CTK15 v Minister for Immigration
[2017] FCCA 2548
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTK15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2548 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the applicant was afforded procedural fairness – whether the Tribunal properly considered the complementary protection criterion – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425, 476 |
| Cases cited: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 |
| Applicant: | CTK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3468 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 August 2017 |
| Date of Last Submission: | 18 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore Lawyers |
ORDERS
The application made on 22 December 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3468 of 2015
| CTK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 22 December 2015 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which, on 24 November 2015 affirmed the decision of the delegate of the Minister (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of Sri Lanka and is of Tamil ethnicity and Hindu religion (CB 39). The applicant arrived in Australia as an “unauthorised maritime arrival” on 25 July 2012 (CB 8 to CB 26 and CB 133.7). The applicant applied for the protection visa on 19 November 2012 (CB 27 to CB 115 including relevant attachments and see [2] at CB 217). The applicant’s claims to fear harm were contained in a Statutory Declaration attached to the application for the visa (CB 84 to CB 87).
The applicant claimed to fear harm on the basis of his Tamil ethnicity. The applicant claimed that he had been working in Jordan and Saudi Arabia for “7 to 8 years” and returned to Sri Lanka in 1992 ([9] at CB 84 to [12] at CB 85). The applicant claimed that in 1995 his father in law had been working in a grocery shop alone when he was “kidnapped and killed”, but that the applicant did not “know exactly who was responsible for his death” as there were a lot of “random killings and kidnappings of Tamils” ([13] at CB 85).
The applicant claimed that on 12 March 2012, he had a “misunderstanding” with a customer with whom he had been doing business in Suriyawew, as that person had “written [him] a dishonoured cheque” ([15] at CB 85). The applicant then stated that after the “argument” with the customer, he had been driving back to Colombo and a van pulled up beside him and “[two] plain clothed armed men forced [him] out of [his] van”. The applicant “thought” they were from the “CID” (Criminal Investigation Department) ([16] at CB 85).
The applicant claimed that they “point[ed] their rifles” at him, and “scolded” him for being a Tamil. They then asked the applicant for the address of his shop and “[he] told them”. They then left, and the applicant went back to the shop to inform his employer about the incident ([17] at CB 85). The applicant then claimed that two weeks later, and again another week after that, “[two] armed plain clothed me[n]” came to the shop looking for him but he was not there. The applicant decided it was not safe for him to continue working at the shop and it was then that he decided to flee Sri Lanka and seek protection in Australia ([18] – [21] at CB 85).
The applicant also claimed to fear harm as a failed asylum seeker on return to Sri Lanka ([24] at CB 85), and further, that the Sinhalese people from whom he feared harm had “significant political influence” ([26] at CB 86).
The delegate refused the grant of the visa on 6 January 2014. The applicant was notified by letter sent to his representative authorised for this purpose (CB 128 to CB 147). The applicant applied for review to the Tribunal on 13 January 2014 (CB 148 to CB 154). The applicant’s representative then sent written submissions and an unsigned Statutory Declaration said to have been made by the applicant to the Tribunal on 10 October 2014 (CB 159 to CB 170). The applicant’s signed Statutory Declaration was subsequently emailed to the Tribunal on 12 November 2014 by the applicant’s representative (CB 171 to CB 174).
The applicant was invited to, and attended (following a postponement), a hearing before the Tribunal by video conference on 23 November 2015 (CB 175 to CB 211). The Tribunal affirmed the delegate’s decision to refuse a protection visa to the applicant on 24 November 2015. The applicant was notified by letter sent by email to his representative authorised for that purpose on 25 November 2015 (CB 212 to CB 232).
