ABM15 v Minister for Immigration

[2017] FCCA 68

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABM15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 68

Catchwords:
MIGRATION – Citizen of Sri Lanka – application for protection visa refused by Refugee Review Tribunal – claim of well-founded fear of persecution on ground of political opinion – challenge to credibility findings – logical and probative basis for findings – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 477.

Cases cited:

Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 74 ALJR 405

CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146
ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174

Applicant: ABM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 65 of 2015

Judgment of: Judge Young

Hearing date: 15 September 2016

Date of Last Submission: 15 September 2016

Delivered at: Darwin

Delivered on: 18 January 2017

REPRESENTATION

The Applicant (via videolink): In person

Counsel for the Respondents (via videolink): Mr Tredrea

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Time is extended for the making of the application to the date of the application.

2. The application filed 27 May 2015 be dismissed.

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 65 of 2015

ABM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), to affirm the decision of the Minister’s delegate not to grant a protection visa.

2. The decision of the Tribunal was made on 6 January 2015. The applicant applied to this court on 27 February 2015. Section 477(1) of the Migration Act 1958 required the applicant to apply to this court within 35 days of the decision, that is, by 10 February 2015. His application is 17 days late. He seeks an extension of time.

3. The applicant has not filed any affidavit material but his application to the court sets out his grounds of application for extension of time as follows: he had no legal representation “until” (sic) his matter was heard in the Tribunal, he was unaware of his review rights after the decision of the Tribunal, he was unaware of the relevant time limits, he did not receive notification of the refusal and the first respondent has not suffered any prejudice as a result of the delay.

4. The application set out a single ground of review:

   Refugee Review Tribunal failed to give weight/consideration to the evidence of significant harm that the Applicant may be subject to or faced with upon his return to his home country. The tribunal erred in failing to appreciate or assess that the Applicant would suffer significant harm in his home country. Accordingly the tribunal erred as a matter of law.

5. The matter was listed for hearing before another judge on 19 August 2015. Prior to that date, the parties jointly requested that judge to vacate the hearing date pending the decision in another case that was thought to have bearing on the outcome. The applicant apparently lived in the community in the interim. The matter was ultimately relisted before me on 15 September 2016.

Background

1. The applicant is a citizen of Sri Lanka. He is an ethnic Tamil and a Catholic. He is 32 years old. He left Sri Lanka by boat in June 2012 and arrived at Christmas Island about 19 days later on 15 July 2012.

2. In his entry interview conducted on 5 August 2012 the applicant was asked why he left Sri Lanka. He replied, through an interpreter, “I have family responsibilities and agriculture work and had losses”. He was asked “What sort of losses?” And replied “Agriculture was always a loss, I haven’t seen anyone making money, I made losses”. He was then asked why that meant he had to leave Sri Lanka and he replied “Whatever job I tried, it was always going on loss, so I decided to leave the country, I have spent (sic) without taking meals”.

3. Later in the interview the applicant said that in 2005 the husband of his wife’s sister had been arrested, detained for three months, released and subsequently murdered, impliedly by the Sri Lankan police or army. He said the army later, in 2007, came searching for him on the basis of wrong information that he was close to the man who had been killed. He said he avoided apprehension by changing locations. He said that in 2007 or 2008 his sister-in-law was arrested and detained for seven months after the authorities came and searched the place and mistreated people. The applicant was asked whether there were any reasons since then that forced him to leave Sri Lanka. He stated that he had no means of living, that he had borrowed money and was being pursued by the lenders. He said he and his family had nothing to eat and he had mortgaged his land.

4. The applicant also said he was “hammered” (i.e. assaulted) and injured on election day in 2011 by a group because he was involved in the movement to bring electricity to his home village of Paripadu. He was asked which party he was part of and he said “The ruling party, and within the ruling party different groups are there”. He was asked which group he was in and replied “Janatha Vimukthi Peramuna”.

