AVQ15 v Minister for Immigration
[2017] FCCA 893
•4 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVQ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 893 |
| Catchwords: MIGRATION – Inconsistency in evidence – failure to refer to full details of claims when more detailed claims were presented as evidence to the Tribunal which gave rise to a finding of inconsistency – whether the Tribunal gave active consideration of claims in relation to conditions in Sri Lankan prisons – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36 (2A), 65 |
| Cases cited: SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372 |
| Applicant: | AVQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1175 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 13 February 2017 |
| Date of Last Submission: | 13 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 4 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wood |
| Solicitors for the Applicant: | Harris Wake |
| Counsel for the Respondents: | Mr Browne |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1175 of 2015
| AVQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
By an application filed on 25 May 2015 and amended 11 January 2017, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 22 April 2015. By that decision, the Tribunal affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the Applicant a Protection visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The Applicant is a national of Sri Lanka who is of Tamil ethnicity and applied for the visa on 21 November 2012. The Applicant made a number of claims for protection, including that: he had been persecuted by Sri Lankan authorities in his home town and upon relocating; and he faced a real chance of suffering significant harm in a Sri Lankan prison as a consequence of having fled Sri Lanka illegally.
The Tribunal member, by decision dated 22 April 2015, raised credibility concerns in relation to the inconsistency between the Applicant’s statutory declaration in support of his application for a Protection visa and the evidence given by the Applicant at the Tribunal hearing on 16 February 2015. The Tribunal member highlighted various inconsistencies in the Applicant’s evidence in relation to what happened to the Applicant upon relocation, pointing out that his statutory declaration omits reference to any claim that the army located him or made contact with him or his family.[1] In contrast, the Tribunal member noted that the oral evidence given by the Applicant at the hearing included claims that:[2]
…his mother disclosed to the army that he had gone to Jaffna to study and that one day when he returned to his room after class two people in civilian dress who identified themselves as being from the CID told him that the army had told them that he was in hiding in Jaffna and required him to return to Mullathivu for questioning.
[1] Refugee Review Tribunal decision dated 22 April 2015 at [19].
[2] Refugee Review Tribunal decision dated 22 April 2015 at [20].
The Tribunal concluded that:[3]
The inconsistencies in the Applicant’s evidence cause the Tribunal not to accept that the Applicant was questioned, harassed or otherwise harmed or mistreated by the army following the public meeting in March 2012, nor that any such harm or harassment caused the Applicant to relocate to Jaffna, rather the Tribunal considers that he did so in order to undertake his studies. The Tribunal does not accept that the Applicant was approached by CID officers while studying in Jaffna who ordered him to return to Mullathivu for questioning, nor that the army have made enquiries of his mother in Mullathivu as to his whereabouts, either before or since he left Sri Lanka in July 2012.
[3] Refugee Review Tribunal decision dated 22 April 2015 at [21]
In relation to the consequences of the Applicant’s illegal departure from Sri Lanka, the Tribunal accepted that the Applicant will likely face charges and may be held on remand for ‘a period as long as several days while awaiting a bail hearing’.[4] However the Tribunal did not accept that there would be a real risk that the Applicant would face torture during any potential term of imprisonment, drawing on DFAT information suggesting that there are a small number of allegations of torture or mistreatment made by asylum seekers who have returned to Sri Lanka.[5]
[4] Refugee Review Tribunal decision dated 22 April 2015 at [64].
[5] Refugee Review Tribunal decision dated 22 April 2015 at [64].
Grounds of Review
The grounds stated in the amended application were that the Tribunal’s decision was affected by jurisdictional error by:
i)finding that the Applicant had given evidence at the Tribunal hearing that was inconsistent with his earlier statutory declaration; and
ii)failing to take into account relevant information given by the Applicant in support of his claim that he would be imprisoned in Sri Lanka and suffer significant harm as a consequence of the prison conditions that he would face.
The Applicant contends that the Tribunal erred by concluding that the Applicant had given inconsistent evidence. The Applicant submits that the Tribunal confused the concepts ‘absence of evidence’ and ‘evidence of absence’, relying on the Federal Court decision of SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372.[6] The Applicant contends that there was, at most, an absence of evidence in the Applicant’s statutory declaration, namely the failure to make reference to the army having located him or making contact with him in Jaffna. The Applicant submits that the statutory declaration did not include evidence of absence, in the sense that the Applicant had not given evidence that the army had not contacted him or located him in Jaffna. The Applicant makes reference to the statutory declaration being only a “summary” and “not an exhaustive statement”.
[6] at [15].
In relation to the second ground of review, the Applicant submits that the submissions of his agent made on 26 August 2013 and subsequently made on 24 February 2015, which made reference to the poor prison conditions in Sri Lanka and the risk of persecution faced by the Applicant, were not adequately considered by the Tribunal. The Applicant submits that if the Tribunal engaged in the requisite process of consideration, the process of consideration should be apparent on the face of the reasons, relying on Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248.[7]
[7] at [63].
