunal found applicant not to have been a witness of truth – not at risk of serious harm – applicant failed to make out a case of jurisdictional error – unparticularised grounds – tribunal afforded applicant procedural fairness – no error in tribunal’s reasoning detected – application dismissed. |
| Legislation: Migration Act 1958, s.476 |
| Cases cited: AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 BYM16 v Minister for Immigration and Border Protection [2017] FCA 326 CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 Craig v State of South Australia (1995) 184 CLR 163 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 Singh & Anor v Minister for Immigration & Anor [2017] FCCA 247 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | CQR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2723 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 24 October 2018 |
| Date of Last Submission: | 24 October 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 10 December 2015 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6 825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2723 of 2015
| CQR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By application filed in this court on 10 December 2015 the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made 26 November 2015. The tribunal affirmed a decision of the minister’s delegate not to grant the applicant the protection (class XA) visa that he sought. In his application to this court the applicant said first, the tribunal’s decision was affected by an error of law. Second, he said he was denied procedural fairness. Third, he said he had sought legal aid but he was awaiting a decision.
Synopsis
For the reasons that follow in my judgment none of the grounds of review were made out with the consequence that this proceeding for judicial review must be dismissed and the applicant must pay the minister’s costs.
The applicant is a male citizen of Sri Lanka who arrived in Australia on 31 July 2012 as an unauthorised maritime arrival. He applied for a protection visa on 20 March 2013. With his visa application he filed a statutory declaration in which he recorded his protection claims. He claimed to fear harm in Sri Lanka by reason of his status as a Tamil from the north of Sri Lanka, an area formerly controlled by the Liberation Tamil Tigers of Eelam (“LTTE”).
His claim to fear harm was based on an imputation of political opinion as being supportive of the LTTE, as a failed asylum seeker and as a person who left Sri Lanka illegally. Before the tribunal the applicant was represented by an agent, who filed submissions on 8 May 2013. On 31 October 2013 the applicant attended an interview and provided a letter from a parliamentarian supportive of his claims. On 31 October 2013 the applicant’s agent provided further submissions along with country information.
The delegate refused the applicant's application on 20 December 2013. Being dissatisfied with the delegate’s decision, the applicant sought a merits review before the tribunal by application filed 7 January 2014. The applicant’s agent provided the tribunal with a further statutory declaration of the applicant and written submissions. In that statutory declaration the applicant expanded on his protection claims to assert that he claimed to fear harm in Sri Lanka by reason of his forced involvement with the LTTE between 2004 and 2005 and by reason of his uncle’s involvement with the LTTE.
The tribunal invited the applicant to attend a hearing before it, which was duly convened on 8 October 2015. At that hearing the applicant provided a second letter from a parliamentarian, the second letter being dated 17 April 2013. On 11 November 2015 the applicant provided the tribunal with a further statement and submissions from the applicant’s agent dated 13 November 2015, those documents responding to issues raised during the hearing. On 26 November 2015 the tribunal gave its reasons for decision affirming the delegate’s decision not to grant the applicant the protection visa he sought. The tribunal’s reasons were detailed and comprehensive, spanning 158 paragraphs. In the paragraphs that follow I have distilled some of the more important aspects that emerged from the tribunal’s reasons.
In paragraph 42 of its reasons the tribunal found that the applicant was not a witness of truth and that he had fabricated his claims in order to strengthen his claims in seeking asylum in Australia.
In paragraphs 69, 93, 94 and 98 of the tribunal’s reasons the tribunal did not accept that the applicant was ever involved with the LTTE, that he did any work on behalf of the LTTE, that he was injured during his time with the LTTE, that he escaped and went into hiding or that he engaged a friend to assist him in getting his passport and making travel arrangements to enable him to leave Sri Lanka.
In paragraph 75 of its reasons the tribunal addressed the applicant’s claims to his being mistreated by the authorities upon his return to Sri Lanka in January 2011. The tribunal accepted that the applicant was required to do some forced labour for a short period of time and it was prepared to accept that the applicant went to an army camp soon after returning to Sri Lanka, where he was interrogated about his whereabouts and the presence of the scar on his leg.
In paragraph 84 of its reasons the tribunal stated that it did not accept that the applicant was ever questioned again about his circumstances, including accusations of his LTTE involvement or his late uncle’s LTTE involvement.
