ATH15 v Minister for Immigration and Border Protection

Federal Court of Australia|2016-09-23|Before: White J

The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WHITE J: 1 The appellant is a Sri Lankan national who arrived in Australia by boat on 2 August 2012. His application for a protection visa was refused by a delegate of the Minister and that refusal was affirmed on review by the former Refugee Review Tribunal (the RRT). 2 The appellant then sought judicial review of the RRT decision in the Federal Circuit Court (the FCC), pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). His application was based on a single ground alleging error by the RRT in relation to the evidence concerning the harm that he would suffer if returned to Sri Lanka. The FCC Judge considered that the appellant was seeking, in effect, a review of the RRT decision having regard to the underlying merit of his claim for a protection visa, and that this was not a function of the FCC. Accordingly, he dismissed the application for the review: ATH15 v Minister for Immigration [2016] FCCA 837. 3 The appellant now appeals to this Court. He was unrepresented on the appeal, as he had been at the FCC hearing. 4 I am satisfied that the appellant's appeal should fail. The following are my reasons for that conclusion. 5 In the RRT, the appellant claimed to have a well-founded fear of persecution for a Convention ground for three reasons. First, he said that in the period between 2003 and 2012 he had had a sexual affair with the wife of a powerful criminal, to whom I will refer as "W", who had sworn revenge on him. Secondly, he feared recrimination and harm because of his membership and support of the United National Party (UNP) in the March 2011 election, having previously been a member and supporter of the Sri Lanka Freedom Party (SLFP). Thirdly, he said that he feared harm if returned to Sri Lanka by reason of his status as a failed asylum seeker. 6 The sole ground upon which the appellant sought judicial review in the FCC was as follows: The RRT erred in not giving consideration to the evidence provided by the Applicant to the effect that the Applicant will be harmed upon his return to his home country. The Applicant also provided evidence that the authorities of the Applicant's home country will arrest and detain the Applicant and torture and/or imprison him being a failed asylum seeker. The Tribunal has not given consideration to the evidence provided. Accordingly the Tribunal has erred as a matter of law. 7 In the RRT, the applicant's case was that his "main problem" related to W who had powerful connections. The RRT member considered that the vengeance which the appellant feared from W was a matter of personal revenge and did not attract Australia's obligations for protection under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention). 8 In relation to the appellant's claim of fear of persecution by reason of his political membership and activities, the RRT member considered that there had been a number of changes, variations and inconsistencies in the appellant's claims. She said that the "shifting accounts, new claims raised and dropped, as well as inconsistencies all raise[d] … concerns about the applicant's credibility". The member did not accept that there was a real chance that the applicant would be mistreated for reasons of his political opinion or membership. Further, having reviewed in some detail the evidence bearing upon the way in which those who have left Sri Lanka illegally are treated upon their return, the member did not accept that there was a real chance that the applicant would be mistreated because of his membership of a particular social group and, in particular, the group of failed asylum seekers. She reached a similar conclusion with respect to the applicant's claim for complementary protection under s 36(2)(aa) of the Migration Act. 9 As already noted, on the application for the review in the FCC, the FCC Judge considered that the appellant sought a fresh assessment as to whether he would be at a risk of real harm should he return to Sri Lanka. Understandably, the Judge regarded that assessment as being beyond the jurisdiction of the FCC on the application for judicial review. 10 The FCC Judge also rejected the claim of the appellant that the RRT had not considered the evidence bearing upon the risk of harm. Instead, the Judge considered that the RRT had considered in detail the evidence and the claims made by the appellant. 11 The appellant's notice of appeal to this Court contains six grounds. To a substantial extent (but not wholly) these grounds match the grounds in the notice of appeal filed by the applicant ARO15 in respect of whom I have also published reasons today: ARO15 v Minister for Immigration and Border Protection [2016] FCA 1154. As I pointed out in that decision, the grounds of appeal appear to have a "template" quality about them or, at the least, represent an undifferentiated amalgam of grounds gathered from other cases, without regard to the particular features of the decisions which have been made in relation to the appellant's claims. For the reasons which I gave in ARO15 v Minister for Immigration and Border Protection [2016] FCA 1154, the grounds also indicate that the appellant does not appreciate the role of this Court on an appeal of the present kind. Further still, the grounds go beyond the matters which the appellant raised on his application for judicial review in the FCC. 12 The difficulty for this Court is increased by the fact that the appellant did not file any outline of submissions. Nor did his oral submissions really address any of the grounds of appeal, let alone the basis upon which his application for judicial review was unsuccessful in the FCC. 13 Counsel for the Minister said that the Minister would not be prejudiced if the appellant were permitted to argue grounds which had not been agitated in the FCC and did not oppose leave being granted to him to do so. In these circumstances, I have thought that the most expedient course is to consider each of the grounds.

