CTI16 v Minister for Immigration

[2018] FCCA 826

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTI16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 826

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – Applicant did not particularise ground of review – application without merit – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 422B, 499

Cases cited:

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
Randhawa v the Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535

Applicant: CTI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2075 of 2016

Judgment of: Judge Hartnett

Hearing date: 27 February 2018

Delivered at: Melbourne

Delivered on: 27 February 2018

REPRESENTATION

The Applicant: In Person

Solicitor appearing as Counsel for the First Respondent: Ms Mitchell

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 $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2075 of 2016

CTI16

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 for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 3 September 2016, which affirmed the decision of the First Respondent by his delegate not to grant the Applicant a Protection (Class XA) visa (‘the visa’).

2. On 14 March 2017, the Court made orders by consent, including that the Applicant file any written submissions on or before 28 days prior to the final hearing.  The Applicant filed no such written submissions.

3. The application filed by the Applicant was filed on 26 September 2016.  The single ground of application is as follows:-

   “I being the Applicant provided evidence to the tribunal in relation to the harm and abuse suffered by me in my home country in the hands of the offenders.  As a result of the abuse and harm suffered by me I have genuine fears in returning back to my home country. Even though evidence in support has been provided the tribunal has disregarded that evidence in giving the decision.  Accordingly the tribunal has erred as a matter of law.  Also as a failed asylum seeker I as the Applicant would suffer more harm in the hands of the Sri Lankan authorities upon my return.  I provided such evidence, which has been disregarded by the tribunal.  Accordingly AAT failed to give consideration to the evidence as a matter of law.”

4. The Respondent seeks dismissal of the application and that the Court make an order as to payment of the First Respondent’s costs.  The Respondent, in a response filed 10 October 2016, asserts the Tribunal decision dated 3 September 2016 is not affected by jurisdictional error.

5. The Court has before it the evidence as contained in the Court Book filed 29 March 2017 and the written submissions of the First Respondent dated 13 February 2018.

6. At the hearing, the Applicant was given an opportunity to make oral submissions in response to the First Respondent’s submissions and otherwise generally.  The Applicant was assisted at the hearing by an interpreter, who was also able to, and did, prior to the commencement of the hearing, interpret the First Respondent’s submissions to the Applicant.

History

1. The Applicant was born in Negombo Western Province Sri Lanka on 27 February 1994.  He is a Catholic Sinhalese citizen of Sri Lanka.  He resided with his mother and father at the same address in Negombo Sri Lanka until his departure for Australia.  That departure was one which was illegally by boat and on 28 July 2012.  The Applicant arrived on the Cocos (Keeling) Island, on 11 August 2012.  He has not departed Australia since his arrival.  He had not previously travelled outside of Sri Lanka.

2. On 15 August 2012, the Department of Immigration and Border Protection (‘the Department’) conducted a “biodata” interview with the Applicant, at which he stated he was seeking Australia’s protection because of “economic problems”. On 7 November 2012, the Department conducted an entry interview with the Applicant, in which he claimed to fear persecution from an individual named [R], arising out of a physical altercation with [R]’s son as well as from [R]’s men and his political party.  He claimed the police could not assist him because [R] “has the power”. 

3. On 28 March 2013, the Applicant applied for the visa, assisted by his migration agent.  The Applicant’s visa application attached a statutory declaration, which is accurately summarised in the submissions of the First Respondent at paragraph 8 and adopted here. In that statutory declaration, the Applicant claimed to fear harm:-

   a)because he received threats from a gentlemen named [R] (a member of the Negombo municipal council) in about July 2012 after an altercation with [R]’s son;

   b)from [R], [R]’s family, men who work for [R], members of the Negombo municipal council and members of Sri Lanka’s ruling governmental party;

   c)by reason of an imputed anti-government politic opinion and membership of the group “men who have witnessed/perpetrated a crime committed by family members of government representatives”; and

   d)by reason of membership of the particular social groups, being:-

   i)young Sinhalese men who have been threatened by an influential government representative;

   ii)young Sinhalese fishing assistants; and

   iii)failed asylum seekers.

