AMB15 v Minister for Immigration

[2018] FCCA 1857

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMB15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1857

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 424A, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: AMB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1067 of 2015

Judgment of: Judge Cameron

Hearing date: 6 June 2018

Date of Last Submission: 6 June 2018

Delivered at: Sydney

Delivered on: 6 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M. Perotti of Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1067 of 2015

AMB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived at the Cocos Islands as an irregular maritime arrival on 11 August 2012. On 5 December 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity, imputed political opinion and membership of a particular social group. On 24 September 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. The applicant’s written claims were set out in his statutory declaration dated 29 November 2012 (which accompanied his protection visa application) and in submissions to the Tribunal dated 6 February 2014 and 10 March 2015.

2. The applicant also provided oral evidence at his entry interview on 11 October 2012, at a departmental interview on 4 June 2013 and at a Tribunal hearing on 10 February 2015.

3. As summarised by the Minister in his written submissions, the applicant relevantly made the following claims:

   4.… The applicant claimed to fear harm on the basis of his Tamil ethnicity, his imputed political opinion [as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”)] and his membership of particular social groups [young Tamil males and failed asylum seekers who departed illegally and sought asylum in a Western country]. In addition, the applicant made various factual claims, including the following:

   4.1 While operating a business in 2009, the applicant was harassed by the Criminal Investigation Department (CID) which caused him to attempt to leave Sri Lanka illegally. However, the applicant was prevented from leaving, detained and ultimately ordered to pay a fine.

   4.2 In April 2011, after the applicant was released [in February 2010], he was harassed and detained overnight by the CID.

   4.3 After that incident, the CID continued to visit his home.

   4.4 In July 2012, the CID visited the applicant’s home as a precursor to killing him, which caused him to flee.

4. At the Tribunal hearing the applicant gave evidence concerning:

   a)the shop he said he had run in his home town and when he operated it;

   b)his claimed flight in 2009 and the court proceedings and imprisonment which were said to have flowed from that; and

   c)police harassment of him following his release from prison, in particular the event said to have occurred in July 2012 and actions consequent upon that.

5. The evidence the applicant gave to the Tribunal concerning his shop, his imprisonment and police harassment between his release from prison and the July 2012 event was different in some respects from his earlier accounts of these matters.  For instance, in relation to post-release harassment, the Tribunal recorded at para.18 of its decision record:

   The Tribunal understood the applicant’s evidence to be that after the incident in April 2011 when he was detained by the CID overnight, he began to come back to his home late at night to avoid the CID so that they would not detain him again, but, they did not cause any other difficulty until they came to his home in July 2012. In contrast to this evidence, at his interview with an officer of the department held on 11 October 2012, the applicant said that after his attempt to leave Sri Lanka illegally in 2009 and being released from custody in early 2010, there was an occasion in 2011 when, while walking home on his street, he was apprehended by the CID. He said that they detained him overnight and when asked what happened after that he was recorded as giving the following evidence (verbatim):

   “ … after that they continued to come visit my house coming looking for me. Because of their arrival I try to stay at my friend’s place and try not to stay at home at my house and I only come at night this way.”

6. In his evidence to the Tribunal concerning the event in July 2012, the applicant stated that the CID had come to his house, asked for his ID card and his passport, photographed him and said that their reasons for taking these steps were none of his business.  Apparently the CID officers made no accusations to the applicant and simply left after taking his details and photographing him.  The applicant said to the Tribunal that from this he concluded that the CID were going to kill him.

