SZTAP v Minister for Immigration

[2017] FCCA 1510

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAP v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1510

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal failed to discern the Convention nexus – no jurisdictional error identified – application dismissed.

Legislation:

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

Prevention of Terrorism Act 1979 (Sri Lanka)

Applicant: SZTAP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1138 of 2016

Judgment of: Judge Street

Hearing date: 30 June 2017

Date of Last Submission: 30 June 2017

Delivered at: Sydney

Delivered on: 30 June 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms N Blake
Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1138 of 2016

SZTAP

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”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 April 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant claimed to fear harm by reason of his father’s suspected support for the LTTE and his mother’s alleged ongoing payment of bribes to the Criminal Investigation Division (“CID”) officers, who threatened to abduct the applicant if his mother did not hand over the applicant’s father and to avoid this, it was alleged, the mother paid bribes.

3. The applicant departed Sri Lanka unlawfully on 31 May 2012 and arrived in Australia on 20 June 2012 as an irregular maritime arrival. On 11 February 2013, the delegate declined to grant the applicant a protection visa and found that the applicant failed to meet the criteria under the Act for the grant of a visa. The applicant applied for review on 14 February 2013. A differently constituted Tribunal affirmed the decision of the delegate on 17 June 2013. On 9 December 2015, the Full Court of the Federal Court set aside that decision and sent it back to the current Tribunal to determine according to law.

The current Tribunal’s decision

1. The applicant was invited to attend a hearing by the current Tribunal on 11 April 2016, which the applicant attended to give evidence and present arguments.

Refugee assessment

1. The Tribunal identified the applicant’s background in relation to the application for review and set out the relevant law. The Tribunal identified the applicant’s claims and made reference to taking into account the evidence and submissions of the applicant and having regard to them. The Tribunal referred to the applicant’s claims that he was a Tamil Hindu from the North Western Province in Sri Lanka.

2. The Tribunal noted that the applicant did not claim to fear harm by reason of his religion in Sri Lanka. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in Sri Lanka for reasons of his religion in Sri Lanka or for coming from the village in the North Western Province where there was a Sinhalese community on one side.

The applicant’s father suspected support for the LTTE

1. The Tribunal asked the applicant about the applicant’s father’s travel and was told his father returns to the village about 10 times per year and has done that for the last 25 years. The applicant also asserted that the CID men came to visit his mother two or three times a year since 2006 until 2014, demanding money or the whereabouts of the applicant’s father. The Tribunal expressly raised with the applicant that his evidence in this regard may not be accepted as plausible. The Tribunal rejected as false the assertion that the applicant’s mother was subject to ongoing extortion attempts by the CID in his village in order to pressure her to reveal the father’s whereabouts.

2. The Tribunal was sufficiently satisfied the mother was not subject to ongoing extortion attempts for the reasons claimed by the applicant and found that the mother was not subject to ongoing extortion attempts for any reason. The Tribunal found that it was positively satisfied the mother was not subject to ongoing extortion for reasons claimed or at all. The Tribunal did not accept the father was suspected of being a supporter of the LTTE because, as the Tribunal explained, it was satisfied he would have been located in the six years prior to the applicant departing Sir Lanka.

3. The Tribunal made reference to the applicant’s fear of being abducted by men in white vans. The Tribunal identified the types of person who are at risk of abduction, which the Tribunal was satisfied was different to that of the profile of the applicant.

4. The Tribunal was satisfied the applicant did not have any political convictions that would give rise to any real chance that he would suffer harm in Sri Lanka. The Tribunal was not satisfied the applicant has a real chance of suffering harm in Sri Lanka for reasons of political convictions, or because of abductions by men in white vans.

Tamil ethnicity and from the north or west

1. The Tribunal was not satisfied the applicant’s father was seriously suspected of supporting the LTTE or, more importantly, that he was suspected of supporting the LTTE after the 2006 incident. The Tribunal was not satisfied in the present case the applicant would have a real chance of suffering persecution for reason of him being a Tamil male from Sri Lanka, a young Tamil male from the west of Sri Lanka, or as a Tamil suspected of supporting the LTTE, or Tamil separatism, or any other Convention reason. The Tribunal did not accept that the applicant has a real chance of persecution in Sri Lanka for any of the reasons discussed above.

