AZG15 v Minister for Immigration
[2016] FCCA 3325
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZG15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3325 |
| Catchwords: MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – whether the Tribunal took into account irrelevant considerations – whether the Tribunal had a logical or probative basis for making adverse credibility findings – whether the Tribunal’s credibility findings were illogical and/or irrational – alleged failure to consider risk of significant harm to failed asylum seeker – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.426A |
| Cases cited: MZZSK v Minister for Immigration & Anor [2014] FCCA 883 Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 |
| Applicant: | AZG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1309 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 28 October 2016 |
| Date of Last Submission: | 28 October 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Leerdam |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The further amended application filed on 6 October 2016 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1309 of 2015
| AZG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Nature of Application
By an application filed 10 June 2015, the applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) made on 13 April 2015 affirming a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.
Background
The first respondent succinctly summarised the background of this matter in the outline of submissions filed 4 October 2016 as follows:
2 The applicant is a male citizen of Sri Lanka, of Tamil ethnicity and Hindu religion. His claims were initially set out in a written statement attached to his protection visa application.
3 The applicant claimed that during the conflict in Sri Lanka he lived in an LTTE controlled area and was taken to a refugee camp where he was interrogated as to whether he had any involvement with the LTTE. He claimed to have been interrogated by the CID in this respect.
4 The applicant claimed that after one and a half months he left the refugee camp with his family and returned to the Vavuniya area. The applicant claimed that the Army and CID were still looking for people with LTTE links, and the applicant claimed to have seen decapitated heads in the street and have knowledge of the abduction of Tamil people.
5 The applicant claimed in March 2012 that men from the CID came looking for him. The applicant's mother told them the applicant was not home. The CID returned to look for the applicant on 26 May 2012. The applicant fled Sri Lanka for his safety.
6 The applicant also raised claims before the delegate relating to his unlawful departure and being a failed asylum seeker.
7 To the AAT, the applicant claimed that he had been abducted and taken to an LTTE training camp while attending school.
The Tribunal’s Decision
The Tribunal considered the applicant’s claims and set out the credibility concerns held regarding the applicant’s evidence about the events from the first visit by the CID in March 2012 looking for him after he left the refugee camp.
The applicant made a claim to the Tribunal that the CID had come to his house on early 2012 while he was at work and they had informed the applicant’s mother that they wanted to arrest him because of his connections with the LTTE and were seeking to interrogate him. Upon hearing this, the applicant called in sick to work and stopped staying at the family home.
When asked by the Tribunal why he had stopped staying in the family home, he said that that he was confused, stressed and believed that someone must have informed the CID about the occasion in which he was abducted by the LTTE and held in a training camp by them for
23 or 24 days. He further stated that he worked for a business owner who was a top political figure associated with the Army but did not seek assistance from him as he was afraid it might lead to him being apprehended.
The applicant stated to the Tribunal that the CID returned to the applicant's house for the second time in May 2012, at which time he was in hospital receiving dental treatment and his mother telephoned him to tell him what happened. The applicant said he then decided to leave Sri Lanka and stayed in a friend’s home until he was able to leave Sri Lanka illegally by boat.
The Tribunal’s Decision
The first respondent summarises the decision of the Tribunal as follows:
10The AAT set out its concerns with the applicant's evidence, including that it was improbable the applicant would keep working while the authorities were looking for him ([18]-[20]); that the applicant told the delegate he did not think the situation was serious after the first CID visit ([21]-[22]); and that the CID took a long time to return to the applicant's house ([23]-[24]).
11The AAT also identified areas of inconsistency in the applicant's evidence, including as to the CID sending a letter to the applicant's family ([25]-[27]); evidence about the CID demanding the applicant to present at a camp ([28]-[29]); evidence in respect of the applicant no longer living at the family home ([30]-[31]); evidence about the applicant's interrogation at the camp ([32]-[35]); and a late claim regarding being abducted by the LTTE ([36]-[38]). The AAT concluded that the applicant 'is not a witness of truth and the account of events on which his protection claims are based is false' ([39]).
11.1The AAT disbelieved a claim that the CID issued a summons and gave no weight to a document which was said to be a police report ([40]);
11.2The AAT did not believe that the applicant witnessed Tamils being abducted or that he saw decapitated heads ([41]);
11.3The AAT accepted the applicant is a Tamil man and his father is disabled from an explosion during the conflict, but that otherwise neither the applicant or his family has suffered harm in Sri Lanka ([42]);
11.4The AAT found there was 'no credible evidence as to why [the applicant] left Sri Lanka and why he does not want to return there' ([43]).
12The AAT proceeded to set out relevant country information ([44]-[49]). It found that being a Tamil 'from a certain part of Sri Lanka does not per se' lead to a real chance that the applicant will suffer serious harm ([50]). It found that returnees might be detained for a brief period on return as a result 'of the non-discriminatory enforcement of a law of general application' in poor prison conditions ([51]). The AAT found that returnees would likely be given bail and fined ([52]).
