AZU15 v Minister for Immigration

[2015] FCCA 3071

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZU15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3071

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to consider an integer of the applicant’s claim – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Applicant: AZU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1574 of 2015

Judgment of: Judge Street

Hearing date: 17 November 2015

Date of Last Submission: 17 November 2015

Delivered at: Sydney

Delivered on: 17 November 2015

REPRESENTATION

Counsel for the Applicant: Ms P Bodisco

Solicitors for the Applicant: Westside Legal

Counsel for the First Respondent: Ms J Mitchell

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1574 of 2015

AZU15

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 the decision of the Tribunal made on 13 May 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and applied for protection on 28 November 2012, which was refused on 30 September 2013. The applicant appeared before the Tribunal on 24 February 2015 to give evidence and present arguments and was assisted by an interpreter and his registered migration agent.

2. The applicant attended that hearing pursuant to a letter dated 9 January inviting the applicant to appear before the Tribunal and, prior to the hearing, the applicant’s migration agent provided written submissions dated 19 February 2015 that summarise the applicant’s claims relevantly as follows:

   - His Tamil ethnicity; and

   - His imputed political opinion in support of the Liberation Tigers of Tamil Eeam (LTTE) on account of:

   - His Tamil ethnicity; and

   - His familial connections and time spent in [X] district and;

   - His relationship to his cousin [Y], who was killed on suspicion of LTTE involvement; and his cousin [Z] who was forcibly recruited to the LTTE – both from the [X] district; as well as to his parents, who currently reside in [X] district;

   - His illegal departure from Sri Lanka; and

   - His extended presence in Australia as an asylum seeker.

   - His actual political opinion – manifested through being outspoken in his community on various committees and societies about human rights abuses such as kidnappings, torture and disappearances;

   - His membership of the particular social group of ‘family members of individuals who are former LTTE members, or accused of being former LTTE members’, on account of his relationship to his cousins [Y] and [Z];

   - His membership of the particular social group of ‘Tamils with perceived wealth’;

   - His membership of the particular social group of ‘Tamil returned failed asylum seekers’.

3. At the time of seeking protection, the applicant completed a section of reasons to leave under which the question was posed “Why did you leave your country of nationality (country of residence)?” and the applicant responded:

   We as Tamils we have no safeguard in Sri Lanka and particularly in [AA] it's a bit difficult in the sense, it's a Tamil village surrounded by Singhalese, so if something goes wrong somewhere they start attacking us. When ever I visit my parents in [BB], we have to go through a place called [CC] where the army checks people going inside one area and going out of the area, so they register our names and everything, and those particulars are passed onto the police, army, and Navy in our area. Then the police or the army used to come and ask me what was the purpose of my going to [BB].

   In 2004, I went to [X] after the Tsunami and at that time I have to go through army check point, L TTE check points, and they both of them had all my details in my file and after L TIE defeated the security forces have all my details in the sense that when I went to [X] and came back from [X] and although I went in 2004, at the time I didn't have any problem but later subsequently while I was in school, I had problems with the security forces but fortunately I was attending school at that time and it was easy for my parents to get my release. But now, if they come, they round up our area, and people like us, very young people, are being harassed by the security forces.

   I was a member and secretary of that Fisheries Society in [AA] and that Fisheries Society looked after the well being of all the fisherman in [AA]. So while I was in the Fisheries Society, we had some problems, that is why I left [AA] and went to Colombo and joined the garment factory. Later i came back and i was able to follow that course which was organised by the IOM.

   Some of the suspected LTTE members who were held by the security forces were allowed to come and live in our area, so very often the security forces come and check them and while they were checking them they were harassing us also. There was a Singhalese person, who was very influential in that area, who would abduct people and it was a problem for us.

   So in the month of Feb 2012, we had a Hindu festival for that festival we don't sleep in the night, and throughout the night we are in the temple or surrounding areas. Once day this man came, in the month of February, and said that we should not be in that area. We told him that this is our festival but he said no nothing doing, so we went. After this only I went and followed that course in [DD]. I finished the course in March 2012, got my certificate in May 2012, and IOM helped me to start that shop in June 2012, so in between this I used to go and visit my parents. This checking and everything started thereafter.

   Because of all these problems I went to Colombo with a friend of mine and applied for a visa to go to India. I was able to get 3 months visa and with the passport I came home. At the time my sister told me that one of her friends had told her that there are boats going to Australia and my sister said she would speak to her and wanted me to leave the country to go to Australia.

   Can I ask a couple of questions? Yes. What were the problems you had while you were in the Fisheries Society? I didn't have any problem when I was in the Society, after I left the fishing Society only then I had the problems.

