CTS15 v Minister for Immigration

[2017] FCCA 1768

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTS15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1768

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal erred in referring to the wrong legislation – whether the Tribunal erred in misunderstanding the applicant’s submissions – no jurisdictional error identified – application dismissed.

Legislation:

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

Constitution of the Democratic Socialist Republic of Sri Lanka (Sri Lanka)

Articles 2, 157A
Immigrants and Emigrants Act 1949 (Sri Lanka)
Prevention of Terrorism Act 1979 (Sri Lanka), s.31
Prevention of Terrorism (Temporary) Provisions Act No. 48 of 1979 (Sri Lanka)

Applicant: CTS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3485 of 2015

Judgment of: Judge Street

Hearing date: 28 July 2017

Date of Last Submission: 28 July 2017

Delivered at: Sydney

Delivered on: 28 July 2017

REPRESENTATION

Counsel for the Applicant: Mr P Cutler

Solicitors for the Applicant: Neil Lawyers

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3485 of 2015

CTS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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”) with respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 December 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and her claims were assessed against that country. The applicant arrived in Australia on 5 February 2012 having been granted a subclass 679 (Sponsored Family Visitor, Short Stay) visa on 24 January 2012. The applicant applied for protection on 11 April 2012.

Claims for protection

1. The applicant was found to be of Tamil ethnicity and of Hindu religion. The applicant claimed to fear harm by reason of her Tamil ethnicity, being from a particular location, her Hindu religion, her imputed political opinion, her imputed support of the LTTE against the Sri Lankan government, membership in a particular social group including as a member of the Tamil diaspora in Australia, and as a female Tamil suspected of supporting the LTTE and holding critical views of the Sri Lankan government. Further, the applicant feared that she is and being likely to suffer economic hardship because of her inability to get a job in Sri Lanka, as well as by returning to Sri Lanka as a failed asylum seeker and is likely to be detained and charged because of her imputed LTTE connections.

2. On 14 September 2012 the delegate refused to grant the protection visa and found the applicant failed to meet the criteria under the Act. A differently-constituted earlier Tribunal’s decision was set aside by consent orders of this Court entered on 7 May 2014 and the application for a protection visa was the subject of review by the current Tribunal.

The current Tribunal’s decision

1. The Tribunal, having considered the evidence and the claims, concluded that the applicant was not a person in respect to whom Australia has a protection obligation. The Tribunal affirmed the decision under review. The Tribunal identified the relevant law in an appendix to the decision. The Tribunal identified the applicant’s background and her appearance before the Tribunal to give evidence and present arguments on 22 October 2014 as well as on 11 November 2015. The Tribunal also referred to the evidence that the applicant had given to the previous differently-constituted Tribunal.

2. The Tribunal found that the applicant’s evidence, considered in its totality, gave rise to credibility concerns which could not be overcome. The Tribunal provided detailed reasons in support of the adverse findings and was not satisfied the applicant was a person with respect to whom Australia had protection obligations.

Consideration of claims

1. The Tribunal found that, on the totality of the evidence before it, it was not satisfied the applicant, as a person who had no links, past or present, or family or personal profile linked to the LTTE, or to have expressed opposition to the Sri Lankan government at any time other than as addressed by the Tribunal under the heading of “Failed Asylum Seeker”, would be imputed with such political opinions on returning to Sri Lanka in the reasonably foreseeable future simply for having travelled to and having lived in Australia.

2. The Tribunal was not satisfied the applicant’s travel to and residence in Australia, or the presence of her sister in Australia and a sister in Canada, or her application for asylum in Australia gave the applicant a profile which gives rise to a real chance of serious or significant harm as contemplated by the relevant law in the reasonably foreseeable future, even when considered together with the other circumstances.

Being charged under Sri Lankan law

1. The Tribunal, in its reasons, referred to a possible “Charge under the PTA, immigration/emigration laws, and other laws” and, under that heading, made reference to the applicant’s concerns that she would be imprisoned and suffer significant harm from the police, army, jail warden, and from fellow prisoners. The Tribunal made reference to raising with the applicant in the November 2015 hearing what Sri Lankan laws she thinks she has breached and why she thinks she faces a period in custody in Sri Lanka.

