Cxo19 v Minister for Immigration

[2020] FCCA 630

FEDERAL CIRCUIT COURT OF AUSTRALIA

CXO19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 630

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (class XA) visa – whether the Tribunal considered the applicant’s claims and evidence – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: CXO19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1915 of 2019

Judgment of: Judge Street

Hearing date: 19 March 2020

Date of Last Submission: 19 March 2020

Delivered at: Sydney

Delivered on: 19 March 2020

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr N McArdle
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

3. Time for the applicant to appeal these orders is not to commence until the applicant is sent by email to his identified email address the settled transcript of the oral published reasons and the time for appeal will then be 28 days from the sending of that email.

DATE OF ORDER: 19 March 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1915 of 2019

CXO19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 9 July 2019 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“Protection visa”).

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant came from a particular village in the Batticaloa District in the Eastern Province of Sri Lanka. The applicant is of Tamil ethnicity.

3. On 21 November 2012, the applicant applied for a Protection visa. The applicant, in summary, claimed to fear harm on the basis of his ethnicity, actual and imputed political opinion and by reason of being a failed asylum seeker and returnee from the West and a young Tamil male from the north-west of Sri Lanka.

4. On 26 September 2013, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

5. On 4 May 2015, a differently constituted Tribunal affirmed that the Delegate’s decision. That Tribunal’s decision was set aside by orders of this Court made on 28 July 2017.

6. By letter dated 28 March 2019, the Tribunal invited the applicant to attend a hearing on 22 May 2019. The applicant appeared on that date to give evidence and present arguments.

7. By letter dated 31 May 2019, following the hearing on 22 May 2019, the Tribunal wrote to the applicant identifying particulars in respect of inconsistencies in the applicant’s evidence about claimed events after the applicant returned to live in a particular location in late 2009 or early 2010. The letter explained how the information was relevant.

8. The letter referred to the applicant’s claim that he participated in a protest in 2010 and was injured or hospitalised as a result of that protest. The letter explained that the Tribunal may not accept that the applicant was targeted and may impact on the Tribunal’s assessment of the applicant’s truthfulness and whether the applicant has a well-founded fear of persecution.

9. The letter also referred to a claimed incident in 2010 involving the applicant’s brother. The letter referred to a difference in date in relation to the incident with that of the applicant’s brother’s claim. The letter explained that that may give rise to the Tribunal not accepting that the applicant’s brother was taken from the family in 2010 because of the applicant’s participation in a protest. The letter explained that that may also impact on the assessment of the truthfulness of the applicant’s claims and whether the applicant had a well-founded fear of persecution.

10. The letter also referred to the applicant’s claim to have gone into hiding. The letter referred to the applicant’s evidence at the entry interview and in the applicant’s Protection visa application in relation to where the applicant lived and that did not suggest that the applicant had gone into hiding. The letter again explained that this may be relevant in relation to the Tribunal not accepting that the applicant went into hiding and may cause the Tribunal to doubt the truthfulness of the applicant’s evidence in relation to this claim and whether the applicant has a well-founded fear of persecution.

11. In the Tribunal’s reasons dated 9 July 2019, the Tribunal identified the background to the review application and the history in relation to the proceedings following the Delegate’s decision.

12. The Tribunal summarised the applicant’s claims.

13. The Tribunal identified the village from which the applicant’s family originates, that he is one of three brothers and the movement of his family between his home village near Batticaloa and a village in the Puttalam District in the North Western Province during the conflict and at which the applicant undertook ten years of schooling and worked at an internet café. The Tribunal identified that the applicant then returned to his home village with his wife, parents and brothers in late 2009 or early 2010 after the end of the civil war and that the applicant then worked in another internet café.

14. The applicant arrived in Australia as an unauthorised maritime arrival travelling with his two brothers. The applicant’s wife and child subsequently arrived in Australia. The applicant’s parents remained in Sri Lanka, travelling between the two villages and staying several months in each place.

15. The Tribunal found that the applicant would return to his home village in the Batticaloa District of the Eastern Province if returned to Sri Lanka.

16. The Tribunal referred to the applicant’s claimed incidents whilst working at an internet café in 2008. The Tribunal found that there were inconsistencies in the applicant’s evidence about an alleged attack. Having referred to the inconsistencies in relation to the applicant’s return to work, the Tribunal accepted that the applicant had been harassed for money while working at an internet café in a particular location in 2008 and that he was assaulted on one occasion when he did not give money as demanded. The Tribunal did not accept that the applicant was seriously injured or required three months to recover from his injuries. The Tribunal did not accept that the applicant made a complaint to the police and that the police refused to act on that complaint.

