Ayg18 v Minister for Home Affairs
[2018] FCCA 2119
•21 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYG18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2119 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – application for a protection (class XA) visa – whether the Tribunal erred in find that the applicant did not satisfy the criteria for the grant of a protection visa – whether the Tribunal erred in finding certain aspects of the applicant’s claims to be inconsistent and contrived – whether the Tribunal erred in certain factual findings – whether the Tribunal failed to give adequate reasons – whether the Tribunal’s findings were the subject of bias – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 36, 476 |
| Applicant: | AYG18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 527 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 21 June 2018 |
| Date of Last Submission: | 21 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr L Dennis MinterEllison |
ORDERS
Grant leave to the applicant to rely upon the amended application filed on 6 June 2018.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 527 of 2018
| AYG18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 2 February 2018 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. On 6 November 2006, the applicant applied for an Offshore Humanitarian (subclass XB 201) visa as a dependent family member and on 10 January 2008, that application was refused. In December 2007, the applicant travelled to Malaysia and stayed there for eight months on a work visa. In July 2008, the applicant returned to Sri Lanka and was married shortly after his return. On 23 May 2013, the applicant applied for a Sponsored Visitor (subclass FA 600) visa which was refused on 27 May 2013. On 4 June 2013, the applicant applied again for a Sponsored Visitor (subclass FA 600) visa, which was refused on 20 June 2013. On 19 August 2013, the applicant applied for a merits review of the second visa refusal. On 21 March 2014, the visa refusal was remitted to the Department. On 10 April 2014, the applicant was granted a Sponsored Visitor (subclass FA 600) visa. On 14 April 2014, the applicant arrived in Australia and has not departed since. On 14 May 2014, the applicant lodged an application for a protection visa.
The applicant was found to be of Tamil ethnicity and was born in Jaffna. The applicant claimed that he would be persecuted if returned to Sri Lanka because he is a Jaffna Tamil, as well as alleging that he is a human rights activist. The delegate found key aspects of the applicant’s claim not to be credible and on 22 January 2015, found the applicant failed to meet the criteria for the grant of a protection visa.
The Tribunal
On 3 February 2016, the applicant applied to the Tribunal for review. On 26 June 2017, the applicant was invited by letter to attend a hearing on 25 July 2017. The applicant appeared on that date to give evidence and present arguments and was represented by a migration agent. The Tribunal accepted certain aspects of the applicant’s background and personal circumstances but found the applicant not to be a credible witness and found that he had fabricated key elements of his protection claims in the hope of obtaining a protection visa. The Tribunal rejected the factual basis of the applicant’s protection claims.
The Tribunal made adverse credibility findings based on concerns identified by the Tribunal on the applicant’s claims and evidence. First, the Tribunal identified the applicant’s evidence about his low-level involvement in human rights activism was difficult to reconcile with certain other claims that the applicant made and found that it was improbable that the applicant’s low-level involvement in human rights activism, if accepted, would give him a profile such that he could only depart Sri Lanka by bribing authorities.
The Tribunal found the applicant’s evidence about organisations he provided information to was vague, contradictory, changed over time and lacked credible detail. The Tribunal found the applicant provided inconsistent evidence about whether he complained to the Human Rights Commission of Sri Lanka (“HRCSL”) about his mistreatment at the hands of the Sri Lankan authorities. The Tribunal found the applicant did not provide any meaningful detail about his claimed involvement in preparing a report about war crimes in 2012/2013 and found the applicant did not provide any reliable corroborative evidence.
The Tribunal found the applicant’s evidence as to why and when he left Vavuniya and moved to Jaffna and where he lived in Jaffna was inconsistent with his 2014 and 2017 statements. The Tribunal did not accept the applicant moved because he was hiding from authorities. The Tribunal found the applicant’s account of being detained and assaulted by Sri Lankan authorities shifted over time and his account of where he was detained was not consistent with country information.
The Tribunal found the applicant’s documentary evidence, including medical evidence provided by the applicant, did not overcome to the Tribunal’s concerns regarding his claim to have been assaulted. The Tribunal identified a letter provided from a church, which the Tribunal found did not support his claims to have been involved in human rights activism and found it could have been written by anyone. The Tribunal found the applicant did not credibly explain why he was unable to provide any supporting letters from any of the organisations he claimed he informed on human rights violations.
The Tribunal also took into account the applicant’s migration history and specifically his failure to mention his human rights activism and his humanitarian visa application in 2006, his voluntary return to Malaysia in 2008 and his continued working until he left Sri Lanka. The Tribunal found the applicant’s migration history cast doubt over the credibility of his claims. The Tribunal also took into account that the applicant had not been involved in human rights activism in Australia, which the Tribunal found was inconsistent with the applicant’s claimed motivation.