2. The Tribunal noted in the applicant’s own evidence that she departed legally from the international airport using a valid passport which remained valid until June 2016. The Tribunal noted the applicant’s response that the main reason she will be charged is as a Tamil Hindu and that she was arrested in 2011 on suspicion of LTTE links and failed to report as required on her release. The Tribunal was not satisfied the applicant was arrested in 2011 as claimed or that she was required to report to the SLA as claimed. The Tribunal was not satisfied there is reliable and independent evidence to suggest that any person has been charged, arrested, or seriously significantly harmed under Sri Lanka’s laws, including the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the I&E Act”) or the PTA for being a Hindu Tamil.

3. It was in those circumstances that the Tribunal noted the applicant’s claim that she would face criminal charges because she came to Australia and sought asylum on the basis there is no protection in Sri Lanka and that the authorities do not like Tamils saying anything to Western countries about being harmed by Sri Lankan authorities. The applicant made reference to believing she would be in breach of criminal laws in Sri Lanka.

4. The Tribunal then referred to the registered migration agent being asked by the Tribunal to clarify the submission that the applicant faces charge and imprisonment under Sri Lankan laws, including the basis and sections of relevant laws it is submitted the applicant may have offended. The Tribunal noted that the migration agent responded that he would have to check the sections but submitted that the applicant faced being detained by the Sri Lankan authorities for further inquiry and charged under the PTA for defaming Sri Lankan authorities should her political opinion in respect of her asylum plans be known to the Sri Lankan authorities.

5. It was in those circumstances that the Tribunal then referred to the written submissions provided by the migration agent on behalf of the applicant, specifically being submissions dated 11 November 2015. Those submissions relevantly identify particular provisions consistent with a request for specificity raised by the Tribunal. Reference was made to the introduction to the Prevention of Terrorism (Temporary) Provisions Act No. 48 of 1979 (PTA) and the preamble referring to the prevention of terrorism in Sri Lanka and of unlawful activities of individuals, groups of individuals, associations, organisations or body of persons in Sri Lanka or outside Sri Lanka for matters connected therewith or incidental thereto.

6. There is reference, in the submissions, to the meaning of unlawful activity in s.31(1) and it was submitted that the Sri Lankan authorities would consider any activities supporting or perceived to be supporting the LTTE or its political objectives or Tamil nationalism in challenging the status quo as unlawful activities. Reference was made in the submissions to Article 2 of the Constitution of the Democratic Socialist Republic of Sri Lanka (“the Constitution”) as being a unitary state and it was submitted that any activities suspected of challenging the basic structure of Sri Lanka would be considered as unlawful activities.

7. The submissions referred to Article 157A(1) of the Constitution providing relevantly:

   No person shall directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate state within the territory of Sri Lanka.

8. The submissions then referred to the consequences of contravention of Article 157A(1) and setting out the content of Article 157A(3). The submissions then referred to the reasoning of another member of the Tribunal and submitted that the Constitution, the basic law of the land, clearly states that anyone who is perceived as supporting the establishment of a separate state within the territory of Sri Lanka would be convicted after trial on indictment. The submission advanced that there is a real possibility of the applicant being perceived as a refugee claimant from Australia upon her return, due to her prolonged stay in Australia.

9. It was submitted that this is a particular and relevant situation in the applicant’s case because if she were to return as an involuntary returnee it is likely that her seeking asylum would be assumed and since she is a Tamil female from the north of Sri Lanka and faced past persecution, there is a real possibility that the authorities would assume, upon checking the background of the applicant and through severe interrogation, would find the applicant had applied for a protection visa on the basis of her political opinion supporting the LTTE and holding political opinion against the Sri Lankan authorities or government.

10. It was submitted, as a result, that the applicant would be detained and arrested at the airport for violating Article 157A of the Constitution and the provisions of the PTA, for promoting or engaging in unlawful activities against the Sri Lankan state and government. Reference was also made to the interrogation process and the conditions in the prisons and that the applicant would be perceived as a threat to the integrity of Sri Lanka as a single state because of her political opinion supporting the political objectives and supporting a separate state in Sri Lanka and Tamil nationalism.

