AMT15 v Minister for Immigration
[2017] FCCA 1523
•6 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMT15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1523 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 426. |
| Cases cited: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 |
| Applicant: | AMT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 818 of 2015 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 30 March 2017 |
| Date of Last Submission: | 30 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Ms Lucas |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 818 of 2015
| AMT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Sri Lankan citizen who travelled to Australia by boat, arriving on Christmas Island as an irregular maritime arrival in June 2012. The applicant commenced his protection visa application in November 2012 following which a delegate refused to grant the visa on 11 September 2013. The applicant then commenced proceedings before the Refugee Review Tribunal (as it then was) to review the decision of the delegate. The Tribunal affirmed the decision of the delegate on 25 March 2015. The applicant then sought judicial review in the Federal Circuit Court.
The substance of the applicant’s claim is that he is a Tamil from Sri Lanka who has been involved in the Tamil National Alliance (“the TNA”). The applicant says that, as a result of his work with the TNA, he would attend rallies and speak in front of crowds. The applicant says that in 2010, he took over the party’s marketing role for his area, a role which involved preparing posters and sending out flyers. In 2010, during the election campaign, the applicant says that his motorbike was damaged and windows of his house were broken by a group of men whom he understands were from the opposition party. The applicant says that in May 2012, men came to his house seeking him out, in circumstances where he had earlier received a telephone call warning him not to go to the party conference, with threats that, if he did so, he would be shot and killed. The applicant said that when the men came to his house, he was out the back and they met his wife at the front and barged in and commenced to search for him. The applicant said he escaped and fled, and that the following night a similar event took place. The applicant was then assisted to flee the country and ultimately ended up being an unauthorised maritime arrival on Christmas Island.
The applicant’s wife and children remain living in Sri Lanka. The applicant says his son is living discreetly with his mother (his son’s grandmother) but remains in Sri Lanka. The applicant also says that others with a similar role in the party have since been abducted and shot in Sri Lanka. In substance, he fears persecution as a result of his political views and involvement with the TNA.
Ultimately, the Tribunal concluded that the applicant was not a witness of truth and that his accounts of the events upon which his visa application is based were false. Importantly, the Tribunal did not believe that he supported and undertook activities for the TNA (see paragraphs [23] to [26] of the Tribunal’s decision).
The Tribunal then went on to determine whether or not he was entitled to a protection visa on the basis of being a Tamil from Batticaloa, who left Sri Lanka illegally, who would return as a failed asylum seeker. The Tribunal concluded that he was not at risk as a result of these things and also went on to consider whether or not he would be politically active in Sri Lanka if he returned. The Tribunal concluded that he would not be politically active, nor was there any credible evidence that he had previously suffered harm as a result of his political views (see paragraph [39]). The Tribunal concluded that merely being a Tamil from Batticaloa was not sufficient (see paragraph [45]) to place him at risk.
The applicant’s application was initially based upon a number of pro-forma grounds but later replaced with an amended application setting out his grounds with particulars running to some seven pages. I turn then to consider each of the grounds.
Ground 1
The first ground alleges that “the Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.” The applicant then provides five separate particulars that relate to this ground.
Particular A
The substance of particular A is contained in the third paragraph of the particular. The applicant complains that the Tribunal concluded that there were credibility concerns with respect to a discrete part of the applicant’s evidence and thereafter rejected the entirety of his evidence. After recounting much of the applicant’s evidence, the Tribunal concluded:
19. The Tribunal finds the applicant’s evidence about what he saw and what took place on the evening of 27 May 2012, after the conference he attended that day, to be unsatisfactory and inconsistent. The applicant’s initial account to the Tribunal was that there were only two men present; they spoke to his wife and then they ran down a lane to catch him. Only when reminded of his account in his declaration did the applicant then say that these two men entered his home but he did not see that. After being pressed to explain his account in his declaration that he did see men go into his home, the applicant then introduced a completely different account that in fact three men came to his home and not just two. One of them could have gone into the house. After being reminded of his evidence to the delegate that men entered the house and when pressed as to whether that happened, he then said that men did go into the house and he saw that.
20. This mobile, changing and conflicting evidence demonstrated to the Tribunal that the applicant was fabricating his account of this particular incident. The applicant did not provide any satisfactory explanation to the Tribunal for his inconsistent evidence about what should have been a very simple and straightforward account to relate. Rather, when confronted with inconsistencies, the applicant appeared to invent new evidence to try and conceal them.