Ground 1 14 Ground 1 in the notice of appeal is in the following terms: The learned Judge failed to take into consideration that the decision of the Administrative Appeals Tribunal was rendered invalid by a jurisdictional error made by the Tribunal by and/or identified a wrong issue, asked a wrong question, relied on irrelevant material or ignored relevant material. 15 As I indicated in the reasons provided in relation to ARO15, this ground is an "unparticularised amalgam of potential grounds of judicial review". It does not identify any particular error by the FCC in relation to the appellant's application. However, as was the case with ARO15, because of the terms of the sole ground of review in the FCC, I will regard this ground as a complaint that the FCC Judge should have concluded that the RRT had not considered the evidence that the appellant would suffer significant harm upon return to Sri Lanka. 16 On that understanding, the ground cannot succeed. Although the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Act No. 135 of 2014) came into operation before the RRT decision, it was the Migration Act in its unamended form which applied in the applicant's case. The RRT's reasons indicate that the member did identify correctly the principles bearing upon the appellant's claim to fear harm by reason of his status as a failed asylum seeker, his political opinions and the prospect that W may seek to exact vengeance. The RRT member also identified appropriately the principles bearing upon the appellant's claim for complementary protection under s 36(2)(aa) of the Migration Act. 17 Having identified the appropriate principles, the RRT member then reviewed in some detail the evidence bearing upon the appellant's claim that he would suffer harm if returned to Sri Lanka. This included a review of the evidence given by the appellant concerning the vengeance he fears from W and his affiliates and the harm he fears from SLFP supporters. The RRT's review of the materials provided by the appellant in relation to these matters was comprehensive. The RRT member then reviewed the country information bearing upon the political situation in Sri Lanka and the situation of returned failed asylum seekers. One indication that the RRT member had not failed to consider all this material is indicated by the fact that some nine pages of the RRT's reasons are given over to this topic. 18 I will refer later to the RRT's assessment of the appellant's claim to fear harm at the hands of W. 19 In relation to the appellant's status as a failed asylum seeker, the RRT accepted that he would probably be charged with offences under the Immigrants and Emigrants Act of Sri Lanka relating to his illegal departure. The member concluded that the evidence indicated that the most likely penalty would be a fine, although the applicant may, immediately on his return, be remanded in custody for up to a fortnight until the charges are dealt with. 20 The Tribunal member accepted that those who are found to be organisers of the irregular migration of people from Sri Lanka are likely to suffer more severe penalties. However, she did not accept the applicant's assertion that he would be regarded as a people smuggler. The RRT member noted that this was inconsistent with the country information available, and that the appellant relied only on his ethnicity for this claim. 21 It was on this basis that the RRT member rejected this particular claim by the appellant for protection. Having regard to these matters, there is no reasonable basis upon which the FCC Judge could have upheld a complaint that the RRT decision concerning the harm he may suffer on his return to Sri Lanka involved jurisdictional error. Accordingly, Ground 1 of the appeal fails.