   So did anything ever happen to you? The army used to take us and ask questions. With the police we didn't have any problem. So did they ever take you? They have taken me to the army camp and the getting the pass to go to the sea is a problem for us. Sometimes if I do not have the pass and if l go to the sea and if they catch me then they will take me to the camp and they question me. Did this ever happen to you? Yes, to me and to my friends. How many times? About three times and then after I joined the Fisheries Society I was able to get the pass. When was the last time you were taken? It was in 2008, and in 2009 I had joined the Fisheries Society.

   Did anything happen to you recently to make you leave? About 2 weeks before I left Sri Lanka, the CID came and questioned me and I was frightened and after that I decided to leave the country.

   Are there any other reasons that you decided to leave? No, only this one. At the start I was not that scared they take me and leave me and release me, but lately it became worse as someone would come on a bike and threaten me, and not only me but others. That's why I wanted to go to India first. When I came home my sister told me and so I want to come to Australia.

   (emphasis added)

4. The applicant also provided a statutory declaration in support of his claims which relevantly said:

   12. The applicant said that his first difficulties with K began in February 2012 when he was on the street with others fasting for a particular religious festival.  He said that K approached them on the street and told them all to go to their homes.  The applicant did not oppose that demand and went to his home because he did not want to have any trouble.  Then, in April 2012, while on the street, he was approached by K who expressed concern about the applicant’s travel to Mullaitivu and his work on the fishing committee.  The following day, while playing cricket with others, the applicant was approached by men from the CID who abducted him and took him to a house where K was waiting for him.  K asserted that the applicant was involved in the LTTE and demanded the sum of six or seven lakhs.  The applicant’s parents paid three lakhs and the applicant was released after about seven hours.

   …

   18. The Tribunal asked the applicant how long after his release he went into hiding.  Initially, the applicant said that he went into hiding at the beginning of May 2012.  However, when he was again asked to indicate when it was that he went into hiding, the applicant said that there was a gap of two weeks from the time he was released before he then obtained an Indian visa from which time he went into hiding.  He did this because, when he got the Indian visa, he learned for the first time that he could only stay there for three months and would then have to come back to Sri Lanka where he was at risk.  While he was in hiding he was then told of the possibility of leaving Sri Lanka illegally by boat and coming to Australia.

   19. To the Tribunal the applicant provided copies of pages from his Sri Lankan passport containing his Indian visa and indicating that it was issued on 19 April 2012.   The Tribunal put to the applicant that, according to the evidence he had given, it was from this date that he went into hiding (having discovered on being granted the visa that he could only stay in India for a short period and that this would not provide him with safety).  The Tribunal asked the applicant why, if that was the case, he earlier said that he was still working in his business up until 26 or 28 April 2012. 

   20. In response, the applicant said that there were a few engines to finish off and they had agreed with the customers to complete that work.  He then said that in fact it was in May, after that work was done, that he went into hiding.  The Tribunal put to the applicant that he had said in his earlier evidence a number of times that he went into hiding when he got his Indian Visa (on 19 April 2012).  In response, the applicant said that was not correct and what he meant was that he had a two week gap to negotiate.  The Tribunal asked the applicant whether he was now saying that he went into hiding two weeks after he got the Indian visa.  In response, the applicant said that after he got this visa he completed the outstanding work in his business and at the beginning of May 2012 he went into hiding.

   21. The Tribunal asked the applicant why he would wait until the beginning of May 2012 to go into hiding having abandoned the plan of going to India on 19 April 2012 when he discovered he could only stay there for a brief period.  The Tribunal asked the applicant why he would, after that time, still be in his village working in his business and not go into hiding before early May 2012.  In response, the applicant said that he did not stay on the roadside and the workers brought the engine to him to finish.  After that work was done he went into hiding.  The work had to be done because the customers paid for that beforehand.

5. The application raises the following ground:

   The RRT has breached section 425 of the Migration Act

   Particulars

   The RRT failed to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review by refusing, at paragraph [43] of the decision, to allow the applicant to lead further evidence regarding his involvement with fishing and Hindu committees on the basis it had already concluded that the applicant was not credible and that the evidence would not assist him anyway.

6. I note that counsel for the applicant abandoned ground 2 and I should add given the findings made at para.40, there was no substance in ground 2. 

7. Mr Bodisco of counsel accepted that the third paragraph raised at the time of the applicant’s making of the application for a protection referred to above in the section of reasons to leave, was not itself a claim, but argued that the prominence or profile of the applicant in the fishing association was a matter potentially linked to the applicant’s views concerning a particular person called K with connections to authorities who took money from people who did business or people who had been overseas. 

