ACF16 v Minister for Immigration

[2016] FCCA 1019

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACF16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1019

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credibility findings – whether the reasoning of the Tribunal was irrational or illogical – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Cases cited:
SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Applicant: ACF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 56 of 2016

Judgment of: Judge Street

Hearing date: 2 May 2016

Date of Last Submission: 2 May 2016

Delivered at: Sydney

Delivered on: 2 May 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the First Respondent: Mr T Galvin
Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 56 of 2016

ACF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) in respect of a decision of the Tribunal made on 21 December 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. On 5 September 2007, the applicant commenced a Tourist (Class TR 676) visa application for the purposes of visiting his sister in Australia. That application was refused on 21 September 2007.

2. On 12 October 2007, the applicant entered Malaysia where he apparently resided as a student until 23 December 2008.  The applicant appears to have had periods of residence in India from 19 August 2008 to February 2012.  On 3 April 2012, the applicant commenced an application for a sponsored family visitor, (Class UL 679) visa, for the purposes of being the godfather to his newborn nephew in Australia.  On 3 May 2012, the application was granted.  On 13 May 2012, the applicant entered Australia using his passport with the (Class UL 679) visa which was valid for three weeks an expired on 3 June 2012. 

3. On 1 June 2012, the applicant made an application for protection.  The applicant claims that he is an ethic Tamil and his religion is Catholicism.  The applicant claims that in September 2006 the Sri Lankan army took him and two friends to their camp on suspicion that they were supporters of the Liberation Tigers of Tamil Eelam, LTTE, and they were kicked and burned with cigarettes butts. 

4. In June 2007, the Sri Lankan army and the Sri Lankan police caught the applicant and his brother and took them to a police station where they were interrogated for one week about their LTTE involvement and support.  The applicant and his brother were released after their father paid a bribe.  In September 2007, the applicant says he and his brother were again detained and interrogated for two days in order to leave Columba.  The applicant says he operated a business with three other partners in the northern part of Sri Lanka. 

5. The applicant says as a result of the success of that business, the applicant was directly approached by supporters of the Sri Lanka army or paramilitary to pay a sum of money to allow the business to operate or else he could be abducted or arrested.  The applicant says he could not afford to pay the full amount asked for and instead negotiated to pay by instalments.  After paying the first instalment, the applicant left Sri Lanka. 

6. The applicant says after he left Sri Lanka and came to Australia in May 2012, the same men approached the applicant’s parents and his business partner on a number of occasions to find him and harm him and also threatened his business partner.  The applicant fears being harmed in Sri Lanka because he has not paid the balance of the funds.  The applicant further claimed that he would be arrested and interrogated by the Sri Lankan army and Sri Lankan police again in the future and that his life is under threat by the Sri Lankan army and their supporters. 

7. The grounds of the amended application are as follows:

   Ground 1

   1. The Tribunal denied the Applicants procedural fairness and I or breached s 425 of the Act.

   Particulars

   (i) The Applicant submitted letter from the priest (CB 74) regarding the Applicant's business activities in Sri Lanka which formed the basis for the Applicant's claim.

   (ii) There was no specific finding about the letter by the delegate although the delegate stated that it did not accept applicant's “business documents” as genuine (CB 199.4) (and which does cover the Parish priest's letter separately considered and not accepted as genuine (CB 199.6)).

   (iii) The Tribunal considered the letter to be "broad based" (CB 299 at [34]).

   (iv) The letter was determinative as to whether the Applicant was involved in business.

   (v) The Tribunal breached s 425 when it failed to give applicant opportunity to be heard on the letter and was procedurally unfair in reaching conclusion that the letter “broad based” and was not supportive of the Applicant's claims.

   (vi) The Tribunal committed jurisdictional error.

   Ground 2

   2. The Tribunal's findings regarding payment to (CB298 - 299 at [30] - [31]) is irrational and/or illogical and the Tribunal failed to ask the correct questions.

   Particulars

   (a) The Tribunal invited the Applicants to the hearing.

   (b) Rajendran was not key player.

   (c) The Applicants narrated events in which he was a participant.

   (d) The Tribunal presumed that all the details had to be discussed with Rajendran.

   (e) No reasonable Tribunal would presume there would be detailed discussion amongst partners.

   (f) The Tribunal failed to ask correct question and has asked incorrect question.

   (g) The Tribunal committed jurisdictional error.

8. Mr Kumar, counsel on behalf of the applicant, contends that the nature of the findings made by the delegate in the present case gives rise to an application of principles identified in SZBEL v Minister for Immigration, Multicultural and Indigenous Affairs (2006) 228 CLR 152. Mr Kumar took the Court to the document identified in the particulars in support of this ground at pg.74 of the court book being a document dated 29 May 2012 referring to the applicant and that he belongs to “our church”.

