ANO15 v Minister for Immigration - [2018] FCCA 205

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANO15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 205

Catchwords:
MIGRATION – Protection Visa – whether Administration Appeals Tribunal’s decision affected by jurisdictional error – where no error established in decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.422B

Applicant:

ANO15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 333 of 2015

Judgment of:

Judge Vasta

Hearing date:

24 January 2018

Date of Last Submission:

24 January 2018

Delivered at:

Brisbane

Delivered on:

24 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr S. Barataraj

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Application filed 21 April 2015 as amended on 27 July 2015 and 12 July 2017 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 333 of 2015

ANO15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

This matter has had somewhat of a lengthy history. The Applicant is a Sri Lankan citizen who left Sri Lanka by boat and arrived in Australia in 2012. He claimed protection and was the subject of a determination by the delegate to the Minister. The delegate refused to grant the Applicant a protection visa.
The Applicant sought a review of that decision with the Administrative Appeals Tribunal (“the Tribunal”) and a hearing was held on 9 April 2015. I should say they were the Refugee Review Tribunal at that stage and on 9 April 2015 the Refugee Review Tribunal affirmed the decision not to grant the Applicant the protection visa. The Applicant filed an application on 21 April 2015 in this Court seeking a review and the matter first came before me on 25 May 2015 whereupon I set the matter for a final hearing.
The Applicant wished to take advantage of some appeals that were to occur, namely, SZTAL v the Minister, SZTGM v the Minister and SZTCY v the Minister. Those three appeals were to be heard by the Federal Court and I was asked to adjourn this matter until those three appeals had been determined.
It seems that those matters were determined in 2017. On 5 July 2017, I ordered that the matter be listed for hearing on 28 August 2017 and that the timeframe for the written submissions be adjusted accordingly. On 12 July 2017 an amended originating application was filed, together with the submissions of the Applicant.
On 14 August, the Minister put in their submissions and on the 15 August the Applicant submitted his list of authorities. The matter on 28 August, though, did not go ahead because the matter of SZTAL was to be the subject of a High Court special leave application. I adjourned the hearing of this matter to await that decision.
On 10 October 2017, having had possession of that decision, the parties asked me to list this matter for today, which is 24 January 2018. So it has been an unfortunate period of some 33 months since the Applicant first filed his application in this Court to it finally being heard.
As I have already said, the Applicant is a citizen of Sri Lanka. He is a Tamil and he practices the Catholic religion. In 2006, his brother was killed and whilst there has been some argument as to who had done the killing, the Applicant had believed the brother had been killed by a group, whether that be a government group or the Karuna Group.
The brother had been working by the roadside near a highway and was shot. Not too many other details are known other than that. It is not of any controversy that the Applicant’s family moved away from the village because they were scared about what had happened and as to whether the brother had been targeted for an unknown reason.
As I say, that occurred in 2006. In January 2008, the Applicant was riding his bicycle to a New Years’ celebration and he says that he was stopped by eight criminal investigation department men in a white van. He was taken to a building where he was interrogated about his knowledge of the LTTE and he was beaten.
He said in June 2010 his employer was taken away by the military and was not released for three days. The Applicant arrived at his employer’s house whilst the Minister was still there and the Applicant was beaten very severely as well on that occasion, and so much so that his family had to come and take him home. This was allowed by the military according to the Applicant.
In April 2011, he claimed that the army rounded up and questioned him while he was at a playground with his daughter. He said also that from early 2011 he was employed as the driver of a private bus and in October 2011 he was stopped again by the criminal investigation department who demanded that he attend their office for questioning.
The Applicant didn’t return to his work as a bus driver and for the following 10 days worked in the forest cutting down trees. In November 2011, he returned to work as a bus driver and over a period of two months he claimed he was stopped on 10 occasions.
On three occasions the military demanded that he buy items for them or pay them money. From late 2011 he says that he was stopped by the military for questioning about his membership of the LTTE of which he was actually not a member.
The Applicant attended an interview with the delegate on 24 September 2013 where he gave some oral evidence in addition to the written claims that had been made. As I have said, the delegate declined to grant the Applicant a protection visa, that decision being made on 3 January 2014. The Applicant asked the Tribunal to review that decision.
The hearing before the AAT occurred on 4 February 2015 with the initial submissions having been made in January 2015 and then post-hearing submissions made on 10 February 2015. The Tribunal made their decision on 9 April 2015.
The Tribunal found that they had concerns with what they considered to be inconsistent evidence given by the Applicant in that there was different oral evidence given to the written evidence and the Tribunal was concerned that the Applicant had fabricated some of the claims in order to support the application.
The Tribunal accepted that the brother died from a gunshot wound, possibly by the government armed forces, but there was nothing on the evidence that the Tribunal looked at that could say that there was any evidence that the brother had been targeted for any specific connection with the LTTE.
The Applicant, in making a submission that there was a belief by someone that the Applicant’s brother was a member of the LTTE and therefore that is why he was gunned down, sought to draw a conclusion that because the brother was thought to be a member of the LTTE, therefore the same persons would think that he was a member of the LTTE.
Whilst that may be somewhat fuzzy logic, there doesn’t seem to have been anything that occurred to the Applicant between 2006 and 2012 in which he was either shot or threatened with death or that there was any actual attempt on his life by any other group either.
