AWF15 v Minister for Immigration

[2016] FCCA 86

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWF15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 86

Catchwords:
MIGRATION – Protection (Class XA) visa – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.474(2), 476

Minister for Immigration v SZNSP (2010) 184 FCR 485
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165

Applicant: AWF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 460 of 2015

Judgment of: Judge Jarrett

Hearing date: 21 August 2015

Date of Last Submission: 21 August 2015

Delivered at: Brisbane

Delivered on: 19 January 2016

REPRESENTATION

Counsel for the Applicant: Mr Bartaraj, directly instructed

Counsel for the First Respondent: Mr Richardson

Solicitors for the First Respondent: Clayton Utz

The second respondent entered a submitting appearance.

ORDERS

1. The name of the second respondent be substituted with the name “Administrative Appeals Tribunal (formerly known as Refugee Review Tribunal)”;

2. The application filed on 27 May, 2015 be dismissed;

3. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 460 of 2015

AWF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By this application, the applicant seeks judicial review of a decision of a refugee review tribunal made on 1 May, 2015 that affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa.  The applicant seeks that the application for review be remitted to a refugee review tribunal to be determined according to law.

2. The first respondent opposes the application and seeks that it be dismissed with costs.  The second respondent enters a submitting appearance.

3. Both parties have delivered written submissions. 

Background

1. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 20 June, 2012 as an unauthorised maritime arrival.

2. On 22 November, 2012 the applicant made application for a Protection (class XA) visa.  On 16 September, 2013 the delegate refused to grant the applicant the visa.

3. On 14 October, 2013 the applicant applied for a review of that decision by a refugee review tribunal.

4. On 21 January, 2015 the tribunal advised the applicant and his migration agent that it was unable to make a favourable decision on the material before it.  Accordingly, it invited the applicant to give evidence and present arguments relating to issues arising in the review.  On 2 April, 2015 the tribunal conducted a hearing at which the applicant and his migration agent attended.  He was also assisted by an interpreter.

5. On 23 April, 2015 a solicitor and migration agent acting for the applicant sent to the tribunal by email a post-hearing submission.  The submission included various documents in support of the applicant’s claims.

6. On l May, 2015 the tribunal published its decision affirming the delegate’s decision to refuse a protection visa to the applicant.

The Tribunal’s Decision

1. The applicant’s claims before the first respondent’s delegate were summarised by the tribunal as:

   8.  In his December 2012 statement the applicant claimed:

   a.  He had many problems before and after the war. He was beaten by STF; has been detained on suspicion of withdrawing money for the LTTE; threatened with death because of his association with his fiancée and her family.

   b.  He is engaged to Priaveena Thiruchelvam. Her father refused to issue ID cards for the LTTE. Those LTTE members became Karuna. The fiancées family is heavily UNP. (She is the daughter of Samithamby Thiruchelvam, who was the former Grama Sevaka of Erivilpattu in Batticaloa.)

   c.  On 25 November 2008 Karuna shot and killed the fiancée’s family members – her father, brother and grandmother. They also looked for the applicant but he was delayed in Qatar

   d.  After that they threatened him by phone and through the fiancée that they would kill him if he married her or spent time with her. In late March 2012 after work at 7pm returning home he was stopped by two men on  motorbikes who slapped, kicked him and put a gun in his mouth and said the same thing would happen to him as the fiancée’s family if he married her.

   e.  With the fiancées mother, he complained to the police. While there she received a threatening call. They told the police but they did not enter it in the formal complaint book. He followed up the complaint but they said they could not action such complaints. They refused to give him a report. He wanted evidence for the Red Cross or Human Rights commissioner. He bribed the police for a report but some of the information was different. He approached Red Cross.

   f.   After that he went into hiding with his fiancées family in Dash lane and he changed his sim card and left in May 2012.

   g.  Since his departure the Karuna faction has been looking for him and they continue to demand money from his fiancée’s family, who are now in hiding.