The First Respondent submits that the Tribunal’s finding in relation to inconsistency was open to it; and the Tribunal appropriately addressed the Applicant’s argument that he would suffer significant harm as a result of the prison conditions in Sri Lanka.
Consideration – Inconsistency
The principal submission put on behalf of the Applicant in relation to the finding that there were inconsistencies in the Applicant’s evidence ([21]) was that the Applicant had as a matter of fact not given inconsistent evidence. In a detailed analysis of the Applicant’s claims and evidence which was considered by the Tribunal, the Applicant submitted that:
a)the statutory declaration included in the application for a Protection visa dated 21 November 2012 contains an express declaration that the matters set out in the statutory declaration were a summary of his claims for protection and not an exhaustive statement;
b)the statutory declaration included information that:
i)he had been detained in 2009, together with his mother and questioned by Sri Lankan authorities in 2009 ([4]-[5]);
ii)the Sri Lankan authorities have pursued him ever since;
iii)while Sri Lankan authorities had released from detention after six months,
[a]s soon as we were released, I started to be questioned again and it continued until I left for Australia in July 2012;
iv)I had tried to go to Jaffna for a while to get away from it. I was studying there. My time would have run out in Jaffna too, since the army is everywhere and I could not hide from them. The army keep track of who moves where through the registration process;
v)I had to flee to get away from them.
In an interview with a delegate of the Minister, the transcript of which was included in the court book (CB 104), the transcript records the following exchange about the time the Applicant was in Jaffna:
How long did you go to Jaffna for? 3 months.
When was this from? March until July 2012.
What did you do there? I was doing a computer course.
Why did you go to Jaffna? B/c I had problems here.
Who were you staying with? I was renting a room.
Did you finish the course? No, half way through I came here.
Did you have any trouble with the army or anyone else in Jaffna? They knew I was staying there. Once they called me to ask me questions. They had my file there in front of them. They said people in Multv sent it to them.
The Applicant gave evidence to the Tribunal which was summarised at [20]:
…in his oral evidence at hearing the Applicant stated that his mother disclosed to the army that he had gone to Jaffna to study and that one day when he returned to his room after class two people in civilian dress who identified themselves as being from the CID told him that the army had told them that he was hiding in Jaffna and required him to return to Mullathivu for questioning…
Following the hearing the Applicant’s agent made a submission that the Applicant was continuously monitored and harassed by the army until he left to Australia in July 2012. The Applicant notes that at [19], the Tribunal held:
[i]n his written claims he states that he tried to go to Jaffna to get away from the harassment but that his time in Jaffna would have run out as well since the army is everywhere, that it keeps track of who moves where through their registration process and he could not hide from them. He states that he had to flee the country to get away from them and that since he has left Sri Lanka, they have gone to his mother and asked where he is. The Applicant does not suggest in his written claims that the army located him or make any contact with him or his family while he was residing at Jaffna. (emphasis added.)
The Applicant submitted that the Tribunal’s finding of inconsistency was based on the view that:
a)the Applicant statutory declaration in support of his application for a Protection visa did not “suggest” that the army had contacted him while he was in Jaffna; but
b)the Applicant gave oral evidence at the hearing before the Tribunal to the effect that the army had contacted him while he was in Jaffna.
The Applicant submits that the Tribunal fell into error in that it was not open to the Tribunal to conclude the Applicant had given inconsistent evidence. It is put that there may have been inconsistent evidence if in the statement that he gave the statutory declaration purported to be a complete and comprehensive statement of events that occurred in Sri Lanka and did not refer to the army having located him or having made contact with him while he was in Jaffna; and he later gave evidence that the army had located or made contact with him while he was in Jaffna.
It is put that in the context where the Applicant had not purported to provide an exhaustive statement, the information in relation to the contact that he had with the army while he was in Jaffna did not contradict the written statement because the written statement was silent in relation to that matter.
The Applicant also contends that the he did give information to the delegate on 17 July 2013 that he had “trouble” with the “army” in Jaffna. It is said that the failure on the part of the Tribunal to consider the information that the Applicant had provided to the delegate which formed part of a record of the Applicant’s interview was an error. As that information was relevant to whether the Applicant had given “inconsistent” evidence at his Tribunal hearing, it was asserted that the Applicant had always and consistently claimed to have been harassed by Sri Lankan authorities until he left Australia in July 2012 that he had spent the period from March to July 2012 in Jaffna. The further detail of the harassment which was provided in the interview with a delegate on 17 July 2013 and again in the hearing before the Tribunal on 16 February 2015 did not contradict the claim that he had expressed in general terms that he had been harassed by Sri Lankan authorities for a period which included the period that he spent in Jaffna.
