AYX15 v Minister for Immigration

[2015] FCCA 2792

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2792

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider the applicant’s claims and evidence – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 476

Applicant: AYX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1551 of 2015

Judgment of: Judge Street

Hearing date: 13 October 2015

Date of Last Submission: 13 October 2015

Delivered at: Sydney

Delivered on: 13 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms C. Hillary
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1551 of 2015

AYX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 4 May 2015 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 as against that country as the receiving country.

2. The applicant left Sri Lanka legally on 23 October 2012 and travelled on a passport in his own name to Thailand, Malaysia and Indonesia before arriving by boat in Australia on 22 July 2012.  The applicant applied for protection on 12 June 2013, which application was refused by the delegate on 15 July 2013.

3. The applicant first appeared before the Tribunal on 27 November 2014 to give evidence and present arguments, and was assisted by an interpreter, as well as being represented by his registered migration agent. Following that hearing, the Tribunal wrote to the applicant under s.424A on 4 December 2014 providing clear particulars of information the Tribunal considered would be the reason or part of the reason for referring the decision under review.

4. The applicant’s representative provided submissions in response dated 25 February 2015 including a psychologist’s report, as well as raising a new claim.  The applicant appeared for a second time before the Tribunal on 16 April 2015 to give evidence and present arguments, and was again assisted by an interpreter and represented by his registered migration agent.

5. In substance, the applicant claimed to fear harm because of his Tamil ethnicity, having provided assistance to the LTTE, because he was a failed asylum seeker, that he had scarring from an injury during the war, and because he was from a northern province.  The applicant also raised a claim that he had been employed by the LTTE at the second hearing.

6. The application raises the following ground:

   1. The Tribunal erred in being unreasonable and inconsistent in findings of the applicant as a vulnerable person.

   Particulars

   a. At paragraph 8 the Tribunal noted the psychological report for the applicant by Dhivya Karthikeyan, Psychologist;

   b. At paragraph 14 the Tribunal stated that it considered the Tribunal’s Guidance on the Assessment of Credibility and guidance on Vulnerable Persons;

   c. At paragraph 15 the Tribunal accepted that the applicant has memory difficulties, in particular at the time of the entry interview when he was receiving treatment for active tuberculosis. Independent information sought by the Tribunal suggested that disturbance in concentration and memory can be a result of tuberculosis treatment;

   d. At paragraph 20 the Tribunal made that the Tribunal did not accept that his memory was so bad that he would not be able to recall whether he was in Sri Lanka or Malaysia at the time of his father’s arrest, particularly in light of his evidence at the hearing that his memory of the events is not very clear in his mind;

   e. The Tribunal was unreasonable and inconsistent in her treatment of the applicant’s evidence, from understanding his memory difficulties to relying on a statement that the applicant had a clear memory to changing and fabricating his evidence; and

   f. The Tribunal did not make any inquiries about the applicant’s injury to his forehead from shrapnel in March 2009 that may have on his memory and ability to recall and give evidence.

7. On 16 July 2015 orders were made by the registrar of this Court providing an opportunity for the applicant to amend the application, file further affidavit evidence, and put on submissions.  No such documents were filed.  At the hearing today the applicant indicated that his life will be in danger if he goes back to Sri Lanka.  The applicant contended that he had just obtained photographs in relation to his involvement with the LTTE and sought to tender a number of photographs comprising eight photographs that were marked MFI 1-1 to 8.

8. The first respondent objected to the tender of the photographs on the basis that it is not relevant to the issues raised before the Court.  This Court is not in a position where it is conducting a hearing afresh or a hearing de novo in relation to the applicant’s claims but, rather, is determining whether or not the applicant is entitled to a constitutional writ by reason of the Tribunal having exceeded its authority, or having denied the applicant procedural fairness, or having engaged in an error that constitutes a jurisdictional error.  It was for these reasons that the photographs now marked MFI1 were rejected.

9. The applicant identified that he had family in Sri Lanka and that his life would be in danger if he returned, and that he would face persecution.  The applicant also identified his current circumstances and an ongoing inability to work.  I accept the first respondent’s submission that nothing said by the applicant from the bar table identified any jurisdictional error. 

10. The Tribunal identified the relevant law in relation to the applicant’s claims and considered the applicant’s claims and evidence.  The Tribunal also took into account the psychologist’s report in relation to the applicant’s alleged memory issues in relation to the applicant’s credit, as well as taking into account the considerations identified in guidance on the assessment of credibility and guidance on vulnerable persons.