9. The document has a heading, “St Mary’s Cathedral, Jaffna, Sri Lanka”.  The document purports to be signed by the assistance parish priest and relevantly says:

   As he has involved in doing business over here, it is rather difficult for him to return to his country.   Please do the needful.

10. That document was the subject of analysis by the delegate in relation to the applicant’s credibility and the delegate found the applicant’s account of how he obtained the letter was vague and inconsistent. The delegate found that he was unable to accept the document as genuine. The delegate also made adverse findings in relation to the applicant’s other business documents as not being genuine.  At the commencement of the hearing before the Tribunal, the Tribunal member explained the process that would be adopted including the asking of questions to assess the applicant’s credibility. 

11. The Tribunal explained because the department might have believed some or all of the applicant’s evidence, it was the Tribunal’s task to decide whether or not the applicant was telling the truth.  The Tribunal noted in its decision that at the beginning of the hearing it put the applicant on notice in relation to the issue of credibility of his evidence. The Tribunal made adverse findings in relation to the applicant’s credibility and relevantly found that the applicant does not hold a well-founded fear of persecution based on any Convention ground. The Tribunal found that there were not substantial grounds of believing as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country there is a real risk the applicant will suffer harm. 

12. The document the subject of the particulars to ground 1 was referred to by the Tribunal at para.34.  The Tribunal noted that the document did not overcome the Tribunal’s concerns about the credibility of the applicant’s claims that men demanded money from him in Sri Lanka.  It was in those circumstances the Tribunal decided not to give weight to the assertion made by the priest in the letter concerning the applicant.  Mr Kumar of counsel contended that the finding made by the delegate in relation to the applicant producing documents that were not genuine was a broad-based finding and that it was necessary for the Tribunal to give the applicant an opportunity to be heard on the letter. 

13. The transcript makes clear that the Tribunal raised as a live issue the applicant’s credibility in relation to the applicant’s claims in relation to the applicant’s business and the alleged extortion.  I am satisfied that this case is clearly distinguishable from SZBEL supra. I am satisfied there is no breach of s.425 of the Migration Act 1958.  I am satisfied that there is no denial of procedural fairness with respect to the Tribunal’s treatment of the priest’s letter. The matter of weight to be given to that letter was a matter for the Tribunal: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164.  Ground 1 fails to make out any jurisdictional error.

14. In relation to ground 2, Mr Kumar of counsel argued that the reasoning of the Tribunal in para.30 and 31 was irrational or illogical. It was submitted that the reference by the Tribunal to the proposition that the Tribunal finds unconvincing and not credible the seemingly uninterested and nonchalant response of the applicant’s own business partner to the fact the applicant was approached by men for payment of a large amount of money because of success of the very same business they were operating, was irrational. 

15. The Tribunal, in its reasons, identified that it asked the applicant if he told his business partner about the demands for money made to him by the men.  The Tribunal noted that, in response, the applicant said that he did tell his business partner about this and that his business partner said that not much could be done, and that the applicant would have to pay and that there were no other options. 

16. The Tribunal notes that it put to the applicant that surely his business partner X would take far more seriously a demand made for the applicant to pay a sum of 2,500,000 Rs because the business was successful.  The Tribunal noted that in response the applicant said that X thought that they could handle it, because the business was going very well.  The Tribunal noted that it was said that X was in full-time employment, so that he was not too afraid. 

17. The Tribunal continued by saying it does not believe the applicant’s business partner would not have had a far stronger reaction to that situation whether or not it was only the applicant who was being approached and regardless of the business partner’s other employment commitments.  The Tribunal noted that it had explored its concerns with the applicant and found the applicant’s responses unsatisfactory and unconvincing.  It was in those circumstances that the Tribunal found that the applicant had been untruthful about being approached for money by people in Sri Lanka, as well as in relation to his intentions to come to Australia in May 2012. 

18. The subject matter of the applicant’s intentions to come to Australia was also explained in paras.28 and 29 of the Tribunal’s reasons and was in substance the focus of the reasoning in para.30.  Paragraphs 30 and 31 are in substance adverse findings of credit by the Tribunal that were open on the material before the Tribunal.  I do not accept that the reasoning in paras.30 or 31 could be said to be irrational, illogical or otherwise unreasonable. 

19. The adverse findings by the Tribunal in relation to the applicant’s claims about the attempted extortion cannot be said to lack an evident and intelligible justification.  Ground 2 fails to make out any jurisdictional error.

20. The amended application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 May 2016