Abz16 v Minister for Immigration

[2017] FCCA 2153

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABZ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2153

Catchwords:

MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal erred in giving no weight to the applicant’s documents – whether the Tribunal failed to put the applicant on notice – whether the Tribunal failed to deal with the evidence – no jurisdictional error identified – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.19D

Immigrants and Emigrants Act 1959 (Sri Lanka)

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

Applicant: ABZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS THE TRIBUNAL

File Number: SYG 47 of 2016

Judgment of: Judge Street

Hearing date: 6 September 2017

Date of Last Submission: 6 September 2017

Delivered at: Sydney

Delivered on: 6 September 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Grant leave to the applicant to file in Court and rely upon the grounds in the second amended application.

2. Direct the second amended application be filed electronically on or before 5:00pm on 7 September 2017.

3. The second amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $6,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 47 of 2016

ABZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS THE 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) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 December 2015 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. The applicant arrived in Australia as an unauthorised maritime arrival on 10 August 2012. The applicant lodged a protection visa application on 5 December 2012. The delegate refused to grant that visa application on 25 July 2014.

The Tribunal decision

1. The applicant applied for review and was invited on 8 April 2015 to attend a hearing on 25 May 2015 to give evidence and present arguments. The member of the Tribunal who heard the matter on 25 May 2015 was unable to complete the review before the conclusion of her appointment and, accordingly, pursuant to s.19D of the Administrative Appeals Tribunal Act 1975 (Cth) a reconstituted Tribunal continued the proceedings with a different member. The new member invited the applicant on 1 September 2015 to attend a further hearing, which the applicant did on 9 November 2015 to give evidence and present arguments. The applicant was assisted by his adviser, who attended by telephone link at that hearing.

Claims for protection

1. The applicant was found to be an ethnic Tamil Hindu from a particular region situated on the north-eastern coast of the Northern Province of Sri Lanka. The applicant claimed that he was a Roman Catholic and that he and his family were relocated to an army camp in May 2009, where he was beaten and accused of having links with the LTTE. The applicant alleges he was subsequently moved to other camps before being released in August 2011.

2. Before his release the applicant alleges that the applicant was required to sign documents and agree to report to the army office every week. In February of 2012 the applicant claims that he was arrested and assaulted after being accused of starting a fire. The applicant alleges that he went into hiding following his release and made arrangements to depart the country illegally. The applicant alleges that since his departure the CID had come to his parents’ house looking for him and had taken away his brother instead. The applicant alleged that he breached his monthly reporting conditions when he departed Sri Lanka illegally.

Consideration of evidence

1. The Tribunal identified the applicant’s background to the review application, including summarising what occurred in relation to the reconstitution of the Tribunal. The Tribunal then set out a subheading, “Consideration of claims and evidence”. The Tribunal summarised the applicant’s claims in the original protection application and claims in the interview with the delegate. The Tribunal then made reference to the evidence given by the applicant to the Tribunal. In that regard the Tribunal expressly said that the applicant’s evidence comprises oral evidence at two hearings and documents photocopied and submitted in person as well as submissions prepared by his adviser with attachments.

2. The Tribunal member made express reference to the substance of the applicant’s evidence to both Tribunals, which was clearly a reference to the earlier Tribunal which had now been reconstituted as well as the evidence given to the currently-constituted The Tribunal.

3. The Tribunal found the applicant’s evidence overall to be vague and confused. The Tribunal observed that the applicant’s evidence gave the clear impression that he was improvising answers to whatever questions were asked going to the detail of his broad claims. The Tribunal identified the applicant having provided inconsistent information including documentation about where he was interned and about having been transferred from a particular camp to a rehabilitation camp for LTTE members and suspects. The Tribunal made reference to the applicant in his protection application alleging that he was held from March 2010 to October 2011 and that this was at odds with the documentary evidence that the applicant had provided.

4. The applicant provided to the Tribunal a document described as a re-integration certificate. That certificate purported to note that the applicant had been re-integrated from a particular rehabilitation camp on 30 September 2011. The document purported to be valid for a period of six months and purported to confirm that the person is integrated to the DS division respect of a particular listed address.

