FKS17 v Minister for Home Affairs

[2018] FCCA 3515

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKS17 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3515

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – procedural fairness – whether Tribunal considered each of the Applicant’s claims – where Applicant seeks an impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A

Cases cited:

SZBEL v Minister for Immigration and Multicultural & Indigenous Affairs [2006] HCA 63
SZEPZ v Minister for Immigration and Multicultural & Indigenous Affairs (2006) 159 FCR 291

Applicant: FKS17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2710 of 2017

Judgment of: Judge Hartnett

Hearing date: 23 November 2018

Delivered at: Melbourne

Delivered on: 23 November 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Bensted

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The name of the First Respondent be amended to “Minister for Home Affairs”.

2. Pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2710 of 2017

FKS17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 12 December 2017 wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 10 November 2017 wherein the Tribunal affirmed a decision of a delegate of the Minister (‘the delegate’) not to grant him a protection (Class XA) (sub-class 866) visa (‘the visa’).

2. The grounds of application are as follows:-

   “1. The decision of the tribunal is affected by an error of law.

   2.  The decision of the tribunal denied procedural fairness with
            regards to the risks associated with the applicants political

   inclinations.

   3.  I am waiting on a decision regarding the grant of legal

   assistance from Victoria Legal Aid.

   4.  The Tribunal failed to properly consider all my claims.”

3. As can be seen from the above, ground 3 is not a ground of judicial review.

4. The First Respondent seeks dismissal of the application and submits that the application does not disclose an arguable case for the relief claimed and accordingly should be dismissed with costs.

5. The Applicant was ordered by Registrar Ryan on 5 September 2018 to file and serve any amended application with proper particulars of the grounds of application and written submissions as set out in order 2 of those orders.  The Applicant has not amended his application, nor did he file any written submissions.  As can be observed, his application is not particularised, such that it is in many respects rendered ‘meaningless’.

6. The Court has otherwise before it submissions of the First Respondent on which the First Respondent relies, which were filed on 8 November 2018 and the material as contained in the Court Book, which was introduced into evidence this day.

Background

1. The Applicant travelled to Australia by boat, arriving on Christmas Island on 28 July 2012 as an illegal maritime arrival.  He resided for a short time at the Christmas Island Immigration Detention Centre, and on 21 November 2012 he was granted a bridging visa E.

2. The Applicant is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion.

3. The Applicant applied for the visa on 18 December 2012. In the application, the statutory declaration accompanying the visa application and in his interview with the delegate on 18 September 2013, the Applicant outlined his claims, which are accurately set out in the First Respondent’s written submissions, and are as follows:-

   a)the Applicant was in a group of youth who were involved in patrols aimed at catching “grease men” who would target Tamils.  The police would protect the grease men which led to protests against the police, of which the Applicant and his friends were participants.  One of his friends was abducted as a result of these activities, and once he was released, the Applicant received a message from the abductors via his friend to report to the police;

   b)the Applicant assaulted a man who had teased his sister.  He later found out that this man was a soldier.  A few days later a group of soldiers found him and hit him;

   c)the Applicant joined a group called The People’s Liberation Organisation of Tamil Eelam (PLOTE) when he went to Puttalam in 2008 following a beating from his father, but he did not take part in any of their activities.  He studied at the house of a member who was in charge of finances, possibly for a future role in the group.  He did not have much contact with the group when he returned home after eight months;

   d)his mother’s side of the family was well-established in the Liberation Tigers of Tamil Eelam (LTTE).  He was arrested and detained on two occasions for assaulting his neighbour and father; his father had been abusive to him;

   e)the Criminal Investigation Division (CID) have visited his family in Sri Lanka to inquire about his whereabouts whilst he has been in Australia.