Whilst the Tribunal accepted that the Applicant had been kidnapped and questioned about his knowledge of the LTTE in 2008, again, he was released. After such an ordeal he certainly was not killed or attempted to have been killed.
The Tribunal found that there were inconsistencies about the raid on the employer in that the Applicant had, at some stages, not said that there were weapons found at the employer’s residence and had, at some stages, not talked about him suffering a beating at the hands of the military on that particular day.
Because of those inconsistencies the Tribunal did not accept that he was part of any round-up in 2011 or that he was picked out for questioning or located the next day and had his house searched. The Tribunal came to the conclusion that those were aspects of his evidence that he had fabricated in order to, in effect, “gild the lily” to ensure that his claim would seem to have more substance to it than it actually did have.
The Applicant had given the Tribunal two letters, one from a Justice of the Peace and the other from Father Edwin, who is mistakenly referred to as Father Omi, in the decision of the Tribunal. Both of those letters are somewhat general but do talk about the sort of problems and risks that would be faced by the Applicant if he returned to Sri Lanka.
The Tribunal also had a number of articles that constituted country information from the United Nations and from the Department of Foreign Affairs and Trade.
The Tribunal did not accept that the Applicant would be suspected of being an LTTE member upon return to Sri Lanka. They did not accept that he would be imputed with a political opinion upon return to Sri Lanka. They did not accept that he would be of adverse interest to the government or the army or the navy or the police or the CID or any paramilitary group upon return to Sri Lanka. The Tribunal was not satisfied that the Applicant would have any risk because of the practice of the Catholic religion.
The Tribunal accepted that there was a real chance he would come to the attention of authorities upon return to Sri Lanka because he had left the country illegally and was returning as a failed asylum seeker, but, using country information, came to a conclusion that such sanction for breaking the law would not constitute serious harm.
Even accepting that prison conditions were poor due to overcrowding and unsanitary conditions, he would not be in prison for an unacceptable time and those conditions would not amount to serious harm.
Having made all of those findings, the Tribunal affirmed the decision of the delegate to the Minister.
In the amended originating application, there are a number of grounds. The first ground was
“1.That the Minister erred in law in not following the proper procedures in determination of the application made by the applicant.
Particulars
(a) The Tribunal erred in deciding that the Statutory Declaration made by the Applicant should have contained all the facts in relation to his application…”
The problem with such a particular is that has not stated correctly what the Tribunal said that the statutory declaration should have contained. The Tribunal did not say that it should contain all the facts in relation to the application. What the Tribunal did was say that the statutory declaration should have contained the relevant matters that would have founded a fear of persecution and it should have all of the relevant facts that would explain why it is that the applicant would be targeted upon return.
The fact that the statutory declaration did not contain material that was relied upon by the Applicant in later oral evidence was capable of allowing the Tribunal to conclude that the subsequent oral evidence was fabricated.
The Tribunal did not say, as a matter of law or of practice, that the statutory declaration had to contain all the facts in relation to the application. The Tribunal knows that there are many reasons why persons do not always give all the facts in such statutory declarations. The problem with this matter for the Applicant is that there was no reasonable or sufficient explanation given to the Tribunal as to why there was that inconsistency. When there was not sufficient explanation as to why, it is quite open to the Tribunal to come to the conclusion that they have arrived at.
The sort of logic that would conclude that “therefore the Tribunal was saying that everything should be in the statutory declaration” is fuzzy logic and does not logically follow from the conclusions reached by the Tribunal.
The second part of these particulars was:
“…
b. The delegate had indicated that the Applicant’s account of events was largely consistent with that given in his previous interviews with the department, but the Tribunal appears to be totally contradicting giving a different view. This only indicates that the whole judgment of credibility is subjective instead of objective.”
If one looks at what the Tribunal has actually said, it is that all of the claims are not false. There is, in effect, a kernel of truth in the claims made but what the Applicant has done is embellished or fabricated these claims; as I have previously described “to gild the lily”, to emphasise or to make that kernel of truth seem far more significant than it really is.
It is that embellishment or fabrication to which the Tribunal has directed its criticism, not to everything that the Applicant has said. I can find that there is no contradiction at all in the description that the Applicant was generally consistent but fabricated aspects of the claim.
Therefore, as far as ground one is concerned, I do not consider that there is any merit in that ground.
Ground two stated that:
“2. The Tribunal erred in law by failing to take into consideration UNHCR guidelines where when evidence is given and accepted by the Tribunal that the Applicant’s brother was shot by the LTTE, there is a distinct co-relation in that the mere killing of the Applicant’s brother would have associated the Applicant with his brother that he would also be persecuted because of his relationship to his brother …”
I have already spoken about this aspect when going through what it was that the Tribunal had looked at in arriving at the ultimate decision. I cannot see that the UNHCR guidelines were in any way subverted by the Tribunal but, in any event, the UNHCR guidelines are just that – guidelines.
To look at whether the Tribunal has been fair, one has to look at had the Tribunal complied with its obligations under Part 7, Division 7 of the Migration Act 1958 (Cth) (“the Act”) and, more importantly, with all of the sections that followed thereon. The legislation beginning at s.422B says:
“Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2)Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