5. The applicant also provided a document purporting to be a translation of a Bureau of the Commissioner General of Rehabilitation, Ministry of Rehabilitation and Prison Reforms. The document purported to identify that action had been taken to integrate the applicant into society on 30 September 2011 and to hand him over to his parents or guardian.

6. A further document provided by the applicant was from the Red Cross, which was headed “Detention Attestation”. That document purported to identify that the Red Cross delegate visited a particular rehabilitation and training centre on 12 May 2009 and purported to verify that the applicant was released according to the authorities from that rehabilitation and training centre on 30 September 2011. The applicant also provided a further document, being an UNHCR return form. That document appeared to have on it details of family members that included the applicant with the applicant’s date of birth.

7. The Tribunal referred to a photocopy of a document purportedly issued by the ICRC on 8 November 2011, suggesting the applicant was released by the authorities from a particular centre on 30 September 2009. That date appears to be erroneous and the document supported the applicant being released on 30 September 2011.

8. The Tribunal referred to the delegate raising with the applicant that the material submitted in support of his detention in a rehabilitation centre appeared inconsistent. The Tribunal noted that what was put before the delegate and the Tribunal was documentary evidence to the effect that he was released from two different rehabilitation centres in very different locations on the same day.

9. The Tribunal noted that concerns in relation to this issue were put by both the delegate and the Tribunal to the applicant. The Tribunal noted that applicant said that although the ICRC ordered him to be released on 30 September 2011, he was not actually released until about a month later. The applicant alleged that the ICRC document was therefore unreliable insofar as it provided evidence as to the date of his release. In these circumstances, the Tribunal observed that the applicant’s evidence at the hearing did not help explain why he had documentation attesting to release from 2 disparate, entirely different centres on the same day.

10. It was in those circumstances, on the review of the material before the Tribunal, that the Tribunal gave no weight to the documents attesting that the applicant had been separated from the IDP population and segregated, as claimed, into camps specifically for the rehabilitation of suspected LTTE members.

Refugee assessment

1. The Tribunal made reference to asking the applicant about the incident involving the alleged fire and that the applicant said he could not recall when it happened. The Tribunal found that the applicant had not given consistent evidence in relation to that claim. The Tribunal overall did not accept that the applicant was ever treated as a suspected LTTE member. The Tribunal did not accept that the applicant was ever subjected to conditions being imposed on him following his release. The Tribunal did not accept that the applicant was arrested as a result of an alleged camp fire and was jailed. The Tribunal was concerned in relation to the evidence as to the gap between the alleged fire incident and the departure from Sri Lanka being starkly inconsistent. The Tribunal was not satisfied, on the evidence before it, that this was attributable to the vague memory or any other circumstances or condition outside the applicant’s control.

2. The Tribunal found the applicant’s story about the authorities visiting his family home repeatedly over the years implausible, not least because the Tribunal did not accept the alleged motivation for doing so was factual. The Tribunal was not satisfied on the evidence before it that the applicant had any actual or imputed LTTE profile or was ever subjected to reporting conditions or was ever suspected of setting fire to a garage dump as claimed, and found that the applicant was not of ongoing interest to the authorities.

3. The Tribunal found that it did not believe that the applicant had been truthful about his brother having been arrested and having disappeared. The Tribunal was not satisfied, on the evidence, that the Sri Lanka authorities of any kind have yet taken any interest at all in the applicant having left Sri Lanka illegally.

4. The Tribunal was not satisfied the applicant was of any interest to Sri Lanka authorities at the time that he left Sri Lanka for any reason. The Tribunal was not satisfied that the applicant was perceived to be an LTTE supporter when he left Sri Lanka. The Tribunal was not satisfied there is any reason for the authorities to suspect now or in the reasonably foreseeable future that the applicant supports the LTTE or has an anti-government political opinion. The Tribunal was not satisfied that there is a real chance that the applicant would face harm on return to Sri Lanka in relation to his claims and found the applicant does not have a well-founded fear of persecution. The Tribunal found that the applicant did not face a real chance of persecution for reasons of being a male adult Tamil from the north or east.

