Wzatc v Minister for Immigration

[2019] FCCA 3028

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZATC v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3028

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal appropriately addressed the applicant’s fear of harm for being a returning failed Tamil asylum seeker – whether the Tribunal misconstrued or misapplied the relevant test – Tribunal’s reasons must be read as a whole – no jurisdictional error made out – amended application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 424AA, 476, 477

Applicant: WZATC

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 203 of 2013

Judgment of: Judge Street

Hearing date: 22 October 2019

Date of Last Submission: 22 October 2019

Delivered at: Perth

Delivered on: 22 October 2019

REPRESENTATION

Counsel for the Applicant: Mr S Walker
Direct basis

Solicitors for the Respondents: Mr A Gerrard
Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

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

DATE OF ORDER: 22 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 203 of 2013

WZATC

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 Refugee Review Tribunal (“the Tribunal”) made on 19 April 2013 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) Visa.

2. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. On 10 January 2012, the applicant lodged an application for a tourist visa for Australia which was refused on 13 January 2012. The applicant departed Sri Lanka by boat in May 2012 and arrived in Australia by boat and was transferred to Christmas Island on 18 May 2012. The applicant lodged an application for protection on 24 August 2012.

3. The applicant claimed to fear harm by reason of his family’s connection with the Liberation Tigers of Tamil Eelam (“LTTE”) and alleged harassment by the Sri Lankan Authorities and the Criminal Investigation Department (“CID”). The applicant also claimed to fear harm by reason of being an illegal departee and a failed asylum seeker. On 23 October 2012, a delegate found the applicant failed to meet the criteria for the grant of a protection visa.

4. The applicant applied to the Tribunal for review on 26 October 2012. By letter dated 21 November 2012, the applicant was invited to and attended a hearing before the Tribunal to give evidence and present arguments on 21 December 2012.

5. The Tribunal in its reasons identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims and summarised what occurred at the hearing before the Tribunal, in which the Tribunal raised with the applicant the issues in respect of the applicant’s claims concerning the LTTE. The applicant confirmed he had never been a member of the LTTE nor has he been involved in any anti-government activities. The applicant also confirmed that his father and brother, who the applicant at one stage said were missing, had not told him that they were involved in the LTTE.

6. The Tribunal in its reasons identified exploring with the applicant, under s 424AA of the Act, information that impacted on the assessment of the applicant’s claims. The Tribunal addressed the country information including the country information in relation to Tamils who are returned to Sri Lanka.

7. The Tribunal identified having found significant aspects of the applicant’s evidence to be vague and lacking in detail. The Tribunal found the applicant’s evidence at times to be confused and that the applicant evaded answering direct questions. The Tribunal found that the applicant, by his own admission, had lied or misrepresented the facts of his case, such as the claimed disappearance of his brother and the claimed taking by the CID of his brother. The Tribunal regarded the applicant’s evidence as unreliable and found critical aspects not to be credible.

8. The Tribunal referred to the applicant’s claims that he was on antidepressant medication and found the lack of the applicant’s credibility on important components of his evidence was not a result of his medication or claimed depression or any incapacity, but rather was due to an intention on the part of the applicant to bolster the prospects of a favourable migration outcome.

9. The Tribunal found that the applicant’s claims in relation to his father’s involvement in the LTTE was especially vague, lacking in detail and confused.

10. The Tribunal was prepared to give the applicant the benefit of the doubt and accepted that his father may have been perceived as associated with the LTTE, in part because of his father’s fishing activities. The Tribunal also accepted that the applicant reported to the Police Station as he was requested to do so and that he was questioned about his father for about one hour, and then he was questioned a second time a month later. The Tribunal found based on the applicant’s description of the questioning and the fact his mother was also present on one occasion that the applicant was not seriously harmed as a result of the questioning by the authorities.

11. The Tribunal did not accept the applicant’s claims that the applicant and his mother found it necessary to confine themselves to the house or not go anywhere for the next eight to nine months after being questioned by the authorities. The Tribunal observed that if the applicant had, in fact, feared harm by the CID as claimed, one would have expected the most obvious place where the CID would look for the applicant would have been his home during this period. The Tribunal did not accept the applicant’s claim that after his mother relocated house their former neighbours reported that the CID had been around to their former home and asked the applicant’s whereabouts. The Tribunal took into account that the applicant, after the two interviews, had been released and found that the applicant was of no further interest to the police or to the police inquiries. The Tribunal found that the applicant would not continue to be perceived as a person with LTTE sympathies having already been interviewed and questioned by the police. The Tribunal did not accept that the Sri Lankan authorities were searching for the applicant.

12. The Tribunal did not accept that the father’s disappearance, if in fact he had disappeared, is related to any claimed LTTE association. The Tribunal referred to the applicant’s claims that his brother disappeared and found that claim to be untrue. The Tribunal found that neither the applicant nor his immediate family face a real chance of targeting for serious harm for a Convention ground now or in the reasonably foreseeable future.