   9.  In his June 2013 statement he added claims as follows in response to matters raised at the immigration interview on 10 May 2013:

   a.  In 2002 they were rounding up Tamils, but he was not home but others caught told him he was on the list. He left the village and hid and avoided recruitment

   b.  In 2002 the fiancées father was asked to make false ID cards for the LTTE

   c.  In early 2004 Tamil boys were rounded up and he was detained overnight and released if he promised to come back and work for them when demanded. He was scared and left for Qatar just before becoming engaged.

   d.  The applicant claims his father worked as a mechanic in an LTTE controlled area and was beaten numerous times by the army as he was perceived to be an LTTE supporter because they believed he fixed their vehicles. His father had him stay away from the house at night because the army raped his neighbours He also paid money to avoid being beaten. There was not enough time to explain all the problems in his entry interview.

   e.  The Karuna group extorted 350,000 rupees from him and 800,000 rupees from his fiancées family and constantly threatened for money.

   f.   After the fiancées family death, his passport was forcibly taken from him by armed people. They came to the home and took it and he believes they were Karuna. His fiancées mother also received death threats if she did not pay money. He made a complaint to the police to get his passport back. The time he went to the police station with the fiancées’ mother was different.

   g.  Karuna have made death threats if they do not pay and to rape the fiancée. Even though they asked authorities to investigate the murders of her family nothing has happened because Karuna are associated with police. He thinks the family were murdered because of their UNP connection. As her fiancée he has been constantly threatened. They hate her family as they are heavily involved with the UNP and her uncle contested the election in 2001 and due to this was shot dead during the election.  Karuna believe that the applicant will be another adult male who will again have influence in the community and continue their UNP involvement and they do not want them to gain power in the community and they know if he marries he will gain control of the family assets and they prefer to have women in control as they are easier to intimidate.

   h.  They threatened him because he knows who is responsible for the murders and do not like he has this information and marries into the family and will have control of the assets and political connections to expose them.

   i.   They have not harmed them yet as they have paid large sums of money and he was forced to leave for long periods and lived in hiding.

   j.   In February 2009 the army and Karuna group framed him by accusing him of providing funds to the LTTE. He was stopped with a large sum of money which he intended to buy land. The army and Karuna arrested him and detained him overnight. He was taken to a house on a Sunday and released by the judge and made to sign. He thinks Karuna and the army were trying to make him give them money and wanted him to pay bribes to stop me from being taken to prison.

   k.  He applied for a visa in 2009 to the UK but it was rejected. So he made arrangements to go back to Qatar but he had to return to Sri Lanka in 2011 as his visa for Qatar would not allow him to stay any longer as there was no work and because he was worried about the fiancée.

   l.   He is fearful for his fiancée who has no protection and is living outside Batticaloa. He is afraid of Karuna and the army. He fears he will be shot, kidnapped for ransom, targeted for extortion or killed by Karuna because of his association with his fiancée’s family who are seen to be in opposition to Karuna as they have strong affiliations with the UNP. He fears harm from authorities as a young Tamil male from Batticaloa and because he left illegally and his status as a failed asylum seeker. He fears harm from the army because of his father perceived association with the LTTE.

2. The tribunal appreciated the full extent of the applicant’s claims for protection and complementary protection.  The tribunal summarised his claims, correctly in my view, as a fear of harm based on, inter alia, his Tamil ethnicity, actual and imputed political opinion against the Karuna and/or TMVP, his actual and/or imputed political opinions in favour of the UNP, his actual and/or imputed political opinion in support of the LTTE, his membership of particular social groups and his illegal departure and asylum claim in Australia and the treatment he was afraid he will receive if returned to Sri Lanka.

3. The applicant makes no complaint about the identification of his claims by the tribunal.  It is not suggested that the tribunal did not fully appreciate all of his claims.