The Minister’s submissions contain an outline of the Tribunal’s decision. I am satisfied that it is an accurate outline. For the sake of convenience today, I adopt those paragraphs for the purpose of this judgment ([7] – [12] of the Minister’s written submissions filed on 10 August 2017):
“[7] The Tribunal accepted that the 2012 incident had occurred in the manner described by the applicant, but was not satisfied on the basis of the applicant’s evidence or the country information before it that the men who had held the applicant at gunpoint were members of the CID.[1] The Tribunal considered that the fact that the applicant was released by these unknown men was indicative that the applicant was not of any ongoing adverse interest to anyone in Sri Lanka. It also noted that the applicant’s family had not been harmed since his departure from Sri Lanka.[2] On these bases, the Tribunal was not satisfied that the applicant faced a real chance of suffering significant harm were he to return to Sri Lanka for reason of the 2012 incident.[3]
[8] The Tribunal considered the applicant’s claim that he would suffer mistreatment in Sri Lanka for reason of his Tamil ethnicity. However on the basis of the applicant’s admission that he was not a supporter or had never been involved with the Liberation Tigers of Tamil Elam (LTTE) and the country information before it, the Tribunal did not accept that the applicant had a profile which would bring him to the adverse attention of the authorities.[4]
[9] The Tribunal considered the applicant’s risk of harm for reason of his illegal departure from Sri Lanka. The Tribunal referred extensively to independent country information, concluding that the applicant would likely be fined for his illegal departure and that his treatment would be in accordance with a law of general application.[5] The Tribunal accepted that the applicant may be detained briefly on his return, but would be granted bail on personal recognisance by a magistrate.[6] The Tribunal was not satisfied that the applicant’s treatment in this regard would give rise to a risk of the applicant suffering serious harm.[7]
[10] The Tribunal also considered whether the applicant would be imputed with a political opinion in support of the LTTE; [h]owever on the basis of his own evidence regarding his lack of active support for the LTTE and the country information before it, the Tribunal determined that he would not.[8] The Tribunal went on to consider the risk of the applicant suffering serious harm on the basis of his profile as a failed asylum seeker, but once again on the basis of the country information before it and its anterior findings as to the applicant’s profile, determined that he would not.[9]
[11] The Tribunal considered the applicant’s risk of harm in respect of the complementary protection criterion, importing its anterior findings of fact referred to above.[10] The Tribunal considered the risk of harm to the applicant in regards to the prison conditions that he would likely encounter were he to return to Sri Lanka, by reason of his being detained for illegal departure in breach of the IE Act. The Tribunal repeated its finding that the applicant would likely not face a custodial sentence in Sri Lanka for reason of his departure, would likely be detained for a few hours while questioned and then brought before a magistrate, whereupon he would immediately be granted bail on his own recognisance.[11]
[12] The Tribunal was not satisfied on the basis of its anterior findings of fact regarding the applicant’s profile, or the country information before it, that there was a real risk that the applicant would suffer harm intentionally inflicted upon him.[12] The Tribunal was satisfied that there was a real risk that the applicant may suffer some harassment, but was not satisfied that such harassment would constitute significant harm.[13] Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant faced a real risk of suffering significant harm were he to return to Sri Lanka.[14] The Tribunal proceeded to affirm the decision under review.[15]
[Footnotes renumbered.]
[1] CB 220-222 at [24], [28]
[2] CB 221-222 at [26], [29]-[30].
[3] CB 222 at [31].
[4] CB 222-223 at [32], [35]
[5] CB 225-226 at [41], [43].
[6] CB 227 at [46].
[7] CB 227 at [47].
[8] CB 227-228 at [48]-[50].
[9] CB 229-230 at [55]-[59]
[10] CB 231 at [63].
[11] CB 232 at [65].
[12] CB 232 at [67].
[13] CB 232 at [67]
[14] CB 232 at [68], [69].
[15] CB 232 at [70]-[71].
Before the Court
At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Tamil language. The Minister was represented by a solicitor.
At the beginning of the hearing, the applicant confirmed that he had nothing further to add to what had already been put before the Court. He also stated that he did not know why the Tribunal had refused his application for the protection visa. He explained that the reason for this was that he could not read English, and therefore was unable to understand what the Tribunal had written.
I sought to explain to the applicant the nature of the proceedings before this Court and the difference between the role, the powers and the function of the Tribunal and the Court. In summary, I explained that the Court could not grant the applicant a protection visa, and that the Court’s power, or its role under the law, was limited to considering whether the Tribunal’s decision was affected by a “legal mistake”.
When taken to the grounds of the application to the Court, the applicant at first said that he had completed the application himself. He then said that someone else, who was not a lawyer, had drafted those grounds.
The applicant then said that he could not explain the grounds because he was “very depressed”, due to being separated from his family for a long time, and that his mental state was such that his “upset and depression” meant that he wanted “more time”. In effect, he sought an adjournment of the hearing. When pressed, the applicant said that he wanted a year.
The Minister opposed the application for an adjournment. The Minister’s solicitor indicated that if the applicant pressed the request for an adjournment, the Minister would seek to have the applicant give evidence under oath or affirmation. Ultimately, the applicant declined to do so.
I refused the applicant’s adjournment application. My reasons for doing so were as follows.
The applicant’s application to the Court has been on foot for nearly two years (since December 2015). He has provided no evidence whatsoever to support his assertion of his ongoing depression and, relevantly, no evidence whatsoever to go to the question of his capacity to participate in the hearing today. The applicant confirmed before the Court, from the bar table, that he had not sought medical or counselling assistance, because he was unemployed so did not have any money. However, there is no medical or other relevant evidence to support his claim.
