AFF15 v Minister for Immigration
[2015] FCCA 1913
•10 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFF15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1913 |
| Catchwords: Legislation: |
| Applicant: | AFF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUNAL) |
| File Number: | BRG 222 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 July 2015 |
| Date of Last Submission: | 10 July 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 10 July 2015 |
REPRESENTATION
| No appearance for the Applicant |
| Solicitor for the First Respondent: | Ms Tattersall |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The name of the second respondent be substituted with the name “Administrative Appeals Tribunal (formerly known as the Refugee Review Tribunal)”.
The application filed on 16 March, 2015 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application, including reserved costs, if any fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 222 of 2015
| AFF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUNAL) |
Second Respondent
REASONS FOR JUDGMENT
Ex tempore
By his application filed on 16 March, 2015 the applicant seeks judicial review of a decision of a refugee review tribunal made on 11 February, 2015. By that decision, the tribunal affirmed a decision of a delegate of the first respondent made on 13 September, 2013 to refuse the grant of a Protection (Class XA) visa to the applicant.
The first respondent opposes the application. The second respondent has entered a submitting appearance.
When the proceedings first came before the Court on 20 April, 2015 directions were made that permitted the applicant to file an amended application and which required the applicant and the first respondent to file written submissions prior to this hearing. The applicant has not taken the opportunity to file an amended application. Nor has he filed any written submissions in support of his application. The first respondent has filed written submissions.
The application was originally listed for hearing on 19 June, 2015. On that day, for reasons that are not relevant, the application was adjourned to 22 June, 2015. On that day, the applicant’s solicitor withdrew. The applicant requested further time to secure alternative legal representation. Accordingly, the application was adjourned to today for hearing.
There appears to have been some confusion about the hearing time today. I am told that the time pronounced in court on 22 June, 2015 was 2.15pm. That is to say, the application was adjourned for hearing to 2.15pm on 10 July, 2015. However, the formal record of the order that issued indicated that the hearing time was 10.00am on 10 July, 2015. The application was called for hearing by my associate at 10.00am and again at 10.15am. There was no appearance for the applicant. It was called again at 2.15pm. There was no appearance for the applicant.
Background
The applicant is a citizen of Sri Lanka, of Sinhalese ethnicity and of the Catholic faith. He arrived at Christmas Island in July, 2012 as an unauthorised maritime arrival. He participated in an entry interview on 25 September, 2012 with an officer from the first respondent’s department in Darwin.
The applicant lodged an application for a protection visa on 31 January, 2013.
In his statement accompanying his visa application, the applicant claimed that he could not return to Sri Lanka as he feared for his life because of his political opinion and having sought asylum in a western country.
Specifically, he claimed that he fled Sri Lanka on 13 July, 2012 “because of my political opinion as a supporter of the People’s Alliance Party”. He claimed that his father was always actively involved in politics and supported the People’s Alliance Party. He said that when he was approximately 18 to 20 he would go along with his father to the campaign meetings and to put up posters in support of the People’s Alliance Party.
He said that when he was 23 years of age he was canvassing for the People’s Alliance Party. He was alone at the time and three members of the United National Party approached him on a tri-shaw. One of them came to him and proceeded to bash him. He says that he knew that they were UNP supporters because he recognised them from his village. He went home and explained to his family what had happened. His father went with him to the police and made a complaint against the person who beat him. The police took him in a vehicle to the place where the incident occurred, but there was no-one there. However, his father spoke to some of the people who witnessed the event and the police were able to locate the perpetrator from the information from the witnesses. The perpetrator was eventually arrested by the police (he was hiding from the police).
The applicant claimed that his assailant faced a court hearing, but he did not attend because he was afraid. He was summonsed to appear at the court but he was too scared to attend.
The applicant claimed that the People’s Alliance Party was currently in power and his father and he were active supporters of the party. He claimed that he and his father were living in constant fear of being attacked by the supporters of the opposition party, the UNP.
The applicant claims that his father was receiving constant threats from UNP supporters and he eventually decided that the only solution available to he and the applicant was to flee Sri Lanka for their safety.
The applicant claimed that there was a real threat the UNP will gain power in the next elections and when that happened there will be no safety for the People’s Alliance Party supporters.
The applicant further claimed that he faced the threat of persecution from “the ministers that are currently in power because my father and I supported the other candidates”.
