BBR15 v Minister for Immigration
[2017] FCCA 209
•8 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBR15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 209 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal breached section 425 of the Migration Act 1958 (Cth) – whether the Administrative Appeals Tribunal failed to consider the applicant’s claims – whether the Administrative Appeals Tribunal failed to apply the real chance test – whether the Administrative Appeals Tribunal took into account irrelevant considerations – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.425, 474, 499 |
| Cases cited: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 1 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 |
| Applicant: | BBR15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1662 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 8 February 2017 |
| Date of Last Submission: | 8 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 February 2017 |
REPRESENTATION
| Solicitor for the Applicant: | Stephen Hodges (Hodges Legal) |
| Counsel for the Respondents: | Mr Tim Reilly |
| Solicitors for the Respondents: | Australian Government Solicitors |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1662 of 2015
| BBR15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 19 June 2015, the applicant, through his solicitor, Stephen Hodges, filed an application in this Court, seeking judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”), dated 18 May 2015.
On 13 July 2015, the applicant was granted leave to file an Amended Application, any further evidence, and submissions in support. The matter was set down for hearing today.
On 25 September 2015, the applicant, through his solicitor, Stephen Hodges, filed an Amended Application. The grounds of the Amended Application are as follows:
“Ground 1
The AAT committed a jurisdictional error because its credibility/factual finding at [34] of the reasons departs from the Delegate's reasons without warning for the purposes of Section 425 of the Migration Act and contrary to the requirements described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006]HCA63.
PARTICULARS
(i) The AAT at [34] rejects as non-credible that the applicant's wife was assaulted in any way by soldiers from the neighbouring army camp in February 2012.
(ii) This finding was inconsistent with the finding of the Delegate who accepted the February 2012 incident but did not accept the applicant’s claims of consequential actions by the army on unspecified dates in perhaps 2013 and 2014.
(iii) While the AAT reasons [19] say that the AAT informed the applicant that his credibility was in issue, that was insufficient warning that a fundamental allegation of events in 2012 were to be departed from.
(iv) The applicant was not put on notice that the finding of the Delegate was to be departed from.
Ground 2
The AAT committed jurisdictional error by failing to identify, or sufficiently identify, describe or consider the Refugees Convention reasons alleged by the applicant to be the cause of his well-founded fears.
PARTICULARS
(i) The AAT did no more than describe the applicant as a national of Sri Lanka [ 16], as a Tamil [22], as having lived in an LTTE controlled area, as having applied for asylum in Australia[22] and as having departed Sri Lanka illegally [22];
(ii) The AAT failed to ask itself or the applicant the circumstances of, reasons for or consequences of his refugee status in India in 1999-2002;
(iii) The AAT did not ask itself or the applicant the reasons for or the circumstances of the applicant's brother being shot in 1990; (iv) The AAT failed to consider that the applicant might be perceived by the army, the Karuna group or others as being involved in the L TTE;
(v) The AAT failed to consider that the applicant not only lived in an LTTE area but lived in close proximity to an LTTE headquarters.
(vi) The AAT failed to investigate any relationship between the applicant and the LTTE headquarters adjacent to his home.
(vii) The AAT failed to look at the compilation of the applicant’s claims. That is, the applicant was a Tamil, had lived in an LTTE controlled area, lived adjacent to an LTTE headqua1ters, was granted refugee status in India in 1999-2002, whose brother was shot in 1990, who departed Sri Lanka illegally, who applied for refugee status in Australia and in respect of whom there would be a real chance of being perceived as having LTTE connections and/or sympathies if he was returned to Sri Lanka.
Ground 3
The AAT committed jurisdictional error by failing to apply the real chance test. In Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (3 June 1999) the Court held:
“When the RRT is uncertain as to 'whether an alleged event occurred, or finds that, although the probabilities are against it the event might have occurred, it may be necessari1y to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there was a ‘real substantial basis' for the applicant's claimed fear of persecution.”
PARTICULARS
(i) The AAT 's finding that the applicant lacked credibility is based on poor reasoning, is internally inconsistent, fails to take into account the possibility that some or all the following events occurred:
(ii) At [26] the AAT refers to an alleged statement by the applicant's wife to soldiers in June 2014 that the applicant was in Australia. The applicant must be at best repeating information given to him by his wife. The AAT concludes that because or if the wife made the alleged statement “the army would have a record of his being in Australia”. Such a finding fails to consider:
• the real chance that the army to whom the wife was allegedly reporting did believe her
• The real chance that information passed on by the wife in 2012 was not recorded by the soldiers, or
• The real chance that the soldiers who came in 2014 might not have had access to or have seen such a record.