It was reasonable of the Minister, in the circumstances, to ask that the applicant make himself available to answer questions about his claimed situation. The applicant’s refusal to do so, in circumstances where I am satisfied that he understood the consequences of not making himself available, serves as a further reason for refusing the adjournment of the application.
A further basis on which the application for adjournment was refused was that I could not see, in the circumstances, that there was any utility in giving the applicant more time within which to prosecute his application. That is because, as I sought to explain to the applicant, the purpose of his application to the Court is to determine whether there is jurisdictional error in the Tribunal’s decision. I have carefully reviewed all of the material that has been put before the Court and for the reasons that follow I cannot find that any jurisdictional error arises from that material.
In short, therefore, there would be no utility in granting the applicant more time. As I said to the applicant, the purpose of making his application to the Court for review of the Tribunal’s decision could not, properly, be simply to extend his stay in Australia. The point of the application to the Court can only properly be to prosecute assertions of legal error on the part of the Tribunal. Absent such error, the purpose of the application falls away.
I should also note that the applicant made references to not having a lawyer to assist him. It is the case that there is no right to legal representation in matters of this type, before this Court (Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20, SZHTI v Minister for Immigration and Multicultural Affairs [2006] FCA 701 and Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50). In any event, I note what the applicant said from the bar table, that he has some community contacts in Australia. He said, and I accept, that he attends church. He therefore, would have had the opportunity to at least have asked someone in Australia how he could have obtained some legal advice, even from one of the number of community organisations that provide such advice to persons such as the applicant, for no charge.
In all, I was not satisfied that the applicant lacked the requisite capacity to participate in the hearing today. The applicant’s lack of English (in circumstances where he had an interpreter provided by the Court), and his lack of legal knowledge, are not factors that go to his capacity to participate in a hearing of this type.
The application to the Court
The application to the Court is in the following terms (the grounds have been numbered for convenience):
“[1] The AAT has declined its jurisdiction by failing to invite me for my comments on the information in which the RRT relied on to refuse my review application.
[2] The AAT has declined its jurisdiction by failing to invite me for a second hearing to provide my oral comments on the information in which the RRT relied on to refuse my review application.
[3] The AAT erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.
[4] The AAT made the following jurisdictional errors, in the context of my claim for complementary protection pursuant to section 36(2) (aa) of the Migration Act 1958 (Cth). The RRT fell into jurisdictional error in failing to consider whether there was a real risk that I would suffer ‘significant harm’ if I were to return to Sri Lanka by reason of the enactment of the Immigrant and Emigrants Act (the I&E Act). As defined in s 36(2A), ‘significant harm’ includes ‘degrading treatment or punishment’ which in turn, includes acts that cause, and are intended to cause, ‘extreme humiliation which is unreasonable’. I contend that the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.
[5] I have stated my grounds in my Court application and I need a RRT hearing CD to listen to and to submit further grounds and the particulars of these to this Court.”
Ground one asserts that the Tribunal fell into jurisdictional error because it failed to invite the applicant to comment on “information” on which it relied, to refuse his review application. At best, this can only be, in context, understood as an assertion that the Tribunal breached its obligation pursuant to s.424A(1) of the Act. The immediate difficulty is that the ground does not particularise the “information” that the Tribunal failed to put to the applicant for comment.
In any event, on the evidence before the Court, the following stands in answer to the applicant’s ground one.
Information which the applicant gave to the Tribunal, including both oral and written, and which he gave for the purposes of the review, and information which he gave in writing, in relation to his application for the visa, even if it was, on its face, “information” which would be the reason, or a part of the reason, for affirming, the delegate’s decision, is exempt from the obligation in s.424A(1) of the Act, by virtue of s.424A(3)(b) and (ba) of the Act, respectively. Country information is similarly exempt by virtue of s.424A(3)(a) of the Act.
In any event, there is nothing to indicate that there is any information that the applicant gave to the delegate at the interview which can be described as “information” that the Tribunal considers would be the reason, or part of the reason, for affirming the delegate’s decision.
The Tribunal’s subjective views of the evidence before it, its thought processes and its determinations are also not “information” for the purposes of s.424A(1) of the Act (VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609). In all, ground one does not disclose jurisdictional error on the part of the Tribunal.
Ground two asserts that the Tribunal should have invited the applicant to a second hearing, to give him the opportunity to comment on the “information”, that he said, the Tribunal relied on to refuse his application.