5. The Tribunal gave consideration to the applicant having left illegally. The Tribunal found that the applicant would be charged under the Immigrants and Emigrants Act 1959 (Sri Lanka) (“the IE Act”), which would involve being arrested at the airport, taken to the Magistrates Court in Negombo, and then being brought before a Magistrate when available. The Tribunal was satisfied that IE Act is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of race.

6. The Tribunal was satisfied the terms of the law do not have a discriminatory intent or impact and that the law is not being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal found that the IE Act is a law of general application and does not give rise to persecution under the Refugees Convention. The Tribunal was not satisfied that a Convention reason is the essential and significant reason for the applicant facing prosecution or its consequences on the basis of having illegally departed Sri Lanka or as a failed asylum seeker/returnee. The Tribunal was not satisfied that the prosecution or its consequences would involve systematic and discriminatory conduct as the IE Act is a law of general application.

7. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and found that the applicant does not meet the criteria under s.36(2)(a) of the Act.

Complementary protection assessment

1. The Tribunal turned to the issue of complementary protection and was not satisfied there are 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 that the applicant will suffer serious harm. The Tribunal found the applicant did not meet the criteria under s.36(2)(aa) of the Act.

Proceedings before this Court

Grounds of the application

1. The grounds in the second amended application are as follows:

   GROUND 1

   The reconstituted AAT committed jurisdictional error by rejecting documents that was pivotal to the applicant's claim that he had been detained in “camps specifically for the rehabilitation of suspected LTTE members” [CB 268,36]

   Particulars

   1. The reconstituted AAT gave no weight “to the documents attesting to Mr [X] having been separated from the IDP population and segregated, as claimed, into camps specifically for the rehabilitation of suspected LTTE members” [CB 268, 36].

   2. “Giving no weight to documents amounts to a rejection of the documentary evidence tendered in.

   3. The ICRC (International Committee of the Red Cross) “Detention Attestation” document [CB196] falls within the scope of the documents that were rejected by the reconstituted AAT .

   4. The previous AAT member requested the ICRC detention attestation document to be verified and requested specifically via CISNET (Country Information Request) “Does it accurately reflect the information in their records?” [CB 212].

   5. The response sent to the AAT from the Deputy Head of Delegation of ICRC, Sri Lanka states “the concerned person (Mr [X]) should contact himself the Australian Red Cross Society, Tracing Services, who are aware of the procedures to follow with the ICRC for verification of documents. Afterwards the Australian RC will get in touch with the ICRC Colombo to complete the procedure of verification”.

   6. The reconstituted AAT did not notify the applicant regarding the procedure he should follow with the ICRC for the purpose of verifying the documents.

   7. As the Deputy Head of Delegation of ICRC, Sri Lanka responded to the previous AAT member's request, the reconstituted AAT ought to have communicated the Deputy Head of Delegation of ICRC Sri Lanka's response to the applicant.

   8. The verification of the ICRC document was pivotal to the applicant's claims, hence it was due to this reason the request was made by the previous AAT member.

   9. On the basis of the Deputy Head of Delegation of ICRC Sri Lanka's response it was not open for the reconstituted AAT to give no weight to this document without providing the the Deputy Head of Delegation of ICRC Sri Lanka's response which outlined the procedure the applicant should follow for the purpose of verifying the ICRC documents.

   10. Though the reconstituted AAT was unable to obtain a verification of the ICRC document, a procedure to obtain verification did exist, which however had to be initiated by the applicant and was only known to the reconstituted AAT.

   11. The IAA became aware of the procedure to verify the ICRC document, the procedure involved the applicant initiating the request and not the AAT.

   12. The AAT in the circumstance was obliged to inform the applicant of the procedure he needed to follow to obtain verification of the ICRC document.

   13. The reconstituted AAT proceeded to give no weight to the ICRC document without giving the applicant an opportunity to initiate verification according to the ICRC's response to the AAT.

   GROUND2

   The reconstituted AAT committed jurisdictional error by rejecting a document that was pivotal to the applicant's claim which confirmed that the applicant had been detained in “camps specifically for the rehabilitation of suspected LTTE members” [CB 268,36] without putting the applicant on notice that it (the reconstituted AAT) would deviate from a positive finding made by the previous AAT member.

