CIC15 v Minister for Immigration & Anor [2017] FCCA 2825 (26 October 2017)

Last Updated: 20 November 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIC15 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 2825

Catchwords: MIGRATION – Protection visa – no jurisdictional error apparent – application dismissed.

Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(c)

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant:

CIC15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 2463 of 2015

Judgment of:

Judge McNab

Hearing date:

26 October 2017

Date of Last Submission:

26 October 2017

Delivered at:

Melbourne

Delivered on:

26 October 2017

REPRESENTATION

The Applicant in person

Counsel for the Respondent:

Mr Brown

Solicitors for the Respondent:

The Australian Government Solicitor

ORDERS

(1) The application filed 5 November 2015 be dismissed.
(2) The Applicant pay the First Respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE

MLG 2463 of 2015

CIC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 5 November 2015, the applicant seeks to review the decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 15 October 2015 not to grant the applicant a Protection visa. The decision upheld a decision of the delegate not to grant the applicant a Protection visa. This application has been on foot for almost two years. Other than appearing at a directions hearing on 13 April 2016 to set a timetable, the applicant has not engaged with this proceeding. Orders were made on 13 April 2016 which required the applicant to file any submissions that he wished to make, however nothing has been filed.
2. The applicant appeared at the hearing with the assistance of a Tamil interpreter. When asked to raise any issues that he wished to put in relation to his application, he raised that:
   1. the situation for people thought to be involved in people smuggling had gotten worse in Sri Lanka;
   2. people had been, in his words, ‘dobbing on him’ in Sri Lanka and that this was creating an issue for him in Sri Lanka; and
   100. he had difficulty putting submissions or arguments before the Court at the hearing on the grounds that he was affected by a health condition. No evidence has been placed before the Court to support any claim that he is suffering from a health condition.
3. The grounds of review in the application are:
   • 1. The decision of the Tribunal:
     • (a) is affected by an error of law; and
     • (b) denied the applicant procedural fairness.
   • 2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

The Tribunal decision

4. The applicant appeared at the hearing before the Tribunal on 17 September 2015 and was assisted by an interpreter and a migration agent. The decision of the Tribunal at paragraph [11] reproduces the statutory declaration that had been made by the applicant on 31 October 2012 in support of his application for a Protection visa application. In substance, he claimed that whilst in Sri Lanka, he had driven a neighbour around at night in a tuktuk, and he realised the neighbour was engaged in rounding up clients for a people smuggler to transport those people out of Sri Lanka. He said that when two CID officers came looking for him, he got scared and went to stay with his uncle away from the local district and then obtained a passage on a boat to Australia.
5. The Tribunal rejected the claims made by the applicant in relation to his involvement in people smuggling and did so at length in its decision. The reasons for the Tribunal’s rejection of the claims are accurately summarised in the submissions filed on behalf of the Minister at paragraph [9]:
   • The Tribunal rejected the applicant’s core claims about having been associated with a neighbour who was involved in people smuggling for credibility reasons, finding a number of inconsistencies between what he had said in his visa application, when interviewed by the delegate, and at the Tribunal hearing.
     • 9.1 In his statutory declaration the applicant claimed to have driven his neighbour around in a tuk tuk for “around a month in April-May”, whereas at the Tribunal hearing he claimed to have done so for a period of two months, up until a few days before leaving Sri Lanka on 28 June 2012.
     • 9.2 In his statutory declaration the applicant claimed to have been paid 400 rupees a night by his neighbour, which the applicant then gave to the tuk tuk owner, whereas at the Tribunal hearing he claimed to have been paid anywhere between 400 and 750 rupees per night.
     • 9.3 At the Tribunal hearing the applicant claimed that when he spoke to his neighbour about whether the was involved in people smuggling his neighbour neither admitted nor denied such an involvement, whereas in his statutory declaration the applicant stated that his neighbour told him that he was gathering people for someone else who was organising the boats.
     • 9.4 In his statutory declaration the applicant stated that he continued to drive his neighbour for a week after he “knew what he was doing was wrong, and I could get in trouble for helping him, but he was pestering me”, whereas at the Tribunal hearing the applicant claimed to have only driven him another two or three times over a two week period because his neighbour only had one leg, and there was no-one else to take him.
     • 9.5 In the delegate’s decision the applicant was recorded as stating that CID officers went to his neighbour’s house and asked his wife about the whereabouts of her husband, whereas at the Tribunal hearing the applicant said that they had not identified themselves as CID.
6. The Tribunal found that the evidence that was given by the applicant when he appeared before the Tribunal was at odds in significant ways with the written account that he had given in his statutory declaration made on 31 October 2012.
7. The Tribunal also considered country information and, in particular, whether the applicant, as a Muslim, would suffer a real chance of serious harm by reason of his Muslim religion or as a Tamil-speaking Muslim at paragraphs [24] to [26] of the decision. After considering the country information and setting it out in detail in the decision, the Tribunal found at [36] that the applicant has not been subjected to any harm in the past because of his religious identity, either as a Muslim or as a Tamil speaking Muslim, and stated:
   • On the basis of the independent information cited above, as well as the applicant’s own experiences in Sri Lanka, the Tribunal does not accept that the applicant faces a real chance of persecution by reason of his Muslim religion, or as Tamil speaking Muslim.
8. The Tribunal also considered the applicant’s illegal departure from Sri Lanka and found that the applicant would have a law of general application apply to him on his return to Sri Lanka on a non-selective basis, which would not amount to persecution under s.91R(1)(c) of the Migration Act 1958. It reached that conclusion at paragraph [41] of its decision.
9. The Tribunal considered the applicant’s position as a failed asylum seeker, but found that the applicant did not have a profile that would cause him to be of particular interest to the authorities at paragraph [44].
10. The Tribunal found that as it did not accept the applicant’s claims regarding his activities, the Tribunal did not accept that the applicant has been of any interest to the authorities in the past, or that he would be of any interest to them for this reason on his return to Sri Lanka at
11. At paragraphs [46] to [53], the Tribunal considered the complimentary protection provisions of the Act and concluded that those provisions were not engaged.
12. The Tribunal found that whilst prison conditions in Sri Lanka are poor, there was no intention on the part of Sri Lankan authorities to cause the applicant suffering which would give rise to protection obligations under the complimentary protection provisions of s.36(2)(aa) of the Act, having regard to the recent decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.
13. No jurisdictional error is apparent in the approach taken by the Tribunal in considering the claims raised by the applicant or in the Tribunal’s findings.
14. In respect of the ground that the applicant was denied procedural fairness, the applicant appeared at the hearing on 17 September 2015 assisted by an interpreter and a migration agent. No evidence or submission has been placed before the Court to support a finding that there has been any failure to accord procedural fairness to the applicant.
15. Otherwise the matters raised by the applicant at the hearing before the Court in relation to his view of the current treatment of people smugglers in Sri Lanka does not affect the decision made by the Tribunal.
16. For those reasons I dismiss the application and I order that the applicant pay the first respondent’s costs fixed in the sum of $6,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 17 November 2017