Awp16 v Minister for Immigration
[2018] FCCA 955
•23 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 955 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – claim that the Administrative Appeals Tribunal committed jurisdictional error in not giving to the Applicant information for the purposes of s.424A or s.424AA of the Migration Act 1958 and inadequate interpretation at hearing before Administrative Appeals Tribunal – no jurisdictional error established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424, 424A |
| Cases cited: Minister for Immigration v Brar (2012) 201 FCR 240 |
| Applicant: | AWP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 920 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 27 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 23 April 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Ms N. Johnson |
| Solicitors for the Respondents: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 19 April 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 920 of 2016
| AWP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Sri Lanka aged 36 years, having been born on 1 July 1981.
By Application filed in this Court on 19 April 2016 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 24 March 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 July 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant arrived on Christmas Island by boat from Sri Lanka on 20 June 2012 as an irregular maritime arrival.
The Applicant was a party to an Irregular Maritime Arrival Entry Interview on 25 August 2012 (entry interview) in which he claimed:
a)to have no guarantee for his life in Sri Lanka, there are so many problems and armed groups kidnap many people in white vans;
b)he was kidnapped on 4 April 2012 while he was about 100m from his house after having attended a temple. A white van approached and he was dragged into the van by about 5 people and he did not know why he was kidnapped, because “they kidnap everyone”;
c)he then went to hospital for his injuries and was there for one day; and
d)in 2011 when he had returned to Sri Lanka after having worked in Dubai from 2002 to July 2008 he and his friend went to a shop to buy things for a temple and the Special Task Force (STF) detained him under suspicion from the morning until the next day and gave him no food or water.
The Applicant then lodged the Protection visa application the subject of this proceeding on 29 October 2012. In his Statutory Declaration of 25 October 2012 (Statutory Declaration) which formed part of his Protection visa application the Applicant made the following factual claims:
a)he is an ethnic Tamil and a Hindu, born in the Batticaloa District of Sri Lanka;
b)he fled Sri Lanka in 2002 “due to the ethnic conflict in Sri Lanka” and travelled to Dubai on a work visa. He returned to Sri Lanka in 2008 as his parents had informed him that the situation in the east of Sri Lanka had improved slightly;
c)between July 2008 and February 2010 he was constantly harassed, physically assaulted and beaten by the STF of the Sri Lankan Government due to his Tamil ethnicity and perceived links to the Liberation Tigers of Tamil Eelam (LTTE) political group;
d)during the same period he was returning from a market and was stopped by STF personnel who took him inside their camp and beat him and other Tamil males severely and the STF subsequently handed him over to the police who locked him up inside the Police Station for one night and released him the following day;
e)as the situation was getting worse in Sri Lanka, in February 2010 he left Sri Lanka and travelled to Dubai again, returning to Sri Lanka on 1 June 2011 because his parents insisted that he get married;
f)on 1 April 2012 after returning home from the temple he was abducted by unknown persons travelling in a white van who spoke Sinhalese. He was blindfolded, bound and beaten. On 3 April 2012 while recovering from the beating he was threatened by men speaking Tamil who asked him to give them money or they would cause him physical harm. He went into hiding at his sister’s house, and in May 2012 fled Sri Lanka; and
g)he feared returning to Sri Lanka due to his ethnicity and he would be at risk of being targeted by Tamil paramilitary groups by reason of being a Tamil and because he had fled Sri Lanka illegally and had sought asylum in Australia.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant attended an interview with the Delegate on 27 February 2013.
In her Decision Record the Delegate summarized the claims made by the Applicant at the interview with her on 27 February 2013 and in particular:
a)that between July 2008 and February 2010 he had been constantly harassed, physically assaulted and beaten several times by the STF because he was a Tamil male and “they perceived all Tamil males in the north and east” of Sri Lanka “to have links with the LTTE”;
b)on one occasion during this period he was stopped by the STF personnel who took him to a camp where he and other Tamils were beaten severely, and he was then handed over to the police who held him overnight;
c)on 1 April 2012 he was returning from a temple when he was abducted by unknown persons in a white van and severely beaten; and
d)that between July 2008 and February 2010 he was often taken to an army camp and made to work there by, for example, cutting wood.
In the result the Delegate was concerned with significant discrepancies in the versions of events which the Applicant had given at the entry interview and at the interview with her. In particular the Delegate did not accept that the Applicant had been abducted and then extorted to pay money in April 2012 and she was not satisfied that Australia had protection obligations under either the Refugees Convention criterion or the complementary protection criterion and she refused to grant a Protection visa to the Applicant.
Decision of Tribunal
The Applicant applied to the Tribunal on 17 July 2013 for merits review of the Delegate’s decision.
On 15 September 2015 the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Tamil and English languages and he was represented at the hearing by his registered migration agent.