13The AAT found that the applicant has no adverse history with the authorities and there is not a real chance he would suffer serious harm as a result of being from a LTTE and Tamil area ([55]). The AAT reaffirmed that any time spent on remand on return was the result of a law of general application ([63]). It rejected a submission made that the applicant would suffer extortion or abduction on return to his native area ([65]). The AAT found the applicant will receive a fine of about Rs 200,000 ([66]). The AAT concluded that there is not a real chance the applicant will suffer serious harm for a Convention reason ([71]).
14In respect of complementary protection, the AAT did not accept, the AAT repeated its adverse credibility finding and found there was no credible evidence anyone in Sri Lanka wishes to harm the applicant ([72]). For the same reasons set out in relation to its Convention findings, the AAT found that the applicant would not suffer significant harm as a Tamil from an area formerly controlled by the LTTE ([73]-[74]).
15In respect of prison conditions on remand, the AAT said that spending brief time in such conditions does not amount to significant harm as defined due to a lack of intention ([76]). The AAT considered that the fine which would be imposed would not amount to significant harm ([77]). The AAT affirmed the decision under review.
No issue was taken with the summary by Counsel for the applicant.
Grounds of Review
The applicant set out the grounds of review by an amended application filed 6 October 2016 as follows (omitting particulars):
3.The Tribunal fell into jurisdictional error in that it took into account of irrelevant consideration.
4.The Tribunal fell into jurisdictional error in that it failed to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact.
5.The Tribunal fell into jurisdictional error in that it acted irrationally or illogically or so unreasonably that no reasonable Tribunal would so have acted.
The applicant did not seek to pursue Ground 1 or 2 of the amended application, nor did the applicant make submissions in relation to those grounds.
Ground 3
It is alleged that there is jurisdictional error on the Tribunal’s part as it account of irrelevant considerations. It is claimed that by taking into account the fact that there were some claims advanced by the applicant later than others, or not at a time earlier than the hearing, the Tribunal had fallen into jurisdictional error. The applicant states that it was an irrelevant consideration as the applicant had a right under s.425 of the Act to give evidence and present arguments at the hearing, and was not obliged to do so at an earlier time or an earlier stage of the matter.
I am of the view that the applicant has misconstrued the decision of the AAT. The Tribunal engaged in a detailed reference to the material presented to it by the applicant and at [8] - [43] included an analysis of the concerns it had with the applicant’s credibility. The Tribunal specifically raises concerns it had with the material submitted by the applicants and parts of the evidence given.
The Tribunal is not required to make the applicant’s case for him,[1] nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2] The findings of the Tribunal at [28]-[29] and [36]-[38] must be viewed together with other areas of inconsistency that the Tribunal identified in the applicant's evidence. The Tribunal considered evidence which included claims of the CID sending a letter to the applicant's family;[3] evidence about the CID demanding the applicant to present at a camp;[4] evidence in respect of the applicant no longer living at the family home;[5] evidence about the applicant's interrogation at the camp;[6] and a late claim regarding being abducted by the LTTE.[7]
[1] Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169-70
[2] Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451
[3] Tribunal’s Reasons at [25]-[27]
[4] Tribunal’s Reasons at [28]-[29]
[5] Tribunal’s Reasons at [30]-[31]
[6]Tribunal’s Reasons at [32]-[35]
[7]Tribunal’s Reasons at [36]-[38]
Taking into account the effect of late claims, which may be considered a recent invention, is simply part of the fact-finding exercise embarked upon by the Tribunal. The challenge to it in this application amounts to an impermissible merits review.
In my view, the decision of MZZSK v Minister for Immigration & Anor[8] does not assist the applicant. That decision involved an application to extend time to lodge an application to review a decision of the Tribunal and whether the court should exercise its discretion to do so.
[8] [2014] FCCA 883 at [53]-[60]
In that decision, Jones J. at [55] held that the discrepancies in the applicant's claim were not a relevant consideration to the Tribunal's discretion under s.426A(1)(b) to reinstate or confirm the dismissal of an application before it where the applicant had failed to appear (see s. 426A).
Different considerations arise in this proceeding. In this case the applicant appeared and gave evidence which was found to be non-credible because it conflicted or did not accord with the statements the applicant had provided to the delegate. Her Honour, Judge Jones’ remarks, are directed to s.426A(1)(b) and are not authority for the proposition that the Tribunal is not permitted to weigh up the effect of evidence that may be considered recent invention or in conflict with earlier evidence at a hearing on the merits of the application.
The Tribunal’s conclusion with regards to the applicant’s credibility was made with consideration of the evidence “cumulatively”[9] and in its reasons shows that it considered oral and written submissions of the applicant in making its findings. In my view, no jurisdictional error is established by Ground 3.