Taking into account the country information in relation to the applicant’s profile, the Tribunal did not accept the applicant would face harm as a Tamil man from the North of Sri Lanka, including on account of any suspected involvement with the Liberation Tigers of Tamil Eelam (“LTTE”). The Tribunal considered it unlikely that the applicant would be identified as a failed Tamil asylum seeker in circumstances where he departed legally. Nevertheless, the Tribunal considered whether the applicant would face harm if it was wrong in this respect and concluded that the applicant would not. Having considered the applicant’s claims and evidence individually and cumulatively, the Tribunal found the applicant did not satisfy the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.
Before the Court
These proceedings were commenced on 28 February 2018. On 6 June 2018, the applicant filed an amended application. The Court granted leave to the applicant to rely upon the grounds in the amended application, which are as follows:
1. AAT erred in not being satisfied the applicant will be at risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka
2. AAT erred in finding the Applicant does not meet SSH (1) or S 36 (2)(a) of the Migration Act
3. AAT erred in not being satisfied there is a real chance the applicant would face harm on return to SL as a failed asylum seeker, now or in the reasonably foreseeable future, or that he faces a real chance of persecution now or in the reasonably foreseeable future,
4. AAT erred in finding the Applicant does not have a well founded fear of persecution within the meaning of S SJ;
5. AAT erred in finding there is not a real chance of harm to the applicant now or in the reasonably foreseeable future, for any LTTE links, for any imputed political opinion, as a Tamil male from the north, as a returned Tamil asylum seeker or a combination of these if returned to Sri Lanka
6. AAT erred in finding the Applicant does not meet S 36 (2)(aa) of the Migration Act
7. AAT erred in affirming the Delegate's decision not to grant the applicant a protection visa
8. AAT erred in not granting the applicant a protection visa,
9. AAT erred in stating the applicant did not provide any information about the CHRD location, functions or even what CHRD stands for [para 40], when the applicant provided information as best he could in these areas at the hearing.
10. AAT erred when it found the applicant was inconsistent and shifted in his evidence [paragraph 43] in respect of making a complaint to HRC.
Particulars
1. The applicant at hearing was specifically referring to a complaint to his person, to which the applicant answered 'no', whereas the evidence that he made a complaint at paragraph 63 of his Statement and also in the hearing referred to his vehicle.
2. Accordingly there was no inconsistency or shifting of evidence.
11. The Tribunal considered the applicant’s explanation concerning why he complained to the HRC in Vavuniya was inconsistent or shifting [paragraph 42] without any proper basis or reason.
Particulars
1. The explanation given by the applicant in the hearing was clear, logical, and without challenge from the Tribunal.
12. AAT erred in not accepting that he or his family complained or attempted to complain to
HRCSL;
13. AAT erred when it found the applicant was inconsistent and shifted in his evidence [paragraph 41] in respect of drawing a distinction between the evidence the applicant gave concerning the CHRD operating under 'our parish' and also not operating 'under our church', when there is no inconsistency
Particulars
A parish different to a church, and there may be a number of separate churches within the same parish.
14. AAT erred in stating the applicant did not refer to CHRD in written claims, when he referred to same in his primary application. [paragraph 42]
15. AAT erred in stating the applicant's evidence had been confused, contradictory, lacking in credible detail about interaction with HR organisations in Sri Lanka [paragraph 42];
16. AAT erred in failing to give any or any adequate reasons why the Tribunal did not accept that he or his family complained or attempted to complain to HRCSL; that his evidence about interactions with HRCSL changed over the Protection Visa application process such errors amounting to errors in law. [paragraph 43];
17. AAT erred in concluding that it was difficult to understand why, and highly improbable, the applicant would be told to travel to a secret army camp when the applicant gave evidence explaining the very reasons in the hearing. [para 54];
18. The AAT erred when it found the evidence of the applicant as to the whereabouts unpersuasive, when there was no evidence that the camp did not exist [paragraph 54];
19. The AAT erred when it found the evidence that the applicant decided to leave Sri Lanka in 2012 and other evidence of a life-threatening incident in 2013, was 'conflicting', when there was no such conflict [paragraph 64];
20. The AA T erred in finding the applicant was untruthful in relation to the visa and passport, when the evidence given by the applicant was straightforward and there was no basis for the Tribunal in making the conclusion it did [para 60];
21. AAT erred in concluding the Applicant did not leave as early as possible/received the passport and waited before leaving Sri Lanka, when the applicant was unaware the visa and passport were issued prior thereto and only provided to the applicant at the airport. [60]
22. AAT erred in concluding it was improbable that the Applicant's father would omit information that would potentially strengthen the family's prospects of being granted a visa when it had no basis to so find [paragraph 63];
23. AAT erred in coming to conclusions as particularised herein, when such conclusions were either not open, or so unlikely that no reasonable person would come to those conclusions;
24. The AAT erred in not giving the applicant the benefit of the doubt and not proceeding on the basis that the material and/or evidence might possibly be true, contrary to MIMA V RAJILINGHAM (1999) 93 FCR 220;
25. The AAT erred when it found the evidence of the applicant’s work prior to leaving Sri Lanka [paragraph 65] was ‘contrived’, which it did not give reasons and when the applicant’s explanation was clear and consistent;
26. The AAT, in making conclusions and findings as particularised herein, demonstrated bias against the applicant.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant indicated that he had consulted a lawyer in relation to the submissions by the Minister and that he disagreed with those submissions. The applicant also asserted from the bar table that there was no evidence to prove that the Tribunal was not biased. No conduct was identified by the applicant to support the allegation of bias other than the adverse findings. The adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The substance of the Tribunal’s reasons are consistent with the applicant having a real and meaningful hearing. The material before the Court is consistent with the Tribunal considering the review with an open mind reasonably capable of persuasion as to the merits. Nothing said from the bar table by the applicant identified any jurisdictional error.