The Tribunal went on to consider an explanation for these difficulties put forward by the applicant’s agent, saying:
21. At the hearing the representative submitted that there would have been ‘amalgamation’ in terms of what the applicant saw or heard. In submissions of February 2015 the representative advised that after the hearing further instructions were taken from the applicant as to what took place on the evening of 27 May 2012 at his home after the conference. The representative advanced a further account, namely, that the applicant was at his home when he saw two men arrive, speak to his wife and then enter the house. He did not hear what was said and he saw only two men and ‘their eyes met’. There may have been more than two men present but he only saw two men. After they saw him he started running as did they. Later he found out his wife told the men he was not there and he was given that news by his brother who did not mention the number of men present. It was submitted that the applicant was confused at the Tribunal hearing when he said that there was a third man present. Since the hearing the applicant has asked his wife about that and she said there were only two men who came to the home.
22. The Tribunal has carefully considered these submissions, oral and written, but they do not resolve the inconsistency in the applicant’s evidence. The Tribunal does not accept that the applicant, at one stage of his evidence, would tell the Tribunal that there were, in total three men involved in this incident out of confusion. At one stage of his evidence the applicant said he did not actually see men going to his house. If anything, these submissions from the representative provide yet another layer of inconsistency with respect to an event that should have been straightforward for the applicant to relate.
The difficulty confronting the applicant is that this is not a case where one of a series of key events, or a small or discrete part of his evidence was rejected and then used as a basis for rejecting his evidence entirely, but rather a case where the central significant event, which the applicant says caused him to flee Sri Lanka, was not accepted by the Tribunal. It is important to note that the Tribunal’s findings with respect to the event in May 2012 were open to the Tribunal on the evidence before it. Indeed, it would have been surprising for the Tribunal to have accepted the applicant’s evidence, given the nature of the inconsistencies.
It is for the Tribunal to make findings of fact, not the Court. It is not irrational or unreasonable for a decision-maker to conclude that where a witness’s credibility has been found wanting on a significant central issue in the case, that none of that witness’s testimony would be accepted. It is, of course, open to a Tribunal to accept or reject various parts of a witness’s testimony; but it is also open to a Tribunal to reject the entirety of a witness’s testimony. In this case, the Tribunal considered the testimony in some detail and made a finding of fact.
I am not persuaded that the Tribunal have committed a jurisdictional error, but rather have undertaken the statutory function that they were required to do so in assessing this claim.
Particular B
This particular alleges that the Tribunal failed to consider the applicant’s political views and commitments and the impact that this may have. The Tribunal considered his political views generally, saying:
39. It was submitted that the applicant is personally opposed to paramilitary groups and believes that Tamils should be able to live freely and elect whoever they want to represent them. It was submitted that the applicant would resume political activities on return to Sri Lanka. The Tribunal is willing to accept that the applicant may well hold the opinions specified but it does not accept that he was politically active in Sri Lanka and so rejects the claim that he will undertake political activities on return there. There is no credible evidence that the applicant suffered harm in Sri Lanka because he holds the political views described. Country information set out above indicates the profile of person most likely to be at risk of harm in Sri Lanka and the applicant is not such a person including the profile related to certain politicians and activists.
In this case, the Tribunal did carefully consider the evidence about his political involvement, and rejected his claims about involvement with the operation of the TNA political party. The Tribunal did go on to consider whether general political views that the applicant held (which the Tribunal accepted) placed him at risk. On the findings that the Tribunal made, the applicant had not suffered any harm in the past and there was not any basis upon the evidence for a conclusion that he was a person of a profile that was at risk of harm.
Particular C
A similar argument was raised with respect to a claim that he may be imputed or suspected to have links to the LTTE. Similarly, this was dealt with by the Tribunal which said:
40. It was submitted that the new President of Sri Lanka had in the past expressed adverse views about the TNA and autonomy for the Tamil north-east of the country. Concern was expressed by the representative over certain ministerial appointments made by this new president including the appointment of a former paramilitary group leader and the pardoning of another Army Chief who, it was claimed, intended to persecute Tamils. It was submitted that it was too early to predict whether the situation in Sri Lanka would improve with the new president and, in the meantime, it was claimed that paramilitary groups operated in the east of the country and committed buses against Tamils with impunity. More generally, there was widespread use of torture among Sri Lankan authorities against Tamils suspected of connections to the LTTE.
41. The Tribunal acknowledges these submissions but they do not demonstrate that there is a real chance this applicant will suffer serious harm because he is a Tamil from Batticaloa. The Tribunal is not persuaded by the submissions that his ethnicity and the place in Sri Lanka where he lives brings him anywhere near the risk profiles identified by UNHCR above. That includes taking into account his illegal departure and the fact he will return to Sri Lanka as an unsuccessful protection applicant from Australia. The applicant does not come within the risk profiles identified by UNHCR nor does he come within the profiles described by UNHCR that would lead to suspicion of involvement with the LTTE.