   Particulars

   1. The previous AAT member requested the ICRC detention attestation document to be verified and requested specifically via CISNET (Country Information Request) “Does it accurately reflect the information in their records?” [CB 212].

   2. On the basis of the previous AAT's request [CB 212] it appears the authenticity of the UNHCR Return Form was of concern. It does not appear that the previous AAT member was concerned of the authenticity of the ICRC detention attestation document.

   3. On the basis of the question posed to the ICRC it appears the previous AAT was concerned about the “accuracy” of the information in the ICRC's records and not the “authenticity” of the document.

   4. Therefore the previous AAT member did consider the ICRC detention attestation document to be a genuine document.

   5. On this basis it cannot be stated that the previous AAT member gave “no weight” to the ICRC detention attestation document.

   6. The reconstituted AAT made a finding at [268, 36], which was contrary to the previous AAT without putting the applicant on notice.

   GROUND 4

   The reconstituted AAT failed to indicate in the decision record if it had listened to the previous Tribunal hearing audio recording or considered any findings made by the previous Tribunal member, as the purpose of the 2nd hearing held on 1 September 2015 by the reconstituted Tribunal hearing was to “continue” the proceeding.

   PARTICULARS

   I. Section 190(4) of the Administrative Appeals Act of 1975 states that the reconstituted Tribunal must continue the proceeding”

   2. The letter sent to the applicant dated 9 July 2015 states “A different Member will finish the review” [CB 216], which is consistent with s 190(4) of the Administrative Appeals Act of 1975.

   3. The letter sent to the applicant dated 20 October 2015 states “We have considered the material before us but we are unable to make a favourable decision on this information alone” (CB 227). This letter further states “You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues in your case”.

   4. The duration of the previous Tribunal hearing was 4 hours [CB 206].

   5. The duration of the reconstituted Tribunal hearing was 2½ hours [CB 244).

   6. The reconstituted AAT did not indicate if it had listened to the previous Tribunal hearing audio recording or considered any findings made by the previous Tribunal member.

   7. The reconstituted Tribunal conducted the hearing de novo, the 2nd hearing was not a continuation of the 4-hour hearing held by the previous Member.

   8. The reconstituted Tribunal makes findings afresh, does not state that it had regard to any findings made by the previous Member who interviewed the applicant for 4 hours.

   9. The reconstituted Tribunal did not put the applicant on notice prior to the 2nd hearing that the hearing would be denovo and not a continuation of the first hearing as stated in the Tribunal's letter to the applicant [CB 2 16].

   10. The reconstituted Tribunal failed to put the applicant on notice that issues that may not have been an issue for the previous Tribunal may well be an issue for the reconstituted Tribunal.

   GROUND 5

   The reconstituted AAT failed to deal with the evidence (i.e. the response provided by the ICRC / Red Cross through DFAT) and in doing so denied the applicant procedural fairness.

   PARTICULARS

   1. The reconstituted AAT states at [24] the evidence that was before the Tribunal and what that evidence comprised of.

   2. The reconstituted AAT did not refer at [24] to the response provided by the ICRC / Red Cross through DFAT as part of the evidence that was before the Tribunal [24].

   3. This is not to say that the response provided by the ICRC / Red Cross through DFAT was not before the AAT, rather this Ground is raised as the AAT failed to deal with this important piece of evidence.

   4. The response provided by the ICRC / Red Cross through DFAT was important to the applicant for the purpose of the review, the reconstituted AAT ought to have referred to the response it had received from ICRC / Red Cross.

   6. While the applicant's representative appears to have contacted “Red Cross regarding attestation of the ICRC document” [211], on the facts there is no evidence that the applicant's representative had received a response from Red Cross.

   7. It is submitted that though the reconstituted AAT may not have been obliged to assist or make out the applicant's case for him, clearly in this case there was an obligation to adopt a fair procedure which is appropriate and adapted to the circumstances of this case. This the reconstituted AAT did not do. See: Kioa v West [1985] HCA 81: (1985) 159 CLR 550 (18 December 1985) paragraph 33.

