BAP15 v Minister for Immigration
[2015] FCCA 3073
•17 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAP15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3073 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Refugees and Migration Division) – protection visa – whether the Tribunal properly assessed the applicant’s claims – whether applicant was given adequate opportunity to argue his case – bias – whether Tribunal failed to bring an open mind to proceedings – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A(1), 424A(3)(a), 476, 499 |
| SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 SZTRU v Minister for Immigration and Border Protection [2015] FCA 170 |
| Applicant: | BAP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1620 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
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1620 of 2015
| BAP15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 13 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant arrived in Australia, having obtained a false Indian passport, on 22 July 2009. The applicant lodged a claim for protection on 17 August 2009 and on 22 December 2009 the delegate refused to issue a visa, and on 22 April 2010 a Tribunal differently constituted affirmed the delegate’s decision.
On 28 February 2013, consistent with the principles identified in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the applicant lodged a further application for protection on the grounds of complementary protection under s.36(2)(a) which the delegate refused to grant on 30 April 2014, and on 8 May 2014 the applicant applied to the Tribunal for review of the delegate’s decision. The applicant was found to be a citizen of Sri Lanka and his claim for complementary protection was assessed against that country as the receiving country.
The applicant claimed to fear persecution in Sri Lanka for reason of his political opinion and claimed to be a supporter of the United National Party, UNP, and to fear harm from members of the Sri Lankan Freedom Party, SLFP, in particular a Mr S. The applicant claimed he was seriously assaulted by the SLFP members in 2004 and left for India shortly thereafter. The applicant claimed that Mr S and his thugs would harm him is he returned to Sri Lanka and that the police would not protect him because of Mr S’s influence. The applicant claimed to fear harm of leaving Sri Lanka illegally by boat and claimed his father had been arrested on false drug charges which the applicant alleged were motived by Mr S. The Tribunal found the applicant was not a credible witness and did not accept that the applicant had left Sri Lanka illegally.
The amended application identifies the following grounds:
1. The Tribunal failed to carry out its statutory duty
Particulars
a. The Tribunal had information about the prevalence of fraudulent documents by the Migration Act 1958 s.424A;
b. The Tribunal was obliged to:
(i) give particulars of that information;
(ii) explain why it was relevant;
(iii) invite the applicant to comment upon it.
c. The Tribunal failed to carry out this statutory duty
d. The Tribunal failed to properly consider the Complimentary Protection provisions of s. 36(2)(aa) of the Act taking into account Direct 56 made under s.499 of the Act.
The matter was fixed for hearing on 22 July 2015 and an opportunity was provided for the applicant to file an amended application, which the applicant did, as well as affidavit evidence and submissions. The applicant filed an affidavit annexing the transcript of the hearing before the Tribunal. However, no submissions were filed and the applicant was sent on 5 November 2015 a notice of intention to withdraw as lawyer, and there was filed in the Court on 13 November 2015 a notice of withdrawal as lawyer.
In support of the applicant’s amended application and in answer to the respondent’s written submissions, the applicant contended that he did not understand the RRT questions. It is clear from para.32 that the Tribunal was of the view that the applicant understood the questions being put to him. Nothing in the transcript suggests otherwise. I accept the submission of the first respondent that the assertion the applicant did not understand the significance of the questions does not identify any jurisdictional error.
The applicant also suggested from the bar table that he was not given much opportunity to explain or elaborate. However, it is clear from the transcript that the applicant was, in fact, given two weeks to provide any other documents that he wanted to, and there is no substance in this criticism. The applicant complained that the Tribunal did not tell him the concerns the Tribunal had so that he could respond. It is not necessary for the Tribunal to give the applicant a running commentary on its assessment of the applicant’s credit, and it is clear from the transcript that the Tribunal did raise concerns with the applicant, including, in particular, the applicant’s willingness to use a false passport to obtain entry into Australia.
It was suggested by the applicant that he did not understand the importance of the Tribunal’s questions. It is clear from the transcript that the Tribunal explained the nature of the hearing in relation to complementary protection and the process that was going to be followed as well as emphasising the importance of the applicant being truthful in the answers. I also take into account that the applicant had his registered migration agent present at the time of the hearing.
Nothing said by the applicant from the bar table identified any jurisdictional error by the Tribunal. In relation to ground 1, the applicant admitted that he used a false passport, and, accordingly, this is not a matter that could give rise to any obligation under s.424A(1). The prevalence of fraudulent documents in Sri Lanka was raised by the Tribunal with the applicant during the hearing. I am satisfied that the applicant understood that that was a live issue in relation to the applicant’s endeavour to rely upon a document dated 14 October 2013 and 1 April 2010, those documents being at pp.63 and 130 of the court book.