The grounds
Grounds 1 to 8
Grounds 1 to 8 in substance assert to that the Tribunal erred in finding that the applicant did not satisfy the criteria for a protection visa. In substance, each of those grounds is nothing more than an expression of the applicant’s disagreement with the Tribunal’s adverse findings. The adverse findings by the Tribunal were open for the reasons given by the Tribunal as summarised above. These adverse credibility findings cannot be said to be matters that were immaterial or insignificant and were logical and reasonable.
On the face of the material before the Court, the Tribunal made dispositive findings in relation to the applicant’s claims that were open to the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. In substance, grounds 1 to 8 invite the Court to engage in merits review. This Court has no power to review the merits. No jurisdictional error is made out by grounds 1 to 8.
Ground 9
In relation to ground 9, the applicant took issue with the summary by the Tribunal in paragraph 40 of what occurred in relation to the applicant providing particular information. The Tribunal’s reasons correctly summarised the applicant’s own evidence to the Department. The Tribunal then proceeded to set out the applicant’s oral evidence given to the Department at the hearing in response to the questions relating to the provision of the information. It is apparent from a fair reading of the Tribunal’s reasons in the summary of that exchange that the applicant had provided insufficient detail in relation to that organisation for the Tribunal to be satisfied about his claimed involvement. That finding was open to the Tribunal and cannot be said to be unreasonable.
The Tribunal also conducted searches of publicly available information to identify further information about the organisation but was unable to locate any information. The Tribunal found the applicant’s evidence in relation to his human rights activism in Sri Lanka to be confused, contradictory and lacking in credible detail. The criticism advanced in ground 9 does not reveal any jurisdictional error by the Tribunal but rather reflects the applicant’s own evidence and the adverse conclusions by the Tribunal were reasonably open to it. No jurisdictional error as alleged in ground 9 is made out.
Grounds 10, 11, 13, 15 and 19
In relation to grounds 10, 11, 13, 15 and 19, these grounds in substance contend that the Tribunal erred when it found certain aspects of the applicant’s evidence to be inconsistent, shifting, confused, contradictory, lacking in detail, conflicting or contrived. In particular, the applicant complains in relation to the adverse findings in respect of his evidence about making a complaint to the HCR, his evidence in respect of why he complained to the HCR in Vavuniya, his evidence in respect of the CHRD operating under ‘our parish’ and also not operating under ‘our chuch’, the applicant’s evidence in respect of his interaction with the human rights organisations in Sri Lanka and the applicant’s evidence in respect of his decision to leave Sri Lanka in 2012 and the claimed life-threatening incident in 2013.
The Tribunal provided cogent and logical reasons in support of the adverse credibility findings to the effect that the applicant’s evidence was inconsistent, shifting, confused, contradictory, lacking in detail, conflicting and contrived. Those adverse findings were reasonable and were open on the material before the Tribunal for the reasons given by the Tribunal as summarised above. It was a matter for the Tribunal to assess the credibility of the applicant’s claims, particularly in the circumstances of the applicant’s migration history in the present case.
The Tribunal expressly took into account in relation to ground 10 that the applicant had given the same explanation for his changing evidence to the Tribunal as that provided in the particulars to this ground at paragraph 43. However, the Tribunal did not accept the applicant’s explanation. That adverse finding by the Tribunal was open to the Tribunal for the reasons it gave.
