BBP15 v Minister for Immigration

[2016] FCCA 3350

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3350

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – credibility issues.

Applicant: BBP15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1371 of 2015

Judgment of: Judge Riley

Hearing date: 28 November 2016

Date of last submission: 28 November 2016

Delivered at: Melbourne

Delivered on: 28 November 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Charlotte Saunders

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

1. The application filed on 18 June 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1371 of 2015

BBP15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The applicant is a female citizen of Sri Lanka.  She was born on 27 March 1987.  She arrived in Australia as an unauthorised maritime arrival on 11 May 2012.  She applied for a protection visa on 4 August 2012. 

2. The applicant claimed to be a Tamil suspected of involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”).  She said that she had lived in an LTTE controlled area and then her family relocated to an area controlled by the Sri Lankan army.  She said that she escaped with her brothers in December 2006 and went to India.  She said that she lived there unlawfully until 2012.

3. The applicant said that she feared that the Sri Lankan army would arrest, torture and kill her, and she also feared harm from the EPDP.  She also said that she feared harm as a member of a particular social group consisting of young Tamils from an LTTE controlled area. 

4. The delegate accepted the applicant’s general claims but was not satisfied that the applicant had a well-founded fear of persecution simply by reason of her previous residence in an LTTE area.  The delegate also was not satisfied that the applicant would face a real risk of significant harm if she returned to Sri Lanka. 

5. The applicant attended a hearing before the Tribunal on 3 December 2014.  Prior to the hearing, the applicant provided a further statutory declaration and some new items of information.  Following the hearing, the applicant provided a report from Foundation House saying that the applicant had post-traumatic stress disorder and had been digitally raped by soldiers.  

6. The Tribunal considered that there were a number of significant inconsistencies in the applicant’s evidence.  The Tribunal did not accept that the applicant was a credible witness.  The Tribunal rejected the principal aspects of the applicant’s claims.

7. Nevertheless, the Tribunal did accept that the applicant’s uncles and cousins had been involved in the LTTE and accepted that many were killed in consequence.  The Tribunal accepted that the applicant’s father was shot in 2006 while he was travelling through an LTTE controlled area.  The Tribunal considered that he may have been shot on suspicion of helping the LTTE. 

8. The Tribunal considered that there was no more than a remote risk that the applicant would be perceived as an LTTE supporter, due to the activities of her father, uncles or cousins.  As a result, the Tribunal did not accept that the applicant was a member of a particular social group of Tamil females with suspected LTTE links. 

9. The Tribunal considered the country information available to it and considered that there was not a real chance that the applicant would be seriously harmed on account of being a Tamil or a young Tamil female from the north.  The Tribunal was not satisfied that the applicant faced a real chance of persecution on account of her actual or imputed political opinion.  Nor did the Tribunal accept that the applicant faced a real risk of significant harm.  The Tribunal did accept that the applicant may be subjected to questioning as a failed asylum seeker if she returned to Sri Lanka. 

10. The Tribunal accepted that the applicant might face a short period of detention prior to obtaining bail and may ultimately be fined.  However, the Tribunal did not accept that these matters amounted to serious or significant harm and did not accept that the applicant would be treated adversely because of her characteristics.  The Tribunal affirmed the delegate’s decision.

11. The applicant applied on 18 June 2015 to this court for review.  The application sets out the grounds of review as follows. 

    (1)The decision of the Tribunal:

    (a)is affected by an error of law and;

    (b)denied the applicant procedural fairness.

    (2)I have made an application for assistance through Victorian (sic) Legal Aid and am waiting for a decision.

12. The applicant provided to the court some documents which indicated that Victoria Legal Aid, on 30 May 2016, said they were closing their file because she had not provided requested documents.  There was also a letter from a private law firm dated 6 June 2016 which was essentially a proposed costs agreement.  It appears that the applicant did not accept that proposed agreement, because she appeared today without the benefit of legal assistance.  The applicant told the court that she was ready to proceed today without the benefit of legal assistance.  Consequently there seems to be nothing further to be done in relation to ground 2 of the application. 

