CTF16 v Minister for Immigration

[2017] FCCA 754

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTF16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 754

Catchwords:
MIGRATION – Administrative Appeals Tribunal – there is no integer of the applicants’ claims that was not dealt with by the Tribunal – the Tribunal correctly identified the applicants’ evidence and made an adverse finding open to the Tribunal – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36, 476.

First Applicant:	CTF16
Second Applicant:	CTG16
Third Applicant:	CTH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2604 of 2016

Judgment of: Judge Street

Hearing date: 18 April 2017

Date of Last Submission: 18 April 2017

Delivered at: Sydney

Delivered on: 18 April 2017

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Shelly Legal

Solicitors for the Respondents: Ms E Cheesman
Clayton Utz

ORDERS

1. The Court grants leave to the Applicants to file the amended application, initial dated by the Court and dispenses with the need for the electronic filing of the same.

2. The Court dispenses with the need for the filing of a notice of address for service.

3. The amended application is dismissed.

4. The Applicants pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2604 of 2016

CTF16

First Applicant

CTG16

Second Applicant

CTH16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 September 2016, affirming a decision of the delegate not to grant the applicants protection visas.

2. The first applicant is the son of the second and third applicants, and in the current application for protection his father, the second applicant and his mother, the third applicant applied for protection as members of the family unit of the first applicant. The applicants were found to be citizens of Sri Lanka and their claims were assessed against that country.

3. The applicants arrived in Australia as holders of Subclass TR-676 (Visitor) visas on [deleted pursuant to Order dated 31 March 2020]. On 12 July 2011, the second applicant, the father lodged the first application for a protection visa, which included his son, the first applicant and his wife, the third applicant as dependents. The first application for protection was rejected on 12 September 2011 and the delegate’s decision was affirmed by a differently constituted Tribunal on 27 June 2011.

4. The second applicant claimed to fear harm on the basis of his family’s association with the LTTE. The applicants also claimed to fear harm on the basis of being failed asylum seekers. The Tribunal correctly identified the relevant law and made adverse credibility findings, including that aspects of the applicants’ claims were not credible and were indicative of being fabricated. Pursuant to SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, the applicants made a further application for protection on the grounds of complementary protection. In this second application, the son being the first applicant made claims for protection and his parents, the second and third applicants were treated as members of the family unit. On 18 March 2015, the delegate rejected the applicants’ claims for protection and made findings that included adverse credibility findings.

The Tribunal

1. On 10 April 2015, the applicants applied for review. The Tribunal invited the applicants to attend a hearing, which took place on 18 August 2016, at which the applicants gave evidence and presented arguments and were represented by their migration agent.  Prior to the hearing, on 14 August 2016 submissions were provided by the applicants’ migration agent. Included with those submissions were statutory declarations by all three applicants. Relevantly, the second applicant, in his statutory declaration, included the proposition that they had escaped with the help of his father’s uncle, [deleted pursuant to Order dated 31 March 2020], and that the second applicant stated that they were able to bribe the Sri Lankan army officials.

Consideration of the applicants’ claims

1. In the course of considering the applicants claims and alleged fear by reason of being of the Tamil race and having sought asylum overseas, the Tribunal referred to the fact that on return to Sri Lanka, the applicant may be questioned at the airport. The Tribunal found there was nothing to indicate that they would have any difficulties returning to Sri Lanka, given that they departed the country legally. This was a finding made by the Tribunal in circumstances where the Tribunal expressly found that it did not accept that they attracted adverse attention of the authorities during their visits to Sri Lanka, or that they were of any interests to the paramilitary groups or persons or groups formerly part of the LTTE.

2. The Tribunal did not accept the submission during the hearing that the applicants somehow obtained their passports through bribery, or that they left Sri Lanka through bribing officials, or with the assistance of an uncle. It is apparent that the reference to submissions was a reference to the applicants’ evidence. There was no reference to bribery in the submissions put on behalf of the applicants. The Tribunal did not accept the applicants’ claims that they will be viewed as traitors and be viewed adversely by former members of the LTTE or the paramilitary forces.

