AOG15 v Minister for Immigration and Border Protection
[2018] FCA 270
•16 February 2018
FEDERAL COURT OF AUSTRALIA
AOG15 v Minister for Immigration and Border Protection [2018] FCA 270
Appeal from: AOG15 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2409 File number: VID 1097 of 2017 Judge: NORTH J Date of judgment: 16 February 2018 Date of hearing: 16 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person Solicitor for the Respondents: Ms M Jackson of Australian Government Solicitor ORDERS
VID 1097 of 2017 BETWEEN: AOG15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
16 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent fixed at $3000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
Before the Court is an appeal from orders made by the Federal Circuit Court on 4 October 2017. The Federal Circuit Court dismissed an application for review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 30 March 2015. The Tribunal affirmed a decision of the delegate of the first respondent, Minister for Immigration and Border Protection, to refuse the appellant’s application for a Protection (Class XA) visa.
The appellant is a Tamil national of Sri Lanka. The essence of his claim as it was finally put to the Tribunal was that he was suspected by the Sri Lankan authorities of support for the Liberation Tigers of Tamil Eelam (LTTE) as a result of his friendship with a man called Ganapathy Pillai. The latest version of his claim asserted that his LTTE connection derived from him as a fisherman supplying fish to the LTTE. He also claimed to fear persecution on the basis that he was a failed asylum seeker, and for the reason that he left Sri Lanka illegally.
The Tribunal approached the claim in a particularly methodical and balanced way. It first set out the various ways in which the appellant put his claim at the entry interview, on his visa application, in evidence given to the delegate, in submissions made by his representative, and finally in the evidence he gave at the hearing before the Tribunal.
Then, the Tribunal made an assessment of the appellant’s credibility. The Tribunal carefully instructed itself that not all inconsistencies in evidence are necessarily significant, and that sometimes inconsistencies may be explained by the experience of trauma or the stress of the particular circumstances in which the circumstances are recalled.
The Tribunal put aside some inconsistencies in the appellant’s evidence for those reasons, but it then set out a series of inconsistencies which it regarded as relevant on the following topics: regarding how the appellant met Ganapathy at [56], regarding the family that came to stay at [57], regarding the claimed assaults at [59], regarding the claimed threatening telephone calls at [61], regarding the period spent in hiding at [63], regarding having provided fish to the LTTE at [64], and regarding the claimed links to the LTTE at [66].
Then the Tribunal concluded as follows:
98.If the inconsistencies (such as the different accounts of the various assaults and the order in which they occurred) had been solely at the Tribunal's hearing, the Tribunal would make an allowance for the passage of time having muddied the events in the applicant's memory. However there have been inconsistencies in the evidence from the beginning of the application and they are not readily explained by the passage of time.
69. The inconsistencies in the applicant's evidence are not minor inconsistencies regarding peripheral matters such as dates or places. They go to the core of the applicant's claims such as the actual events which led to his claimed perception as an LTTE supporter, the make-up of the family that came to stay with him and the number and manner of the assaults and telephone calls which occurred. Although the Tribunal recognises that memory can be affected by trauma, in the applicant's case the inconsistencies are so wide ranging and the accounts so inconsistent regarding fundamental claims that the Tribunal does not accept that the many accounts that the applicant has given can be explained that way.
70.The applicant's claims are inconsistent and implausible and the applicant's explanations for the inconsistencies are insufficient to disregard those inconsistencies. The Tribunal is not satisfied that the applicant has given a reliable account of his experiences in Sri Lanka prior to coming to Australia and the Tribunal does not consider that that the applicant's evidence is credible in this regard.
71.The Tribunal does not accept the applicant's claims to have been linked with the LTTE, either through having given them fish, or through a family that came to visit from Mullaitivu. From the applicant's inability to recall their names apart from Ganapathy Pillai or to provide a consistent account at any stage of the proceedings as to which family members visited the Tribunal does not accept that a family in fact came to visit from Mullaitivu. The Tribunal does not accept that the applicant was assaulted or that he was of any interest to the authorities on the basis of suspected links with the LTTE or other reasons. In light of the different accounts in relation to the telephone calls and when he purportedly went into hiding as well as his inconsistent evidence regarding receiving the calls and having the phone switched off as a result of having received the calls, the Tribunal also does not accept that the applicant received threatening calls prior to his departure or that he went into hiding.