4. The tribunal identified that a significant aspect of the applicant’s claims was his relationship with a woman called Priaveena Thiruchelvam who the applicant claimed was the daughter of Samithamby Thiruchelvam the former Grama Sevaka of Erivilpattu in Batticaloa.  He claimed that they were engaged to be married.

5. However, the tribunal, after a lengthy consideration of the applicant’s evidence about his engagement to and relationship with Priaveena and a consideration of the relevant documentary evidence relied upon by the applicant, concluded that it could not accept his claims to be engaged to Priaveena or to have a “committed type relationship” with her.

6. The tribunal was concerned with the applicant’s inability to give detail about his engagement to and his relationship with Priaveena where detail could have been expected.  The tribunal was concerned that the applicant’s own evidence was inconsistent on a number of occasions in respect of matters that were of importance. 

7. The tribunal made a positive finding that the applicant had fabricated his claims to be engaged to and in a relationship with Priaveena Thiruchelvam.

8. The tribunal also considered all of the other claims made by the applicant.  The tribunal accepted that the applicant is a young Tamil, single male from the East, but it did not accept that because of this (or by just being Tamil) the applicant would be perceived or accused of being an LTTE supporter or that he would face harm more generally on account of his Tamil ethnicity. The tribunal did not consider the applicant to face more than a speculative risk in that respect and therefore not a real chance of serious harm for this integer of his claim.

9. The tribunal considered the applicant’s circumstances and the country information but was not satisfied that the applicant faces a real chance of harm, let alone serious harm, from TMVP, Karuna, authorities or paramilitary groups or opposition supporters or anyone else. The tribunal did not accept that the applicant faced a real chance of being harmed upon return to Sri Lanka in the foreseeable future for reasons of his UNP support or any actual or imputed political opinion.

10. The tribunal also considered the applicant’s claim to fear harm based on a number of particular social groups, including that of being a failed asylum seeker. The tribunal considered the applicant’s circumstances but did not accept that there was a real chance the applicant will be suspected by the authorities as someone with links or associations with the LTTE or anti-government or come to the attention of or be targeted by Karuna, TMVP or pro-government militia on return to Sri Lanka. The tribunal was similarly not satisfied the applicant faced a real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker.

11. The tribunal thought that the applicant’s illegal departure from Sri Lanka would not lead to the applicant facing discriminatory treatment from Sri Lankan authorities beyond the normal punishment for illegal departure under the operation of a law of general application.  The tribunal did not accept the applicant faces a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka.

12. After detailed analysis, the tribunal was not satisfied that the applicant, as a consequence of being removed from Australia to Sri Lanka, would be at real risk of suffering harm which would amount to significant harm.

13. The tribunal affirmed the decision not to grant the applicant a Protection (class XA) visa.

The grounds of review

1. There are four grounds of review altogether.  As a general proposition, the first three grounds of review appear prima facie to be concerned with the findings made by the tribunal about the credibility of the applicant’s claims about his relationship with Ms Thiruchelvam.  Certainly, the first three grounds of review each seek to directly assail the tribunal’s findings about that matter.  The first respondent’s counsel has addressed these grounds as one in his written submissions given the similarity between them.  However, in deference to the way in which counsel for the applicant has argued the case, I will deal with the grounds separately. 

2. The first ground of review is set out in the application for review as follows:

   The Minister erred in law in not following proper procedures in determination of the application made by the Applicant.

3. I have assumed that the reference in that ground to the “Minister” is a intended to be a reference to the tribunal.  That it is appears from the applicant’s written submissions.

4. In respect of this ground, the applicant argues that:

   It is important that the Tribunal applies accepted principles in the decision making process. The interview process is usually confirming or otherwise the claims of the applicant. It is not to be used to confuse the Applicant particularly where English is not his main language by asking confusing questions. The Tribunal has accepted that the crux of the claims of the Applicant depended upon his relationship to the daughter of Thiruchelvam, Priaveena. (para 36 pl 7 CB). Where there is such preponderance of documentary evidence supporting the claims of the Applicant, the Tribunal instead depended entirely upon the answers to questions asked of the Applicant using them to discredit the Applicant totally ignoring the authenticity of the documents. This constitutes serious jurisdictional error and a breach of process. Evidence of this will be obvious from the subsequent grounds.