11. In paragraph 79 of the Tribunal’s reasons, the Tribunal summarised part of the submissions, identifying that the Sri Lankan authorities would consider any activity supporting, or perceived to be supporting, the LTTE or its political objectives or Tamil nationalism, to be challenging the status quo of the Sri Lanka as unlawful activities. The Tribunal recognised that any activity suspected of challenging the basic structure of Sri Lanka would, in accordance with the submissions, be considered as unlawful activities.

12. The Tribunal also referred to the migration agent underlining that s.157A of the PTA prohibits someone directly or indirectly, inside or outside of Sri Lanka, supporting, espousing, promoting, financing, encouraging or advocating the establishment of a separate state within the territory of Sri Lanka.

13. The Tribunal noted that the submissions continued to the effect that the applicant would be likely to be charged under the PTA because she would be known to have sought asylum on the basis of her political opinion. In processing her on return to Sri Lanka, her prior detention and failure to report in 2011 would become known, and she would be assumed to support the LTTE and oppose the Sri Lankan state and that she may be searched and reveal her scars, heightening suspicions regarding her involvement with the LTTE and her unwillingness to learn Sinhala while living in Colombo will heighten suspicion that she is a Tamil nationalist opposed to the Sri Lankan state.

14. The Tribunal noted that it was not satisfied the applicant has any pre-existing profile which will come to light when she is processed on her return to Sri Lanka. The Tribunal found that it was not satisfied that the applicant was arrested, detained or required to report to the authorities in 2011 or any time. The Tribunal was not satisfied that the applicant’s scarring, Tamil ethnicity, links to Jaffna and/or her time in Australia singularly or cumulatively gave her or heightened her profile such that she faces a real chance of serious or significant harm in Sri Lanka in the reasonably foreseeable future.

15. The Tribunal was not satisfied that the applicant’s gender heightens her profile as supporting the LTTE or being opposed to the Sri Lankan State or that any of these factors cumulatively give rise to a real chance of serious or significant harm for the reasons claimed by the applicant.

16. The Tribunal found on the evidence before it that it was not satisfied the applicant’s inability to speak Sinhala despite living in Colombo for around nine years imputes with her any particular political opinion or otherwise gives rise, singularly or cumulatively, to a real chance of serious or significant harm to the applicant in Sri Lanka in the reasonably foreseeable future.

17. The Tribunal referred to the risk of charge, arrest, mistreatment more generally under the PTA, the I&E Act and/or Sri Lanka’s criminal laws more generally, and the submissions in relation to those risks for the applicant, being an involuntary returnee who has unsuccessfully sought asylum in Australia and who may therefore be suspected of making comments critical of the Sri Lankan authorities. The Tribunal also made reference to not being satisfied there were reliable reports of involuntarily-returned asylum seekers being routinely charged or jailed under the PTA, the I&E Act, or other laws in Sri Lanka in circumstances where, like the applicant, they have no specific adverse profile, departed lawfully, returned involuntarily, and/or returned with or without a valid passport.

18. Based on the totality of the evidence, the Tribunal was not satisfied the applicant faces a real chance of being charged, detained or jailed under the PTA, the I&E Act, or any other law in Sri Lanka in the reasonably-foreseeable future for any of the reasons claimed, including cumulatively. The Tribunal was not satisfied on the evidence advanced that the applicant would be required to pay bail for any reason, or that she would need to provide any personal or monetary bond to be released from detention, as she claims in a statutory declaration, as the Tribunal is not satisfied that she has committed or that she would be considered by the Sri Lankan authorities to have committed any offence against any law, or that she would be detained or required to pay any bond for any other reason.

Gender-based claims / economic harm / mental health

1. The Tribunal was not satisfied the applicant faces a real chance of serious or significant harm in Sri Lanka in connection with her female gender.

2. The Tribunal did not accept that the applicant has any actual or imputed profile connected to the LTTE or opposed to the Sri Lankan authorities, or that she will continue to be perceived in any way as claimed, will be charged or imprisoned for defamation or under the PTA, the I&E Act, or any other Sri Lankan law in connection with being an involuntary returnee who sought asylum on the basis of political opinion, will require any personal or monetary bond to release her from prison, or that she faces a real chance of prolonged detention or imprisonment for any of the reasons claimed.