13. In relation to ground 1, the applicant did not provide written particulars in the application or in her affidavit in support affirmed on 17 June 2015.  Nor did she file an outline of submissions.  However, the applicant did make a number of submissions to the court today. 

14. The applicant said, firstly, that she had not been aware that the Tribunal member and other people in the hearing room would be men.  She said that she was restricted in what she could say, particularly in relation to matters of a sexual nature, because the Tribunal member and others in the room were men. 

15. The applicant did not ask that the Tribunal be constituted by a woman, even though the applicant was represented by a migration agent.  It appears from the court book that the applicant chose a male migration agent by the name of Kelvin.  Moreover, her original statutory declaration, which appears to have been witnessed by a female solicitor with the assistance of a female interpreter, did not raise any issues of a sexual nature. 

16. The applicant, through her solicitor and migration agent, did provide to the Tribunal a report from a counsellor at Foundation House.  The counsellor appears to have been a woman.  The report refers to the applicant’s claim that she was digitally raped.  Notwithstanding that, the applicant’s migration agent does not appear to have attempted to obtain any more information from the applicant for submission to the Tribunal. 

17. In all the circumstances, I do not consider that there was a denial of procedural fairness consisting of or arising from the Tribunal member and others in the room being male.  I also note that, at paragraph 39 of its reasons for decision, the Tribunal considered the report from Foundation House, and acknowledged that it can be difficult for women who have experienced sexual violence to mention such incidents.  The Tribunal said that it did not give any adverse weight to the applicant’s failure to previously mention her claims of sexual assault.  The Tribunal then said that the other issues with the applicant’s credibility outweighed the issues raised about the sexual assault and her alleged post-traumatic-stress disorder. 

18. Secondly, the applicant said that the Tribunal only focused on the EPDP.  However, it is clear, particularly from paragraph 47 of the Tribunal’s reasons for decision, that the Tribunal considered whether the applicant faced harm from the authorities, paramilitary groups, the EPDP or anyone else. 

19. Thirdly, the applicant told the court that if she is sent back to Sri Lanka and held on remand, she will need a guarantor.  The applicant said that she did not have anyone. She said that she did not have any family in Sri Lanka to help her and she could remain in remand for 14 days and be at risk of sexual assault, harassment and torture during that period.  The Tribunal did not find, on the country information before it, that the applicant would need a guarantor.  The Tribunal found at paragraph 57 of its reasons for decision that the applicant would be granted bail on a personal surety. 

20. The Tribunal found that the applicant has family in Sri Lanka who would be able to collect her.  The applicant took issue with that finding, saying that she has no family in Sri Lanka who could help her.  She said that she had a sister who was in prison for reasons connected with her work for the LTTE.  However, at paragraph 38 of its reasons for decision, the Tribunal rejected the applicant’s claim that her sister was in prison or that any other members of her immediate family had ever been detained.  Findings of fact are a matter for the Tribunal, and the Tribunal is entitled to reject an applicant’s claims on the grounds of credibility. 

21. The applicant also said that her brother had been found to be a refugee.  The applicant did not put evidence to this effect before the Tribunal.  The applicant’s protection visa application said that her brother is a citizen of Australia, but does not say how he gained Australian citizenship.  In any event, even if he had been granted refugee status, the decision of the Tribunal in his case is not binding on the Tribunal in the present applicant’s case.  The Tribunal, in his case, may not have had the concerns with his credibility that the Tribunal, in the present case, has had with the applicant’s credibility. 

22. Otherwise, it seems to me that the Tribunal has correctly applied the law in this case and gave the applicant procedural fairness.  I have been unable to detect any jurisdictional error in the Tribunal’s reasons for decision or in its conduct of the proceeding. 

1. Consequently, the application filed on 18 June 2015 must be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 21 December 2016

Correction

The first respondent’s name was corrected on the first page of the reasons for judgment.