(iii) The AAT failed to consider the real chance that the reasons for the applicant leaving the family home in 2012 and moving to stay on the farm he leased were his fears of persecution;
(iv) The AAT failed to consider the real chance that the reasons for the applicant's wife leaving the family home and moving to rented premises were her fears of persecution.
Ground 4
The AAT fell into error in taking irrelevant considerations into account in reaching its findings on credibility:
PARTICULARS
•The applicant's reference to written notes [27], and
•The applicant's lack of medical reports to support his claim [26]
Ground 5
The AAT committed jurisdictional error by failing to take into account mandated information and further by taking into account irrelevant material.
PARTICULARS
(i) The AAT failed to take into account DFAT reports as required by section 499 of the Act;
(ii) The AAT took into account a 2013 DFAT report but not those dated October 2014 (2 reports) and one dated 16 February 2015.
Ground 6
The AAT erred by failing to consider the claim of detention under complementary protection for consequences of illegal departure and failed to address whether the detention. The AAT failed to assess for the purposes of complementary protection whether a period of detention would amount to “significant harm”(s36(2A) or “serious harm” (s91R(2)) and s 5 Migration Act and thereby committed jurisdictional error and/or failed and/or constructively failed to exercise jurisdiction.
PARTICULARS
(i) The AAT accepted that the applicant would be arrested and charged for illegal departure [50];
(ii) The AAT referred to country reports of unsubstantiated allegations of torture and assault;
(iii) The AAT did not refer to any information to the effect that unsubstantiated reports were not true;
(iv) Therefore, the applicant submits that there is a chance that they are true.
(v) The AAT [53] states that “it considers it is prisoners who otherwise have a profile (such as persons affiliated to the LTTE) who are targeted in this way (referring to assault and torture)". The AAT did not on in this respect either consider that the “army" or other authority had the perception that the applicant was affiliated to the LTTE.”
(Errors in original).
At the commencement of the hearing this morning, Mr Hodges informed the Court that the applicant relies on the grounds contained in the Amended Application, that he had seen the first respondent’s written submissions that were filed on 1 February 2017, and that the applicant had nothing to say in response to the first respondent’s written submissions.
The applicant’s written submissions in respect of each ground did no more than repeat the grounds. In the circumstances, the applicant made no submission, either written or oral in support of any of the ground of the application or generally in respect of the application for judicial review of the Tribunal’s decision dated 18 May 2015.
In the circumstances, I stood the matter down to allow the parties to discuss any possible resolution of the matter in a way that may have contained the applicant’s costs. That course did not prove to be fruitful. I then proposed to the parties that, in circumstances where I accept the first respondent’s written submissions in their entirety insofar as they address the grounds identified in the Amended Application, I simply cite those documents in my reasons.
The written submissions of the applicant filed on 31 January 2017, accurately reflect the background of this matter, the applicant’s claims and the decision of the Tribunal, as follows:
“Background
3. References in the style [CB No, paragraph] are to the Court Book and where paragraph numbers are stated those are included.
4. The applicant is a male born in Sri Lanka on 30 January 1964 [CB 138].
5. The applicant arrived in Australia without a valid visa by boat in July 2012, and applied for a Protection visa on 10 December 2012 [CB 272, paragraph 4].
6. The application was rejected by a delegate of the first respondent on 31July2013 [CB 272, paragraph 2].
7. The applicant subsequently sought review of that decision by the AAT. The applicant gave oral evidence to the AAT on 4 December 2014 [CB 272, paragraph 7].
8. The decision of the AAT was unfavourable to the applicant and the applicant was refused a Protection visa.
The applicant's claims
9. The applicant is an ethnic Tamil citizen of Sri Lanka, from Northern Province [CB 272, paragraph 1].
10. The applicant's claims include the following [CB 272, paragraph 1; 275, paragraphs 22,24]:
10.1 The applicant lived close by to an army camp. In February 2012, he intervened when some soldiers assaulted and robbed his wife in the street. The soldiers ran away.
10.2 The next day, the soldiers returned to the applicant's home to look for him and harmed his wife.
10.3 To evade the soldiers, the applicant hid away from home and then came to Australia.
10.4 After he left Sri Lanka, the soldiers came again to the applicant's home looking for him.
10.5 The soldiers and the Karuna group continue to look for the applicant.
11. The applicant told the AAT about a new event which occurred in June 2014, when soldiers and members of the Karuna group came to the home his wife and children were renting. The soldiers locked the children in a different room and interrogated his wife for 30 minutes. They asked her about the applicant, for his phone number, took money that her brother-in-law had sent from abroad for her sister's upcoming wedding and raped her. The soldiers were looking for him. His wife recognised them as the same soldiers who attacked her in 2012 [CB 275, paragraph 25].