3. The Tribunal was not satisfied there was a real chance that the applicants will suffer serious harm for reasons of their actual or imputed political opinion or because of their race as Tamils or particular social group of failed asylum seekers or any similar connection. The Tribunal did not accept there is a real chance the first applicant will be imputed with an adverse political opinion and suffer serious harm due to his parents or grandfather’s connection with the LTTE, or as a result of lack of abilities with the Tamil language, as a result of his age or physique, or the fact that he has lived outside Sri Lanka in a Western country and in Kuwait. The Tribunal found there was not a real chance or real risk that the first applicant will suffer serious harm or significant harm due to his Tamil race.

4. The Tribunal referred to the fact that during the hearing, the applicants had to be reminded of their claims to fear harm due to their conversion to Christianity. The Tribunal was not satisfied that the applicants genuinely feared harm as a result of their conversion to Christianity or that the applicants genuinely believed their families or the community will seek to harm the applicants due to their conversion. The Tribunal was not satisfied on the basis of the evidence that there is a real chance that the first and third applicants will suffer serious harm by reason of their religion if they return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal was not satisfied that there is a real risk that any of the applicants will suffer significant harm in the reasonably foreseeable future as a result of the applicants’ conversion to Christianity.

5. The Tribunal did not accept that the parents or their son had any adverse profile that will attract attention of the authorities or paramilitary groups on their return to Sri Lanka. The Tribunal was not satisfied there is a real risk that the first and third applicants, the parents will suffer serious harm for reasons of their race, religion, nationality, membership of a social group, or any convention reason. 

6. The Tribunal was not satisfied there were substantial for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka there is a real risk they would suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, or cruel or inhumane treatment or punishment, or degrading treatment or punishment. 

7. The Tribunal found that the applicants were not persons in respect of whom Australia had protection obligations and found that the first and third applicants did not satisfy the criterion under s.36(2)(a) or s.36(2)(aa) of the Act. The Tribunal found that the second applicant did not satisfy the criterion under s.36(2)(aa) of the Act.

Before this Court

1. The grounds of the amended application are as follows:

   GROUND ONE:

   The Tribunal has failed to deal with the full integers of the Applicants' claim.

   Particulars

   a. The Applicant's advisor squarely raised a claim that the Applicants would face harm due to the security procedures at the Colombo airport for failed Tamil refugee claimants. [See CB 79-80]

   b. The First Applicant's claim turned on the basis that he left Sri Lanka illegally; [CB 91]

   c. The claim was not dealt with by the Tribunal in the decision record, which turned on the false premise that the Applicants had left Sri Lanka legally; [CB 298 at 59].

   d. The Tribunal's obligation correctly construe and consider claims and is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate's decision on the basis of all the materials before it.

   GROUND TWO:

   The Tribunal has made a finding so illogical that no reasonable Tribunal would have made it.

   Particulars

   By finding at paragraph [61] of the decision that the Tribunal “does not accept the submission during the hearing that the applicants somehow obtained their passport through bribery or that they left Sri Lanka through bribing officials or with the assistance of an uncle", the Tribunal has damned the credit of the Applicants on a false factual premise, failing to recognise that the Applicants gave the evidence by way of statutory declaration before the hearing.

Consideration

Ground 1

1. Counsel for the applicants contended that the applicants had a claim of being illegal departees that was not dealt with by the Tribunal. It is apparent on the Tribunal’s reasons that the Tribunal found that the applicants had obtained tourist visas to come to Australia and had left Sri Lanka legally. That was a finding that was open to the Tribunal. There is no integer of the applicants’ claims that was not dealt with by the Tribunal. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, Mr Bodisco of counsel focused on the language of the Tribunal which referred to the submission during the hearing. Mr Bodisco submitted that there was no submission that was advanced but rather it was evidence and accordingly, that the Tribunal had failed to take into account the applicants’ evidence. 

2. It is apparent from a fair reading of the Tribunal’s reasons without a keen eye for error, that the Tribunal correctly identified the applicants’ evidence in respect of allegedly leaving Sri Lanka due to alleged bribery and made an adverse finding in that regard that was open to the Tribunal. The reference to submission was clearly a reference that included the evidence identified by the Tribunal. I do not accept Mr Bodisco’s submission that the Tribunal erred, as alleged by ground 2. No jurisdictional error as alleged in ground 2 is made out. 

Conclusion

1. The amended application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 31 March 2020

Corrections

1. Paragraph 3 line 2 – insert “[deleted pursuant to Order dated 31 March 2020]”

2. Paragraph 5 line 9 – insert “[deleted pursuant to Order dated 31 March 2020]”