17. The Tribunal found that the applicant returned to work within a month of the assault and continued to work at the internet café for a year or eighteen months before returning with his family to live at his home village.

18. The applicant agreed that it was unlikely that the people who harmed him in 2008 would pose any further threat to him. The Tribunal did not accept that there is a real chance the applicant faced harm from the persons who attacked the applicant in a particular location in 2008 if he returns to that location now in the reasonably foreseeable future and found that prospect to be remote. The Tribunal did not accept that there is a real chance those people would seek to harm the applicant if he returned to any other part of Sri Lanka, including his home village, now or in the foreseeable future.

19. The Tribunal raised with the applicant concerns in relation to his father’s letter.

20. The Tribunal also referred to the letter sent by the Tribunal to the applicant and that no response was received.

21. The Tribunal accepted that the applicant carried a banner or placard at a protest during the conflict in 2010. The Tribunal did not accept the applicant’s evidence that he was beaten or harmed or otherwise targeted for mistreatment either during or after that protest.

22. The Tribunal provided five logical reasons in support of that adverse finding.

23. The Tribunal did not accept that the Sri Lankan authorities or any other person went looking for the applicant at his home in 2010 or at any other time as a result of his participation in the protest in his home village, nor that the applicant went into hiding at his uncle’s house, his aunt’s home or his grandmother’s house.

24. The Tribunal did not accept that the applicant’s brother was taken from the family home and tortured when the Sri Lankan Army (“SLA”) came looking for the applicant in 2010. The Tribunal also did not accept that the authorities visited the applicant’s wife and mistreated her while making inquiries about his whereabouts. The Tribunal also did not accept the applicant’s claim that a white van came looking for him on several occasions at his family home at his home village between 2010 and his departure in 2012.

25. While the Tribunal accepted that the applicant participated in a protest, the Tribunal did not accept that the applicant has at any time been targeted for harm or adverse attention by the Sri Lankan authorities for reasons that he was involved in that protest. The Tribunal did not accept the applicant’s claim that the Criminal Investigation Department (“CID”) visited his home on four occasions after he departed Sri Lanka or for any reason relating to his involvement in that protest.

26. The Tribunal did not accept that any questioning in relation to the applicant’s father had anything to do with the applicant’s participation in the protest in 2010 given that that participation occurred more than two years earlier and the applicant gave evidence that he did not think his father’s questioning in 2012 was related to his participation in the protest in 2010.

27. Given the inconsistencies that the Tribunal had identified with the applicant’s evidence, the Tribunal did not accept that the applicant’s father was detained for any prolonged period or otherwise harmed by the Sri Lankan authorities. The Tribunal found that the applicant’s father was identity check questioned and released.

28. The Tribunal referred to the applicant’s claim that his mother was attacked by a grease man in 2011.

29. The Tribunal found that there is not a real chance that the applicant will suffer serious harm if returned to Sri Lanka solely on the basis of his Tamil race or the fact he is a young Tamil male from a particular location in the Eastern Province.

30. The Tribunal did not accept that the applicant’s family residence in his home district or the other location to which his family travelled will cause the authorities to have an adverse interest in the applicant ten years after the conflict. The Tribunal did not accept that the applicant’s Tamil race or ethnicity or the fact that he originates from a particular area formerly controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) means that there is a real chance that he will be imputed to be a sympathiser or a supporter of the LTTE or an opponent to the Sri Lankan government and targeted for harm if he returns to Sri Lanka.

31. The Tribunal found that there is no real chance the applicant will be targeted for harm because of any political opinion imputed to him as a consequence of his Tamil race or ethnicity or the fact that he originates from an area formerly controlled by the LTTE.

32. The Tribunal referred to country information and did not accept that there is a real chance the applicant will face harm from grease men if he returns to Sri Lanka now or in the reasonably foreseeable future.

33. The Tribunal was satisfied that the Immigrants and Emigrants Act 1948 (Sri Lanka) is applied to all persons who have departed or attempted to depart Sri Lanka illegally, regardless of their ethnicity. The Tribunal found that the process to which the applicant will be exposed would arise under a law of general application and would not be applied to the applicant in a discriminatory way.

34. The Tribunal did not accept that there is a real chance the applicant will be targeted for harm by the Sri Lankan authorities or any other person or group in his home area on the basis of his political opinion or because he is a Tamil who departed Sri Lanka illegally and has sought asylum in Australia or for any other reason.