7. The applicant provided various documents in support of his application, including:

   a)a “detention order” dated 23 November 2009, stating that the applicant had been involved in the offence of being a member of a “terrorist organisation”, of aiding and abetting the LTTE and of attempting to depart Sri Lanka illegally.  The detention order stated that the applicant was to be detained for a period of 90 days from the date of the order;

   b)a Red Cross “detention attestation” dated 1 February 2010.  According to the document, the applicant was visited by a Red Cross delegate in prison on 20 January 2010 and subsequently released on 22 January 2010; and

   c)a “charge sheet” stating that the applicant had departed Sri Lanka illegally in November 2009 and had thereby committed an offence punishable under the Sri Lankan Immigration and Emigration Act.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt, with the exception of para.6.1 for the reasons identified therein:

   5.The Tribunal found that the applicant was not a “witness of the truth” and that the events on which the applicant’s protection claims were based were “false”. In making that finding, the Tribunal identified the following concerns with the applicant’s claims and evidence:

   5.1 The applicant provided “inconsistent evidence” about resuming the operation of his shop at the market.

   5.2 The Tribunal found that the applicant gave “inconsistent evidence” about the date he was granted bail and released from detention after attempting to depart Sri Lanka illegally in 2009.

   5.3 The Tribunal found that the applicant’s “belated adoption” of his previous account of subsequent encounters with the CID (after the April 2011 incident) was an “attempt to conceal inconsistencies” in his evidence.

   6. The Tribunal found the applicant’s account of the incident in July 2012 “difficult to accept” and “not credible”. The Tribunal made the following findings in relation to that incident:

   6.1 The applicant’s claims to have taken steps to avoid the CID by, for example, coming home late at night were “not believable”. [The finding, rather, was that it was not believable that the applicant would return to his home knowing that the CID were waiting for him there in circumstances where he said he had been taking steps since April 2011 to avoid them by, for example, coming home late at night].

   6.2 Taking into account country information, the applicant’s evidence about what the CID did when they visited “seemed fanciful”.

   6.3 The Tribunal found that the “incredulity” of the applicant’s claims was enhanced by his account of seeking help from the police (being another arm of the Sri Lankan authorities).

   6.4 The Tribunal did not accept that, after the incident, the applicant would remain at his home for a week and be willing to walk to the shops.

   6.5 The Tribunal found that it was “incongruous” that the CID would visit the applicant in July 2012 but show no further interest in him.

   6.6 The Tribunal considered the documents submitted by the applicant in support of his claims. However, the Tribunal found that those documents did not overcome its credibility concerns and gave them “no evidentiary weight”.

   7.The Tribunal found that being Tamil, in itself, would not expose the applicant to harm or give rise to a perception of involvement in the LTTE. Further, the applicant’s age did not change that conclusion.

   8. The Tribunal found that the applicant might be “held in custody” by the Sri Lankan authorities upon return. However, the Tribunal found that during that process, the applicant would not be “mistreated” and that any time spent in prison would be the result of the “non-discriminatory application of a law of general application”. Further, the Tribunal found that the possibility of a custodial sentence was “remote”.

   9.The Tribunal also rejected the applicant’s claim that his illegal departure, and seeking of asylum in Australia, would give rise to a perception that he was involved in the LTTE. (References omitted)

PROCEEDINGS IN THIS COURT

1. In his amended application the applicant alleged:

   1.The Tribunal fell into jurisdictional error in that the Tribunal denied the applicant procedural fairness by reason of there being a reasonable apprehension of bias and/or legal unreasonableness.

   Particulars

   a.The applicant provided the following documents to the delegate:

   i.        Detention attestation [CB110-111];

   ii.       Detention order [CB112]; and

   iii.         Receipt of payment of fine [CB103-104].

   b.The applicant provided a charge sheet to the Tribunal [CB225-228]. The Tribunal did not make any findings that the documents were not genuine.

   c.The delegate accepted as credible aspects of the applicant’s claims except:

   i.           He was questioned by the CID in April 2011 and held overnight; and

   ii.          He was questioned by the CID in July 2012 and that he reported the harassment to the Kotahena Police.

   d.The fact-finding by the Tribunal was performed in a manner which in major respect was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision;

   e.The applicant submitted various documents from different authorities relating to his detention in November 2009.  The Tribunal’s findings at [45] at [CB270] of an inconsistency in the applicant’s evidence as to whether he was released in January or February 2010 affected his credibility and did not give any evidentiary weight to his corroborating documents was capricious and legally unreasonable;

   f.The Tribunal made findings that were not put to the applicant for comment that:

   i.       All of his claims were false in [46] at [CB271];

   ii.       He was never in prison in [47] at [CB271];

   iii.     There is no credible evidence that the applicant suffered harm from Sri Lankan authorities or anybody else in Sri Lanka in [48] at [CB271];

   iv.          The applicant was denied procedural fairness and the Tribunal acted in a manner that was capricious, arbitrary and legally unreasonable to such an extent that it is reasonable to apprehend that the Tribunal did not bring an impartial mind to bear on the decision.