4. On 10 December 2013, a delegate of the Minister refused to grant the visa.  On 20 October 2015, the then Refugee Review Tribunal affirmed the delegate’s decision not to grant the visa.  By orders made on 4 April 2017, the Court quashed that decision and remitted the matter to the Tribunal for reconsideration according to law.  The reason for so doing was that the First Respondent conceded that the Tribunal failed to consider an integer of the Applicant’s claim by failing to consider whether the inquiries made by CID officers as to the Applicant’s whereabouts raised the Applicant’s profile and/or increased the risk of future harm.

Tribunal Proceedings

1. On 21 July 2017, the Applicant attended a hearing before the reconstituted Tribunal via video link with the assistance of a Tamil interpreter.  In its Statement of Decision and Reasons (‘the Decision Record’) of 10 November 2017, the Tribunal affirmed the delegate’s original decision of 12 December 2013 not to grant the visa.  Notification of that decision was conveyed to the Applicant by email correspondence of 14 November 2017.

2. During the hearing, the Applicant advanced two claims which had not previously been raised by him, those claims being that he feared harm in Sri Lanka due to his Australian conviction and subsequent imprisonment for driving offences, and his relationship in Australia with a married (but separated) woman. The Applicant claimed to fear harm from the husband’s family who resided in Sri Lanka.  The Tribunal considered that it had credibility concerns with the claims made, noting in paragraph 18 of the Decision Record that the Applicant’s evidence before the Tribunal in relation to some of his central claims “was confused and at times contradicted earlier evidence he had given”.[1]

   [1] Decision Record, 18.

3. As noted in paragraph 19 of the Decision Record, the Applicant had provided to the Department of Immigration and Border Protection a copy of his birth certificate.  He was requested by the delegate to provide an original of that document.  After the interview, his original birth certificate was provided on 1 November 2013 under cover of a letter stating it was his original birth certificate.  At the hearing before the first Tribunal, the Applicant said he had no birth certificate, and the document he had provided was not genuine.  He claimed that his uncle had obtained the birth certificate and sent it to him and he did not know how his uncle had arranged it.  He claimed it to be a false document.

4. As set out in paragraph 21 of the Decision Record, the Tribunal raised with the Applicant at the hearing the issue of the birth certificate. The Tribunal noted to the Applicant that the s.424A of the Migration Act 1958 (Cth) (‘the Act’) letter sent by the previous Tribunal to him, together with his response, may form part of the basis for the Tribunal’s decision. The Applicant said the birth certificate was not genuine, and as far as he knew he did not possess a birth certificate.

5. Despite the Applicant’s claim that his birth certificate was not an original or authentic document, and that he had no identity documents (a claim repeated this day in submissions made by the Applicant in support of his application) the Tribunal found that the birth certificate was, in fact, a genuine document.  The Tribunal found the Applicant’s claim that his birth certificate was non‑genuine not compelling.  The Tribunal set out in paragraphs 20‑30 inclusive of the Decision Record, the Tribunal’s reasons for its findings.  The Tribunal went on to say at paragraph 31 of the Decision Record, given the Applicant’s evidence on his birth certificate, which I have found to have not been true, “I doubt his further claims about the documentation of his identity more generally”.[2]

   [2] Ibid 31.

6. In reaching its conclusions about the birth certificate, the Tribunal gave greater weight to the evidence provided by the Applicant’s uncle that the birth certificate was a genuine document belonging to the Applicant.  The Tribunal accepted the Applicant did not have a national identity card (NIC), however it found that the Applicant could obtain a NIC upon return to Sri Lanka by using his birth certificate as identification.

7. The Tribunal accepted, in respect of the Applicant’s family life, that the Applicant’s father was abusive toward he and his mother, and the Tribunal further accepted that abuse was:

   “… emotional and physical, and that, given the age of the applicant, this constituted serious or significant harm inflicted on him by his father.”[3]

   [3] Ibid 33.

8. The Tribunal found, however, that his father and mother had separated and that his mother had not suffered any harm from his father since the separation.  The Tribunal noted the Applicant had not claimed, and nor did the Tribunal accept, that the Applicant fears harm from his father now or in the future.  The Tribunal found the Applicant was now an adult who would return, if returning to Sri Lanka, to live with his mother, and not have anything to do with his father.  The Tribunal found therefore, as set out in paragraph 33 of the Decision Record:-

   “…there is no real chance of the applicant suffering serious harm on return to Sri Lanka from his father, now or in the reasonably foreseeable future.”