Illegal departure from Sri Lanka

1. The Tribunal was not satisfied that the applicant was a person with a profile that would give rise to a real chance of suffering harm in Sri Lanka by being charged under the Prevention of Terrorism Act 1979 (Sri Lanka). The Tribunal was not satisfied that an essential and significant reason for any prosecution of the present applicant having breached Sri Lanka’s departure laws is for a Refugee Convention reason. The Tribunal was not satisfied the applicant has any profile that would bring him to the adverse attention of the authorities.

2. The Tribunal was not satisfied there is a real chance the present applicant would be subject to a custodial sentence in Sri Lanka, including for having exited unlawfully. The Tribunal did not accept the applicant has a real chance of suffering serious harm by reason of his illegal departure should he return to Sri Lanka.

3. The Tribunal was not satisfied there is a real chance the applicant suffered any harm in Sri Lanka for reason of being suspected of engaging in Tamil separatism, the LTTE or being supportive of the same.

Failed asylum seeker

1. The Tribunal did not accept that the applicant faces a real chance of suffering persecution in Sri Lanka by reason of being a failed asylum seeker.

Relocation

1. Notwithstanding these findings, the Tribunal also considered whether or not the applicant could safely relocate in Sri Lanka. Based on all the evidence, the Tribunal was satisfied the applicant can safely live with his father where his father lives and which the applicant acknowledged is the place of residence of many Tamil persons. The Tribunal found by so doing the applicant again would not have a real chance of suffering any serious harm in Sri Lanka.

2. The Tribunal noted that the applicant confirmed that other than his claimed safety issues, there would be nothing to prevent him from reasonably relocating in Sri Lanka. The Tribunal was satisfied that the applicant can safely and reasonably relocate within Sri Lanka.

3. Having considered the applicant’s claims cumulatively, the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Refugee Convention reason in Sri Lanka. The Tribunal was not satisfied the applicant is a person with respect to whom Australia has protection obligations under the Refugee Convention.

Complementary protection assessment

1. The Tribunal found that the applicant failed to meet the criterion under s.36(2)(aa) of the Act. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia there is a real risk of suffering significant harm if returned to Sri Lanka. The Tribunal found that the applicant failed to meet the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Proceedings before this Court

1. A Registrar of the Court made orders on 23 June 2016 giving the applicant an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

Grounds in the application

1. The grounds in the application were as follows:

   1. The AAT made a jurisdictional error in that it failed to discern Convention nexus.

   Particulars

   The AAT failed to discern a Convention nexus in that the Applicant claimed and the AAT accepted that Applicant's mother paid bribe to prevent Applicant being arrested. Paragraph 25 of the AAT decision.

   This implied that the Applicant was suspected, and therefore imputed with the LTTE connections.

2. At the commencement of hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, the Court was considering whether the Tribunal’s decision was unlawful or unfair.

3. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for a further hearing. The Court explained that if not satisfied that the Tribunal’s decision was unlawful or unfair, the application would be dismissed. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

Submissions from the bar table

1. From the bar table, the applicant maintained that the Tribunal had accepted that his mother was visited by the CID. The Tribunal’s finding do not reflect an acceptance of the applicant’s claims, and adverse credibility findings were made in that regard, which were open and cannot be said to lack an evident and intelligible justification. The applicant also said that whilst the Tribunal said that there was no problem if he went back, from what is now happening, he believes he would be in danger.

2. This Court does not have power to re-visit the merits of the matter or to make fresh findings of fact. Nothing said by the applicant from the bar table identified any jurisdictional error.

Consideration of the grounds

1. In relation to Ground 1, this is a case where the Tribunal made adverse credibility findings and rejected the applicant’s claims. This case did not turn on whether or not there was a Convention nexus. The Tribunal provided cogent and rational reasons for the adverse findings in relation to the applicant’s claims. On the face of the material before the Court the Tribunal complied with its statutory obligations in the conduct of the review.

2. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness. The Tribunal did not accept that the applicant would be imputed with having LTTE connections. The Tribunal gave detailed reasons in support of that adverse finding which was open on the material before the Tribunal. Nothing in Ground 1 identifies any jurisdictional error.

Conclusion

1. Accordingly, the application is dismissed.

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

Date: 31 July 2017