CSN15 v Minister for Immigration

[2017] FCCA 1038

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSN15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1038

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant seeks impermissible review – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.44.11(c), 44.15(1)

Migration Act 1958 (Cth), ss. 422B, 425, 425A

Cases cited:

ACC15 v The Minister for Immigration and Border Protection [2016] FCA 97
MIBP v SZTQS [2015] FCA 1069
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6, (1996) 185 CLR 259
SZMCD v The Minister for Immigration and Citizenship [2009] FCAFC 46, (2009) 174 FCR 415

Applicant: CSN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2796 of 2015

Judgment of: Judge Hartnett

Hearing date: 5 April 2017

Delivered at: Melbourne

Delivered on: 5 April 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Murano

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7206, which is the schedule scale amount as set out in the court’s Rules.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2796 of 2015

CSN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 17 December 2015 which seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 4 December 2015 in which the Tribunal affirmed a decision of a delegate of the First Respondent not to grant to the Applicant a protection (Class XA) visa (‘the visa’). 

2. The grounds of application are as follows:-

   “(1) The decision of the Tribunal:

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

   (b) denied the Applicant procedural fairness.

   (2) I have made an application for assistance through Victoria Legal Aid and am waiting for a decision.”

3. The First Respondent filed a response and then an amended response to the application, the amended response being filed on 14 July 2016. The First Respondent sought that the application be dismissed and that the Applicant pay the First Respondent’s costs. The quantum sought by the First Respondent in the First Respondent’s outline of submissions filed and dated 22 March 2017 is in the sum of $7206 in accordance with r.44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).

4. By consent orders made on 25 May 2016, the Applicant was to file and serve prior to this date any amended application with proper particulars of the grounds of the application and written submissions as set out in order 4 of those orders.  The Applicant has filed no amended application nor written submissions.  The Applicant was, however, afforded an opportunity in the courtroom this day to make oral submissions in support of his application.  Prior to the commencement of the hearing the Applicant had interpreted to him the First Respondent’s outline of submissions which had earlier been served upon him by the First Respondent.

5. The Applicant’s submissions made this day really went to his perception as to his future in Sri Lanka were he to be returned there, or to return there voluntarily.  He submitted that his future is very uncertain; that people are unable to work and survive in Sri Lanka; and that “they are shooting people in my country”.  He claimed the Sri Lankan Navy were shooting Indian fishermen.  When directed by the Court to make submissions as to how it was the Tribunal denied him procedural fairness, the Applicant made no relevant submissions.  When asked how it was that the Tribunal made a mistake in its decision or where it was that the Tribunal decision was wrong, the Applicant noted that the Tribunal had asked him for evidence which he could not produce.  The Applicant’s submissions did not go to a judicial review application.  They went to a merits review application.

6. The Applicant is confined to the relief sought on the grounds referred to in his application (r.44.11(c) of the Rules).

Background

1. The Applicant was born on 1 July 1993 in Point Pedro in the north of Sri Lanka.  He is a Tamil and Hindu. His mother, stepfather and younger sister reside in Point Pedro. His younger brother is in Malaysia on a work visa.  Before departing Sri Lanka in July 2012, the Applicant had always resided in Point Pedro except for a period of displacement to Vanni in 1996 to 1997. Upon leaving school, he worked as a fisherman, loading and unloading ships, and in building construction.  His stepfather is a fisherman who owns his own boat. 

2. The Applicant, whom the Tribunal accepted was a Sri Lankan national and assessed his claims against Sri Lanka as his country of nationality and receiving country, arrived on Christmas Island on 8 August 2012.  On 18 December 2012, he lodged an application for the visa with the assistance of Vrachnas Lawyers.

3. On 20 December 2013, a delegate for the First Respondent refused to grant the visa.  The Applicant sought merits review in the Tribunal and attached a copy of the delegate’s decision to his application for review.  The Applicant gave the Tribunal written submissions on 4 August 2014 and appeared at the hearing on 21 April 2015.  The Tribunal affirmed the delegate’s decision in it’s the Statement of Decision and Reasons (‘the Decision Record’) of 4 December 2015 and notification of the decision to the Applicant was by correspondence of 11 December 2015.

4. As set out by the Tribunal in paragraph 13 of the Decision Record, the Applicant claimed he would be harmed in Sri Lanka because of his family association with the LTTE, as follows:-

   a)his father, who was a fisherman, was killed when fishing off the Vanni in January 1997 when his boat was fired on by the Sri Lanka Navy, who believed the fishermen were LTTE;

   b)his mother was a member of the LTTE from 1986 until 1992.  He does not know exactly what she did, but she may have been a spy;

   c)two of his maternal cousins were members of the LTTE and were killed in fighting between the LTTE and the Sri Lankan Army (SLA).  He does not know exactly when they were killed, but he thinks that one died before he was born and one died after he was born, and they both died in the 1990s.

5. In summary, the Applicant claimed to fear harm for the Convention reasons of:-

   a)an imputed political opinion as a support of the Liberation Tigers of Tamil Eelam (LTTE);

   b)his Tamil ethnicity and Hindu religion;  and

   c)his membership of the particular social groups of failed asylum seekers and Sri Lankan nationals who departed Sri Lanka illegally.

The Tribunal

1. The Tribunal accepted that the Applicant’s father may have been killed by the navy in 1997.  The Tribunal noted the war was raging across the north and east of Sri Lanka at the time and the Tribunal accepted that the navy may have fired on a fishing vessel it suspected of being an LTTE boat. The Tribunal also accepted that the Applicant’s mother may have been a member of the LTTE or assisted the LTTE before 1992 and that two of his cousins may have been members of the LTTE and killed in fighting in the ’90s. 