4. On 25 September 2013, the Applicant attended an interview with a delegate of the Minister of Immigration and Border Protection (‘the delegate’).  At that interview he advised that [R]’s correct name was [RS].

5. In the delegate’s decision record of 26 September 2014, the delegate refused to grant the Applicant the visa, finding the Applicant was not a credible witness. The delegate did not accept that the claimed altercation with [R]’s (younger) son occurred or that [R] was, himself, or was the father of, a member of the Negombo Municipal Council. The delegate, under the heading “Findings of Fact (Credibility)” in the delegate’s decision record, relevantly said as to the Applicant’s initial provision of the name “[R]”, which he claimed subsequently to be incorrect, with the further name of … being provided to the Applicant:-

   “There is a man named E. Kamal Silva currently elected to Negombo Municipal Council. This information is publicly available on the Negombo Municipal Council website.

   A Government of Sri Lanka gazette dated 2011 indicates that Mr Silva’s full name is Mr [RS], and additional information from Sri Lankan government sources indicates that Mr [RS] is a member of the United People’s Freedom Alliance (UPFA). In this regard, the applicant’s claim that the person he fears has many connections to the ruling party is in keeping with country information that the UPFA continues to dominate in Sri Lankan politics, winning majorities in 272 of the country’s 303 municipal councils in 2011 elections.

   I am concerned that the name the applicant claims to have initially supplied, [RS], does not appear on the applicant’s protection visa application.

   I am also concerned that the applicant’s written statement of claims consistently refers to a man named ‘[R]’.  Aside from providing the name ‘[RS], the applicant’s verbal testimony at interview also consistently refers to ‘[R]’.  Additionally, I note that the name ‘[R]’ is not an obvious derivative of [RS]’s name.

   On 20 August 2014, I invited the applicant to comment on country information referring to [RS], noting that I was struggling to accept that the latter and the man named [R] who he claims to fear are the same person. On 17 September 2014, the applicant’s representative provided a response that included the following clarification:

   The Applicant seeks to clarify that [R] was not a member of the Negombo Municipal Council.  However, his older son, [RS] (also known as [RS]), was in fact a member of the Negombo Municipal Council.

   The applicant clarified that this older son is a separate son to [N], with whom he claims to have had the motorbike accident and altercation. Further, he reiterated his claims for protection with exception of the statement in his protection visa application that [R] is a member of the Negombo Municipal Council.

   Until this response of 17 September 2014, the applicant consistently claimed that he fears a man named [R], due to an altercation he had with [R]’s son, [N].  His statement of claims explicitly notes that [R] was a member of the Negombo Municipal Council.  At interview, he reiterated the claim that [R] himself was, at that time, a member of parliament. The applicant has not previously stated to the Department that [R] has an older son.

   For these reasons, I do not accept the applicant’s explanation that [R]’s older son is [RS], member of the Negombo Municipal Council.

   Further, I do not accept that the ‘[R]’ the applicant refers to in his written and verbal testimony is [RS] of the Negombo Municipal Council as claimed at interview.  It follows that I do not accept that the applicant fears harm from a member of the Negombo Municipal Council.”

6. On 24 October 2014, the Applicant applied to the Tribunal for a review of the delegate’s decision.  Attached to that application was a copy of the delegate’s decision.

7. By letter dated 16 May 2016, the Tribunal invited the Applicant to attend a hearing to give evidence and present arguments.  By letter dated 19 July 2016, the hearing was rescheduled. The Applicant appeared before the Tribunal on 29 August 2016, with the assistance of an interpreter in the Sinhala and English languages, to give evidence and present arguments relating to the issues arising in his case.

The Tribunal Decision

1. On 3 September 2016, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa. The Tribunal, in its Statement of Decision and Reasons (‘the Decision Record’), set out at the commencement, the various claims of the Applicant and did so in some detail. The Tribunal noted the evidence that it had before it, being that as contained in the Department’s file relating the Applicant’s protection visa application, and the Tribunal’s file relating to the review application. The Tribunal also noted that it had considered the delegate’s decision record, a copy of which the Applicant had provided to the Tribunal, and the Tribunal summarised the delegate’s decision record in paragraphs 28 to 35 inclusive of the Tribunal Decision Record.