11. The Tribunal did accept part of the applicant’s evidence in relation to incidents to which he had been exposed but made adverse findings in relation to other claims advanced by the applicant.  Relatively, the Tribunal said:

    17. The Tribunal is not satisfied that the applicant has been truthful in relation to the death of his father. In the applicant’s written statement he claimed:

    In about January 2011, my father, … was arrested by the SLA. My mother told me that following his arrest and brief detainment (about two days) he was in a very bad physical condition. We believe that he had internal injuries as a result of beatings and torture by the SLA during his detainment. About two months following his release half of his body became paralysed. Approximately three months after his paralysis his died.

    …

    20. The Tribunal finds this response to be unpersuasive for a number of reasons.

     At the hearing the applicant stated that he was very clear in his mind now about the sequence of events for his father although he had been confused in previous interviews and that he was certain that the sequence of events he provided at the hearing is the correct sequence.

     The Tribunal put to the applicant at the hearing that the fundamental facts about how his father died and whether or not the applicant was in the country at the time his father was arrested are so significant that the Tribunal has difficulty accepting the inconsistencies are merely a result of memory difficulties. The applicant then stated that when he heard about his father’s death he was in Malaysia and did not ask about how his father died. When he later asked his siblings they started telling him different stories and it was only later that he verified from his mother what the cause of death of his father was. This explanation was not an explanation provided in response to the s.424A letter which the Tribunal finds surprising if the explanation was truthful. It appears to the Tribunal that the applicant was changing and fabricating his evidence in response to the Tribunal’s concerns.

     The applicant’s evidence at the hearing was very clear that he was in Sri Lanka at the time of his father’s arrest but was in hiding at a relative’s house. This is significantly inconsistent with the s.424A response which states that the applicant’s father was arrested two months after the applicant left Sri Lanka.  While the Tribunal accepts that the applicant may have memory difficulties (as a result of past injuries and trauma and as evidenced in the psychological report provided), the Tribunal does not accept that his memory is so bad that he would not be able to recall whether he was in Sri Lanka or Malaysia at the time of his father’s arrest, particularly in light of his evidence at the hearing that his memory of the events is now very clear in his mind.

    …

    22. The Tribunal is willing to accept that the applicant’s father is deceased. However, while it is not clear to the Tribunal in what circumstances the applicant’s father did die, the Tribunal does not accept that he was arrested and tortured by the Sri Lankan authorities because of their interest in the applicant or because they suspected his father of having LTTE connections. The Tribunal is not satisfied that the applicant’s father’s

    …

    26. The Tribunal did not find this explanation plausible in light of the applicant’s inclusion of evidence in his initial statutory declaration about what assistance he provided to the LTTE, suggesting that he did not withhold these claims due to any fears about the information being released or him being imputed with status as an LTTE member.

    …

    29. The applicant’s changing and inconsistent evidence about his involvement with the LTTE and unpersuasive explanations for the change in his evidence, lead the Tribunal to find that he has not been truthful in relation to his involvement with the LTTE. The Tribunal has considered the DFAT Thematic Report: People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014) which states:

    The mostly-Tamil civilian populations of the areas controlled by the LTTE were required to interact with the LTTE’s military and civil administration as a matter of course. This included the payment of personal income taxes, sales taxes, licence fees and customs duties at the border of LTTE-controlled areas.

    30. In light of this the Tribunal is willing to accept that the applicant had low level involvement with the LTTE as a Tamil civilian in an LTTE controlled area during the civil war. However, the Tribunal does not accept that his involvement goes beyond this.

    …

    35. However, the evidence before the Tribunal suggests that as a result of this questioning the authorities formed the view that the applicant was not a member of the LTTE. He was released after four hours, he was not sent for rehabilitation, he was able to obtain a passport, he was able to travel to Colombo to collect his passport, he was able to pass through checkpoints without difficulty and he was able to leave the country legally on a passport in his own name. The applicant claims that he was only released so that he could be monitored to discover LTTE members and that he was suspected of being an LTTE member following the arrest. The Tribunal does not find it credible that he was being monitored after his release in light of his ability to obtain a passport, a visa to Thailand, pass through checkpoints and leave the country legally after his release. Further, the Tribunal considers that if the authorities believed he was LTTE then they would not have released him after such a short period of time.