On 13 September, 2013 a delegate of the first respondent refused the grant of the visa. The applicant sought review of that decision by a refugee review tribunal on 20 September, 2013. The tribunal invited the applicant to attend a hearing before it. He took up that invitation and a hearing before the tribunal occurred on 28 January, 2015. The tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicant was represented in the review by his registered migration agent who appeared at the hearing by telephone. On 5 February, 2015 the applicant’s representative provided a translated copy of certain documents provided by the applicant to the tribunal in support of his claims.
The tribunal determined to affirm the delegate’s decision to refuse the applicant a protection visa. In its reasons for decision dated 11 February, 2015 the tribunal determined that the applicant’s claims were not generally credible. It summarised its findings at paragraph [14] of its reasons:
14. The tribunal discussed throughout the hearing its concerns about the applicant’s credibility. The applicant’s evidence was vague and lacked any details, even when prompted and asked a number of different ways to explain the 2010 assault on him. The tribunal spent some time trying to have the applicant explain the only major incident that occurred to the applicant but his evidence lacked details and was repetitive. Further, his account was inconsistent with his statement and interview. When inconsistencies were put to him he changed his account rather than explained them. Once when inconsistencies were put to him, the applicant explained them saying he was not thinking well and indicated he was stressed. The tribunal noted it was not concerned with dates or times, but just understanding what happened to him in respect of the one event (being 2010 assault). The tribunal also provided the applicant time to collect his thoughts and adjourned the hearing. Throughout the hearing the tribunal checked with the applicant and the interpreter that there was no misunderstanding. The tribunal asked questions in different ways to try to elicit more information and provided plenty of opportunity to respond with prompting as well.
And then again at paragraph [34]:
The tribunal took into account and made allowances for stress and nervousness. The tribunal spent considerable time prompting and asking the applicant in different ways to elaborate on his story. The applicant claimed he was not thinking straight but he made this claim only after inconsistencies were put to him. Before that he presented as a calm, confident, young man. In any event, the tribunal adjourned the hearing to allow him time to collect his thoughts. Further throughout the hearing the tribunal was careful to frame questions in different ways and reassure the applicant that the tribunal was interested in his account and not concerned with specific dates or times. The tribunal took into account he completed grade 11 and was a fisherman and young and the evidence was being given through an interpreter. The tribunal clarified and repeated back his evidence throughout the hearing. However, the tribunal finds the applicant’s vague, evasive inconsistent evidence was because he was not recalling an event that happened to him. The tribunal finds the applicant was not a witness of truth.
The tribunal rejected the applicant’s claims that he was assaulted in 2010. It rejected his claims that he was threatened after the assault and that his parents had been threatened.
The applicant produced a number of documents to the tribunal to support his claims. In respect of those documents, the tribunal:
a)placed no weight on the letter dated February, 2013 which stated that the applicant’s father has received “political threats” as it provided no detail or information about the threats to the applicant’s father and indicated that he lived in Sri Lanka when at the relevant time the applicant’s father was in Australia;
b)did not accept that the summons documents provided by the applicant were genuine and gave them no weight as the applicant was not sure about the content of the documents or familiar with them. They had crucial parts missing;
c)placed little weight on the other documents provided by the applicant given its credibility findings and no weight on the “Tsunami affected family registration card” as evidence that the applicant’s father was a supporter of a political party.
The tribunal accepted that the applicant’s father was a member and low level supporter of the Sri Lanka Freedom Party (previously known as People’s Alliance). It accepted that the applicant supported the party in that he preferred them and might vote for them.
However, the tribunal was concerned about the applicant’s lack of understating about the party, or “any political process or political awareness”. The tribunal did not accept that the applicant assisted in any elections or was engaged in organising or putting up posters or was assaulted or threatened by UNP supporters or anyone else as he had claimed. Moreover, the tribunal concluded that the applicant did not face serious harm because of a change in the ruling party in Sri Lanka to the UNP.
The tribunal considered the applicant’s claims that he had a well-founded fear of persecution by reason of:
a)his political opinion and support for the SLFP; and
b)his membership of certain social groups, namely:
i)failed asylum seekers;
ii)those who have departed Sri Lanka illegally by boat; and
iii)failed asylum seekers returning to Sri Lanka.