2. The Tribunal noted that the Applicant’s written reasons for claiming protection were contained in a statutory declaration dated 26 March 2013, provided to the Department as an attachment to the Applicant’s protection visa application forms. The Tribunal also noted it had before it the written submissions provided by the Applicant’s then representative to the Department dated 17 September 2014 which followed the Applicant’s interview with the delegate of 25 September 2013 and invitation to comment on adverse information about who was on the Negombo Municipal Council.

3. The Tribunal stated in paragraph 38 of the Decision Record, that “during the hearing the Applicant told the Tribunal he feared he would be harmed or maybe killed by [R] if he returned to Sri Lanka.  He also told the Tribunal that he did not fear harm from the authorities in Sri Lanka but that he feared harm from [R].  The Applicant also told the Tribunal he is ashamed and embarrassed that he had an affair with a cousin who had been staying at his family home, prior to him leaving Sri Lanka, and that this has led to an estrangement from his family, and therefore he was no longer in contact with his family.”

4. The Tribunal set out correctly the relevant law in respect of the criteria for a protection visa as set out in s.36 of the Migration Act 1958 (Cth) (‘the Act’) and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The Tribunal noted that an Applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act, namely, that an Applicant is either a person in respect of whom Australia has protection obligations under the “refugee” criterion, or on other “complementary protection” grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. The Tribunal also noted Ministerial Direction No.56, made under s.499 of the Act, wherein the Tribunal was required to take account of policy guidelines prepared by the Department – PAM3: Refugee and humanitarian – Complementary Protection Guidelines and PAM3: Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes to the extent that they were relevant to the decision under consideration.

5. The Tribunal accepted that the Applicant was a citizen of Sri Lanka and that Sri Lanka was the Applicant’s “receiving country” for the purposes of s. 36(2)(aa) of the Act.

6. The Tribunal, in a well-structured and carefully-reasoned decision, then proceeded to set out its findings and reasons in respect of the Applicant’s credibility and in respect of the refugee criterion and, subsequently, the complementary protection criterion.  The Tribunal concluded that the Applicant was not a person in respect of whom Australia had protection obligations and nor was the Applicant a person in relation to whom, having considered the Applicant’s circumstances individually and cumulatively, the Tribunal was satisfied that there were 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 the Applicant would suffer significant harm.

7. The Tribunal raised, during the course of the hearing, with the Applicant a number of its concerns in relation to the Applicant’s credibility and the reliability of his evidence.  The Tribunal raised its concerns about some differences between the Applicant’s oral evidence and his statutory declaration. The Tribunal also raised concerns with the Applicant about the information he had provided to the Department in response to adverse information put to him after his interview with the delegate, which contradicted earlier information provided in his statutory declaration.  The Tribunal found the Applicant was “not a witness of truth, and the Tribunal is not satisfied the applicant has told the Tribunal the truth in relation to critical aspects of his claims”.[1]

   [1] Decision Record dated 3 September 2016 at paragraphs 56 and 79.

8. In respect of the Applicant’s claims the Tribunal did not accept that:-

   a)the Applicant was involved in a motorcycle accident that then escalated into a physical fight with the son of [R], who operated and managed the fish market and who was a member, or the father of a member, of the Negombo municipal council and who was a politician or politically influential and had many thugs working for him as set out in paragraph 83 of the Decision Record;

   b)the Applicant was threatened with harm or his father was unable to work at the fish market due to [R]’s threats, which the Tribunal did not accept were made, as set out in paragraph 84 of the Decision Record;

   c)the Applicant’s family home was searched or that his father was told the Applicant could not return to work at the fish market or he would be killed as set out in paragraph 84 of the Decision Record;

   d)the Applicant was or is of any adverse interest to anyone in Sri Lanka as set out in paragraph 85 of the Decision Record;

   e)the Applicant would suffer any serious harm or harm of any kind from [R]; [R]’s family; the men who work for [R]; members of the Negombo Municipal Council and/or the Sri Lankan ruling government party (and its supporters and associated parties), if the Applicant returned to Sri Lanka now or in the reasonably foreseeable future as set out in paragraph 86 of the Decision Record;