8. The applicant claimed that his difficulties with K began in February 2012 and he described an alleged incident in April of 2012 in relation to which it was alleged that men from the CID abducted the applicant and took him to a house where K was waiting for him.  The applicant said he was released after his parents had paid a demand that was made by K, and that K told him he had to pay further sums within a further two weeks.  The applicant had said he tried to negotiate a lower amount and then travelled to Colombo to obtain an Indian visa.  When the applicant discovered that he could only stay in India for a short period, he abandoned the idea of going there and went into hiding in Sri Lanka. 

9. The applicant left Sri Lanka in mid-June 2012.  The applicant said that while he was hiding and also since his arrival in Australia, K or people acting on his behalf, had gone to his family home to find him and that this had caused his parents to go to live in a particular location and had also caused his brother to come to Australia and seek protection. 

10. The Tribunal made adverse credit findings in relation to the applicant and specifically addressed the applicant’s evidence about going into hiding and about paying money to K and the incidents described by the applicant, including a subsequent alleged abduction of the applicant’s cousin.  The Tribunal relevantly said:

    31. The applicant made no mention in his evidence to the Tribunal about being approached by K in 2011 when he was with his aunt after a letter had been given to a politician about the disappearance of his cousin.  While, in his statement of 17 February 2015, the applicant said that K told the aunt to stop looking for her daughter the Tribunal nevertheless, would have thought that, if this event did occur, the applicant would have mentioned it when questioned by the Tribunal as to when his difficulties with K began.  In addition, the Tribunal questioned the applicant closely at the hearing as to what K said to him when he was abducted.  According to his responses, K mentioned the applicant’s travel to [X]; relatives being overseas and the applicant’s work in the Hindu group. The Tribunal records that when he was approached by K the day before the abduction, K also mentioned disapproval of his work for the fishing committee.  At no stage in his evidence did the applicant say that K also was aware of and raised the letter sent to the politician about the applicant’s cousin.

    32. The Tribunal asked the applicant why he did not tell the Tribunal about K coming up to him and his aunt and speaking in a threatening way in 2011 because of the approach to the politician (as he had said in his statement of 17 February 2015).  In response, the applicant said that he was telling what happened but he was not explaining the whole thing.  When asked why he did not tell the Tribunal that, when he was abducted, K raised the fact that he had sent a letter to the politician, the applicant said that he did not know who had told K about that but he came to know.  The Tribunal asked the applicant to confirm that while he was abducted K raised this matter with him.  In response, the applicant said that K did not talk about the letter and only said that the applicant’s cousin was in the LTTE. 

    33. The Tribunal asked the applicant to confirm that K did not mention the applicant sending a letter to a politician about his cousin’s disappearance.  In response, the applicant first said that he did not talk about it as if he had done so he would have been killed.  The Tribunal was not clear as to what the applicant meant by the response and again asked him whether K mentioned to him, while he was abducted, the letter to the politician.   This time the applicant said that K did not ask about or mention this letter.  The Tribunal asked the applicant why therefore in his statement of 17 February 2015 he indicated that this letter was raised by K.  In response, the applicant said that K just told him that all of the documents were with him and he knew everything.  K said that all of the applicant’s information was available but he did not particularly mention the applicant’s letter to the politician.

    34. That is not the account the applicant gave in his statement of 17 February where, in the Tribunal’s view, he has indicated that K mentioned the letter sent to the politician.  The applicant was given ample opportunity by the Tribunal to mention his encounter with K in 2011 when he was initially questioned as to his difficulties with that person.  His failure to mention that encounter and claim that his first difficulties began in February 2012 (which was also when he said the pair first spoke to each other) was not credible.

11. The Tribunal also addressed concerns about the interest taken in the applicant by K and relevantly found:

    40. At the beginning of the hearing the Tribunal put the applicant on notice that even though the delegate accepted certain aspects of his evidence as credible, the Tribunal nevertheless had to make its own assessment as to whether or not he was telling the truth.  At the Tribunal hearing the representative submitted that interpretation difficulties or problems with expression had to be considered with respect to some of the credibility concerns discussed above.  The Tribunal does not accept that either of those factors explain or resolve the concerns the Tribunal holds about the applicant’s credibility.