The tribunal concluded that the chance of the applicant being persecuted for reason of his father’s past low level political support or the applicant’s political support should the applicant return to Sri Lanka in the reasonably foreseeable future was too remote to amount to a real chance.
Further, it did not accept that the applicant faced harm upon return for reasons of being a returnee, failed asylum seeker or returned from a western country. In reaching that finding the tribunal specifically addressed:
a)the applicant’s assertion that the public release of personal details concerning his father would not increase the applicant’s risk of harm or change his profile; and
b)the applicant’s assertion that he would be perceived as anti-government or politically active against the government and accordingly would be of considerable interest to the Sri Lankan authorities.
The tribunal addressed the applicant’s claims based upon his illegal departure from Sri Lanka. The tribunal found that, based on country information and the applicant’s circumstances, he did not face a real chance of harassment, serious harm or criminal penalty or any harm on arrival in Sri Lanka or during any questioning process to establish his identity. Specifically, the tribunal found that:
a)the most the applicant would be held on remand for was two weeks;
b)whilst conditions in prison have been described as overcrowded and unsanitary and there have been reports of torture and assault, it was prisoners with particular profiles of being opposed to the current government or with an LTTE profile that were targeted in that way. The tribunal found the applicant would not face a real chance of torture or mistreatment during questioning or if he was held on remand because, it found, he did not have a profile of being opposed to the current government. Nor did he have a profile which connected him with the Liberation Tigers of Tamil Eelam;
c)the departure laws pursuant to which the applicant might be detained upon his return to Sri Lanka are laws of general application and the enforcement of those laws did not constitute persecution. They were not on their face discriminatory and were applied to all persons regardless of ethnicity;
d)the applicant would not be treated differently to other people who had departed Sri Lanka illegally and who returned to Sri Lanka. Questioning at the airport, the possibility of being in remand for a short period and charged, and the payment of a fine was not because of his political opinion but because he left the country illegally; and
e)any problems faced by the applicant as a result of being charged, questioned and held on remand in cramped and uncomfortable conditions would not be aimed at the applicant for a convention reason.
The tribunal considered the applicant’s claims for complementary protection. In relation to the complementary protection criteria the tribunal found that:
a)given that it did not accept that the applicant had been politically active or put up posters or assisted his father, or that he would in the future, it did not accept he faced a real risk of any harm, let alone significant harm upon his return to Sri Lanka; and
b)based on country information it did not accept questioning at the airport, being charged and bailed or the payment of a fine constituted significant harm.
The tribunal concluded that the applicant did not satisfy ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 and the decision under review was affirmed.
The applicant filed an application for review of the tribunal’s decision in this Court on 16 March, 2015. In it he specifies the following ground of review:
That the decision of the second respondent, the Refugee Review tribunal member, was affected by legal.
The first respondent submits that the above ground does not reveal any jurisdictional error in the tribunal’s decision and constitutes nothing more than a pro forma application alleging error. I agree.
The applicant has not attempted to demonstrate that the tribunal has made any error of a legal nature sufficient to lead the Court to conclude that the tribunal had fallen into jurisdictional error. There is no assertion that the tribunal has made a wrong finding in relation to a jurisdictional fact.
An analysis of the tribunal’s reasons for decision reveals that the tribunal undertook a thorough assessment of the applicant’s claims. It has considered each aspect of his claims. It dealt specifically with each of them. It determined that it could not accept the applicant’s claims and thereby could not reach the requisite level of satisfaction needed to grant the visa for which the applicant applied.
The finding in relation to the applicant’s credibility is a finding of fact. The tribunal approached the question of the applicant’s credibility in a demonstrably even-handed way. The applicant was given opportunities to assist the tribunal with the concerns that it had about the credibility of his claims. Fact finding is a matter left entirely to the tribunal under the terms of the Migration Act. Findings concerning credibility are findings of fact. It is no part of this Court’s function to review the findings of fact made by the tribunal, save where those findings are attended by some error of law. None are present here.
The application is, in my view, an impermissible attempt to review the merits of the tribunal’s decision.
No jurisdictional error is revealed by the tribunal’s reasons for decision. The application must be dismissed with costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Associate:
Date: 15 July 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Jurisdiction
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Judicial Review
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Natural Justice
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Procedural Fairness
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