   f)the Applicant would be imputed with any anti-government political opinion or membership of the particular social groups “men who have witnessed/perpetrated a crime committed by family members of government representatives” or “young Sinhalese men who have been threatened by an influential government representative” as set out in paragraph 87 of the Decision Record;

   g)[R] or his affiliates would stop the Applicant from gaining employment within the fishing industry as set out in paragraph 89 and 90 of the Decision Record;

   h)any issues as a result of the claimed affair with the Applicant’s cousin would amount to serious harm or would preclude the Applicant from finding employment and subsisting as set out in paragraph 90 of the Decision Record; or

   i)the Applicant would suffer serious harm or harm of any kind due to membership of the particular social group “young Sinhalese fishing assistants” if he returned to Sri Lanka now or in the reasonably foreseeable future.

9. As set out in paragraph 93 of the Decision Record, the Tribunal, during the hearing, discussed with the Applicant country information in relation to failed asylum seekers returning to Sri Lanka.  The Tribunal noted that it discussed with the Applicant during the hearing the DFAT country information report, the Upper Tribunal decision and the United Nations Human Commissioner for Refugees (UNHCR) eligibility guidelines, all of which country information indicated that standardised procedures apply to all cases at the airport in Sri Lanka, regardless of a person’s ethnicity or the circumstance in which they left the country.  The Tribunal accepted that those reports were authoritative. Whilst the Applicant had told the Tribunal he did not fear the authorities in Sri Lanka, the Tribunal, nevertheless, considered what would happen to the Applicant on his return to Sri Lanka.  The Tribunal sets out that consideration in its Decision Record, commencing at paragraph 96 therein, and on the evidence before it, was not satisfied that there was a real chance the Applicant would suffer persecution on return to Sri Lanka because of his illegal departure from Sri Lanka or because he claimed asylum in Australia and for being a failed asylum seeker returning to Sri Lanka.

10. Having considered all the evidence before it and the Applicant’s personal circumstances, both individually and cumulatively, the Tribunal was not satisfied there was a real chance the Applicant would suffer serious harm or harm of any kind on return to Sri Lanka now or in the reasonably foreseeable future for the reasons as claimed by the Applicant or for any other reason. The Tribunal found the Applicant did not have a well-founded fear of persecution.

Consideration

1. The Applicant’s ground of review is not particularised, but I agree with the First Respondent’s submission that it can be characterised as raising an allegation that the Tribunal erred by not considering the Applicant’s claims or evidence.  This ground cannot be made out.  It is very clear when going to the Decision Record that the Tribunal specifically considered and made findings on each and every of the Applicant’s claims and the integers of such claims.  Essentially, the Tribunal was not satisfied that the Applicant was “a witness of truth” and the credibility findings made by the Tribunal were clearly open to it on the evidence before it. 

2. Further, with respect to the Applicant’s claim that the Tribunal disregarded evidence, a claim not particularised by the Applicant and therefore essentially meaningless, it is not obvious what evidence it is that the Tribunal failed to regard, let alone that the absence of a consideration of such evidence may have led the Tribunal to commit jurisdictional error.  The Tribunal referred to the evidence which was before it and on a fair reading of the Decision Record it considered all such evidence, and raised with the Applicant, as a result of that consideration, those matters of concern to it, in particular, the inconsistencies in the Applicant’s evidence.  The Tribunal not only considered relevant country information, but discussed same with the Applicant.  There is no suggestion by the Applicant that some other or further country information should have been considered by the Tribunal, being mindful in any event the selection of such material and weight given to it is a matter for the Tribunal.

1. The Tribunal simply did not accept all of the claims made by the Applicant and the Tribunal was not bound to accept, uncritically, any and all of the claims advanced by the Applicant.[2]

   [2] Randhawa v the Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 535, Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22.

2. The Decision Record of the Tribunal indicates that the Tribunal discharged its statutory obligations and it arrived at a decision open to it on the material before it. There was no error of law. There was no procedural unfairness. The Tribunal complied with Part 7, Division 4 of the Act, being “an exhaustive statement of the requirements of the natural justice hearing ruling in relation to the matters it deals with”.[3]

   [3] Migration Act 1958 (Cth), s.422B.

3. The application shall be dismissed with costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  6 April 2018