Consideration
The Applicant relied on the decision of Perram J in SZMUK v Minister for Immigration and Citizenship [2009] FCA 1372 at [15] (‘SZMUK’) as authority for the proposition that the distinction between evidence of absence and an absence of evidence is a vital and important one and that it is a “fallacy” to confuse the two concepts. It was said that where the Applicant’s statutory declaration did not say that that it was a complete and comprehensive statement of events that occurred in Sri Lanka and the Applicant gave a more detailed account of his experience with the Sri Lankan police in Jaffna in subsequent accounts did not establish an inconsistency such as to found a jurisdictional error. It is said that the Tribunal failed to consider the qualifying statement in the Applicant’s statutory declaration. The error was founded in the Tribunal committing:
…the logical fallacy of confusing absence of evidence about the Applicant’s experience with the Sri Lankan Army in Jaffna with evidence of absence of any such experience in Jaffna.[8]
[8] Applicant’s written submission [20].
I do not accept that SZMUK is authority for the proposition that a failure to give a full account of events on an earlier occasion will not give rise to a legitimate reason finding of inconsistency if a more complete or different account is given subsequently. The logical fallacy referred to by Perram J in SZMUK was founded on a wrong finding made by the Tribunal that the SLPP (a political party in Sierra Leone) had not complained about violence in June 2008. Perram J also found that the Tribunal had made a wrong finding that there was no evidence that supporters of the SLPP or the former president (of Sierra Leone) were being singled out by the APC (another political party) or its supporters.[9] The logical fallacy in that case was founded on a plainly wrong finding of fact that there was an absence of evidence on a particular matter.[10]
[9] SZMUK [2009] FCA 1372 [11]-[12].
[10] SZMUK [2009] FCA 1372 [16].
An analysis of the reasons the Tribunal in this proceeding indicates that the Tribunal gave logical reasons for the finding that the Applicant had given inconsistent evidence about his experience in Jaffna.
The Tribunal summarised the evidence given in the Applicant’s statutory declaration at [16] and [17] and it is not apparent that this was not an accurate summary of that evidence (in contrast to the position in SZMUK). The inconsistency found in this matter is that in the written claims, the Applicant did not say that the army had located him in Jaffna or made contact with his family while he was residing there. The Tribunal found that in his oral evidence before the Tribunal the Applicant had said that his mother had told the army that he had gone to Jaffna to study and that:
…one day when he returned to his room after class two people in civilian dress who identified themselves as being from the CID told him that the army had told them that he was in hiding in Jaffna and required him to return to Mullathivu for questioning
The Tribunal stated at [21]:
The Applicant makes no mention of such matters his written claims, rather as noted above he states that he could not remain in Jaffna because the army would eventually catch up with him through registration process.
This is an inconsistency and the finding of such is not based on a logical fallacy. The applicant seeks to confine the meaning of “inconsistent” to “incompatible or contradictory”. It also means “lacking agreement, as one thing with another, or two or more things in relation to each other; at variance”.[11] The account of the Applicant before the Tribunal was at variance with the previous account given. The Tribunal regarded this as significant. Given the importance of the Applicant’s claims about his treatment in Sri Lanka by the army was central to his application, the inconsistency is a matter that might properly lead to an adverse credibility finding and a rejection of the relevant evidence.
[11] Macquarie Dictionary – Federation Edition.
Ground Two
Ground two of the amended application is that the Tribunal constructively failed to exercise its jurisdiction or failed to carry out a statutory task by failing to lawfully consider relevant information in relation to conditions in Sri Lankan prisons. It is said that the Tribunal failed to give active and intellectual consideration to the Applicant’s detailed claims and evidence in relation to the conditions in the Sri Lankan prisons and to the effect that the conditions were such that he would experience serious significant harm even if the Applicant’s period in prison was for a several days.
The Applicant made submissions to the Tribunal that he would be sentenced to at least a year jail for departing Sri Lanka illegally. At [65] the Tribunal rejected that submission. At [71] the Tribunal held that the Applicant would be held on remand for most likely less than 24 hours but possibly as long as several days. The Tribunal accepted submissions that prison conditions in Sri Lanka are generally poor and overcrowded but did not accept on the evidence before it that there was a real risk that the Applicant would be subjected to treatment constituting significant harm as that term is exhaustively defined in s.36 (2A) of the Act during either his questioning at the airport or during the period that he would spend on remand awaiting a bail hearing. The Tribunal accepted the country information which it specifically referred to.
The Tribunal’s rejection of the submission and its findings in relation to the rejection of the Applicant’s argument that he was a real risk of significant harm because of the short duration of his likely time to be spent on remand was reasonably open to it. There was no failure on the part of the Tribunal to consider the submissions put on behalf of the applicant in relation to the conditions in prisons in Sri Lanka. The Tribunal referred to country information including that submitted by the Applicant and having considered it, was not satisfied that the treatment faced by a Sri Lankan returnee who had departed Sri Lanka unlawfully whether on remand or facing the courts amounted to persecution involving serious harm or gave rise to a real chance of such harm.
Otherwise, ground 2 would appear to be a merits review argument that the Applicant would be detained for at least a year in jail. For these reasons I dismiss the application and order that that the Applicant pay the Respondent’s costs fixed in the sum of $7,206.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 4 May 2017
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