Again, on the facts as found by the Tribunal, the applicant was not a person at real risk of harm, for the reasons that the Tribunal set out.
Particular E
In particular E, the applicant claimed that the Tribunal failed to have regard to sources of information provided by the applicant’s representative. In this case, there was considerable country information before the Tribunal member. It is clear that a Tribunal member is not required to refer to every piece of country information, however, every item of evidence placed before them, in order to write proper reasons for a decision. The Tribunal member traversed considerable amounts of country information at paragraphs [27] to [32], before setting out the inferences that the Tribunal member drew from the country information. The Tribunal member also discussed the country information with the applicant at the hearing, as explained by the Tribunal in their reasons at paragraph [36] onwards. The applicant does not point to an item of country information that is said to be so significant in the context of this case that the failure of the Tribunal to refer to it must lead to a conclusion that the Tribunal failed to have regard to the material before it.
Ground 2
The applicant did not proceed on ground 2 and, indeed, could not have done so without a transcript of the hearing before the Tribunal as, on the face of the Tribunal decision, it is apparent that the applicant had considerable opportunities to present his case, and, indeed, the benefit of submissions and professional advocates assisting.
Ground 3
This ground involves three separate particulars.
Particular A
The applicant complains that at paragraph [39] of the decision, the Tribunal said:
39. The tribunal is willing to accept that the applicant may well hold the opinions specified, but it does not accept he was politically active in Sri Lanka and so rejects the claim that he will undertake political activities on return there.
It is argued that the use of the word “will” indicates that the Tribunal failed to apply the appropriate test and that the appropriate test required the Tribunal to consider whether he “may” undertake political activities upon return. It is argued that the appropriate test to be applied is whether or not there was a real chance that the applicant may suffer persecution, or whether a well-founded fear of persecution existed.
Upon the findings of the Tribunal relating to past events, there was no basis for a well-founded fear of persecution. With respect to the future, the Tribunal, on a fair reading of the relevant passage, was rejecting his evidence whereby the applicant claimed that he would undertake political activities on return to Sri Lanka. Having rejected his evidence, the Tribunal was left only with its findings relating to the events that had taken place in the past, based upon his activities as the Tribunal found took place. On this material, there was no basis for the Tribunal to find that he had a well-founded fear of persecution or a real chance of persecution in the future.
As a result, I am not persuaded that the Tribunal applied the wrong test, rather that the applicant has read one line of the decision out of context, imputing to it a finding with respect to the law, rather than reading it as a finding relating to the facts as alleged by the applicant which were rejected by the Tribunal.
Particular B
In paragraph [45] of the decision, the Tribunal said:
45. It was submitted that because he was a Tamil from Batticaloa the applicant would be automatically imputed as having pro Tamil political views and suffer harm on that ground. The Tribunal could accept that a Tamil person might be perceived by others or assumed to hold political views in favour of Tamils. However, there is no country information that such people suffer harm for that reason. Simply holding those views does not lead a person being suspected of involvement with the LTTE and suffering serious harm. That is because the Tribunal has set out country information above indicating that persons suspected of such involvement are those who actually worked for that group and the applicant did not.
The applicant argues that the Tribunal has impermissibly limited consideration of risk to those who actually work for the LTTE. Again, this reads the above paragraph out of context.
It is apparent from paragraphs [27] to [32] that the Tribunal member has carefully surveyed the country information in order to determine the extent of risk of those Tamils in Sri Lanka both with direct involvement and those without direct involvement with the LTTE, which has informed the findings that the Tribunal member has made at paragraph [45].
Ultimately these are findings of fact open for the Tribunal member to make based upon the evidence and country information before the Tribunal member. I am not persuaded that this indicates any error on the part of the Tribunal member.
Particular C
The applicant raises arguments as to whether or not the Tribunal properly considered the word “intention” as it appears in the complementary protection provisions, a matter that has been the subject of an appeal to the High Court of Australia, which is presently awaiting judgment, see SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
Whether the potential harm to the applicant being held in a Sri Lankan jail is classified as intentional within the meaning of s.36 of the Migration Act 1958 or not, would be a significant factor in this case if the harm as a result of being held in jail was of a type that comes within the section. However, the Tribunal did not conclude that the applicant was at real risk of significant harm by being held in a Sri Lankan jail for a short period of time, saying:
50. Further, based on the country information set out above, the risk of the applicant suffering significant harm in the process of returning to Sri Lanka and being prosecuted for his illegal departure is also remote. Although returnees will be held in custody on arrival for checks to be made they are not subject to mistreatment. Returnees are brought before a magistrate at the earliest opportunity and are only held in prison should they arrive in Sri Lanka on a day when a magistrate is not available. Any period of time spent in prison will be brief and due to the non-discriminatory enforcement of Sri Lanka’s laws regulating the manner in which people can depart from that country.