5. On 16 October 2012 the applicant made a statutory declaration in support of his application for a protection visa. He said he was born in Paripadu village, Udappu area, Chillaw district in Sri Lanka. He said that the Sri Lankan authorities suspected persons originating from his home area of Udappu of being linked to the LTTE (Liberation Tigers of Tamil Eelam). He referred to the arrest and murder of his sister-in-law’s husband in “2007” by persons whom he suspected were CID (presumably meaning “Criminal Investigation Department”) officials. He said that after his death the CID frequently came in search of him because he had been “close to” the dead man but he avoided them by moving between the houses of various relatives.

6. He said that in 2011 a UNP (the meaning of the acronym was not given) member of parliament named Lukshman came to the area where he was living canvassing for local elections. The applicant said that as he spoke Sinhalese he spoke to the UNP “minister” (the member of parliament) and told him that the area had not been provided with electricity by the government. He said the UNP minister took:

   immediate action by installing a concrete pillar (for the purpose of providing electricity) which was a clear indication to all of us that this minister would keep his election promise if we voted for him and the UNP.

7. The applicant said that although Lukshman did not win the local election the election promise was fulfilled by the “new minister” who was from the ruling party, SLFP (Sri Lankan Freedom Party). On the day of the election in July 2011 a group of SLFP supporters associated with the SLFP candidate, Irshad, attacked the applicant when he was travelling in his auto rickshaw. He said he was severely beaten and was lucky to escape death. He said while he was recovering in hospital Irshad and his men destroyed part of his house and his family were terrified. He said he was assaulted and threatened by Irshad and his supporters many times after this until he fled Sri Lanka in June 2012.

8. The applicant explained the reason for his targeting by Irshad and his men in the following way:

   21.    Due to this problem I rarely went out of my house as I feared Irshad and his men would seriously harm me. I was able to obtain electricity to the Paripadu area by speaking to the local UNP member of parliament. I believe Irshad wished to benefit from the situation in Paripadu as the area did not have access to electricity. No sooner electricity issue (sic) was partly solved Irshad was not able to use a situation to make an election promise.

   22.    As the UNP member reacted immediately upon request made by me Irshad was and continues to remain furious as he blames me for losing the local elections.

9. The applicant said that he feared arrest by the CID for reason of his Tamil ethnicity and imputed political opinion (support for the LTTE). He said he also feared harm from Irshad and his supporters for the reasons described.

Delegate’s reasons

1. The Minister’s delegate refused the application for a protection visa on 10 October 2013. She accepted the applicant’s claims about the abduction and killing of his sister-in-law’s husband and that the CID searched for him for a period. She said the applicant had been consistent in his claims and the claim was consistent with independent reports of the situation in Sri Lanka at the time.

2. However, the delegate otherwise doubted the applicant’s credibility. She was concerned that the claims made by the applicant in his entry interview about economic hardship being a reason for leaving Sri Lanka were inconsistent with later claims based on a claimed well-founded fear of persecution. She accepted that the applicant may have had some involvement with the UNP during July 2011 local elections but did not accept that he was involved with the UNP to the extent that he claimed in his written statement and protection visa interview. She was concerned about the inconsistent statement made by the applicant in his entry interview that he supported the “ruling party”, “Janatha Vimukthi Peramuna” (JVP). The delegate said that country information indicated that the JVP was part of a coalition which included the SLFP and that this was inconsistent with the applicant’s subsequent claim to support the UNP and was also inconsistent with his claim that Irshad was a candidate for an “opposing” political party (presumably on the basis of the applicant having apparently claimed to support the JVP). On being asked to comment on this inconsistency the applicant said he “could not remember everything, he was so upset at the time”. The delegate also noted that the applicant was unable to provide accurate specific information about the relevant local election. He was unable to recall the full name of the UNP candidate he supported or the SLFP candidate whose supporters he claimed targeted him. The applicant claimed the SLFP lost the local election in his area but the delegate noted that country information indicated the SLFP gained the most seats. The delegate also considered that the applicant provided “vague and evasive” responses to her question about the claimed attacks by opposition supporters.

