AYJ15 v Minister for Immigration - [2016] FCCA 252

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYJ15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 252

Catchwords:
MIGRATION– Review of Refugee Review Tribunal decision – Status – refugee status – refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs.

Legislation:

Migration Act 1958 (Cth) s.424AA

N/A

Applicant:

AYJ15

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 496 of 2015

Judgment of:

Judge Vasta

Hearing date:

18 January 2016

Date of Last Submission:

18 January 2016

Delivered at:

Brisbane

Delivered on:

18 January 2016

REPRESENTATION

Counsel for the Applicant:	Mr Barataraj
Solicitors for the Applicant:	Subramaniam Barataraj

Counsel for the First Respondent:

Mr M. Priest

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

That the Application be dismissed.
That the Applicant pay the First Respondent costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 496 of 2015

AYJ15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

By application filed on 4 June 2015 and amended on 2 December 2015, the Applicant, AYJ15, seeks judicial review of the decision of the then Refugee Review Tribunal on 4 May 2015 that affirmed a decision of the delegate of the Minister not to grant the Applicant a protection visa.
The grounds upon which this application is made are the following:
“1. The Minister erred in law in not following the proper procedures inter alia, in determination of the application made by the Applicant.
Particulars:
Tribunal failed to put questions to the Applicant to clarify why he referred to 2002 as the year when Karuna group detained his brother when in fact they only formed in 2004 whether the group did exist informally at the time. It is noted that the Applicant had always referred dates after 2004 when he made claims against the Karuna Group. This is an important consideration on the credibility of the Applicant.
a. It is unreasonable for the Tribunal to expect the Applicant to know about each and every splinter group operating at that time because the situation was too dynamic and unstable and changing.
b. The Tribunal raised concerns under S 424AA about the assault the Applicant experienced. Under s 422AA(b) the Tribunal must advise the Applicant that he may seek time to get more particulars.
c. The Tribunal failed to apply s434AA(b) in the question of his accounts on the 2010 detention. The Applicant had already explained the recalling of the accounts are too emotional for him described and instead said the Applicant changed accounts without explaining the such (sic) different accounts in the reasoning.
d. It is unreasonable for the Tribunal to use the Applicant’s description ‘in a piece meal way’ a meaning which is questionable and not definitive and the conclusion that the Applicant was making up the story. It is important to note that the Applicant’s narration of his wife’s home being taken over by the group is consistent with the happenings at that time, agreed and accepted by the Tribunal. It cannot be coincidental that the dates the events stated to have occurred coincided.
e. The fear of possible storage of bombs in a house lived by the terror group is not incredible. The fact that is bombs were planted so that in the event the Applicant returns to the house only to be arrested for possession of bombs is a justifiable fear and it is wrong in principle error of the Tribunal to arrive at such a conclusion.
f. No justifiable reason has been given for the Tribunal to refuse to accept that the Applicant’s brother was a member of the LTTE or that the Karuna group targeted him, when the country information says that such incidents did happen.
2. The Tribunal erred in law by taking into consideration information inter alia not relevant to the applicant’s claim.
Particulars
a. The Applicant stated that he moved regularly in the process of his business. This meant he would naturally give his forwarding address for communication. Failure to give an address should not be taken as the Applicant was inconsistent. That the tribunal did consider this to impinge on his credibility is an error.
3. The Tribunal erred in not taking into consideration relevant information in making the decision.
Particulars
a. The Applicant came from a very wealthy family owning many properties and business and his flight to Australia could not for economic reasons. His wealth status must have been accepted as it was never questioned.
b. His brother was a member of the LTTE and considering Karuna group split from LTTE, he and his brother have would be classified as cadres or associates of the LTTE and therefore targets for the Sri Lankan authorities and the splinter groups against LTTE. At the same time the Tribunal accepted the statement of the Applicant’s father was rounded up 15 years ago.
4. Complementary Protection Criterion
The Tribunal had not provided definite or substantive reasons to determine that the Applicants do not qualify under the Complementary Protection criteria. The standard established by the Tribunal was unsatisfactorily rigid and high.
The tribunal erred in law by taking into consideration information, inter alia, not relevant to the applicant’s claim; (3) the tribunal erred in not taking into consideration relevant information in making the decision and (4) the tribunal had not provided definite or substantive reasons to determine that the applicants do not qualify under the complementary protection criteria, the standard established by the tribunal was unsatisfactorily rigid and high.
There are a number of particulars given to those grounds. It is fair to say that most of the grounds do revolve around the fact-finding process undertaken by the Tribunal. With regard to that, the Applicant asserts that because of the special circumstances of the Applicant, in that he:- came from a very stressful situation in Sri Lanka to Australia, has not been counselled, and does not understand the ways of the proceedings, that not enough leeway and understanding was given to him during the hearing. However, it seems that the Tribunal at the start of their assessment have said at paragraph 21:
“…’applicants for refugee status face particular problems of proof as an applicant may not be able to support his or her statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt…”
The Tribunal also said that if it makes an adverse finding in relation to a material claim made by the Applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.
The Tribunal was also mindful that whenever evidence is received in a language other than the Applicant’s first language or through an interpreter, there is always room for differences in meaning and nuance. The Tribunal says in its reasons that it was,
“…careful to clarify the applicant’s evidence for confirmation. The Tribunal checked throughout the hearing the applicant’s understanding of credit issues to ensure he understood. He responded that he understood and confirmed he understood the interpreter. The tribunal is satisfied the standard of interpreting at the hearing was reasonable and competent.”
The Tribunal considered that the Applicant was able to communicate effectively, understood the Tribunal proceedings and participated in a meaningful way.