Any invitation to a hearing, pursuant to s.425 of the Act, which is the relevant section in matters of this type, is for the purpose of giving the applicant the opportunity to give evidence and make arguments in relation to the issues in the review.
The applicant has had the opportunity, through an order made by a Registrar of this Court, on 25 February 2016, to file any evidence, including a transcript of the Tribunal hearing. He has not done so. Therefore, the only relevant information before the Court as to what occurred at the Tribunal hearing is what is contained in the Tribunal’s decision record. These references reveal that the “live” issues that were dispositive of the review were aired at the hearing with the Tribunal. There is nothing before the Court to indicate that the Tribunal failed in its relevant obligation in relation to a hearing, as explained by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.
Focusing in particular on the way ground two has been phrased, there is a focus on the word “information”. As the obligation in s.424A of the Act was not enlivened (for the reasons explained above), there was no need for the Tribunal to give the applicant any further opportunity to comment on or respond to any “information”. Ground two, therefore, does not reveal any jurisdictional error on the part of the Tribunal.
Ground three asserts that the Tribunal failed to consider the applicant’s claims under the complementary protection criterion (s.36(2)(aa) of the Act). Again, no particulars are provided. However, this complaint cannot be made out because no legal error is apparent on the evidence before the Court.
The Tribunal’s findings and analysis in relation to complementary protection are set at [61] (at CB 231) to [69] (at CB 232) of its decision record. There is nothing in the Tribunal’s decision record to suggest that the Tribunal misunderstood or misapplied the relevant law in relation to its consideration of the complementary protection criterion.
I note, and as the Minister in my view correctly submits, that there is no jurisdictional error in the Tribunal importing into its consideration of the applicant’s claims under the complementary protection criterion, its relevant findings of fact that were expressed earlier in its decision record. That is, findings of fact expressed earlier in the decision record, are available to be applied to the complementary protection criterion without the need to set out those findings in great detail (SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774).
Further, and this also relates to ground four, to the extent that the Tribunal was required to consider matters under the complementary protection criterion, in addition to the matters that it was required to consider under the Refugees Convention criterion, the Tribunal plainly did so.
Ground four appears to complain that the Tribunal fell into jurisdictional error because it failed to consider that the Sri Lankan Immigrants and Emigrants Act 1949 (Sri Lanka) (“the I&E Act”) was intended to cause “extreme humiliation which is unreasonable” and which amounts to “significant harm” within the meaning of the Act.
I have regard here to [22] to [25] of the Minister’s written submissions. For the reasons explained by the Minister in those submissions, ground four does not establish any legal error on the part of the Tribunal (BNS15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2877 at [7] and BNS15 v Minister for Immigration and Border Protection [2016] FCA 61 at [13], and see below at [43]).
In the context of the applicant’s complaint in ground four, and having regard to current authority, the concept of “intentionally inflicted” connotes the existence of an “actual, subjective, intention” on the part of a person to cause the harm by their conduct (SZTAL v Minister for Immigration & Anor [2015] FCCA 64, SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 and SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34).
It may be that ground four seeks to complain that the enactment of the I&E Act by the Sri Lankan authorities could be considered as an act within the definition of “significant harm” as set out at s.36(2A) and s.5 of the Act. However, the Tribunal addressed the issue of the I&E Act.
I note here, particularly, what the Tribunal set out at [40] (at CB 224) and [41] (at CB 225) of its decision record. The Tribunal found, as expressed at [42] (at CB 225 to CB 226) of its decision record, that the I&E Act was a law of “general application”.
For the purposes of the complementary protection criterion (s.36(2)(aa) of the Act), I note and respectfully agree with the Minister’s reliance on the reasoning of the Court in BNS15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 2877 at [7], and as that matter was accepted on appeal (BNS15 v Minister for Immigration and Border Protection [2016] FCA 61 at [13]). I note the Minister’s specific references to those authorities (at [23] - [24] of the Minister’s written submissions) and in my respectful view, what was said there also applies equally in the current circumstances.
In any event, having regard to the above authorities, if the contention in ground four, is that the enactment of the I&E Act would constitute “significant harm” within the meaning of the Act, this was not a claim expressly made or clearly arising in what was presented in the applicant’s case before the Tribunal (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389). In all, ground four is not made out.
Ground five merely foreshadows further grounds that the applicant says that he would submit in the future. However, in the nearly two years available to him, despite having the opportunity to file any amended application and evidence by way of affidavit, nothing further has been filed by the applicant.
Conclusion
The grounds of the application do not reveal jurisdictional error on the part of the Tribunal. The application should be dismissed. I will make the appropriate order.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 20 October 2017
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