3. The applicant sought a review of the delegate’s decision. Written submissions were made on his behalf by his migration agent. He attended an interview with the Tribunal on 17 December 2014 in Adelaide. His migration agent, based in Sydney, was linked to the interview by telephone.

Tribunal’s reasons

1. The Tribunal initially discussed the events from 2007 with the applicant who confirmed that there had been no problems for him after that and all had “gone smoothly after that time”. The Tribunal then discussed the 2011 local elections. The Tribunal asked about his involvement in the elections. The applicant said that the reference in the entry interview to JVP had been the result of a mistake by the interpreter. He said that he had not given all information in the entry interview because of advice from his friends. His lawyer later submitted that he had been afraid that information would be passed back to Sri Lanka.

2. In relation to the 2011 local elections the applicant said that the UNP candidate had been canvassing from door to door. They had spoken together outside his house about 20 minutes. He could communicate because he could speak Sinhalese. The candidate, who was not Tamil, did not speak Tamil. He told the UNP candidate that the people in the village wanted to have electricity connected. The Tribunal asked the applicant why he would be targeted by the opposition if he had simply expressed a view to the UNP candidate that he and other people wanted the electricity connected. The applicant said that the UNP candidate had later asked him to arrange a meeting of people in the village. He said he arranged a meeting of a group of between 50 and 60 people from the village and the candidate spoke to them. He said that he facilitated the meeting by acting as the candidate’s interpreter for the Tamil speaking audience. The Tribunal asked if there was a village head or people of some status such as local business people in the village. The candidate confirmed there were. The Tribunal put to the applicant that it had some difficulty accepting that he, as a basic labourer with no particular status, according to his own description, would have organised such a meeting. The Tribunal put to the applicant that it found it implausible that such a meeting would result in a concrete electricity pole immediately being erected. The Tribunal put to the applicant that bringing electricity to the village would require a great deal of infrastructure and he found it difficult to believe that a pole would be constructed immediately.

3. In relation to the attack by Irshad’s supporters the applicant said that they were Muslims. The applicant said that the Christian opposition supporters did not attack him. The applicant agreed that the majority in Sri Lanka were Buddhists and that Christians and Muslims were both very small minority groups. He said he had no problems with Muslims in the past.

4. The Tribunal also considered other claims by the applicant, including claims about the treatment of failed asylum seekers returning to Sri Lanka.

5. The Tribunal did not accept that the applicant was credible in important respects. It noted that in his entry interview in August 2012 he had not put forward a claim that he feared harm for reasons of his imputed LTTE connections or his perceived support for a political party, the UNP.

6. The Tribunal accepted, as had the delegate, that the applicant’s sister-in-law’s husband, had been arrested and killed in 2007. The Tribunal did not accept, because the applicant had no problems with the authorities from 2007 until his departure in 2012, that the authorities had an interest in him because of suspected LTTE connections after that time.

7. In relation to the 2011 local elections the Tribunal accepted that the nature of the entry interview could account for the brevity of his initial claim. However, the Tribunal noted that up to and including the interview with the delegate, the applicant had had the opportunity to present his account three times and his narrative never developed beyond describing a single encounter with the UNP candidate, resulting in a concrete pillar being erected. The Tribunal noted that during its interview with the applicant that the nature of the claim about this event had changed to include a claim that he had arranged a meeting attended by 50 to 60 people where he had taken the role of interpreter for the UNP candidate. The Tribunal said that it found this claim implausible for a number of reasons including the unlikelihood that a non-Tamil speaking candidate would canvass in a Tamil speaking village without taking an interpreter, doubt that a candidate would turn to a young man of low status to arrange such a meeting, refusal to accept that notwithstanding an opportunity to put his case on several occasions he failed to mention calling a village meeting and acting as an interpreter and unlikelihood of the candidate immediately arranging for the erection of an electricity pillar.

8. The Tribunal did not accept that the applicant presented the case for electricity to be connected to his village and, consequently, did not accept that he was attacked and beaten for approaching the UNP candidate and putting the case to him.

9. The Tribunal also noted that the applicant’s claim of being attacked by Muslims was raised for the first time during the Tribunal hearing.