5. However, in my view, there was no deficiency in the tribunal’s process or procedure at the tribunal hearing or otherwise.  The tribunal is not obliged to accept, uncritically, the applicant’s claims or the evidence that he propounds in support of them.  Contrary to the applicant’s submission, the tribunal hearing is not confined to “confirming or otherwise the claims of the applicant”.  In any event that is what the tribunal did in this case.  It sought to examine the applicant’s claims so as to determine their veracity.

6. In carrying out its review function, the tribunal is entitled to test the evidence by questioning the applicant.  What weight it gives to various parts of the evidence, including the answers given by the applicant, is a matter for the tribunal.

7. The submission for the first respondent apprehends that the applicant’s case might be that the tribunal erred because it determined the applicant’s credibility before it turned its mind to the authenticity of the documents upon which the applicant relied to corroborate his claims.  However, there are two answers to that proposition.

8. First, there is no error of principle in determining the applicant’s credibility before a consideration and determination about the weight to be given to any corroborating evidence upon which he might rely.

9. The first respondent points out that in Minister for Immigration v SZNSP (2010) 184 FCR 485 the Full Court of the Federal Court considered how the tribunal might proceed in circumstances like the present. The Full Court identified that the tribunal had made adverse credibility findings and, thereafter, considered a third party witness statement proffered by the applicant as corroboration of the applicant’s claims. After referring to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, North and Lander JJ said:

   37         Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 77 ALJR 1165; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.

10. Further, in separate reasons, Katzmann J stated:

    50         ...there is nothing illogical about deciding that evidence proffered as corroboration of an account found to be false deserves little or no weight. Here, where the credit of the first respondent was very much in issue, there was certainly nothing illogical or irrational in rejecting the document she submitted to bolster it in the absence of any proof that the document was genuine or its contents unaffected or uninfluenced by her.


11. Thus, even if the tribunal did reach conclusions about the credibility of the applicant’s claims before it considered the authenticity of the corroborative documents upon which the applicant wished to rely, there was no error of approach by the tribunal.  Certainly there was no jurisdictional error.

12. Secondly, there are statements in the authorities to suggest that the preferable approach is for the tribunal to consider all of the evidence (oral and documentary simultaneously).  Again, the first respondent pointed me to the judgment of North and Lander JJ in SZSNP at [39] where their Honours noted:

    39         On the other hand, it should be remembered that McHugh and Gummow JJ [in Applicant S20/2002] questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.

13. In the present case, a fair reading of the tribunal’s reasons reveals that the tribunal did assess all of the evidence together.  So much appears from paragraphs [57] – [62] of tribunal’s reasons at the very least.

14. I accept the first respondent’s submission that it is apparent that the tribunal has given consideration to the evidence adduced at the tribunal’s hearing, been informed by its finding about the applicant’s credibility and has assessed the corroborative evidence that the applicant wished to place before it.

1. Ground 1 of the review application reveals no jurisdictional error.

2. Ground 2 of the application is in the following terms:

   The Tribunal erred in law by taking into consideration information not relevant to the applicant’s claims.

3. The applicant’s arguments concerning this ground are similar to those concerning the first ground of review.  He complains that:

   The Tribunal has placed total emphasis on the verbal accounts of the Applicant in the interview as opposed to documentary evidence. The objective of the interview is to allay any discrepancies in the claims which are not supported by evidence. The fact that there is inconsistency in the applicant answering the barrage of questions put by the Tribunal, is obvious that the applicant was not thinking properly at the interview for reasons unknown.  However his written claims are consistent with the documentary evidence, which the Tribunal had totally ignored. If the credibility of the Applicant was based purely on the interview and not on the Applicant’s statement and authentic documentary evidence then the decision made by the Tribunal is totally floored.