    36. … The failure of the applicant to raise the claim to be in hiding as a result of an attempted abduction by a white van suggests to the Tribunal that the claim has been fabricated in an attempt to strengthen his claims following the refusal by the delegate.

    …

    39. For the reasons set out above, the Tribunal is not satisfied that the Sri Lankan authorities formed any adverse view as to the applicant’s involvement with the LTTE. For the same reasons and the applicant’s earlier evidence discussed above, the Tribunal is not satisfied that a white van attempted to abduct the applicant on 26 April 2010. The Tribunal did not find the applicant’s evidence in relation to this to be persuasive. He stated that all young Tamil men in the area were of interest to the authorities but was unable to provide any reason for why they would be following him in particular if this was the case. The Tribunal is not satisfied that the applicant was in hiding and forced to flee the country because a white van was looking for him.

    40. … The Tribunal does not accept that the applicant’s wife has been staying inside without leaving the house for more than four years and does not find it credible that the authorities would just have accepted his wife’s sister’s assurance that his wife was not living with her. The Tribunal does not accept that the authorities have been looking for the applicant’s wife since the applicant’s departure from Sri Lanka.

    42. However, his evidence to the Tribunal was inconsistent with this and unpersuasive which leads the Tribunal to find that the applicant’s house was not burned down by the CID in a targeted attack.

     Contrary to the applicant’s written claims that he is not sure it was the CID, he stated at the hearing that it was definitely the CID that burnt the house down. He stated that he knew this because his father told him it was the CID two days before he died. When asked how his father knew that it was the CID the applicant stated that the CID move around very freely so it is obvious and the affected people know this well.

     The applicant stated in his s.424A response that although the applicant was able to communicate with his father over the phone two days before his father’s death, his father was unable to speak because of the severity of his injuries. Therefore, the Tribunal does not accept that his father had told the applicant during that telephone call that his house had been burned down by the CID.

     He stated that his house burnt down in 2011 (not November 2010 as stated in his written claims) and his father told him this in April 2011. He stated that his father did not tell him when the house burnt down just that it had. If this was accurate then the Tribunal would not expect him to have specified in his written claims that his house burnt down in November 2010.

    Authorities’ interest in brother

    43. At the second hearing the applicant raised another new claim - that the Sri Lankan authorities are currently searching for his brother. He stated that the authorities started looking for his brother ten days before the hearing (ie in April 2015) and his brother has been forced to go into hiding. However, the Tribunal did not find the applicant’s evidence in relation to this new claim to be credible. He could not provide any plausible explanation for why the authorities were suddenly interested in his brother in April 2015. He stated that they were looking for him because the applicant’s whole family had helped the LTTE. When the Tribunal asked why then the authorities were only looking for his brother now, the applicant stated that the authorities wanted to get more information and are questioning a lot of people who were helping the LTTE before. He stated that his brother had not been questioned or detained since the family left the IDP camp. When the Tribunal asked why the authorities were looking for the applicant in 2010 but not his brother if they thought that the whole family had assisted the LTTE, the applicant stated someone had informed on the applicant at that time so they were specifically interested in the applicant. This is not consistent with the applicant’s earlier evidence at the first hearing that they were not specifically targeting him but were interested in all Tamils who had been living in an LTTE controlled area during the war. Furthermore, as discussed with the applicant at the hearing, the Tribunal does not accept that if someone had informed on the applicant stating that he had been assisting the LTTE that the authorities would have let him go after four hours of questioning.

    44. The Tribunal did not find the applicant’s late claim that the authorities are adversely interested in his brother to be credible. The Tribunal is not satisfied that the authorities are interested in the applicant’s brother or that he has been forced to go into hiding.

    Actual or imputed LTTE profile

    45. For the reasons discussed above, the Tribunal has found that the applicant provided low level assistance to the LTTE, as did many civilians living in an LTTE controlled area during the civil war. When asked at the hearing about his father’s involvement with the LTTE he stated that his father was not involved in fighting or anything but assisted with cooking food and administration. He did not refer to his father being employed as a driver for the LTTE and the Tribunal does not accept that his father was a driver for the LTTE. The Tribunal accepts that, like the applicant and many other Tamil civilians, the applicant’s father provided assistance to the LTTE during the civil war. However, the applicant stated that this involvement was not known to the authorities. His father attended at the army camp to request the release of the applicant and the applicant was released. The army did not detain the applicant’s father which suggests that they did not suspect him of any LTTE involvement. His father has now passed away and there is no credible evidence to suggest that the authorities suspect his father of LTTE involvement. Therefore the Tribunal is not satisfied that there is a real chance of the applicant being harmed because of his father’s involvement with the LTTE during the civil war.