In the result the Tribunal did not find the Applicant to be a credible and truthful witness because, in particular, it found that there were numerous inconsistencies in the versions of events given by the Applicant leading up to and at the hearing before the Tribunal. At [30] – [36] of its Decision Record the Tribunal recorded its analysis of what it considered to be inconsistencies arising from:
a)the Applicant’s evidence in the entry interview;
b)the Statutory Declaration;
c)the Applicant’s evidence in the interview with the Delegate;
d)the Applicant’s evidence at the hearing before the Tribunal;
e)the Applicant’s introduction at the hearing before the Tribunal of new significant claims in relation to the kidnapping in early April 2012 on his way home from the temple and the vague, muddled and unconvincing evidence that he gave at the Tribunal hearing in relation to this particular claim; and
f)changes in the Applicant’s evidence at the Tribunal hearing when questioned about various aspects of his evidence.
In light of these inconsistencies the Tribunal at [38] did not accept that the Applicant had been arrested, detained or mistreated by the STF or that he had been detained, questioned or mistreated by the police.
At [39] the Tribunal found that it was not satisfied that the Applicant had a profile that would subject him to a real chance of serious harm for the reason of his actual or imputed political opinion.
At [41] it rejected the Applicant’s claim to fear persecution on the basis of his ethnicity as a Tamil.
At [47] the Tribunal recorded that it was not satisfied that there was a real chance that the Applicant would be persecuted because he was a failed Tamil asylum seeker, a Tamil who had left Sri Lanka illegally or a person who had applied for asylum in Australia.
From [42] to [53] of its Decision record the Tribunal recorded its consideration of country information and then at [55] found that, on the basis of all the evidence before it considered individually and cumulatively, it was not satisfied that the Applicant would face serious harm amounting to persecution for Refugee Convention reasons if he were to return to Sri Lanka on the basis of his Tamil ethnicity, his actual or imputed political opinion or his membership of a particular social group.
With respect to the complementary protection criterion, the Tribunal at [56] of its Decision Record did not accept that any group in Sri Lanka would have any adverse interest in the Applicant and at [62] – [63] the Tribunal concluded that the Applicant did not meet the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant to the Applicant a Protection visa.
Grounds of Attack on Tribunal Decision in this Court
The Grounds relied upon by the Applicant are as follows:
1. The Tribunal made a jurisdictional error in that it failed to discern a Convention reason.
Particulars.
The Applicant claimed he was suspected of links with the LTTE but based on the facts the AAT failed to make a finding.
2.The Tribunal is in breach of Natural Justice.
Particulars.
The Applicant’s claims were rejected but the tribunal was in breach of s.424 in that it did not put adverse information to the applicant.
Consideration
Ground 1
This Ground has no arguable basis and fails to establish that the decision of the Tribunal is affected by jurisdictional error.
The Tribunal expressly recorded that the Applicant’s claims included a claim that he was linked with, associated with or suspected of association with the LTTE at [3], [7], [17] and [20] of its Decision Record.
Then at [39] the Tribunal stated as follows:
[39]The Tribunal is not satisfied that the applicant has a profile that would subject him to a real chance of serious harm for the reason of his actual or imputed political opinion. The Tribunal is not satisfied that the applicant will be imputed to be an LTTE member or supporter. The Tribunal is not satisfied that he will be perceived to be a collaborator, to hold anti-government views or to hold pro-LTTE links of a nature that would put him at a risk of serious harm. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed by the Sri Lankan authorities, paramilitary groups or anyone else for the reason of his actual or imputed political opinion or membership of any particular social group, including young Tamil males from Sri Lanka if he were to return to Sri Lanka.
(emphasis added)
At [42] and [45] the Tribunal considered the issue of association with the LTTE in relation to the Applicant’s claims to protection based on having departed Sri Lanka illegally and being perceived as a failed asylum seeker on return to Sri Lanka. In this connection the Tribunal at [47] then stated:
[47]The Tribunal put the country information before it to the applicant at the hearing. He responded by stating that being a Tamil is like a curse. There are problems and discrimination everywhere. He stated that there are random shootings and Tamils are exposed to dangerous situations. On the basis of the evidence before it, however, the Tribunal is not satisfied that the combination of the applicant's ethnicity and his living overseas would specifically impute him with having links to the LTTE or expose him to a greater level of interest by the Sri Lankan authorities. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of any pro-LTTE or anti-government political opinion that may be imputed to him because he has lived in Australia or because he has sought asylum in Australia.
(emphasis added)
In relation to the complementary protection criterion, at [56] of its Decision Record the Tribunal stated:
[56]For the reasons already provided, the Tribunal does not accept that the SLA, the CID or paramilitary groups have any adverse interest in the applicant. The Tribunal is not satisfied that the applicant has a profile that would subject him to a real risk of significant harm arising from his actual or imputed pro-LTTE political opinion. The Tribunal is not satisfied that the applicant will be imputed to be an LTTE member. The Tribunal is not satisfied that the applicant has a profile that would subject him to a real risk of significant harm arising from his actual or imputed political opinion.
(emphasis added)
In my view the Tribunal clearly considered the Applicant’s claims in relation to the LTTE and, contrary to this Ground, made a finding that it was not satisfied that any association or suspicion of association of the Applicant with the LTTE would mean that he faced a real chance of being persecuted or a real risk of being significantly harmed.