(3) In applying this Division, the Tribunal must act in a way that is fair and just.”

There is no submission that any of those sections have been not complied with, therefore I do not see that there is any merit in ground two.
Ground three is that:
“3. The minister erred in not taking into consideration relevant information in making the decision…”
I take ground three really means that the Tribunal erred in not taking into consideration relevant information in making the decision. The words “relevant information”, as they pertain to a review such as this means that the allegation is that there was information that was mandatory for the Tribunal to consider and that the Tribunal failed to consider it.
The particulars given by the applicant for this particular ground are as follows:
“…
a. The Applicant has provided details of several country information reports that supported the claims of the applicant. It is important that this information to be co-related with the experience of the Applicant, with respect to the persecution of supporters of opposite political parties. Further the situation in Sri Lanka is always dynamic and not consistent. The Applicant provided evidence of latest country information which supports the applicant. This was rejected.
b. That there are several paramilitary groups (included Tamil groups) and political thugs that detain, threaten or attack the members or those associating with opposition parties and the claims of the Applicant are plausible. It is obvious from the incidents that the persecution does not come from one source but from variable independent sources. Because of this the Applicant there is a denial of capacity to earn a livelihood and a capacity to exist. [Sic]
c. There is undisputed evidence of incidents experienced and narrated by the Applicant the if taken in toto would qualify the Applicant for protection both under s.91R(1), s.91R(b) and (1)(c) of the Migration Act 1958 (Cth). It is not sufficient for the Tribunal to merely mention the incidents and pass it as incredible.”
When one looks at the actual decision made by the Tribunal, it is clear that the Tribunal has looked at all of the country information. It has preferred the country information that has come from sources such as the United Nations and the Department of Foreign Affairs and Trade.
The Tribunal clearly states that it has taken into account the other information. It’s just that it prefers the information that it ultimately relies upon. That does not mean that it has not considered the matter. Quite clearly, by looking at the Tribunal’s reasons, it has considered the matter.
That is what the Tribunal must do, is take all relevant matters into consideration. Because the Applicant feels that the information that he had was not consistent with the ultimate result, he claims that the Tribunal has not taken it into consideration. That is, again, a false logic but is really going to ask this Court to engage in an impermissible merits review, which it will not do. Therefore, there is no merit in this ground.
The fourth ground is
“4. The Tribunal has not provided definitive or substantive reasons to determine that the Applicants do not qualify under the Complementary Protection criteria. The standard established by the Tribunal was unsatisfactorily rigid and high.”
When one looks at what the Tribunal has actually done, it is clear the Tribunal has looked at the complementary protection criteria properly. The Tribunal appended the considerations for such protection to its reasons.
Having appended those provisions, it was incumbent upon them to address why it was that the complementary protection criteria had not been adhered to. What the Tribunal did was it relied upon its earlier findings in considering the application as to whether the Applicant met the refugee or convention criteria of the Act and using those findings, came to the conclusion that, for exactly the same reasons, the complementary protection criteria had not been satisfied.
I can see no error in the manner in which the Tribunal has gone about its business. In oral submissions, the counsel for the Applicant focused on the letters that are at pages 161 and 162 of the court book. The submission was that those were matters that should not easily have been “not followed” by the Tribunal.
Whilst that may be so, it is not a question of whether the Tribunal should have done a certain thing; it’s whether they could have done that. It was open for the Tribunal to put those two letters into the melting pot with the other country information it had and to come up with the conclusion that it did.
Whether I would have done that in the Tribunal’s shoes or whether anyone else would have done that in the Tribunal’s shoes is not the issue. It’s whether the Tribunal could have come to the conclusion that it did and obviously on this evidence it could have come to that conclusion.
Given all of these matters, I do not find that there is any jurisdictional error in the decision of the Tribunal and so I dismiss this application with costs in the sum of $5,800.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 3 April 2018