    …

    47. The Tribunal has found above that the authorities did not suspect the applicant of any involvement with the LTTE at the time of his departure and that it does not accept the authorities have been searching for his wife, his brother or have burnt down his house because of the applicant. The Tribunal is not satisfied that there is any credible evidence to suggest that the authorities currently suspect the applicant of being involved with the LTTE or that there is a real chance that they would do so because of his past activities if he was to return to Sri Lanka now or in the reasonably foreseeable future. The Tribunal has separately considered below the claim that he will be imputed with a pro-LTTE profile because of his ethnicity, the region he comes from, his protection visa application, his scarring and that he is returning from Australia (and spent time in Malaysia and Thailand). The applicant was released after four hours of questioning, he was issued with a passport and able to pass through checkpoints and depart the country legally without difficulty. In light of the Tribunal’s findings of fact and the country information discussed above, the Tribunal is not satisfied that there is a real chance that he would be subjected to serious harm as a result of his past activities on behalf of the LTTE.

    Tamil/Tamil males from the [X] District or Northern Province

    48. The applicant’s representative has submitted that the applicant will be imputed with being a supporter or member of the LTTE on the basis of his ethnicity and the fact that he is from the north of Sri Lanka. The submission dated 15 November 2013 states that “Tamils in Sri Lanka continue to be persecuted on the basis of their race”. The submissions refer to country information indicating that the predominantly Sinhalese army continue to control daily life for the Tamil-speaking residents, an increased militarisation of the north and east, discrimination against Tamils in government employment, university education and access to justice and that the situation for Tamils remains precarious with Tamils disproportionately being victims of human rights violations. The Tribunal accepts that there continues to be distrust between many Tamils and the Sri Lankan Army, Navy and CID. The submissions also set out country information including reports from the International Crisis Group, US Department of State, Amnesty International, Human Rights Watch, UNHCR Guidelines, the Immigration and Refugee Board of Canada, Freedom House and DFAT. The Tribunal has taken into account all of this information, although it notes that (understandably) the submissions from June and November 2013 refer to information which is more dated than that relied on by DFAT in its 2015 assessment. The Tribunal accepts that there are reports of ongoing persecution and violence in Sri Lanka of certain persons, including Tamils with particular profiles, and that the Sri Lankan authorities remain paranoid about the possible resurrection of the LTTE. However, the question for the Tribunal is whether the applicant has a profile that would make him of adverse interest to the Sri Lankan authorities. The Tribunal has not accepted the applicant’s specific claims relating to his employment by the LTTE or LTTE profile for the reasons given above. However, it accepts that the applicant is Tamil who provided low level support to the LTTE during the civil war (at the same level as many Tamil civilians in an LTTE controlled area) and has therefore considered whether there is a real chance of him being harmed as a result of this.

    …

    52. Also, many of the reports of the torture and mistreatment of Tamils including LTTE members and supporters or those suspected of being so, date from the years immediately after the end of the civil war in May 2009. Independent information indicates that the situation is improving; this would seem to be supported by the return to Sri Lanka of more than one thousand asylum seekers from Western countries since 2012, with few credible reported cases of returnees having been subjected to persecution or significant harm on return, unless the individuals concerned had LTTE connections or activity, or were involved in criminal activity.12 The Tribunal does not accept that being a Tamil, young and/or a male would mean that the applicant is imputed with a pro-LTTE profile as the country information does not support such a conclusion.

    53. The Tribunal does not accept that the evidence establishes that Tamils are at risk of serious harm on the basis of their ethnicity alone. Likewise the Tribunal does not accept that the evidence establishes that Tamils, or Tamil men, from [X] or the Northern Province are at risk of serious harm for that reason. Whilst the Tribunal accepts that there continues to be persecution of persons with certain profiles, such as persons who had certain LTTE connections, the Tribunal does not accept that the applicant has any particular profile such that there is a real chance that he will suffer serious harm for reason of his ethnicity as a Tamil or because he is a Tamil male or because he is from a particular area. Accordingly, the Tribunal is not satisfied that the applicant had, or has, any anti-government political profile (imputed or otherwise) or that there is a real chance he will be subjected to serious harm, including being detained under the Prevention of Terrorism Act (PTA), because he is a Tamil and/or a Tamil man and/or from a particular area.