13. The Tribunal was not satisfied the authorities were searching for the applicant or that the applicant would be detained because of suspected association with the LTTE for an actual or imputed political opinion resulting from such an association, or from any Convention ground, upon arrival in Sri Lanka. The Tribunal was not satisfied that the applicant faces a real chance of serious harm, or a real risk of significant harm, arising from a property dispute. The Tribunal was not satisfied the applicant faces a real chance of ongoing questioning because of his father’s claimed LTTE connections.

14. Having regard to all the country information and the applicant’s circumstances, the Tribunal found there is not a real chance the applicant will be targeted for harm by the CID, or by any other authority or individual, should he return to Sri Lanka now or in the reasonably foreseeable future.

15. The Tribunal referred to the applicant being a failed asylum seeker. The Tribunal identified country information identifying that Tamils returning and Sri Lankans are subject to the same entry procedures as any other citizen of Sri Lanka.

16. The Tribunal identified other country information concerning persons who have a particular profile and concluded the applicant does not have such a profile and that the applicant did not have a profile that would cause him to be of interest to the relevant authorities.

17. The Tribunal accepted that the applicant departed in breach of the Immigrants and Emigrants Act 1949 (Sri Lanka) and may be detained, questioned and possibly charged with offences under the law. The Tribunal found that the legislation is of general application. The Tribunal was not satisfied that enforcement of penalty provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka) is applied in a discriminatory manner or that it intentionally impacts, disproportionately or unfairly, on any particular social group or any particular group in Sri Lanka.

18. The Tribunal accepted the applicant may be questioned upon return to Sri Lanka and that he may even be charged with an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka). The Tribunal referred to the process that the applicant would be exposed to and was satisfied the most likely penalty that will be imposed is a fine.

19. Having regard to all the circumstances, the Tribunal found that it was not satisfied the applicant faces a real chance of serious harm, as that term was defined in s 91R of the Act, should the applicant return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal found the applicant did not have a well-founded fear of persecution.

20. The Tribunal referred to the requirements in relation to complementary protection and referred to the process the applicant may be exposed to upon return to Sri Lanka and that he could be confined in poor prison conditions. The Tribunal did not accept that the imprisonment conditions amounts to significant harm. The Tribunal found that the applicant does not face a real risk of suffering serious harm as defined in s 36(2A) of the Act.

21. The Tribunal found 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 the applicant would suffer significant harm.

22. The Tribunal found the applicant failed to meet the criteria in s 36(2)(a) of the Act. The Tribunal found the applicant failed to meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. The history of these proceedings is unfortunate and unsatisfactory. The proceedings were commenced on 6 August 2013, and the matter, in terms of the filing of documents, is in a paper system file. Regrettably, it appears that a hearing took place before another judge of the Court, on the face of the Court file, over four days on 1 May 2015, 6 May 2015, 29 May 2015 and 28 July 2015. That Judge reserved the decision on the assumption that there was no issue in respect of an extension of time.

2. The delay that then took place is most unfortunate and there are a combination of factors that have impact in that regard, including what appears to be adjournments in respect of this particular matter awaiting particular decision outcomes. However, that delay is very much to be regretted. Once it became apparent that there was a need for an extension of time the Judge took steps to have the matter referred to another Judge of this Court and orders were made facilitating the determination of the extension of time application under s 477(2) of the Act.

3. The Court has looked at the transcript and it is apparent that no party or Court raised the issue under s 477 of the Act. The matter came before this Court on 4 October 2019 and this Court extended time under s 477 of the Act given the circumstances that had taken place, as well as taking into account the explanation advanced in respect of the application advanced under s 477 of the Act.

The grounds

1. The matter was fixed for a final hearing today and Mr Walker of counsel on behalf of the applicant has confirmed that ground 3 of the amended application filed on 11 October 2019, in substance, reflecting the amended grounds handed up on 15 May 2015, is not pressed.

2. The two grounds in the amended application are as follows:

   1. The decision of the Tribunal was affected by jurisdictional error as a consequence of is failing to understand and apply correctly the test to be applied in determining whether treatment under a law of general application amounts to persecution, in that it failed to ask itself at the threshold whether there was a discriminatory treatment of Tamil returnees or failed asylum seekers under the Sri Lankan Immigration and Emigration Act.

   2. The decision of the Tribunal was affected by jurisdictional error as a consequence of it asking itself a wrong question, namely whether the Sri Lankan Immigration and Emigration act intentionally impacts disproportionately or unfairly on any particular group in Sri Lanka.

Ground 1

1. In relation to ground 1, Mr Walker relied upon written submissions that, in fact, addressed the two grounds together and which contended that the Tribunal had failed to appropriately address the applicant’s fear of discriminatory treatment by reason of being a returned failed Tamil asylum seeker.