9. When considering the Applicant’s involvement with PLOTE, the Tribunal accepted that the Applicant spent approximately eight months in the home of a person who was responsible for the finances of PLOTE, but that on the Applicant’s evidence, the Applicant did not take part in PLOTE activities, and when asked to go to training, he did not go but returned home.  The Tribunal further accepted that the Applicant:-

   “… may have been mistreated but that his mother was then able to take him away.  I am willing to accept that [X] slapped him … but find that there were no other issues or harm experienced by the applicant because of his time with PLOTE.”[4]

   [4] Ibid 35.

10. The Tribunal noted in paragraph 37 of the Decision Record that the Applicant had claimed previously that his father’s family links to the EPDP may cause the Government to suspect him of support for the LTTE and did not accept that claim.  The Applicant had not established before the Tribunal that his father’s family links to the EPDP were significant, nor that the authorities would be aware of, or care about, such links.  The Tribunal did not accept there was any real chance or real risk of the Applicant being harmed by the authorities, members of the EPDP or other political or para-military groups or anyone else for his father’s family’s low-level association with the EPDP, which was a fact accepted by the Tribunal.

11. The Tribunal, as set out in paragraph 38 of the Decision Record, accepted the Applicant’s evidence that he had been arrested twice in Sri Lanka in around 2010, but found on the Applicant’s evidence that the Applicant was not charged or convicted of any offence in Sri Lanka.  The Tribunal said:

    “I find, given that these things happened seven years ago, that: the applicant and his mother no longer lived with his father; he was not charged or prosecuted by the police, nor have they shown any later interest in him because of  these arrests; there is no real chance or real risk of the Applicant suffering serious or significant harm on return to Sri Lanka for reasons of his arrest in 2010 from the police, other authorities, or anyone else, now or in the reasonably foreseeable future.”[5]

    [5] Ibid 38.

12. In relation to the Applicant’s claims concerning the LTTE, as set out in paragraph 42 of the Decision Record, the Tribunal accepted that the Applicant’s mother’s brothers were involved in some manner with the LTTE.  The Tribunal found, however, that this was “low-level support” because the Applicant’s evidence was that he was not aware of any difficulties his uncles faced, nor that his immediate family have had any difficulties because of this.  The Tribunal also noted that the Applicant did not consider this claim significant enough to raise it earlier in the process.  The Tribunal concluded that there was only a remote or far-fetched chance that this family association would lead to the Applicant being seen to have, or imputed to have, views supporting a renewal of hostilities against the Government of Sri Lanka.

13. The Tribunal set out in paragraph 43 of the Decision Record that later in the hearing, the Applicant claimed that his family’s LTTE profile, together with his time associated with PLOTE and his protests outside the police station, would all lead to him being questioned and treated with suspicion by the Sri Lankan authorities.  The Tribunal noted it dealt with this cumulative claim, finding that there was no real chance or real risk of the Applicant suffering serious or significant harm on return to Sri Lanka for any of the reasons proffered by the Applicant in that regard.

14. In relation to the Applicant’s written claims about the grease men, the Tribunal accepted that the Applicant witnessed what he believed to be a grease man and that he took part in a protest the next day.  The Tribunal did not accept that the Applicant was responsible for videoing the protest or that his friend (‘Y’) was kidnapped and subsequently released to find the Applicant and others. Further, as set out in paragraph 53 of the Decision Record, the Tribunal did not accept:-

    “… that anyone came looking for the applicant at his uncle’s house in relation to the “greaseman” incident, the protest, the claimed abduction of [Y] or any reason connected to these claims.  I do not accept that the applicant was of any interest to the authorities for any reason connected to these claims.  I do not accept that the applicant was in hiding.”