There does not seem to have been anything that I can see in the evidence that would in any way impugn those statements made by the Tribunal at paragraphs 21, 22 and 23 of its reasons.
Having found no substance in the complaint about the treatment of the Applicant before the Tribunal, I must then look at the sorts of matters that the Applicant contends show that the Tribunal had made a jurisdictional error.
The matters in particular do seem to be, on the face of it, to use the vernacular, an attempt to “have another go” at the merits. It is trite to say that a hearing such as this cannot be a merits review. That is because this matter is a privative clause decision that has been made by the Tribunal, and it is only if there has been an error in regards to the jurisdiction that this Court ought intervene and grant the relief sought.
There are a number of matters where the Applicant gives specific reasons why the Tribunal ought to have accepted the Applicant’s evidence or explanation.
The point about this is that credibility is not a matter where one looks at a particular issue and judges that, then looks at another particular issue and judges that. Credibility is a matter that is approached by the Tribunal in much the same way that a jury or a Tribunal of fact approaches circumstantial evidence. It is not one particular matter that has any particular strength, but rather they are like a rope made of twine. Each strand individually may not be able to sustain a particular finding, but when one puts all the strands of twine together, it is like a rope that can support a great weight.
What has happened here is that it is not just a particular finding, for example, as to the question of the house. It is not the particular finding as to whether the person was a member of the LTTE or the Karuna Group. It is not a question of the particular matter of the Applicant not recalling his address. It is the cumulative effect of all those particular matters that led the Tribunal to find that the Applicant was not credible.
In looking at the role that the Tribunal has, it is a question for it to look at the evidence and to decide what evidence it accepts and what it rejects and what the facts are. It is not my job to go through and say whether this is a correct finding or an incorrect finding or whether that finding should be made or not. It is a question that, on the whole of the evidence that is before the Tribunal, was the finding, that they made, open.
In this case, I cannot be satisfied that the finding that was made was not open on the evidence. It is not whether I would have found the same way that the Tribunal has found. It is not whether I agree with what the Tribunal has done. It is whether such a finding was, in fact, open to the Tribunal.
In my view, the findings, which were made on the facts, were open to the Tribunal. Without going through every particular fact outlined in the first ground, it is clear that the applicant simply disagrees with the conclusion of the Tribunal. This cannot amount to a jurisdictional error and, therefore, I do not see that this ground is made out.
The Tribunal, as I have said, has approached its fact-finding duty in a proper manner. It has assessed the evidence that was before it. It has complied with the legislation, especially s.424AA, and it has made findings that were open to it. So I do not see any merit in Ground One.
Ground Two, that the Tribunal erred in law by taking into consideration information not relevant to the Applicant’s claim, can also be taken with Ground Three, that the Tribunal erred in not taking into consideration relevant information.
There does seem to be in this case a misunderstanding of what relevant information and irrelevant information is in a matter such as this. For information to be relevant, it is information that the Tribunal must consider; for information to be irrelevant, it is information that the Tribunal must not consider. What have been identified here in this ground are conclusions on bits of evidence with which the Applicant does not agree.
For example, in talking about whether the Tribunal has taken into consideration irrelevant material, the Applicant says that the Tribunal found as one of their facts that the Applicant could not remember the address that he moved to and lived for seven years. The Tribunal made conclusions unfavourable to the Applicant because of that fact. The Applicant says that such a failure should not be taken that the Applicant was inconsistent and that this is something that is normal and therefore the conclusion made by the Tribunal should not have been made. That does not mean that the Tribunal has considered irrelevant material.
It is a matter that the Tribunal is entitled to look at. It is not a matter that the Tribunal is prohibited from looking at, so, therefore, Ground Two cannot succeed.
With regard to Ground Three, the Applicant has looked at the relevant information as being that the Applicant came from a very wealthy family, owning many properties and businesses, therefore the flight to Australia could not be for economic reasons, and that his brother being a member of the LTTE should have been looked at.
Both of those matters do not seem to be particularly a matter that the Tribunal needed to look at. For example, the matter as to the brother was a collateral matter, and the Tribunal did not accept that he was a member of the LTTE given his freedom of movement in and out of the country. With regard to whether the Applicant was from a wealthy family and fleeing here for economic reasons is really not the question. The question before the Tribunal was not whether the Applicant was an economic refugee. The question before the Tribunal was whether it was established to the Tribunal’s satisfaction that Australia owed complementary protection or convention protection. So, in my view, Ground Three also fails.
With regard to Ground Four, being the complementary protection criterion, it is very difficult to see how the Tribunal has set the bar too high. The test is as the legislation has assessed it. The Tribunal’s reasons do seem to be in accordance with what it was that the Tribunal ought to have looked at. In particular, many of the matters that the Tribunal looked at under the Refugee Convention were also relevant with regard to the complementary protection.
The Tribunal, at paragraphs 58 to 64, talked about the general matters that it had to look at. It then looked at whether the Applicant’s Tamil background was a factor, whether the fact that the Applicant was a wealthy Tamil or a businessman or a wealthy Tamil returning from overseas was a factor. Whether the Applicant being a failed asylum seeker and a person who voiced a political opinion was a factor. Whether the Applicant’s illegal departure from Sri Lanka was also a factor.
The Tribunal used exactly the same sort of logic in looking at the complementary protection matters, and again looked specifically at the illegal departure from paragraphs 104 through to 114.
So when one looks at what the Tribunal has done, it seems as though it has gone through and looked at everything to which it had a duty to inquire. For those reasons, I find that there is no substance in Ground Four.
I order that the application be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 11 February 2016.