2. The Tribunal noted that those events were well in the past and occurred before the Applicant was born or when he was a young child. The Tribunal said at paragraph 14 of its Decision Record:-

   “...the Tamil population was screened for links to the LTTE at the end of the conflict in 2009. About 11,000 suspected LTTE operatives and supporters were detained at that time and any association with the LTTE was reportedly grounds for arrest.  The Applicant stated that neither he nor his parents were questioned about or detained in relation to their LTTE links at the end of the conflict in 2009, indicating that the Applicant and his parents were not suspected of an LTTE association at that time. The Tribunal does not accept that these past events or associations would cause the Applicant to be imputed with an LTTE association now.”

3. The Tribunal rejected other claims as made by the Applicant and as set out in paragraphs 15 to 19 of the Decision Record, leading it to conclude the Applicant would not be imputed with a pro-LTTE opinion.  The Tribunal did not accept the Applicant and his mother and stepfather were questioned by the SLA in 2012 nor that former members of the LTTE working with the army told the army about a house that LTTE members stayed in, being a relative’s house, for two weeks in 2009. The Decision Record of the Tribunal indicates the Tribunal’s thorough consideration of each of the claims as made by the Applicant and a discourse occurring in instances where the Tribunal had some difficulties with the claims made by the Applicant, in particular by reference to country information that was before it.

4. In relation to the Applicant’s claims based on his ethnicity and religion, the Tribunal considered country information by reference to the Applicant’s circumstances and concluded that the Applicant did not face a risk of harm on these Convention bases.

5. In relation to the Applicant’s treatment on return to Sri Lanka, the Tribunal concluded, again having regard to country information:

   a)that the Applicant would not be imputed with an adverse political opinion;

   b)that the Applicant would face standard and non-discriminatory immigration processes;

   c)that the Applicant might be remanded for a short period before being granted bail;  and

   d)a short period of remand would not be accompanied by harm perpetrated for a Convention reason or harm amounting to “significant harm”.

Ground 1 – error of law

1. The findings as made by the Tribunal were open to it for the reasons given by the Tribunal on the evidence before it.  They were rational and reasonable.[1]

   [1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6.

2. There is nothing in the evidence before the Court to suggest the Tribunal made an error of law in considering the Applicant’s claims and making its decision. 

3. The Applicant pointed to no particular error of law in the Tribunal decision.

4. The First Respondent, being a model litigant, drew the Court’s attention to an argument that could be made on behalf of the Applicant, namely, that the Tribunal’s findings in paragraph 44 demonstrate that the Tribunal fell into the same error identified in MIBP v SZTQS [2015] FCA 1069 (‘SZTQS’).

5. Paragraph 44 of the Decision Record is as follows:-

   “The Tribunal is satisfied that the Applicant will be held in remand for a short period, between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act. The Applicant’s mother and stepfather are present in Sri Lanka to guarantee his bail.  The evidence before the Tribunal does not indicate that they would not guarantee his bail and the Tribunal is satisfied they would do so.” 

6. Counsel for the First Respondent, however, distinguishes the case of SZTQS because, in these proceedings, the issue of whether the Applicant could obtain bail was raised by the Applicant’s representative in submissions to the Tribunal.  The Applicant could thus be taken to have been aware that an issue in the review was whether the Applicant could obtain bail.  Further, unlike SZTQS, the Tribunal in this case did not, as an essential plank of its reasoning, find that a relative of the Applicant could provide money as a surety to secure the release of the Applicant on bail. 

7. The Court was referred by the Counsel for the First Respondent to the decision of Gilmour J in ACC15 v The Minister for Immigration and Border Protection [2016] FCA 97 at paragraphs [26] to [28], wherein his Honour said:-

   “26. The facts of this case are distinguishable from those in SZTQS.  In the present case the matter of bail was not an issue, either generally or in particular, as to the need for a family member to be guarantor.  There was no suggestion that the family member would be required to actually pay money before bail was granted.  In SZTQS there was evidence that on a prior occasion the appellant’s mother had paid bail money for his release.

   27.  As in SZTAP at [79], on the facts of this case I do not accept that it was critical to the Tribunal’s finding that the Applicant could apply for bail and that bail was routinely given that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal.”

8. The Court accepts the argument of the First Respondent noting that the Tribunal considered and rejected each of the Applicant’s claims to fear serious or significant harm for the most part based on the weight it gave to country information before it and because it did not accept certain of the claims made by the Applicant for the reasons given in the Decision Record. 

Ground 2 - Procedural fairness

1. In the absence of particulars being provided by the Applicant and his inability to articulate any this day, it is not possible to ascertain how it is the Applicant alleges the Tribunal failed to comply with its procedural fairness obligations. It is clear, to the extent it is possible to assess on the material before the court, that the Tribunal complied with its obligations under ss.425 and 425A of the Migration Act 1958 (Cth) (‘the Act’).

2. The Applicant appeared before the Tribunal on 21 April 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. There is no suggestion that the Tribunal failed to properly disclose information within ss. 424AA and 424A of the Act in the course of reaching its decision. As submitted by the First Respondent, the Tribunal relied on information given by the Applicant during the course of his visa application or in the Tribunal proceeding itself and independent country information not specifically relating to the Applicant. Both of those types of information fall within the exceptions specified in s.424A(3) and therefore are not subject to the particular requirements of s.424A(1).[2] 

   [2] SZMCD v The Minister for Immigration and Citizenship (2009) 174 FCR 415, 76 - 107 (Tracey and Foster JJ).

3. Under s.422B of the Act, Part 7, Division 4 of the Act is taken to be:-

   “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. 

4. On the evidence before the Court, which includes that contained in the Court Book filed by the First Respondent on 27 May 2016, there is nothing to indicate that the Applicant was denied procedural fairness.

5. The application is dismissed and costs shall follow that event.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 19 May 2017