15. Noting inconsistencies in the Applicant’s evidence, the Tribunal did not accept that the Applicant had an altercation with a man who turned out to be a soldier, or that the Applicant was slapped by this man.  Further, the Tribunal did not accept that this event led to soldiers calling out to the Applicant as he left a temple sometime later.

16. The Tribunal considered in some detail the Applicant’s claim that CID officers had come to his family seeking his whereabouts and that this had happened on 18 June 2013.  Further, together with the Applicant’s additional claim, that they also went to his uncle’s house looking for him twice on one day.  As set out in paragraphs 63 to 66 inclusive of the Decision Record, the Tribunal accepted that CID officers may have visited the Applicant’s mother’s and uncles’ respective houses in 2013 and were told that the Applicant had travelled to Australia.

17. Because of the earlier findings of the Tribunal, the Tribunal did not accept that the Applicant having an altercation with the army intelligence officer was a reason or connected in any way to the visit of the CID officers.  The Tribunal found, on the Applicant’s evidence, that the CID officers had not visited since 2013 and had not shown any further or ongoing interest in the Applicant.  The Tribunal said at paragraph 66 of the Decision Record:-

    “Having accepted that CID officers visited his mother’s house and his uncle’s house in 2013, I have carefully considered the evidence of the applicant, and I find that this visit was solely on the basis that the CID were investigating whether he had departed Sri Lanka, and on being told that he had, they have demonstrated no further interest in the Applicant and have not returned to his family.  I have carefully considered whether this visit indicates or would lead to the Applicant being harmed on return, and I find it does not.  As below, I accept that the applicant would be charged on return with departing Sri Lanka unlawfully, and I have analysed the consequences of this below.  I do not accept that the visit of the CID officers about this leads to any greater risk of harm, nor does it lead to harm in and of itself, noting that the officers have not returned or sought out his family in the four years since that time.  I therefore find that there is no real chance or real risk of the applicant suffering serious or significant harm on return to Sri Lanka from the CID officers who visited in 2013, nor that their visit will lead to him being harmed by them or other authorities or anyone else for any reason, now or in the reasonably foreseeable future.”

18. The Tribunal accepted that the Applicant had been convicted of driving offences in Australia which led to a term of imprisonment which was due to end in December 2017, however found that the Applicant would not be of any interest to Sri Lankan authorities presuming the authorities were aware of the conviction.  Further, the Tribunal accepted the Applicant’s evidence in relation to his relationship with a married woman.  The Tribunal did not, however, accept that the brother of his partner’s husband had threatened to harm the Applicant in the event he returned to Sri Lanka.  The Tribunal found that there would only be a remote chance of the family locating the Applicant, and found that the family would do nothing more than quarrel with the Applicant if he was found.

19. The Tribunal accepted the Applicant was a young Tamil male from Batticaloa, Eastern Province, who would return there to his mother’s home.  The Tribunal discussed with the Applicant country information about the situation for Tamils in Sri Lanka at the time of the Tribunal hearing.  The Tribunal raised matters of country information with the Applicant, seeking the Applicant’s response.  The Tribunal, as set out in paragraph 76 of the Decision Record:-

    “… carefully considered the claims of the applicant and the material in the submissions that he faces harm as a Tamil from the Eastern District.”

20. The Tribunal found, however, that this claim was not supported by the country information.  Further, having regard to the country information, the Tribunal rejected the Applicant’s claims that he would be harmed due to his status as a failed asylum seeker.  Whilst the Tribunal accepted that the authorities may conclude that the Applicant sought asylum in Australia and that he may be required to report to authorities on return to his home area, the Tribunal was not satisfied that the questioning or monitoring would amount to serious or significant harm or that the Applicant would be of ongoing interest to the authorities.

21. As set out in paragraphs 91 to 101 of the Decision Record, the Tribunal considered the Applicant’s claim to fear harm due to his illegal departure from Sri Lanka, and accepted that he may be charged under the Immigrants and Emigrants Act. However, again, having regard to country information, the Tribunal found that the Applicant would not be singled out or intentionally harmed by the authorities while he underwent processing resulting from his illegal departure or that any associated detention or the imposition of a fine would not amount to serious or significant harm for the purpose of the Act.