In relation to ground 11, the impugned paragraph of the Tribunal’s reasons in paragraph 42 does not relate to the contention made in that ground. The adverse findings by the Tribunal in paragraph 42 were open to the Tribunal for the reasons given by the Tribunal.
In relation to ground 13, paragraph 41 of the Tribunal’s reasons does not contain a finding that the applicant provided inconsistent or shifting evidence, nor does it contain a finding by the Tribunal that the applicant was inconsistent in referring to ‘our parish’ and ‘our church’. Instead, on a fair reading, the Tribunal’s reasons at paragraph 41 merely contains the oral evidence given by the applicant at the hearing in respect of the names and details of the organisations he claimed he worked for in Sri Lanka.
Ground 15 reflects disagreement with the Tribunal’s adverse finding in relation to the applicant’s evidence being confused, contradictory and lacking in credibility. This was a finding open to the Tribunal for the reasons given as summarised above.
Ground 19 reflects the applicant’s disagreement with the adverse finding of the Tribunal in relation to his decision to leave Sri Lanka and the alleged life-threatening experience. It was open to the Tribunal to make those adverse findings, and the Tribunal’s adverse reasons cannot be said to be illogical or unreasonable. No jurisdictional error is made out by grounds 10, 11, 13, 15 and 19.
Grounds 12, 17, 18, 20, 21, 23 and 25
In relation to grounds 12, 17, 18, 20, 21, 23 and 25, these in substance take issue with the adverse factual findings made by the Tribunal. Ground 12 refers to the Tribunal not accepting the applicant or his family complained or attempted to complain to the HRCSL. Ground 17 refers to the factual finding in respect of the applicant being told to travel to a secret army camp. Ground 18 refers to the Tribunal’s adverse finding in respect of the applicant’s evidence as to the whereabouts of the camp. Ground 20 refers to the Tribunal’s adverse finding that the applicant was untruthful. Ground 21 refers to the Tribunal’s finding that the applicant did not leave Sri Lanka as early as possible after receiving his passport. Ground 22 refers to the Tribunal’s adverse finding that it was improbable that the applicant’s father would omit information that would potentially strengthen the family’s prospects of being granted a visa. Ground 23 refers to the Tribunal’s findings impugning other claims advanced by the applicant. Ground 25 refers to the Tribunal’s finding that the evidence of the applicant’s prior work was contrived.
Each of the matters identified were the subject of adverse findings that were open to the Tribunal for the reasons given by the Tribunal in light of the adverse credibility findings. Those adverse credibility findings in the present case cannot be said to be illogical, irrational or unreasonable. The applicant’s disagreement with the adverse findings in substance invites the Court to engage in impermissible merits review. This Court has no power to review the merits. No jurisdictional error is made out by grounds 12, 17, 18, 20, 21, 22, 23 and 25.
Ground 14
In relation to ground 14, the applicant contends the Tribunal erred in stating that the applicant did not refer to CHRD in his written claims when he referred to the same in his primary application. It is not apparent what the applicant is referring to in his primary application, and insofar as the applicant is referring to the statement provided with the protection application, there is no reference to CHRD in that statement. Accordingly, there is no basis to find that the Tribunal erred in its adverse finding in that regard. No jurisdictional error is made out by ground 14.
Ground 16
In relation to ground 16, the applicant contended that the Tribunal erred in failing to give any or adequate reasons why it did not accept that his family complained or attempted to complain to the HRCSL. That ground is misconceived. The Tribunal’s finding that it did not accept that the applicant or his family members ever made or attempted to make a complaint to the HRCSL for any reason can be found at paragraph 43 of its decision. The Tribunal was not required to uncritically accept the applicant’s claims and evidence. The Tribunal gave cogent, logical and reasonable reasons for the adverse credibility findings. Ground 16 is in substance a disagreement with the adverse credibility findings and does not identify any jurisdictional error. No jurisdictional error as alleged in ground 16 is made out.
Ground 24
In relation to ground 24, this erroneously assumes an obligation on the Tribunal to give the applicant the benefit of the doubt. There is no such obligation upon the Tribunal. Further, the adverse credibility findings in the present case were not ones in respect of which the Tribunal’s adverse findings were the subject of an expression of doubt so as to give rise to any consideration of what if the Tribunal was wrong. Accordingly, no jurisdictional error is made out by ground 24.
Ground 26
In relation to ground 26, an allegation of bias must be clearly alleged and properly proved. No allegation of bias is proven in the present case. No conduct has been identified supporting the allegation of bias. The only basis that is apparent on the material before the Court appears to be the adverse findings by the Tribunal. For the reasons already given, those adverse findings and conclusions by the Tribunal are not a basis upon which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by ground 26.
Conclusion
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 3 August 2018
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