Particulars A, B and C

1. Particulars A and C are factual narratives and raise no matter requiring consideration in these reasons.   

2. In particular B, the applicant alleged that the Tribunal did not find, in terms, that the charge sheet he provided to it, and presumably the other documents referred to in para.45 of the Tribunal’s reasons, were not genuine.  That is true.  But the Tribunal did not need to make a finding in express terms as to the documents’ genuineness in order to reach a relevant conclusion in relation to them which was, in this case, that it accorded the relevant documents no weight.  In the Tribunal’s eyes, the other parts of the applicant’s case were so lacking in credibility that the documents could not save it.  The Tribunal must be understood in the circumstances to have implicitly rejected the accuracy or the genuineness of the documents on that basis.

Particular D

1. This paragraph is an unparticularised complaint.  Absent any further and better particularisation, it lacks meaningful substance.  In any event, the Tribunal’s analysis was detailed, thorough and not apparently affected by the deficiencies alleged. 

Particular E

1. The contention advanced in this particular has been dealt with in the context of particular B.

Particular F

1. As to subparagraphs (i), (ii) and (iii), it should be observed that the Tribunal had no duty to put to the applicant its thought processes or its conclusions so that he might comment on them.  Also, it should be recorded that the Tribunal’s concerns regarding the applicant’s credibility had been put to him in fairly comprehensive terms, as recorded in paras.10, 11, 20 to 21 and, most particularly, 37 to 39 of its reasons.

2. As to subparagraph (iv), the allegation of denial of procedural fairness was not particularised and so that contention also lacks meaningful substance. However, it is apparent from the Tribunal’s detailed account of the hearing which it afforded the applicant, that the applicant was taken through his evidence and given an opportunity to address the Tribunal fully on every matter of concern to him and, it would seem, to the Tribunal. It is not apparent that the Tribunal had any obligations to put matters to the applicant pursuant to s.424A of the Act and, for the reasons already given, there seems to have been no breach of the Tribunal’s obligations to put the applicant on notice of relevant issues pursuant to s.425 of the Act.

3. Further in connection with subparagraph (iv), it is not apparent that any other issues might arise in relation to the Tribunal’s conduct of its hearing.  In that regard, the second element of this subparagraph, namely, that the Tribunal’s decision is affected by jurisdictional error by reason of apparent bias on the part of the Tribunal, cannot be made out.  The applicant has failed to identify any specific conduct on the part of the Tribunal which would support such a conclusion.  The applicant neither gave evidence himself nor adduced a transcript of the Tribunal’s hearing from which it might have been concluded that a reasonable and informed lay observer might have apprehended the possibility that the Tribunal was not bringing an open mind to its conduct of the review.

Oral submissions

1. At the hearing of the present application, the applicant pressed on the Court his claim for a protection visa.  As explained to the applicant and as set out earlier in these reasons, the Court’s powers are limited to determining whether the Tribunal’s decision is affected by jurisdictional error.  The applicant’s invitation to reconsider the merits of his visa application is not something which the Court can entertain.

2. The applicant also told the Court that he has been mentally and physically affected by his flight to Australia and, it would seem, from his lack of success before the Department and the Tribunal.  He told the Court that he was suffering depression and could not function and really did not know what was wrong with his body.

3. No medical evidence was placed before the Court which would support a conclusion that the applicant was precluded by any medical conditions which he might have from the proper presentation of his case.

4. Similarly, although I accept that the applicant may be suffering stress and anxiety, and may find the current proceeding confronting and a cause of anxiety, it is not apparent to me that he was prevented in any material way from saying to the Court what he wanted to say.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 11 July 2018