1. The Tribunal carried out a cumulative assessment of the Applicant’s claims, circumstances and the findings made by the Tribunal in respect thereto, both individually and cumulatively, and found that it was not satisfied the Applicant would suffer serious or significant harm in Sri Lanka for any of the reasons claimed. As such, the Tribunal was not satisfied that the Applicant met the refugee criterion in s.36(2)(a) or the alternative criterion in s.36(2)(aa) of the Act.

Consideration

1. The Applicant appeared as a litigant in person this day.  He initially sought that the hearing be adjourned.  That application was formally opposed by the First Respondent.  The application was refused by the Court.  The Applicant referred to correspondence from Legal Aid of 7 November 2018 to the effect that Legal Aid was unable to assist him in these proceedings. The Applicant did not produce such correspondence to the Court, and nor did the Applicant produce correspondence of any description as to his attempts to obtain legal assistance from any source, nor any responses thereto.  The Applicant has had a period in excess of 11 months since the filing of his application to obtain legal assistance. 

2. The Applicant stated that he wanted “more time”.  Following the refusal of the oral application for an adjournment, the Applicant made some limited submissions to the Court, none of which particularised his grounds of application.  What he really sought was merits review.  He indicated further that he needed more time to obtain his true birth certificate and more time to address dates and obtain legal documents.  He wished to go back to the Tribunal to “prove my [case]” and to “obtain further documents”.

3. Jurisdictional error in the Tribunal decision is not made out on any of the grounds as claimed by the Applicant. The decision of the Tribunal is not affected by an error of law. The Tribunal summarised accurately the relevant law and reproduced it in Attachment A to its decision. It considered the Applicant’s claims and evidence with reference to the applicable law and to relevant country information. The Tribunal made considered and very detailed findings against each and every of the Applicant’s claims and the integers relating thereto under both the refugee criterion and complementary protection criterion. There was no failure on the Tribunal’s part to properly consider the claims of the Applicant. The Applicant was given an opportunity by the Tribunal to interact with the Tribunal to respond to any of the concerns of the Tribunal about the evidence before it, and each of the findings made by the Tribunal were open to it on the basis of that evidence. There is nothing in the material to indicate that the Tribunal applied the wrong legal test.

4. To the extent that the Applicant complains that the decision of the Tribunal denied him procedural fairness, that ground cannot be made out. It is clear that the Tribunal complied with its procedural fairness obligations under Part 7, Division 4 of the Act. In particular, no breach of s.424A of the Act occurred. The Tribunal’s decision notes it had regard to adverse evidence given by the Applicant’s uncle as to the birth certificate, and this information was put to the Applicant pursuant to s.424A at the first Tribunal hearing. Accordingly, there was no requirement for the Tribunal to re-comply with the requirements of ss.424A or 424AA at the remitted hearing. [6]

   [6] SZEPZ v Minister for Immigration and Multicultural & Indigenous Affairs (2006) 159 FCR 291, 39-41.

5. The Applicant was invited to attend a hearing before it on 21 July 2017 in accordance with ss.425 and 425A of the Act. The Applicant attended that hearing and gave evidence and made arguments in relation to the issues in his case with the assistance of a Tamil interpreter. He was on notice from the delegate’s decision which was before the Tribunal that the credibility of his claims would be determinative on review and was likewise made so aware by virtue of the Tribunal’s questioning of the Applicant during the course of the hearing.[7]   

   [7] SZBEL v Minister for Immigration and Multicultural & Indigenous Affairs [2006] HCA 63.

6. Finally, there was no “information” that was required to be put to the Applicant in accordance with s.424A of the Act. The Tribunal’s decision, being based on the Applicant’s claims and the evidence before the Tribunal, fell within the exceptions to s.424A.

7. No jurisdictional error attending the decision of the Tribunal, the application is dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  30 November 2018