    41. Considered cumulatively, those concerns lead the Tribunal to find that the applicant is not a witness of truth and the account of events on which his protection claims are based is false.   The Tribunal therefore finds the applicant’s account of an individual in his local area undertaking criminal activities including abducting a relative and abducting the applicant to be a fabrication.  The Tribunal disbelieves the applicant’s evidence about the existence of this individual.  The Tribunal does not believe that the applicant had relatives who were abducted (or who were forcibly recruited into the LTTE) and therefore his claims about making approaches to the authorities including writing to a politician with respect to that and making efforts to have a cousin brought to [EE].   Those claims are false.

    42. The Tribunal also disbelieves the applicant’s claims about the individual K being imprisoned in relation to the cousin’s abduction; approaching, threatening and abducting the applicant himself as well as extorting money from him.  The Tribunal finds false the applicant’s claims that people acting on this individual’s behalf or the CID came to the applicant’s home looking for him before and after he left Sri Lanka.  Because the applicant is not a witness of truth the Tribunal also disbelieves certain residual claims he made that he was held by the Army in roundups; that he has some sort of record or file with the police;  that the authorities would come and ask him his purpose of going to another area; that he had problems with the security forces when he was at school because he had been in Mullaitivu; that the army would harass, round him up and hold him in an army camp and that he had trouble getting a fishing pass.

    43. The Tribunal will accept that the applicant was a member of fishing and Hindu committees in his local area (the latter also referred to by him as a health infrastructure development and humanitarian society group).  The Tribunal is also willing to accept that the applicant held the position of vice secretary and secretary in the fishing committee.  However, because he is not a witness of truth, the Tribunal has no credible evidence as to just what the applicant did in that position and for those bodies nor credible evidence as to the period of his involvement.  Because he is not a witness of truth, the Tribunal also finds that there is no credible evidence about time spent in [X] by the applicant and his family. 

    44. The applicant produced to the department and the Tribunal various documents regarding his identity, education and community involvement in Sri Lanka.   The applicant said at the end of the hearing that he could try and obtain more documents from Sri Lanka about being the secretary of the fishing committee.  The Tribunal declined that request because it is willing to accept he held that position but his protection claims are not based around that matter.  The account of events on which his protection claims are based is false and simply obtaining another document to say that he was secretary of a local fishing committee will not overcome the Tribunal’s credibility concerns. 

    45. The applicant has a brother in Australia who has also applied for a protection visa.  A delegate refused that application and this same Tribunal was constituted to determine his application for review of that decision.  The applicant did not call his brother as a witness at the hearing.  He claims that his brother had some fights with Sinhalese but could not advance any further detail about that.  He also claimed that a further reason his brother left Sri Lanka was because K sent people to the family home to find the applicant.  For the reasons given above, the Tribunal finds that claim to be false. 

    46. So far as the applicant is the only witness before this Tribunal with respect to his brother, who he did not call as a witness, the Tribunal finds his claims about his brother having fights with Sinhalese are false given the Tribunal finds that this applicant is not a witness of truth.  There is no credible evidence that the applicant or any member of his family suffered harm in Sri Lanka and no credible evidence that anyone in Sri Lanka wishes to harm him.  There is no credible evidence before the Tribunal as to why the applicant obtained a visa for India and why he left Sri Lanka in mid June 2012.  There is no credible evidence as to why the applicant does not want to return to Sri Lanka. 

    47. Accordingly, the Tribunal now turns to an assessment of the risk of the applicant suffering serious harm in Sri Lanka on the grounds that he is a Tamil and a Hindu from [EE] who left Sri Lanka illegally and will return there as a failed asylum seeker from Australia.  The Tribunal notes that in his statutory declaration of 25 November 2012 the applicant said that he would also be perceived as a wealthy Tamil.  Because he is not a witness of truth the Tribunal has no credible evidence about the financial status of the applicant or his family, in particular, that they are wealthy or would be perceived as such.  The Tribunal therefore rejects that particular claim made by the applicant.

1. The argument developed by Mr Bodisco of counsel focused on paras.43 and 44 quoted above.  In substance, Mr Bodisco contended that it was unfair for the Tribunal to criticise the applicant’s evidence as to there being “no credible evidence as to just what the applicant did in that position and, for those bodies, no credible evidence as to the period of his involvement”. 

2. Mr Bodisco focused on the fact that, as identified in para.44, the applicant made a request to provide some further documents about his position of secretary in the fishing committee and that the Tribunal declined that request because it was willing to accept he held a position and “but his protection claims are not based on that matter”.  Mr Bodisco took the Court to what was said by the Tribunal in the transcript.  Relevantly, the Tribunal at p.36 provides:

   613   [Member]: Alright then. Well, I don't think that giving me a letter saying you're a secretary of the committee is really necessary for me to decide your case.