1. The applicant submits that the tribunal did not take into account the documents given by the applicant to the tribunal to support his claim.  In particular, he says that the tribunal did not consider:

   a)letter from a JP confirming that Priaveena’s surname is Thiruchelvam and that her father, brother and grandmother were shot dead;

   b)the surname of the person shot dead as Thiruchelvam confirmed by the officer in charge of a police station;

   c)Rajeswary Thiruchelvam giving testimony in court that Samithamby Thiruchelvam was her husband; and

   d)Priaveena’s father Thiruchelvam was a village head as stated by Rev Dr J Kingsley.

2. He argues that it is obvious that the tribunal “has predetermined the adverse decision to try to ignore totally the authentic documentary evidence or relied on any authentic documents that supported the applicant’s claims”.

3. Although the applicant asserts that the tribunal concluded that it could not believe that the applicant was engaged to Priaveena “on the basis that there was no documentary evidence” that is not what the tribunal did.  I have set out above the tribunal’s reasoning process and conclusions.  Primarily, the tribunal rejected the applicant’s claims because of the inconsistencies and lack of detail in his accounts of his relationship with Priaveena.  He was unable to give a credible explanation of that relationship to the tribunal.

4. The applicant further argues that the tribunal concluded wrongly that there were no photos of the applicant with his fiancée or with his family.  He argues that he “has provided concrete evidence of his engagement by photos of himself with his fiancée and her brother (page 274 CB) and with her mother (page 275 CB). The background stage decorations confirm it was taken during a ceremony which establishes without any doubt that there was a formal engagement. The inconsistencies in the explanation by the applicant cannot make the conclusion any different.  The tribunal has refused the evidence of the engagement ceremony and concluded the absence of such document evidencing the engagement sufficient reason to suspect the engagement. (para 48 CB 19). The tribunal also wrongly establishes a standard of meaning that long engagements meant no engagement failing to understand that there could be several impediments and reasons why the marriage did not take place and that until such the engagement is called off it is normally expected to remain. Further marriage at any specific time need not result from any engagement.”

5. However, the tribunal referred to the photos put before it by the applicant’s advisers.  It may be the case, however, that the tribunal did not find that the relevant photo or photos were of the applicant and the person to whom he claimed to be engaged.  However, whether or not the tribunal made an error in its interpretation of the relevant photograph, such an error is not a jurisdictional error, but an error in fact finding by the tribunal that is not reviewable in this Court.

6. It is clear from the tribunal’s reasons that it carefully considered all of the material that the applicant chose to put to it.  For the reasons discussed above, there was no error in the tribunal’s approach to the way it made its findings about this aspect do the applicant’s claims.

7. The ground of review reveals no jurisdictional error.

8. The third ground of review is expressed in the following terms:

   The Minister erred in not taking into consideration relevant information in making the decision.

9. Again, the reference to the Minister, I take to be a reference to the tribunal.

10. In respect of this ground the applicant submissions cavil only with the fact finding undertaken by the tribunal: 

    4.1. The Tribunal has completely misinterpreted (para 66 p22 CB) the statement made by the applicant of his abduction claim in 2009 (para 23 p 220CB). The Tribunal concluded that this was a fabrication. Documentary evidence of the letter from the police station (p286 CB) which supports the Applicant and requests the Court to release the Applicant proves this conclusion totally wrong. The Tribunal made wrong conclusions

    4.2.  It is obvious that the Tribunal has used inconsistencies of the Applicant’s descriptions to play down the authenticity of the documents. It also appears obvious that despite the inconsistencies of the verbal accounts of the Applicant which may be for any reason, for example confusion, anxiety, psychological fear of the interview his statements cannot be used to substitute important multiple documentary evidence that the Tribunal wrongly claims as not authentic. The Applicant definitely muddled with his answers, but that would in no way make the documents not authentic or his claims false. The photographs and the letters from the Notary public, police and magistrates do not Lie. These documents alone support the claims of the Applicant, without the need to question him on the relationship. 