Ground 2 22 Ground 2 provides as follows: The learned Judge erred in not providing procedural fairness to present arguments and not finding that the interest of the Appellant is affected by the decision given by the Second Respondent on 17 April 2015. Particulars (a) The Respondents in particular the second Respondent failed to properly consider and apply the definition of Article 1A(2) of the Convention relating to the status of Refugees made at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees made at New York on 31 January 1967. The Respondents failed to consider that the Applicants claims to coincide with the Complementary protection criteria in which legislation representing protection against the refoulement which calls to provide protection to people who do not meet the refugee definition in the convention nonetheless face serious human right abuses if returned to the country of origin where their lives or freedom could be threatened. (b) The learned Judge's failure to take into consideration the applicant's request to present additional information and the immigration officers not allowing him to do so, at the time of the interview conducted by the Administrative Appeal Tribunal on the 6 February 2015 in order Appellant to affirm his fears, (sic) is affected by the decision given by the Second Respondent on 17 April 2015. The applicant is also disagree (sic) with the paragraph 9 of the "Reasons for Judgment" having allowed him to provide further opportunity to provide information to the Tribunal. The template nature of these grounds is indicated by the fact that the date 17 April 2015 is not the date of the RRT's decision in the appellant's case, rather it was 20 April 2015. 23 Ground 2(a) fails for the same reasons that the corresponding ground in the appeal of ARO15 failed. I incorporate my reasons contained in para 22 of the reasons in ARO15 into these reasons, save with respect to the paragraphs of the Tribunal's decision in that case to which I make reference. 24 Paragraph 2(b) is a complaint that the FCC Judge had failed to consider the appellant's request that he be permitted to obtain further information as to the harm he might suffer if returned to Sri Lanka. The FCC Judge noted the appellant's submission on this topic at [17], as follows: The applicant made brief oral submissions. He requested that I reconsider this matter on the basis of evidence that he could possibly obtain from people who have returned to Sri Lanka. He said that he had not had sufficient time to get that information from Sri Lanka. He submitted that he had received death threats when he was in Sri Lanka and this had not been properly considered. He complained that the Tribunal did not consider the implications for him should he be taken into police custody. He acknowledged that he had attended at the Tribunal hearing with a migration agent and that he had had an opportunity to give evidence. 25 The FCC Judge dealt with the submission in [21] of his reasons: The proper role of this Court is confined to a consideration of whether what the Tribunal did was within its power. It is for this reason that I cannot simply accede to the applicant's request made during his oral submissions to "reconsider" his matter. Nor can I engage in a process whereby the applicant makes further enquiries as to fresh evidential matters which might support his contention that he was at risk of harm should he return to Sri Lanka. That would also amount to an impermissible merits review. (Emphasis in the original) 26 As can be seen, the FCC Judge took the view that it was not for him to "reconsider" the appellant's application for a protection visa. He also declined the appellant's submission that he be permitted to seek out further information, noting that he could not, within the proper limits of the FCC's jurisdiction, consider that further material. In this respect, the FCC Judge was plainly correct: NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10], [15] and Sami v Minister for Immigration and Citizenship [2013] FCAFC 128 at [9]-[10]. 27 Ground 2(b) also contains a complaint about that part of the FCC Judge's reasons concerning the opportunity which the appellant had been given in the RRT to provide further evidence. In relation to that submission, the FCC Judge member said, at [9]: The Decision Record summarises the evidence given by the applicant as to his illicit affair and his fear of harm at the hands of [W] and his associates. It also considered the applicant's claims based on his involvement with the UNP and an incident in 2011 in which the windows of his home were apparently broken. The Tribunal member told the applicant and his representative of the concerns she had with respect to certain aspects of his claims. She allowed an adjournment for them to confer. It is apparent that the applicant and his representative addressed those concerns in some detail after the adjournment. There does not appear to have been any request made on behalf of the applicant for a further opportunity to address these concerns, or to provide further written information to the Tribunal. (Citations omitted) 28 The appellant did not adduce any material to indicate that he had not been given the opportunity to present further material or to answer the RRT member's concerns. It is pertinent to note in this respect that the appellant had the assistance of his migration agent at the appeal hearing. That agent had previously provided a detailed written submission to the RRT. It is noteworthy that the migration agent who assisted the appellant did not think it necessary to ask the Tribunal for an opportunity to provide further material. 29 Since the hearing, I have read the transcript of the proceedings in the FCC. I was not able to identify a basis on which it could be said that the FCC Judge denied the appellant procedural fairness. 30 For these reasons Ground 2 fails.

Ground 3 31 Ground 3 is in similar, but not identical, terms to Ground 3 in the case of ARO15, but it does not include the last three lines of ARO15's Ground 3. It fails for the same reasons which I gave in relation to the corresponding ground of appeal by ARO15, and I incorporate my reasons from that judgment into these reasons.

Ground 4 32 Ground 4 is similar, but not identical, to Ground 4 in the notice of appeal in ARO15. Ground 4 in the appellant's case provides: The second respondent acted without or unessential (sic) of jurisdiction and/or identified wrong issues, asked wrong questions, relied on irrelevant material or ignored relevant material. Particulars (a) The Second Respondent failed to analyse the Appellants express claim that he was at risk of persecution because of his political opinion and his particular social group - failed asylum seeker. He further did not consider the individual's country situation, social behaviour and rules but which are entirely different to Australia when someone is victimised due to personal bitterness (they are unwritten but known). (b) The Second Respondent rejected the Appellant claims in relation to failed asylum seeker taking into account the external report including media and DFAT than the legislation. By failing to apply the legislation not analysing actual circumstances, the Second Respondent made a jurisdictional error by not considering the significant harm that would give rise to the Complementary Protection Criteria being unable to guarantee people who do not meet the refugee definition but who nonetheless face serious human right abuses if they were sent. 33 The word "unessential" in the first line of this Ground should likely be "in excess". 34 Subparagraph (a) appears to be a complaint that the FCC Judge failed to recognise that the RRT had not analysed properly the three bases upon which he had made his claim for protection. 35 As this contention was not made in the FCC, it is understandable that the FCC Judge did not deal with it directly. However, the detailed reasons of the RRT belie the assertions implicit in this ground. Contrary to the appellant's claim, the RRT's reasons indicate that the member did examine, in some detail, the appellant's "express claim" that he was at risk of persecution for the three reasons identified earlier in these reasons, and had accordingly engaged with the claims in the requisite manner: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 75 ALD 630 at [45]-[47]; and Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145, (2010) 190 FCR 248 at [57]-[65]. 36 Ground 4(b) seems to be a complaint about the significance which the RRT attached to the country information and the other material bearing upon the way in which failed asylum seekers returning to Sri Lanka are treated. The appellant's oral submissions did not identify any error by the RRT in this respect. On the contrary, the RRT's reasons indicate that the member did engage with the particular claims which the appellant made. As I will indicate in relation to Ground 6, the RRT member did engage directly with the appellant's claim that he was at risk of significant harm from W if returned to Sri Lanka. 37 Accordingly, Ground 4 fails.