In paragraphs 86 and 99 of its reasons the tribunal did not accept that the applicant would be associated with his uncle by any person or that any pro LTTE association would be imputed to the applicant by the authorities in connection with his uncle. Consequently, the tribunal did not accept that the applicant had a real chance of serious harm or a real risk of significant harm arising from the applicant’s relationship with his uncle as revealed in paragraph 113 of the tribunal’s reasons.
In paragraphs 91 and 100 of the tribunal’s reasons it indicated that it did not accept that the applicant’s mother and sister had demands made on them for the handing over of their land and home, that they had been forced to leave their home in Sri Lanka or that the family’s land or home would be taken at some stage in the future.
Between paragraphs 115 and 116 of its reasons the tribunal did not accept that the applicant, a young Tamil from the northern region of Sri Lanka, faced a real chance of serious harm or a real risk of significant harm because of his Tamil ethnicity, because of his gender or age or because of any imputed anti-government political opinion arising from his background.
In paragraphs 111, 112 and 114 the tribunal developed its reasoning on each of those matters. In paragraph 111 of its reasons the tribunal did not accept that anything in the applicant’s background, including his race, age, gender or location in Sri Lanka, would lead to an imputed anti-government opinion.
In paragraph 112 of its reasons the tribunal considered the applicant’s ability to find work when he returned to Sri Lanka in 2011. It considered the applicant could readily find work and that he could support himself upon returning to Sri Lanka and the tribunal said the applicant would not face serious or significant harm on account of that matter.
In paragraph 114 of its reasons the tribunal said it did not accept the applicant’s claim that all Tamils in Sri Lanka from the north face harm because of their race, age or gender or by reason of their place of origin.
Between paragraphs 125 and 137 of its reasons the tribunal addressed the applicant’s claim to fearing harm by reason of his returning as a failed asylum seeker to Sri Lanka.
In paragraph 127 of its reasons the tribunal accepted that the applicant would be asked questions upon his return. However, the tribunal did not accept that his background or that the scar on his person would lead to any suspicion or adverse treatment.
In paragraphs 126 and 127 of the tribunal’s reasons the tribunal found that the applicant was not wanted by the Sri Lankan authorities and that he would not be subjected to any detention or interrogation upon arriving in Sri Lanka other than pursuant to standard questioning and procedures described by the Department of Foreign Affairs and Trade.
In paragraph 128 of its reasons the tribunal accepted that the Sri Lankan authorities would assume the applicant had sought asylum in Australia in view of his unlawful departure by boat and in view of the context and circumstances in which he would likely be returned.
Between paragraphs 132 and 135 of the tribunal’s reasons the tribunal found that there was not a real chance that the applicant would be harmed because of his previous difficulty with the authorities.
In paragraph 152 of its reasons the tribunal found that the applicant did not face a real chance of serious harm or a real risk of significant harm on account of his illegal departure. The tribunal’s path of reasoning to that conclusion was set out between paragraphs 138 and 151. In paragraph 138 of its reasons the tribunal accepted that the applicant departed from Sri Lanka illegally by boat and travelled to Australia.
The tribunal said in paragraphs 142 and 144 that it was satisfied that the applicant would be held for a short time on arrival for questioning and that he would be charged with an offence under the Immigrants and Emigrants Act (Sri Lanka). In paragraph 141 of its reasons the tribunal considered the applicant's family presently in Sri Lanka would guarantee his bail. In paragraph 143 of its reasons the tribunal stated that it did not consider the applicant would be remanded for an extended period upon his return to Sri Lanka on account of his departure in 2012.
In paragraph 145 of its reasons the tribunal found that the Immigrants and Emigrants Act was a law of general application which was not discriminatorily applied and that the circumstances the applicant would face did not amount to persecution. In paragraph 146 the tribunal accepted that the applicant would face a financial penalty under the Immigrants and Emigrants Act but that it was very remote that the applicant would be sentenced with any term of imprisonment due to his illegal departure.
In paragraph 147 of its reasons the tribunal did not accept that the imposition of a fine constituted serious or significant harm.
In paragraph 151 of its reasons the tribunal considered the prison conditions in which the applicant would be held for a short time but the tribunal did not accept that there was any intention on behalf of the authorities to significantly harm the applicant.
Between paragraphs 153 and 154 of its reasons the tribunal considered the applicant’s claims cumulatively, finding that the applicant did not face a real chance of serious harm or a real risk of significant harm.
As mentioned above, the tribunal affirmed the delegate’s decision not to grant the protection visa that the applicant sought.