Consideration

Grounds 1 and 5

1. Mr Tambimuttu appeared for the applicant and confirmed that Ground 3 was not pressed. Mr Tambimuttu sought to argue Grounds 1 and 5 together and took the Court to the material the subject of the Tribunal’s finding in paragraph 36 in which the Tribunal gave no weight to the documents supporting the applicant’s claim that he had been separated from the IDP population and placed into a camp specifically for the rehabilitation of LTTE members.

2. Mr Tambimuttu took the Court to the earlier Tribunal member’s file note in respect of country information, being a file note dated 7 July 2015. That file note referred to the applicant claiming he had been in two different rehabilitation camps for over two years, identifying particular locations, and that he claimed he was issued with a particular card on 22 September 2011 on release from rehabilitation.

3. At the bottom of the note, there were some questions, which were as follows:

   Questions:

   1.Were the UNHCR and IOM involved in resettling or providing services for Internally Displaced Persons particularly around [X] in 2011/2012?

   2. Is it possible for UNHCR to verify whether the Return Form issued to the applicant and his family was generated by them and whether it is genuine?

   3. Please arrange for the ICRC detention attestation document to be verified. Does it accurately reflect the information in their records?

   4. The ICRC detention attestation states that the applicant was “released according to the authorities” on 30 September 2011 from [X] Zone 5 Youth Rehabilitation and Training Centre. Who are the authorities that the certificate refers to?

4. The Tribunal had an email referring to the information request which relevantly provided:

   As discussed, a response to Question 1 of this information request was set out in an email to Megan Deane on 26 June: please see the copy below.

   Questions 2-4, regarding verification of documents, were referred to DFAT, and DFAT has since advised COISS by email that:

   • UNHCR responded: 'We can confirm that the copy of the document you shared is authentic'.

   • The Deputy Head of Delegation of ICRC, Sri Lanka, advised that 'the concerned person {Mr [X]} should contact himself the Australian Red Cross Society, Tracing Services, who are aware of the procedures to follow with the ICRC for verification of documents. Afterwards the Australian RC will get in touch with the ICRC Colombo to complete the procedure of verification'.

5. The UNHCR document that was purportedly verified as authentic was not a document that purported to certify the applicant’s attendance or release from a particular rehabilitation camp. Mr Tambimuttu sought to argue that the Tribunal should have either informed the applicant of the ability to make inquiries of the Red Cross about the authenticity of his documents, or should have made further inquiries itself. There was no onus on the Tribunal to make any such inquiry. There was no obvious inquiry able to be made of an ascertainable material fact.

6. Further, the applicant had been informed twice as a result of the invitations to attend hearings that the Tribunal was not in a position to make a favourable decision on the material before the Tribunal. The information in the email of 17 August 2015, as set out above, did not identify information of a kind which as a matter of procedural fairness the Tribunal was required to pass on to the applicant, nor was the same information that undermined, detracted, or otherwise negated the applicant’s claims.

7. The adverse credibility findings by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. Whilst there is a reference to a particular document having a release date that appears to be an error, that was not a material error in the context of circumstances where the Tribunal clearly identified the releases taking place on the same date. The error was of no practical significance in circumstances of the adverse credibility findings. The reasoning adopted by the Tribunal was open on the material before the Tribunal. It was a matter for the Tribunal to determine what weight to place on the documents provided by the applicant. No jurisdictional error is made out as alleged from Ground 1 or Ground 5.

Ground 2

1. There was no denial of procedural fairness by the Tribunal as alleged. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review. Ground 2 erroneously assumes that the Tribunal member was required to give notice of deviating from a positive finding earlier made. No such obligation arises.

2. The applicant was clearly on notice in relation to the credit issues raised by the Tribunal in the course of the hearing that the applicant’s credit was in issue. It was a matter for the Tribunal to determine what weight to give the documents. No jurisdictional errors are made out as alleged in Ground 2.

Ground 4

1. In relation to Ground 4, there is no proper basis to infer that the Tribunal failed to listen to or take into account the evidence given to the first Tribunal member in respect of which there was a reconstitution. The Tribunal’s reasons are consistent with the evidence before the first Tribunal member being taken into account by the reconstituted Tribunal. No jurisdictional error as alleged in Ground 4 is made out.

Conclusion

1. The second amended application fails to make out any jurisdictional error. The second amended application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 September 2017