Ground 4
[9] Tribunal’s Reasons at [39]
Particular (a) - later provision of evidence
Particular (a) of this ground is that the Tribunal failed to have regard to the fact that the later provision by the applicant of further claims or evidence was not contradictory or inconsistent but was the “organic development and gradual revelation of his history.”
It is evident from the Tribunal’s reasons that it had regard to both the written and oral evidence of the applicant and as discussed under Ground 3, and it was open to the Tribunal to make adverse credibility findings on the basis of its credibility findings in the evidence presented by him to the delegate and the Tribunal as affecting his credibility. Plainly, the Tribunal was entitled to find the applicant’s evolving narrative as contradictory and redolent of recent invention rather of “organic development” whatever that phrase means in the context of these proceedings. The decision is not irrational or unreasonable.
Particular (b) – whether a non-discriminatory enforcement of law
The applicant submits that the Tribunal failed to have regard to evidence that demonstrated a large number of asylum seekers who are sent back to Sri Lanka are Tamils. Further, returnees are at risk of suffering penalties, torture and detention in poor conditions.
The Tribunal considered the submission and country information and gives detailed reasons at [53]-[71] for its findings that there is no credible evidence that the applicant will suffer discrimination in
Sri Lanka and that any penalty or detention that the applicant may face will be as result of the “non-discriminatory enforcement of a law of a general application.”[10] This finding was open to the Tribunal and no jurisdictional error is apparent.
[10] Tribunal’s reasons at [63].
Particular (c) - Evidence of Harm of Tamils
The applicant submits that the Tribunal should have had regard to evidence submitted on behalf of the applicant that demonstrated that there is “violence against Tamils including returnees.”[11] This particular of the ground is an attempt at merits review and as such are impermissible.
[11] Applicant’s Written Submissions filed 6 October 2016 at [28]
Particular (d) – Whether a family member available as guarantor for bail
The applicant particulars grounds that:
a)the Tribunal failed to consider whether a member of the applicant’s family would be willing to act as a guarantor for his bail on his return to Sri Lanka;
b)as a guarantor is required for a returned failed asylum seeker to be released on bail;
c)the failure to have one may subject the applicant to serious or significant harm due to his imprisonment.
d)The Tribunal had regard to the country information regarding whether bail was sometimes given and the need for consequences of not having a guarantor. The Tribunal was entitled to make the finding that it did at [48] and set out its reasons for doing so.
Particular (e) – limited ability of DFAT to monitor returnees
The applicant claims that the Tribunal failed to have regard to the country information that referred to defects in Australia’s ability or practice in monitoring the safety of people returned to Sri Lanka, when it relied on the fact that DFAT did not refer to allegations of torture or mistreatment of asylum seekers as substantiated.
The Tribunal had regard to the country information in making its decision. It had information from a number of sources and referred to the conclusion reached by DFAT that “Overall DFAT assessed the risk of torture or mistreatment for the great majority of returnees to be low except those suspected of committing serious crimes including people smuggling or terrorism offences.”[12] This ground is a challenge to a finding of fact and as such is impermissible.
Ground 5
[12] Tribunal’s Reasons at [46]
Particular (a) – no evidence that a family member able and willing to guarantee bail
This ground has been addressed above.
Particular (b) – inconsistencies in the applicant’s evidence & Particular (c) – Finding that evidence was false
I will address both particulars (b) and (c) as they arise from the same issue with the Tribunal’s findings on credit based on inconsistencies in the applicant’s evidence. The applicant submits that the evidence in relation to:
i)the CID sending a letter to the applicant’s family;
ii)the demand by the CID that the applicant present himself to a camp;
iii)the applicant moving out of his home;
iv)being abducted by the LTTE;
was not inconsistent evidence.
The applicant submits that the only “slender inconsistency” was in relation to evidence of forms filled under duress during interrogations of the applicant by the army while he was in a refugee camp.[13] It was put by the applicant that the inconsistency was an insufficient basis for concluding that the whole of the applicant’s substantial history was false and that the Tribunal lacked a logical basis for its conclusion.
[13]Applicant’s Written Submissions filed 6 October 2016 at [40(v)]
It was open to the Tribunal to make the adverse finding in relation to the evidence proffered. There was no irrational, illogical or unreasonable finding by the Tribunal by reason of the decision to find that the applicant was not a witness of truth. This ground has been considered above. Counsel for the applicant accepted that at the hearing there was evidence of inconsistency. The challenge is one of weight given by the Tribunal and as such is an attempt to ask this court to engage in merits review.
Particular (d) – Other particulars
This particular is a reiteration of the particulars contained in the above grounds and all grounds have been addressed.
Conclusion
In these circumstances, the further amended application filed on
6 October 2016 be dismissed and the applicant pay the first respondent’s costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 21 December 2016
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