2. It is apparent from the Tribunal’s reasons that the Tribunal expressly considered the applicant’s claim to fear harm as a failed Tamil asylum seeker. The Tribunal made adverse findings that were open. On the country information, the Tribunal found that the legislation was a law of general application, and that the penalties and enforcement of the legislation was not applied in a discriminatory manner, or disproportionately or unfairly.

3. Mr Walker referred to the country information before the Tribunal and identified that a different finding might have been made by the Tribunal in relation to the application of that law. That was not the finding made. Mr Walker contended that the Tribunal must have incorrectly understood the question to be addressed in determining whether or not the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) amounted to discriminatory treatment of the applicant.

4. As skilfully as those submissions were advanced, they were, in reality, an invitation to this Court to engage in impermissible merits review. The Court does not accept that the Tribunal misunderstood the question that had to be addressed in relation to the Refugee Convention or in relation to complementary protection. The Tribunal’s adverse findings in relation to the applicant’s claimed fear of harm in respect of being a failed Tamil asylum seeker in the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) does not identify any jurisdictional error. That is because the adverse findings by the Tribunal were open. On the face of the material before the Court, the Tribunal correctly identified the relevant law in the context of the making of those adverse findings.

5. The contention in the submissions that the Tribunal misdirected itself somehow because of the reference to the legislation being of general application is without content. It was appropriate and relevant for the Tribunal to take into account whether the relevant legislation is a law of general application as that impacts on whether or not the requirements of the Refugee Convention can be made out.

6. The submissions advanced that there was an assumption able to be extracted from the Tribunal’s reasons that the Tribunal concluded that the applicant would suffer discriminatory treatment upon return to Sri Lanka. No such assumption is made out on the face of the Tribunal’s reasons. The Tribunal’s reasons must be read as a whole and without a keen eye for error. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Walker focused upon the reference to the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) in consideration of whether or not the applicant met the criteria under the Refugee Convention. Mr Walker submitted that the reference to whether the law is applied in a discriminatory manner or that it intentionally impacts, disproportionately or unfairly, on any particular social group or any particular group in Sri Lanka reflects a misconstruction of the relevant test.

2. Mr Walker submitted that the Tribunal had asked itself the question whether the law intentionally impacts, disproportionately or unfairly, and that this was the wrong question and that the right question was whether there is, in fact, a disproportionate or unfair impact, and that such impact need not be intentional, whether it may be wholly or partly a result of conscious prejudice. Mr Walker submitted that the correct approach was to, first, ask whether the law in fact applied in a discriminatory manner and contended that the Tribunal did not ask this expressly, and that it was open to conclude that the Tribunal failed to understand and apply an important threshold step and, accordingly, had committed jurisdictional error.

3. As identified above, the Tribunal correctly identified the relevant law in relation to the Refugee Convention, as well as the reference to serious harm in s 91R of the Act, in respect of the step involved in the applicant fearing persecution. Further, the Tribunal correctly identified the third step that the applicant’s fears must be for one or more of the reasons in the Convention and that the fourth step requires evaluation of whether the applicant’s fear of persecution is a well-founded fear.

4. A fair reading of the Tribunal’s reasons does not reflect any misapplication of those tests in relation to the applicant’s claimed fear of harm as a consequence of the application of the Immigrants and Emigrants Act 1949 (Sri Lanka). Further, the finding made by the Tribunal that it was a law of general application and is not applied in a discriminatory manner was, of itself, a sufficient and correct independent finding that means the applicant failed to meet the criteria of the Convention in respect of the applicant’s fears arising from the application of the Immigrants and Emigrants Act 1949 (Sri Lanka).

5. The reference to that it intentionally impacts, disproportionately or unfairly, on any particular social group or group in Sri Lanka, even if it were to be said to be the subject of any error, is not in these circumstances a jurisdictional error. Further, the Court does not accept that the use of the reference to “intentional” gives rise to any error by the Tribunal. No jurisdictional error as alleged in ground 2 is made out.

6. In these circumstances, the amended application fails to make out any jurisdictional error. Accordingly, the amended application is dismissed

Costs

1. The Court notes that Mr Gerrard sought either the full scale amount as at today or the scale amount as at the commencement. The Court has earlier indicated in other similar matters a preference where there has been delay for the earlier scale to be applied in respect of the first respondent. Given the first respondent’s role as a model litigant, the delay in the present case is not overall capable of being said to be one which the parties are responsible for, albeit steps in the proceedings and other decisions of higher courts have had some impact, as well as the opportunity for pro bono assistance being given to the applicant.

2. The delay, however, is unacceptable and it is at least in part referable to the absence of either party picking up that the matter was one which required an extension of time. The first respondent as a model litigant is held to high standards and whilst both parties may have failed to identify the same, the Court considers that the history of the proceedings in the circumstances of the present case justify marginally reducing the costs in the discretion of the Court to the amount identified.

I certify that the preceding forty-one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 22 October 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 28 November 2019