In this court
Within the period prescribed by s 476 of the Migration Act the applicant applied to this court for judicial review of the tribunal’s decision. The grounds upon which he relied have been canvassed above. In reality they amounted to two, as they assertion that the applicant had applied for legal aid did not amount to a ground of review, properly so called. Neither ground of review was the subject of particulars, so it was not possible to say upon what matters of fact or law the applicant relied to base his contentions as founding jurisdictional error.
An ever increasing line of authorities in the Federal Court of Australia has held that grounds of review bereft of particulars are amenable to dismissal on that basis alone. Cases in support of that proposition include SZNXA v Minister for Immigration and Citizenship,[1] WZATH v Minister for Immigration and Border Protection,[2] WZAVW v Minister for Immigration and Border Protection,[3] AQN15 v Minister for Immigration and Border Protection,[4] BHK15 v Minister for Immigration and Border Protection,[5] CNN15v Minister for Immigration and Border Protection,[6] MZARG v Minister for Immigration and Border Protection,[7] BYM16 v Minister for Immigration and Border Protection[8] and DQQ17 v Minister for Immigration and Border Protection.[9] It was open to me to dismiss the applicant's application to this court for the simple fact that he did not provide any particulars of the grounds set out in his application. The applicant was previously represented by a legal practitioner, who withdrew earlier in the month of October.
[1] [2010] FCA 775
[2] [2014] FCA 969
[3] [2016] FCA 760
[4] [2016] FCA 571
[5] [2016] FCA 569
[6] [2017] FCA 579
[7] [2018] FCA 624
[8] [2017] FCA 326
[9] [2018] FCA 784
Further, on 11 May 2016 a registrar of this court ordered by consent that the applicant provide an amended application with proper grounds of review and affidavits to be served by 15 June 2016. The applicant did not comply with those orders to which he had consented. In the absence of particulars, it was impossible to tell on what particular species of jurisdictional error the applicant relied within conceptions espoused in such cases as Minister for Immigration and Multicultural Affairs v Yusuf[10] and Craig v State of South Australia.[11]
[10] (2001) 206 CLR 323
[11] (1995) 184 CLR 163
Today, I invited the applicant to tell me in his own words what he said the tribunal did wrong in this case. He admitted that he had no proof of his membership or participation in the LTTE. He said the tribunal member was very rough with him and that the tribunal member did not speak with him properly. He said that if he had been asked questions by the tribunal member properly, the applicant could have answered them. It must be pointed out that the applicant did not provide a transcript of the proceeding before the tribunal.
It fell to the applicant to make out his case in this court. Had he seriously advanced a contention of some form of impropriety by the tribunal member in the conduct of the tribunal hearing, the applicant should have, but failed to, put in evidence before me a transcript of the tribunal proceeding. On behalf of the minister, Ms Montalban submitted that the tribunal was entitled to engage in an inquisitorial investigation. She submitted that the tribunal was entitled to be robust in its questioning of an applicant. I agree. I wrote to that effect following decisions of the Full Court of the Federal Court in Singh & Anor v Minister for Immigration & Anor,[12] upheld on appeal in Singh v Minister for Immigration and Border Protection.[13]
[12] [2017] FCCA 247
[13] [2017] FCA 994
Ms Montalban also contended, correctly in my view, that the tribunal quite properly invited the applicant to appear before it, an invitation accepted by the applicant, who appeared with the assistance of an agent and who presented submissions during the hearing and after the hearing. In my view, the applicant was given an abundance of opportunity to put before the tribunal everything he wanted to say. The fact that the applicant did not find favour with the tribunal’s decision did not tell of jurisdictional error.
Before me, the applicant also said that since separation from his family, he was given to “forgetfulness”. No medical evidence of any description was put before me by which I could have made any proper assessment of the applicant’s “forgetfulness”. He gave evidence before me with perfect fluidity. I detected from his answers nothing in the nature of any form of mental or behavioural infirmity. At all events, it fell to the applicant to put forward all evidence in support of any proposition he wished to make on this application for judicial review.
Turning specifically to each of the two grounds of review, I did not detect that the tribunal made any error of law. It seemed to me that the tribunal properly discharged its statutory duties under the Migration Act. Its conclusion to affirm the decision of the delegate is unimpeachable. In my view, his application to his court was devoid of merit.
In the passages above, I have addressed the applicant’s criticisms to the effect that the tribunal denied him procedural fairness. In my view, the tribunal did not deviate in any way from the proper discharge of its procedural fairness obligations. Ground two should be dismissed. It was without merit.
For the above reasons, this proceeding is dismissed and I order the applicant to pay the minister’s costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 14 November 2018
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