12. The applicant claimed to fear harm from the Sri Lankan authorities if he were return to Sri Lanka, for the following reasons [CB 272, paragraph 1]:
12.1 He is a Tamil.
12.2 He lived in an LTTE area.
12.3 He applied for asylum in Australia.
12.4 He departed Sri Lanka illegally.
The decision of the AAT
13. At [CB 276-7, paragraph 31] the AAT noted that the applicant has provided largely consistent evidence regarding the core claim of his wife being assaulted by soldiers, his interceding and soldiers looking for him. The AAT proceeded to state matters that it found concerning, including the applicant's reliance on written notes when giving evidence, his seeking to blame the interpreter when he made an error regarding the date of the claimed assault on his wife, and inconsistencies in his evidence.
14. At [CB 275-284], the AAT considered the applicant's claims and evidence, and made findings which included the following:
14.1 [CB 277, paragraph 33] Considered that the applicant has fabricated his claims regarding the assault on his wife and that the army or Karuna group have been searching for him with a view to creating a backstory to enhance his chances for protection in Australia.
14.2 [CB 277, paragraph 34] Rejected as non-credible that the applicant's wife was assaulted in any way by soldiers from the neighbouring army camp in February 2012, and that any soldiers have been looking for the applicant after that assault.
14.3 [CB 277, paragraph 34] Rejected as fabricated that the army and Karuna group came looking for the applicant in June 2014.
14.5 [CB 278, paragraph 35] Considered there to be only a remote or speculative chance, and not a real chance, that the applicant will suffer serious harm from the army or Karuna group now or in the reasonably foreseeable future because he lives nearby to an army camp if the applicant returns to Sri Lanka.
14.6 [CB 279, paragraph 43] Did not accept that the applicant will be imputed with an anti-government or pro-LTTE opinion because he is a Tamil or because he lived or worked in a Tamil area.
14.7 [CB 279-80, paragraph 43] Considered that there is only a speculative, and not a real chance, that the applicant will suffer any form of serious harm by the Sri Lankan authorities because of his race as Tamil, any particular social group or political opinion related to the LTTE or any other Convention reason, now or in the reasonably foreseeable future if he returns to Sri Lanka.
14.8 [CB 281, paragraph 49] Was not satisfied that the applicant has a real chance of serious harm because of an implied political opinion or membership of any particular social group however described arising from the applicant returning to Sri Lanka as a person who applied for asylum in Australia if he returns to Sri Lanka, now or in the reasonably foreseeable future.
14.9 [CB 284, paragraph 57] Was satisfied that the applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka.”
Thereafter, as stated above, the written submissions do not expand in any way on any of the grounds of the Amended Application and do no more than repeat each of the grounds.
The first respondent’s submissions, filed on 1 February 2017, respond to each of those grounds, albeit briefly. However, the first respondent’s submissions contain relevant references to the Tribunal’s reasons and the relevant case law in support of the first respondent’s submissions, as follows:
“4. Ground one appears to suggest that the Tribunal breached s 425 of the Migration Act 1958 (the Act) because the delegate found that he was generally credible and accepted his claim that his wife was assaulted by soldiers in 2012 (CB 144.2), whereas the Tribunal did not (CB 277 [34]). However as the Tribunal records at CB 274 [19], it informed the Applicant during the hearing that his credibility was in issue. In particular the transcript attached to Mr Rodrigo’s affidavit indicates that the Tribunal expressed doubt about the claimed assault on a number of occasions (T 9.8, 11.3, 12.9, 16.9, 19.3, 23.9). That was more than adequate to indicate to the Applicant that this claim was in issue before the Tribunal: SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [47]-[48]. Accordingly there is no breach of s 425 so this ground fails.
5. The second ground claims that the Tribunal failed to consider the reasons alleged by the Applicant to be the cause of his fear of returning to Sri Lanka. In relation to the Applicant living in a refugee camp in India from 1999 to 2002 (which the Tribunal records at CB 274 [16]), his brother’s death in 1990 (which the Tribunal records at CB 278 [36]) those claims are historical and do not appear to have been the basis for the Applicant’s claimed fear of harm in 2015. Otherwise the complaint in the ground appears to relate to the Applicant’s fears of being imputed with a pro-LTTE political opinion and having left Sri Lanka illegally, which the Tribunal addresses at length from CB 278-285. There was no failure by the Tribunal to address a “substantial, clearly articulated argument relying on established facts” (Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]). Nor was there any failure to address the Applicant’s claims cumulatively as appears to be suggested: the Tribunal expressly states that it has done so at CB 284 [58], and there is no basis to suggest otherwise. This ground fails.