    4.3.  The Applicant states that the documentary evidence provided by the Applicant per se already confirms the association of the Applicant to the fiancée’s family brought upon him a reason for him to be targeted by the government armed forces or Karuna group (murder by armed forces by the evidence of army shoe marks at the site of the murders). This evidence was totally ignored by the Tribunal. 


    4.4.  The Applicant has provided photographic evidence of himself with his fiancée and another with his fiancée and his parents after the engagement ceremony. The Tribunal failed to notice that the fiancée was dressed to the occasion with ceremonial jewellery and the ceremonial decorations in the background. This evidence can be historically accepted as evidence of marriage in India for legal purposes rather than engagement. This was completely ignored by the Tribunal in favour of an engagement document (that can be fabricated) that did not exist or expected for an engagement. Failure to take this evidence into consideration is a jurisdictional error. 


11. For the reasons I have expressed above, this ground of review must also fail.  It does not demonstrate any jurisdictional error on the part of the tribunal, but rather seeks to engage with the merits of the factual determinations made by the tribunal.

12. The final ground of the review application is expressed as follows:

    Complementary Protection Criteria

    A. The tribunal had not provided definite or substantive reasons to determine that the application do not qualify under the Complementary Protection Criteria The standard established by the Tribunal was unsatisfactorily rigid and high.

13. The applicant submits:

    5.1    The claims of the applicant lie mainly on the authorities’ real or perceived association through i) his father with the LTTE and ii) his fiancée and her family who were known to be involved with the LTTE. iii) the assassination of his fiancée’s family members by the army (army shoe mark finding in the crime area by the investigating police officer in his testimony), there is clear documentary evidence of the association that cannot be negated even by inconsistencies in the explanation of the Applicant.  The applicant stated that he was afraid that he will be hurt by the SLA. The evidence of army involvement supports his fear. 


    5.2    The applicant has experienced persecution on his own, the trauma of the murders of his fiancée’s family members and this is sufficient to expect the applicant to have real fear in being persecuted if he were returned to Sri Lanka.

    6. Assessment of the tribunal:

    6.1    The Delegate of the Minister assessed that the applicant was engaged to Priaveena, and detained in 2009 on suspicion of having LTTE links. The Delegate also accepted that Priaveena was the daughter of Thiruchelvam. (p179 CB). This has not been accepted by the tribunal because of the inconsistencies of the answers given by the applicant. It is inconceivable that while the applicant was able to convince the delegate through his answers in that interview failed in the tribunal interview. This only reflects on the improper questioning, causing the applicant extreme anxiety and mumbling his way with answers that reflect the unstable mental condition of the applicant rather than the lack of credibility of the applicant. In this instance the tribunal should have assessed the applicant on the documentary evidence or postpone the interview another day. It is unusual for any applicant to completely fumble on all his answers. Even if the applicant failed in his interview the tribunal should have considered the applicant under the Complementary Protection Provision.

14. Again, these submissions seek only to cavil with the factual findings of the tribunal and the conclusions reached by it.  They do not reveal any jurisdictional error on the tribunal’s part.

15. The tribunal clearly turned its mind to the applicant’s claim for complementary protection and determined that claim in an entirely unremarkable way.

16. Finally, as the first respondent points out, the applicant’s submissions allude to an allegation of bias against the tribunal.  To make good such an assertion, it was necessary for the applicant to distinctly assert bias or an apprehension of bias and clearly prove it.  That has not been done in this case.  In my view there is no evidence of bias on the part of the tribunal from a fair reading of the tribunal’s reasons.

Conclusion

1. No jurisdictional error is established by the applicant. The decision is a privative clause decision for the purposes of s.474(2) of the Migration Act 1958 (Cth) and is not reviewable under s.476 of the Act.

2. The application must be dismissed with costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 19 January, 2016.

Associate:

Date:  19 January 2016