Ground 5 38 Ground 5 contains a complaint of a denial of natural justice. It provides: The Applicants were denied natural justice. Particulars (a) The Respondents in particular the Second Respondent questioned the Appellant in a fashion that implying in regularly (sic) that he was not a credible witness and therefore preventing the Appellant in putting forward his case. Applicant also claims that he was prevented when asked the opportunity (sic) to provide additional evidence. (b) The Second Respondent has given undue weight in finding the time of country information in general (sic) rather than analysing information relevant to the individual's circumstance which has a definite risk of harm to the Applicant. 39 Again, although not exactly identical, Ground 5 matches in substance Ground 5 in the notice of appeal in ARO15. Although there was no adjournment of the RRT hearing in this case, I consider that this ground fails for the same reasons which I gave in the case of ARO15. 40 I add that on the hearing of the appeal, the appellant did not seek to adduce any additional evidence or make any submission in support of this particular complaint.

Ground 6 41 Ground 6 provides: The Second Respondent failed to review and consider the Application for protection as per the Migration Act and the Complementary Protection Criteria. Particulars (a) The Appellant claims risk of revenge which is well known (unaccepted by the Tribunal and DIBP within their jurisdiction) is also threat to his life and freedom. As the UNHR have noted there is no universally accepted definition of persecution but this will include threat to life or freedom to live a peaceful life. (b) Section 417 mechanisms [are] appropriate for purely humanitarian and compassionate cases but not for those engaging in Australia's Non Refoulement. 42 Ground 6(a) appears to be a complaint that the RRT had not had sufficient regard to the risk of vengeance by W which the appellant faces if returned to Sri Lanka. 43 The RRT did deal with this issue. As already noted, it considered that the harm which the appellant feared from W was a matter of personal revenge and, accordingly, did not attract Australia's obligations for protection under the Refugees Convention. However, in relation to the claim for complementary protection, the RRT considered in some detail the harm which the appellant feared from W. As previously noted, the RRT considered that the shifting accounts, new claims raised and dropped, and inconsistencies raised doubts about the appellant's credibility. Specifically, the Tribunal found: [142] While the Tribunal considers it plausible that the applicant did have an extra marital affair and did receive threats of revenge, on his own evidence, the threats to his life were six years apart (notwithstanding the raised and dropped incidents of 2006) and nothing happened during that time. I do not accept that there have been ongoing telephone threats or threats to the applicant's family. [143] Given my concerns about the applicant's credibility and the evidence provided, I am not satisfied that there is a real risk of significant harm occurring to the applicant from [W] or his relatives. 44 As previously indicated, the assessment of evidence, and the weight to be attached to particular items of evidence, were matters for the RRT. I have not been able to identify any element of illogicality or irrationality in the RRT's approach. For this reason, Ground 6(a) is not made out. 45 Ground 6(b), which refers to s 417 of the Migration Act, does not raise a ground of judicial review. Section 417 permits the Minister to substitute a decision which is more favourable to the applicant than that of the RRT when the Minister considers that it is in the public interest to do so. Plainly, that is a matter for the Minister to consider and not for this Court on an appeal against a decision by the FCC, under s 476 of the Migration Act.

Summary 46 As noted at the commencement, most of the grounds of appeal in the appellant's notice of appeal are pitched at a very general level without any attempt to relate them to the particular circumstances of the appellant's case. Many were not argued in the FCC. In my opinion, none of the grounds identify a basis upon which the FCC could have found jurisdictional error by the Tribunal in the appellant's case. No basis upon which this Court should set aside the FCC decision has been shown. 47 Accordingly, the appeal is dismissed. 48 I will hear the parties as to costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.

Migration Act 1958(Cth)ss 36(2)(aa), 417, 476

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