In relation to those documents, the Tribunal said as follows:
29. I have reached this conclusion taking into account the supporting letters submitted by the Applicant which are said to have been written by Mr [X] (1 April 2010 and 14 October 2013 - although his name in the second letter is spelled [Y] (23 March 2010) and [Z] (20 November 2013) As put to him at the hearing, the letter from Mr [Y] and the first letter from Mr [X] both make the claim that he has gone missing, as a result of his political activities in 2004, an unaccountable error if both letters were specifically requested by his parents for the purpose of his first Tribunal hearing in 2010. He was able to offer no satisfactory explanation for this feature of the two letters. Taking these matters together with the country information indicating that false or fraudulent documents are readily available in Sri Lanka and are often used to support migration or protection claims and the fact that the Applicant himself was prepared to use a fraudulently obtained passport to enter Australia, I am not satisfied that any weight can be placed on the four letters. Nor, for the same reason, am I satisfied that any weight can be placed on the documents said to be court and police records relating to charges brought against his father.
I do not accept that the content of the letters of 1 April 2010 or 14 October 2013 were information of a kind falling within s.424A. Further, I accept the first respondent’s submission that the reference to the prevalence of false and fraudulent documents in Sri Lanka, falls within s.424A(3)(a) and accordingly did not enliven the obligation under s.424A(1). Accordingly, there is no substance in grounds 1(a) to (c) of the amended application. In relation to ground 1(d) it is clear that the Tribunal referred to the PAM3 and its obligation to have regard to the same, consistent with s.499 and I am not persuaded that the Tribunal failed to have regard to the PAM3 in accordance with the direction.
As indicated above, the applicant was found to be a person who did not leave Sri Lanka unlawfully. Accordingly, no jurisdictional error is made out by ground 1(d). Ground 2 asserts impropriety by the Tribunal in taking into account PAM 3 consistent with its obligations under s.499. There is no substance in this alleged ground and I accept the first respondent’s submissions that the decision in SZTRU v Minister for Immigration and Border Protection [2015] FCA 170 at [40] to [47] makes clear that there is no impropriety by reason of the Tribunal taking into account and having regard to the PAM3. Accordingly, ground 2 fails to make out any jurisdictional error.
In relation to ground 3, bias must be clearly alleged and properly proved. I am not satisfied that bias has been proved. There was nothing identified by the applicant to support the contention that the Tribunal failed to bring an open mind to the decision-making process. Further, that contention is not consistent either with the content of the transcript or the detailed reasons and analysis by the Tribunal in relation to the applicant’s claims and evidence.
To the extent that it is suggested the Tribunal failed to look at the applicant’s physical injury, that appears to be a reference to an injury that is described in the applicant’s statutory declaration dated 21 September 2009 in respect of an alleged incident where a bamboo stick was allegedly used to beat him, which broke and became sharp, in respect to which the applicant said:
You can see the scar on my left wrist where the sharp bamboo cut into my skin.
It is clear from para.14 of the Tribunal’s reasons that it took into account that statement. Further the Tribunal summarised that incident, although without referring to the scar on the applicant’s wrist in para.14.3 as follows:
14. …
• These activities drew him to the adverse attention of Mervin (or Mervyn) Silva, a politician of the Sri Lanka Freedom Party (SLFP) in the area. Silva is well-known as a violent and dangerous man who uses a group of thugs to intimidate and harass those who oppose him. In March 2004 the Applicant and Silva's followers clashed at campaign events. Thugs came to his house searching for him on a number of occasions until, some days later, they located him there. They forced him into a white van and drove him to an alley where they began beating him with a stick and burning him with cigarettes. They tried to cut him with a knife and then began beating him with an iron bar and cricket stumps. Luckily a police car drove past the alley and his attackers ran away, leaving him on the ground. The police called a trishaw taxi and he was taken to hospital. However, he feared the driver might tell his attackers where he was so he asked for bandages and gauze and bandaged his own wounds.
It was a matter for the Tribunal to evaluate whether it needed to look at the applicant’s scar or not. The failure to do so does not identify any proper basis upon which it could be alleged that the Tribunal had failed to bring an impartial and independent mind to the determination of the matter on its merits. It was a matter for the Tribunal to determine the significance and credibility of the applicant’s alleged political activities and to the extent that the Tribunal made adverse findings in relation to the applicant’s claims that is not a basis upon which an allegation of bias can be made out.
The Tribunal took into account the applicant’s alleged depression and stress and it was not necessary for the Tribunal to obtain expert medical opinion in relation to the applicant’s depression and stress. It is clear that the Tribunal turned its mind to whether the applicant was able to participate effectively in the hearing to give evidence and to present arguments and was satisfied that the applicant was able to do so. Whilst there is a reference to the misspelling of the applicant’s name on one of the documents that the Tribunal identified could easily be obtained fraudulently, it is not correct to say the Tribunal rejected the evidence due to a typographical error.
It was a matter for the Tribunal to make findings in relation to the evidence advanced by the applicant and rejecting the applicant’s evidence is not a ground upon which bias can be made out. The decision of the Tribunal not to look at the applicant’s injury, to make adverse findings both in relation to the significance of the applicant’s activities and in relation to the applicant’s capacity to participate in the hearing process and the decision to give no weight to certain documents are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of a matter on its merit. No jurisdictional error is made out by ground 3. The amended 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: 24 November 2015
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