6. The third ground claims that the Tribunal failed to apply the real chance test, citing Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (FC) and asserting that the Tribunal should have considered whether its findings about the Applicant’s wife being assaulted in 2012 were wrong. However as stated in Rajalingam at [67] per Sackville J, North J agreeing at [129], the Tribunal does not need to consider the possibility that its findings might be wrong if its reasons indicate that it had no real doubt about those findings. That was the case in Rajalingam at [68], [148] and is also the case here. Accordingly this ground fails.
7. The fourth ground claims that the Tribunal took into account irrelevant considerations at CB 275 [26], 276 [27]. These paragraphs record discussions at the Tribunal hearing. In the absence of any explanation about how these discussions can possibly be said to be considerations prohibited expressly or implicitly from consideration by the Tribunal within the principles in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 this ground must fail.
8. The fifth ground claims that the Tribunal failed to take into account DFAT reports as required by a direction issued under s 499 of the Act. The Tribunal states that it has done so at CB 273 [13]. The Tribunal stated at footnote 1, CB 273 that it had considered the new Country Report issued by DFAT on 15 February 2015 and found it to be materially the same as the earlier version. The ground does not indicate why the Tribunal has not thereby complied with s 499, and so fails.
9. The sixth ground claims that the Tribunal failed to consider the Applicant’s possible brief detention on remand for illegal departure when considering complementary protection, but the Tribunal does so at CB 285 [62]. The particulars to this ground appear to suggest that the Tribunal should have found that there was a real risk of the Applicant being tortured on remand, but the Tribunal at CB 283 [53] notes country information indicating that DFAT are unaware of reports of mistreatment of detainees on remand. The interpretation of country information is a factual issue for the Tribunal: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 1 at [11]-[13]. This ground fails.”
In the circumstances, it seems a somewhat futile exercise to simply paraphrase the submissions of the first respondent, with which I otherwise agree. Accordingly, none of the grounds of the Amended Application are made out.
Otherwise, the Tribunal’s decision record recites the history of the applicant’s application for review and accurately summarises the relevant law. The Tribunal then referred to various exchanges it had with the applicant, in which it put various concerns to the applicant and noted his responses.
The Tribunal noted that it was concerned with numerous aspects of the applicant’s claims. In particular, the Tribunal referred to the applicant’s reliance on written notes when giving evidence at the hearing and found that the applicant sought to blame the interpreter when the applicant made an error regarding his evidence.
The Tribunal found there were inconsistencies in the applicant’s evidence about his claims, and was not persuaded that the difficulties with the applicant’s evidence were explained by his age or lack of understanding of English. The Tribunal noted that it had regard to a post-hearing submission provided by the applicant’s representative, but noted that there was no supporting medical evidence regarding the applicant’s purported memory loss. The Tribunal noted that it was mindful that the applicant claimed lapses in his memory, but found that the concerns held by the Tribunal were not of him forgetting things, but of him saying different versions of what had occurred.
The Tribunal considered, in detail, the applicant’s claims in relation to the assault on his wife in considering whether the applicant faced serious harm if he was returned to Sri Lanka. The Tribunal also considered, in some detail, the applicant’s claim to fear persecution due to his Tamil ethnicity. The Tribunal noted that it discussed with the applicant country information that it identified and noted the applicant’s responses.
The Tribunal accepted the harassment and discrimination that Tamils generally may face in Sri Lanka and that may give rise to some harm, as indicated in the country information. The Tribunal further accepted that the applicant may face harassment and discrimination from soldiers in the neighbouring army camp. However, the Tribunal was not satisfied that any of the conduct to which the applicant may be subject would amount to serious harm. The Tribunal also did not accept that the applicant would be imputed with any anti-government or any pro-Liberation Tigers of Tamil Eelam political opinion because he is a Tamil, or because he lived or worked in a Tamil area. The Tribunal also considered whether the applicant would face harm in Sri Lanka as a failed asylum seeker, or as a result of his illegal departure from Sri Lanka, and found that he would not.
Ultimately, the Tribunal found that the applicant was not a credible witness and that he had not faced serious harm in the past. The Tribunal was not satisfied that the applicant has a well-founded fear of persecution for any reason. The Tribunal then considered whether the applicant met the complementary criterion for protection and concluded that he did not.
The Tribunal’s finding and conclusions were open to it on the evidence and material before it, and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
The Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the Tribunal complied with its obligation under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error. It is, therefore, a privative clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth), this Court has no power to interfere.
The proceedings should be dismissed with costs.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 10 February 2017
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