51. Accordingly, although prison conditions in Sri Lanka are poor, conditions themselves caused by inadequate resources, having to spend time in such conditions (which the Tribunal infers will be brief if it even occurs) does not amount to significant harm as that term is defined in the Act (that is harm that is intentionally inflicted; the arbitrary deprivation of life or the death penalty) (In the Act, the definitions of torture, cruel or inhuman treatment or punishment degrading treatment or punishment all require such harm to be intentionally inflicted). Further, the (comparatively few) allegations made about returnees being harmed after arriving in Sri Lanka have not been substantiated. Accordingly, the Tribunal infers that, for leaving Sri Lanka illegally and returning there as a failed asylum seeker from Australia, the risk of a Tamil returnee suffering significant harm in the process of re-entering the country and being brought before a court is remote.
For these reasons, the question of the requisite intention is an academic question in this case, because even if the applicant’s interpretation of the word “intended” were to be accepted, the harm involved does not reach the requisite standard.
Ground 4
Pursuant to ground 4, the applicant complains that the Tribunal failed to make its own inquiries to obtain evidence by way of telephone or otherwise from a member of Parliament whose name appeared on a letter that the applicant provided. The applicant relies on the principles set out in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 to the effect that a Tribunal should “make an obvious inquiry about a critical fact, the existence of which is easily ascertained.” The argument confronts a number of difficulties.
Firstly, the existence of the relevant facts would not be easily ascertained even if a person was identified to speak to the Tribunal by way of telephone. The Tribunal still confronted the difficulty of assessing the quality and veracity of that evidence. This is quite different to cases where the Tribunal has been found to have an obligation to take steps to make inquiries. In those cases, the inquiries lead to evidence that is significant and obviously reliable.
Secondly, this was but one piece of evidence in the context of a case where, on the evidence as a whole, the Tribunal had rejected the veracity of the applicant’s evidence. At best, this evidence may have provided some support for the applicant’s claim, if the further evidence had been accepted. Of course, even on the general findings of credibility with respect to the applicant, the Tribunal may not have accepted the subsequent evidence in any event. In this respect, the argument has many similarities to the difficulties the applicant faced in exparte Applicant S20/2002: see Re Minister for Immigration and Multicultural Affairs [2003] HCA 30.
It is not alleged that the applicant was alleged to believe that the letter that the applicant tendered would be accepted.
Finally, it was open to the applicant to give notice to the Tribunal to request that the Tribunal call a witness under s.426 of the Act. The applicant did not make any request under that section.
For these reasons, I am not persuaded that the applicant has demonstrated that the Tribunal has fallen into jurisdictional error with respect to this ground.
Ground 5
Ground 5 alleges that the Tribunal’s decision was so unreasonable that no reasonable Tribunal could have so acted. The first particular repeats and relies upon the matters set out in grounds 1 to 4. There is no question that the various versions that the applicant gave of the events in May 2012, which he says caused him to flee the country, contained significant inconsistencies. This provides a sound foundation for a Tribunal to conclude that they reject his evidence and, therefore, his claim. Such a conclusion could not be considered to be so unreasonable that no reasonable decision-maker could reach it.
The second particular complains, again, that the Tribunal’s decision was unreasonable on the basis that the rejection of his evidence about “one incident in 2012” should not have been used to reject his credibility generally. The incident in 2012 was the central factual foundation for the case: the claim that men came looking for him at his home, causing him to flee from fear and ultimately flee the country. I am not persuaded this indicates any jurisdictional error on the part of the Tribunal.
Ground 6
The applicant alleges that the Tribunal displayed conduct that would cause a reasonable apprehension of bias on the basis of the matters set out in grounds 1 to 4. In short, it is alleged that there should be a finding of a reasonable apprehension of bias on the part of the Tribunal on the basis that the Tribunal rejected the applicant’s evidence based upon the inconsistencies concerning the incident in May 2012.
I am not persuaded that these events show reasonable apprehension of bias. The Tribunal decision shows that a thorough and detailed analysis was undertaken of the evidence. Ultimately, the applicant failed to persuade the Tribunal as to his credibility, in large part as a result of the significant deficiencies in his evidence relating to the most central factual claim that he put forward to support his application for the visa.
The fact that a Tribunal member decides against a party is not a matter that shows a reasonable apprehension of bias, as the very purpose of the Tribunal process is to make findings and, inevitably, there will be a party who succeeds and a party who fails in the proceedings before the Tribunal.
I therefore reject this ground for review.
As I have not found that any grounds have been established, I therefore dismiss the application for judicial review with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 6 July 2017
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