3. In those circumstances, the Tribunal was not satisfied the applicant faces a real chance of economic hardship which threatens her capacity to subsist in connection with her mental health, even when considered cumulatively with what the Tribunal accepts are the balance of her circumstances. The Tribunal was not satisfied the applicant faces a real chance of serious or significant harm in Sri Lanka in the reasonably-foreseeable future as contemplated by the relevant law in connection with her mental health, even when considered cumulatively with the applicant’s other claims.

4. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the Act and found the applicant failed to meet the criteria under s.36(2)(a) and s.36(2)(aa) of the Act.

Proceedings before this Court

1. Mr Cutler of counsel, who appeared on behalf of the applicant, identified that only Ground 2 of the application was pressed, which is as follows:

   2. The Tribunal has misunderstood the applicant's representative's submission and failed to engaged in active intellectual process to assess and consider the consequences of the important aspect of the applicant's claim.

   Particulars

   The applicant's representatives provided a submission arguing that Article 157 A of the Constitution of Sri Lanka provides it as an offence including possible deprivation of civil ability for any person who supports, encourages, promotes or advocates the establishment of a separate state within Sri Lanka. The Tribunal misunderstood the submission and its serious effect of violating the Constitutional provisions to an Act of Parliament of Prevention of Terrorism Act. In the submission, the applicant's representatives argued based on the Constructional provisions in the Sri Lankan Constitution that anyone who supports or encourages separate state within Sri Lanka may face civil disability for a period not exceeding 7 years and may not be entitled to civic rights for such period not exceeding seven years as may be determined by such Court. As a result of the misunderstanding the Constitutional provisions in the Sri Lankan Constitution, the Tribunal failed to ask relevant question as the effect and consequences of violation of Constitutional provisions and failed to consider economic persecution the applicant may face in Sri Lanka as a result of this. In addition, the applicant claimed that she would be assumed as a failed asylum seeker due to her lengthy stay in Australia and as a result of that she would be suspected as a person who has defamed Sri Lanka.

   The Tribunal failed to assess significant and serious consequence the applicant would face as a result of violating Article 157 of the Constitution of Sri Lanka in light of the applicant's evidence that she has visible scars in her body and her prolonged stay in Australia which may impute her as a person who supports or encourages Separate state within Sri Lanka and a LTTE supporter.

2. Mr Cutler argued that the Tribunal had misunderstood the submission made to the Tribunal in relation to the applicant’s claims and, accordingly, had misunderstood the applicant’s claims because of an erroneous understanding of the submissions of 11 November 2015. Mr Cutler correctly pointed out that the Tribunal had erroneously referred to Article 157A(1) in the Tribunal’s reasons as being Article 157A of the PTA, and that the Tribunal did not, in its reasons, identify that the s.157A was a section of the Constitution.

3. Mr Cutler argued that the consequences of noncompliance with the Constitution were expressly identified in the submissions and were not addressed in the reasons of the Tribunal. Mr Cutler pointed out the other references in the Tribunal’s reasons, all of which failed to make reference to the Constitution in circumstances where there was an alleged fear of charge and being jailed for contravention of the Constitution provision identified because of the applicant’s imputed LTTE connections.

1. I accept the submissions of the first respondent, that the Tribunal correctly identified the substance of the applicant’s claimed fear in relation to prosecution for contravention of the PTA and her claimed fear for contravention of the Constitution because of her imputed LTTE links. It was the substance of the law and the alleged contravention that was material and the Tribunal made dispositive findings that were open in that regard. I do not accept that the source being the Constitution was itself of significance as the Tribunal understood the context of the alleged contravention and intellectually engaged with the submissions. The Tribunal correctly identified the relevant provision, and the erroneous reference to Article 157A being of the PTA was not a material error and does not reflect any misunderstanding of the applicant’s claims or any failure by the Tribunal to deal with the applicant’s claims.

2. Further, the reasoning of the Tribunal reflects an active intellectual engagement with the applicant’s claims and no jurisdictional error as alleged in the Ground 2 is made out.

Conclusion

1. Because Ground 2 fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  15 August 2017