   Because your case depends on whether I believe your problems with this man called [K].

   Showing me a letter that you were secretary of a fishing committee is not really going to, it's not really relevant to that issue.

   So I'm not going to wait any longer for you to produce that.

3. Mr Bodisco argued that the Tribunal had misunderstood the significance of the applicant’s profile and that this was a matter that impacted on the potential acceptance of the applicant’s evidence in relation to the particular person called K.  The Court was taken to the delegate’s decision where relevantly the following was set out.

   I am satisfied that the applicant was involved in a Hindu temple association and a fishing association as he claims.  However the applicant does not claim that because of his involvement he was singled out by [K] or by the CID for special attention and there is nothing to indicate that this was the case. Therefore I am not satisfied that he held a prominent profile in his community that would warrant him being identified for extortion or suspected as a supporter of the LTTE.

4. Counsel for the applicant put that this focus upon the LTTE failed to recognise the significance of the position of the applicant in the association referable to the interests of the person called K.  Counsel put that, in essence, the Tribunal had also failed to appreciate the significance of the role of the applicant in that association referable to the person called K.  The context in which the member of the Tribunal made the remarks that appear at 613 in the transcript were in circumstances where the applicant had been asked questions about what committee he belonged to and when he commenced on that committee.  The applicant then said he was still a member of that committee.  The applicant was asked about what happened at meetings of the committee and said:

   I was the secretary before but since I was studying, 1 was the vice secretary. And then while we are talking if there is anything wrong then we write down.

5. Shortly before the position taken by the Tribunal, as referred to at question 613, the following exchange occurred.

   592.  [Applicant]: There are a few documents that I'm planning to send to the Representative.

   593.  [Member]: What documents?

   594.  [Applicant]: There are some proving documents that 1 was in the fishing committee.

   595.  [Member]:But you've already given documents to say that you're in the committee.

   596.  [Applicant]: That will prove that I was the secretary.

   597.  [Member]:You have already given your Representative documents to show that you are on this fishing committee.

   598.  [Applicant]: Only the documents that I want to give is that I was the secretary.

6. The applicant produced an Arabic version of a letter dated 11 November 2011 while the applicant was still in Sri Lanka and at which time the applicant contended he was the Vice Secretary at that time because he had started studying.  The letter had signatures from a President, Treasurer and Secretary, none of which appeared to be the signature of the applicant, which the Tribunal raised with the applicant.

7. It is clear from what was said by the Tribunal at the commencement of the hearing that the applicant was put on notice that his credibility in relation to his alleged claims was a real issue.  It is in those circumstances that the Tribunal made adverse findings concerning the alleged problems with a man called K.  The only material that the applicant wished to try and further obtain was a document about the applicant’s position of being secretary of the fishing committee.

8. In those circumstances it was clearly open to the Tribunal to decline the request on the grounds that it would accept that it held that position.  The Tribunal’s decision is not to be read with a keen eye for error and the reference to the applicant’s protection claims not being based around that matter in my opinion does not reflect a failure to take into account the alleged profile of the applicant as a Secretary of the Fishing Association. 

9. In the submissions of the representative to which the Tribunal expressly referred in its reasons in footnote 31 to para.61, it relevantly said:

   The delegate was also not satisfied that Mr [AZU15] held a prominent position in his community such as to attract the adverse attention of [K].  We submit that the fact of Mr [AZU15]’s membership of various associations was not adequately explored by the delegate during the interview, despite Mr [AZU15] providing evidence that:

   - [In relation to the disappearance of his cousin] “We complained to our local Member of Parliament” (paragraph 14 original declaration);

   We further note that Mr [AZU15] has provided considerable evidence of his prominent position in the community, including his membership of various committees.  These memberships are relevant to Mr [AZU15] profile and the [K]’s animosity towards him.  This was a key integer of Mr [AZU15]’s claims that was not adequately explored by the Department. We hope it will be explored further at hearing. 

10. There was no unfairness in these circumstances in the Tribunal having identified that it would accept the applicant’s alleged position from the association and it is clear that the Tribunal took that position into account. The Tribunal did not breach s.425 of the Act in the position it took in respect of further evidence concerning a position that the Tribunal was willing to accept that the applicant held. Further, it was open to the Tribunal on the evidence given by the applicant to express a reservation about credible evidence concerning the applicant’s position and period of involvement on the material that was before the Tribunal.

11. I do not accept that the provision of further documents in respect to the applicant’s position could assist the applicant in respect of the assessment of the applicant’s credibility concerning the alleged problems with the man called K.  No jurisdictional error was made out by ground 1.  The application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  24 November 2015