    …

    58. … On the basis of the lack of harm to the applicant in the past due to his scarring, his ability to leave the country legally on his own passport and the country information which suggests that while scars were previously used to identify potential LTTE members, this practice is no longer widespread, the Tribunal is not satisfied that there is a real chance of the applicant being harmed because of his scarring.

    …

    60. … It does not accept that there is a real chance of the applicant being charged with having departed Sri Lanka illegally

    61. … In light of this and the fact that the applicant passed through checkpoints and left legally, the Tribunal is not satisfied that his departure in September 2010 would place him at increased risk or that there is a real chance of him being harmed because of this.

    62. … Given the lack of past harm to the applicant and the problems with the applicant’s evidence set out above, the Tribunal is not satisfied that the paramilitary groups have any adverse interest in the applicant or that there is a real chance that they would harm him if he was to return to Sri Lanka.

    …

    69. … Therefore, the Tribunal does not accept that these reports indicate that there is a real chance of the applicant being likewise arrested.

    …

    72. In light of the applicant’s lack of a pro-LTTE or anti-government profile, the Tribunal is not satisfied on the basis of the evidence before it that there is a real chance that the applicant will be subjected to serious harm at the airport, on remand or in his home area as a failed asylum seeker, including from a western country such as Australia.

    …

    74. The Tribunal has carefully considered whether cumulatively the applicant’s situation would result in there being a real chance of him suffering from serious harm if he was to return to Sri Lanka but is not satisfied that it would.

    75. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

1. It was in those circumstances the Tribunal turned to the issue of complementary protection and relevantly:

   78. The Tribunal considers that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of such persons suffering torture, arbitrary deprivation of life, or intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A) on a regular basis. As discussed above, the isolated reports, refer to persons with known political profiles, involvement in people smuggling, unspecified profiles or those who were unable to lodge protection visa applications for assessment. The Tribunal is not satisfied that the applicant would be imputed with a pro-LTTE or anti-government political opinion if he was to return to Sri Lanka.

   79. Having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the reasons he has claimed. Nor is the Tribunal satisfied that the applicant would be exposed to significant harm for any other reason. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. I accept the first respondent’s submission that the assertion that the Tribunal erred, being unreasonable or inconsistent in explaining this does not identify any jurisdictional error and is, in substance, cavilling with the adverse findings by the Tribunal.  I accept the first respondent’s submission that those adverse findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification.  There is no substance in the assertion of inconsistent findings by the Tribunal.

3. In relation to ground 1(a) it was a matter for the Tribunal to determine what weight to give the psychologist’s report and ground 1(a) fails to identify any jurisdictional error.  In relation to ground 1(b) it was relevant for the Tribunal to take into account the guidelines and ground 1(b) fails to identify any jurisdictional error.

4. In relation to ground 1(c) it was a matter for the Tribunal to take into account the applicant’s evidence and assess his credibility in light of his memory difficulties.  It is clear from the psychologist’s report that the particular issue of tuberculosis was taken into account in that medical report which was referred to in the Tribunal’s reasons in para.15.  Nothing in ground 1(c) identifies any jurisdictional error.

5. In relation to ground 1(d) it was a matter for the Tribunal to determine the applicant’s credit and nothing in ground 1(d) identifies any jurisdictional error.  In relation to ground 1(e) this is a case where the Tribunal did accept part of the applicant’s evidence and rejected other parts of the applicant’s evidence, as was open to the Tribunal to do so, for the reasons given by the Tribunal.  The only finding of fabrication is in para.36.  Ground 1(e) fails to make out any jurisdictional error.

6. In relation to ground 1(f) there is no suggestion in the psychologist’s report that the shrapnel incident itself had affected the applicant’s memory and the shrapnel incident was a matter in respect of which the applicant had given different evidence as to the alleged dates, as referred to in a letter under s.424A dated 4 December 2014 on p.275 of the court book.

7. I accept the first respondent’s submission that there was no obvious inquiry that the applicant had shown should be pursued in relation to the shrapnel incident.  Further, this was a case where the applicant provided the psychologist’s report after the first hearing and was provided with a second hearing.  Nothing in ground 1(f) makes out any jurisdictional error. 

8. Whilst the current circumstances of the applicant are much to be regretted, nothing said by the applicant today identifies any basis upon which the Court could find a jurisdictional error. The application is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  19 October 2015