Accordingly, Ground 1 fails to establish jurisdictional error.
Ground 2
I take the reference in this Ground to s.424 of the Act to be intended as a reference to s.424A of the Act.
The first problem with this Ground is that it fails to identify the “information” of which “clear particulars” were supposedly not given to the Applicant. This failure would in itself lead to rejection of this Ground.
Nevertheless, in favour of the Applicant I have generally considered the Decision Record of the Tribunal with this Ground in view but on any basis it must fail.
The chief basis for the Tribunal’s rejection of the Applicant’s claims was its view that there were inconsistencies in the various versions of events which the Applicant had given, including the version given at the Tribunal hearing. The “information” constituting those different versions of events was not “information” for the purposes of s.424A of the Act. As Griffiths J said in SZTNL v Minister for Immigration [2015] FCA 463 at [53]:
[53]The relevant two pieces of information became material only because the Tribunal relied upon them in finding inconsistencies in the appellant’s evidence, which lead to the conclusion that he was not a truthful witness. I accept the Minister’s submission that it was these inconsistencies (or the process of comparison between the appellant’s evidence and the factual statements with which the evidence was compared) that counted against him, however, neither inconsistency nor such a comparative process constitutes “information” for the purposes of s 424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 (SZBYR) at [18] and SZJBD v Minister for Immigration and Citizenship [2009] FCAFC 106; (2009) 179 FCR 109 at [104] per Buchanan J, with whom Perram J agreed).
At [18] of SZBYR Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ had stated:
[18]…However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
Further and in any event, I cannot discern from the Decision Record of the Tribunal that it took into account any new “information” which had not otherwise been excluded from the operation of s.424A of the Act by reason that:
a)as to country information s.424A(3)(a) rendered s.424A(1) inapplicable;
b)information which was in the Decision Record of the Delegate was information that the Applicant “gave” to the Tribunal (by forwarding the Decision Record of the Delegate to the Tribunal when he filed the his review application with the Tribunal) and s.424A(1) was rendered inapplicable by force of s.424A(3)(b): Minister for Immigration v Chamnam You [2008] FCA 241 per Sundberg J which case was cited with evident approval by the Full Court of the Federal Court of Australia in Minister for Immigration v Brar (2012) 201 FCR 240 at 259 [74] per North, Greenwood and Besanko JJ;
c)section 424A(3)(b) of the Act rendered s.424A(1) inapplicable to “information” that the Applicant “gave” at the hearing before the Tribunal in response to questioning by the Tribunal: see NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 [57] – [59] per Young J, with the agreement of Gyles and Stone JJ; and
d)section 424A(3)(ba) of the Act rendered s.424A(1) inapplicable to “information” given by the Applicant in his Protection visa application and which was not oral “information”: SZNQR v Minister for Immigration [2010] FCA 152 per Rares J at [34] and MZYER v Minister for Immigration (2010) 115 ALD 382 at 388 [50]-[53] per Dodds-Streeton J.
A Final Matter
At the hearing the Applicant claimed that the interpreter at the Tribunal hearing was not from Sri Lanka and that he believed that some of his evidence had not been conveyed accurately at the Tribunal hearing. This complaint was new and formed no part of his Grounds.
The principles applicable where there is an allegation of inadequate interpretation are sufficiently summarised for present purposes by North J in SZOBN v Minister for Immigration and Citizenship (2010) 119 ALD 260 at 267 [27]:
[27]It is established that an appellant who alleges that there was inadequate interpretation amounting to a breach of the obligation contained in s 425(1) of the Act must show that:
(a)The standard of interpretation at the Tribunal hearing was so inadequate that he or she was, effectively, prevented from giving evidence at the Tribunal; or
(b)errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the appellant.
Questions of fact and degree are involved, and a qualitative assessment must be made of the conduct of the Tribunal hearing as a whole: Appellant P 119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] and [22] ; Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050 ; VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 ; and M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212 . The judgment in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 is often cited as one of the foundation authorities on the question of the adequacy of interpretation. That judgment should now be read in view of the recent academic criticism in A Hayes and S Hale, “Appeals on Incompetent Interpreting” (2010) 20 Journal of Judicial Administration 119, at 127.
However, the Applicant has not tendered a transcript of the Tribunal hearing, notwithstanding that order 4 of the Consent Orders of 20 May 2016 specifically provided that any evidence of a Tribunal hearing be presented as a transcript verified by affidavit. On that occasion I specifically advised the Applicant that he might need to obtain a transcript of the Tribunal hearing. Further, the Applicant has not led any evidence from any witness or source which would enable this Court to embark upon a consideration of the standard of interpretation at the Tribunal hearing on 15 September 2015.
In other words, there is no evidence before the Court which could lead to a finding that the Tribunal hearing was affected by any inadequate interpretation or translation.
Conclusion
In my view both Grounds fail to establish jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 23 April 2018
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