35. The Tribunal found that the applicant does not have a well-founded fear of persecution for reason of his political opinion or his Tamil ethnicity, either alone or in combination with any imputed political opinion to him as a young Tamil male from a particular region who has family members who are connected to the LTTE during the conflict or as a person who departed Sri Lanka illegally and would be returning to Sri Lanka as a failed asylum seeker.

36. The Tribunal found that the applicant does not have a well-founded fear of persecution by reason of the membership of a particular social group being failed Tamil asylum seekers.

37. The Tribunal referred to the applicant and his religion. The Tribunal did not accept that there is a real chance the applicant will face harm given his Hindu religion if he returns to his home village now or in the reasonably foreseeable future.

38. The Tribunal did not accept that there is a real chance the applicant will be targeted for serious harm by the Sri Lankan authorities on the separate or cumulative bases of his Tamil ethnicity, his actual or imputed political opinion, his Hindu religion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.

39. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

40. The Tribunal found that the applicant did not meet the criteria of sub-ss.36(2)(a) and 36(2)(aa) of the Act.

41. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 29 July 2019.

2. On 22 August 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant identified that what was said by the Tribunal was all correct, except that the Tribunal had not taken into account the current situation in Sri Lanka and that the applicant would be happy to return if someone would take responsibility for his safety.

5. Insofar as the applicant referred to the situation in Sri Lanka, it is apparent that the Tribunal took into account country information in the context of dispositive findings in respect of the applicant’s claims. It was a matter for the Tribunal what country information the Tribunal accepted. On the face of the Tribunal’s reasons, the adverse findings dispositive of the applicant’s claims were open to the Tribunal for the reasons given by the Tribunal.

6. The applicant’s disagreement with the Tribunal’s assessment of the country information does not identify any jurisdictional error by the Tribunal. Nor is the current situation as at today a matter that was before the Tribunal. The situation as at today is not, in those circumstances, capable of giving rise to a jurisdictional error by the Tribunal.

7. The applicant’s submissions from the bar table were, in substance, an invitation to this Court to engage in merits review. This Court has no power to review the merits.

8. Accordingly, nothing said by the applicant from the bar table identified any jurisdictional error.

Grounds in the Application

1. The grounds in the application are as follows:

   Ground 1

   Tribunal decision is infected with jurisdictional error as it failed to deal with a relevant issue.

   Particulars

   Applicant claimed that as a member of the minority Tamil community he had problems with the Sinhalese people and the Tribunal not deal with that issue fully.

   Ground 2

   Tribunal decision is infected with jurisdictional error.

   Particulars

   Tribunal failed to consider a relevant issue in that the harassment and relocations led to problems of Applicant’s subsistence.

   Ground 3

   Tribunal made a jurisdictional error by failing to consider a relevant issue.

   Particulars

   Recent legislative changes might mean that the Applicant might have become stateless after turning 22 years.

Ground 1

1. In relation to ground 1, as is apparent from the applicant’s statement that his reference to the Sinhalese was in relation to people coming to his work in 2008, the Tribunal considered the applicant’s claim in this regard. The Tribunal’s findings were dispositive of the applicant’s claim. The Tribunal did not accept that there was a real chance of the applicant facing harm from the persons who attacked him and did not accept the applicant’s evidence in relation to the extent of the harm in terms of time off work the applicant claimed that he suffered. There is no basis to find that the Tribunal’s reasons were not dispositive in respect of the applicant’s claim in that regard.

2. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, the Tribunal did not make any finding in relation to relocation. The Tribunal found that the applicant did not have a well-founded fear of persecution and found that the applicant would not face a real chance of serious harm if he returned to Sri Lanka in the reasonable foreseeable future in relation to his home village.

2. The applicant did not make a claim to fear harm on the basis of his ability to subsist upon return to Sri Lanka. The applicant’s parents remain in Sri Lanka and, in the absence of any express claim, no such claim clearly arises on the material before the Tribunal. A claim that was not raised before the Tribunal cannot give rise to any jurisdictional error.

3. Accordingly, no jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, the applicant identified in the material provided to the Tribunal that he was a citizen of Sri Lanka no claim was advanced that the applicant was stateless. In these circumstances, there is no basis for the Tribunal to have considered a claim that was not raised. On the face of the material before the Tribunal, the Tribunal was correct in identifying the applicant as being a citizen of Sri Lanka.

2. Accordingly, no jurisdictional error as alleged in ground 3 is made out.

3. As no jurisdictional error is made out by the application, the application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 19 March 2020 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  23 April 2020