10. The Tribunal also considered the applicant’s more general claims about fear of persecution on the ground of his Tamil ethnicity, being an illegal departee and a failed asylum seeker. The Tribunal did not accept those claims. The Tribunal also considered the applicant’s claim to complementary protection on the basis of a risk of harm from imposition of imprisonment for illegal departure on his return to Sri Lanka. The Tribunal had regard to the Department of Foreign Affairs and Trade advice and found that the applicant on return would face arrest, questioning and a relatively small monetary penalty. It found this was not “significant harm” within the meaning of section 36(2A) of the Migration Act.

Consideration

1. Notwithstanding the observation of McHugh J in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[1] that a finding of credibility “is the function of the primary decision-maker par excellence” it is clear that in some circumstances an adverse credibility finding may be amenable to judicial review on jurisdictional error grounds. In two recent decisions, CQG15 v Minister for Immigration and Border Protection[2] and ARG15 v Minister for Immigration and Border Protection[3], the Full Court of the Federal Court considered the relevant principles. In ARG15 the Court, after referring to the decision in CQG15, summarised the principles guiding judicial review of findings concerning credibility as follows[4]:

   [1] [2000] HCA 1, 74 ALJR 405 at [67]

   [2] [2016] FCAFC 146

   [3] [2016] FCAFC 174

   [4] At [83]

   (a) McHugh J’s oft quoted comments in Ex parte Durairajasingham … to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, do not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;

   (b) whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas …;

   (c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred …;

   (d) without derogating from what was said about the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Durairajasingham) adverse credibility findings might involve jurisdictional error on recognized grounds such as:

   (i) failure to afford procedural fairness;

   (ii) reaching a finding without a logical or probative basis;

   (iii) unreasonableness; and/or

   (iv) other grounds discussed by Flick J in SZVAP v Minister for Immigration and Border Protection[5] and SZSH V Minister for Immigration and Border Protection[6] referred to approvingly by the Full Court in CQG15 at [40] – [42].

   [5] [2015] FCA 1089; 233 FCR 451 at [20] – [21]

   [6] [2014] FCA 253 at [31]

2. In this case the Tribunal refused the application because it did not believe all of the applicant’s claims. In relation to the claims personal to the applicant the Tribunal pointed to important inconsistencies in the applicant’s evidence. In relation to the more general claims of the risk of significant harm on the applicant’s return to Sri Lanka the Tribunal did not accept, based on independent country information, those claims. In my view, there was, in each instance, a logical or probative basis for the Tribunal’s conclusion. I see no jurisdictional error on this or any other ground.

3. The first sentence of the applicant’s stated ground of review complains that the Tribunal failed to give weight or consideration to the applicant’s evidence. The weight given to evidence is a matter for the Tribunal. Further, the Tribunal did not, as far as I can discern, fail to consider any aspect of the applicant’s evidence. In my view, the stated ground of review is without merit.

1. In oral submissions the applicant made an allegation that he thought the Tribunal was racist towards him during the hearing. I asked him why he thought that. He told me, through the interpreter, that the Tribunal member “didn’t look at his face and didn’t look in his eyes. He looked angry towards him”. If this allegation were to be true it could amount to bias. However, it was not raised as a ground of review and no affidavit material, transcript or recording of the hearing was tendered by the applicant. It is impossible for me to make any finding. The allegation is not made out.

Extension of time

1. The application was 17 days late. The Minister does not allege any prejudice. It is apparent from the materials in the court book that notice of the decision was sent to the applicant’s migration agent by facsimile on 8 January 2015, two days after the decision. There is no evidence from the migration agent. The applicant asserted in his written application that he did not receive notification of the decision until he followed it up with the RRT on 24 February 2015. I am unable to make a finding about that assertion. However, there does not appear to be any reason to doubt that the applicant has not been represented since the Tribunal decision or shortly after. Given the short delay and the absence of prejudice I consider it is necessary in the interests of the administration of justice to make an order extending time.

2. I dismiss the application. The applicant is to pay the first respondent’s costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 18 January 2017