As a result of the credibility assessment, a number of the appellant’s claims were rejected. The Tribunal then examined claims based on the appellant’s Tamil ethnicity, as a failed asylum seeker, and as an illegal departee. The Tribunal rejected those claims on the basis of an analysis of country information. The Tribunal then separately considered the complementary protection claims and rejected them for essentially the same reasons.
On 23 April 2015, the appellant applied to the Federal Circuit Court for a review of the Tribunal’s decision.
The two grounds of review were as follows:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
The Federal Circuit Court observed that the second ground was not a ground of review.
The Federal Circuit Court then said:
In relation to the first ground, the applicant was unable to advise the court of any problems with the Tribunal's decision or decision−making process that could amount to a jurisdictional error. He said that he had forgotten to tell the Tribunal about a particular incident. Otherwise, the applicant had nothing to say about any error that the Tribunal might have made.
On 12 October 2017, the appellant filed a notice of appeal in this Court. The grounds of appeal are as follows:
1.The Tribunal accepted that the Applicant would be detained for a brief period but did not assess whether that such detention would result in persecution. The Tribunal clearly not assessed this integer claim and fell into jurisdictional error.
2.The learned judge erred by holding with the Tribunal that the appellant’s claim was cumulatively assessed but it was not.
3.The Tribunal erred jurisdictionally by breaching section 424A of the Act. If has not given to the appellant clean particulars pursuant to subsection (1) and acted in haste and refused the application. The Tribunal erred and misconstrued the obligation imposed on the Tribunal under the Migration Act.
4.The appellant reserved his right to amend the grounds of appeal when the reason for the learned judge’s decision come to hand.
The appellant appeared at the hearing of the appeal and was assisted by a Tamil interpreter. The grounds of appeal raised before this Court were not raised before the Federal Circuit Court. Consequently, the appellant requires leave to raise them now.
The appellant does not speak English. He claimed, nonetheless, that he had articulated the grounds in Tamil that were interpreted and recorded in English as the grounds. The appellant was taken to each of the grounds and was asked to explain them to the Court. Unsurprisingly, he was unable to provide any sensible explanation of them. Rather, he said in response to each ground that he wanted his case reconsidered because he was not satisfied with the result. He said that whilst the Sri Lankan government might not immediately take action against him, the government would, in due course, do so. The nature of jurisdictional error was explained to the appellant. When asked to describe the mistake made by the Tribunal or the Federal Circuit Court which this Court should address on appeal, he said that if he had to return to Sri Lanka he needed a guarantee that his life was not in danger.
Nothing which was said by the appellant amounts to the establishment of jurisdictional, or indeed, any error by the Tribunal or the Federal Circuit Court. There is also no basis for any of the stated grounds of appeal.
The first ground of appeal appears to be an assertion that the Tribunal did not assess whether if the appellant was detained, the detention would result in persecution. This seems to be an issue which concerns the circumstances in which the appellant would be treated on return at the airport in Sri Lanka. The Tribunal gave express consideration to the issue. It described, at [80] how as an illegal departee the appellant would be interviewed at the airport.
The Immigrants and Emigrants Act (I & E Act) which applies is not applied in a discriminatory manner. The Tribunal found at [82] that the I & E Act is a law of general application. Prosecution under the I & E Act as a failed asylum seeker or an illegal departee does not give rise to persecution under the Refugees Convention. The other basis upon which the appellant argued that he might face a risk of imprisonment was as a result of his alleged links with the LTTE. The Tribunal took into account the risk of harm to people with such linkages but concluded at [87] as follows:
However the Tribunal does not accept that the applicant is such a person and does not accept that he would be subjected to ill-treatment for that or any other reason.
Ground two of the notice of appeal alleges that the appellant’s claim was not cumulatively assessed. The Tribunal said that it had made a cumulative assessment at [96]. The way in which the Tribunal approached the matter demonstrated that it clearly did so.
Ground three of the notice of appeal alleges that the Tribunal made a jurisdictional error by failing to comply with s 424A of the Migration Act1958 (Cth). The notice of appeal does not give any particulars of the alleged breach. The appellant did not, in his oral submission, indicate any information which falls within the section and any information about which he was not given the necessary notice.
It follows that no basis for appeal has been established and the appeal is dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 8 March 2018
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