BCF16 v Minister for Immigration

[2017] FCCA 2953

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2953

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A(3)(b)

Cases cited:

SZTAL v Minister for Immigration and Border Protection, SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: BCF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 967 of 2016

Judgment of: Judge Hartnett

Hearing date: 30 October 2017

Delivered at: Melbourne

Delivered on: 30 October 2017

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Ms Lucas

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 967 of 2016

BCF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. These proceedings commenced on 10 May 2016 upon the Applicant filing an application seeking judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 21 April 2016, in which the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa (‘the visa’). 

2. The Applicant’s grounds of application are as follows:- 

   “1. The decision of the Administrative Appeals Tribunal is affected by jurisdictional error 

   Particulars

   (a) The Tribunal did not consider properly the distinct integer of the Applicant’s claim, namely that he was a single male Tamil who came from Ampara district and then residence in Mannar and consider that in the light of his illegal departure from Sri Lanka and also him being a failed returned asylum seeker. 

   (b) The Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, especially the investigation upon return to Sri Lanka, the possibility of the applicant getting someone to act as surety, to pay a fine and the state of the prison conditions in Sri Lanka, as described in reports quoted by the tribunal.”

3. The First Respondent seeks dismissal of the application and that costs follow in that event on the basis that the decision of the Tribunal is not affected by jurisdictional error. 

4. Each of the parties has filed contentions of fact and law. The Applicant, in contentions filed 5 October 2017 and the First Respondent, in an outline of submissions filed on 16 October 2017. There is also before the Court, the evidence as contained in the Court Book filed by the First Respondent. 

History

1. The Applicant is a citizen of Sri Lanka.  He is of Tamil ethnicity and Hindu religion. He applied for the visa on 11 December 2012 and a delegate of the Minister refused to grant the visa on 24 February 2014. 

2. On 27 February 2014, the Applicant applied to the Tribunal for review of the delegate’s decision.  The Applicant was represented in relation to the review by a registered migration agent. 

3. The Applicant appeared before the Tribunal on 8 December 2015 to give evidence and present arguments.  The Tribunal also received oral evidence from the Applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant’s registered migration agent attended the Tribunal hearing with the Applicant. 

4. On 21 April 2016, the Tribunal affirmed the delegate’s decision to not grant the Applicant the visa and it is that decision to which the Applicant seeks judicial review. 

Applicant’s claims

1. As set out by the First Respondent in submissions, the Applicant broadly claimed to fear harm from the Sri Lankan authorities based on his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (‘LTTE’).  In particular, he claimed that in July 2007 he travelled to Killinochchi to carry out mechanical repairs on a tractor and that when he returned to Vavuniya, where he lived, the roads had been blocked by the Sri Lankan army.  He was unable to return home for a number of years as he could not cross the blocked cordon where the Sri Lankan military was. In February 2009, the Applicant claimed that he was detained by the Sri Lankan army and taken to Velikadrai Prison in Colombo where he was interrogated and tortured by the Criminal Investigation Department (‘CID’).  He was later removed to the detention facility in Kandakadu in Vavuniya, which was also a rehabilitation facility.  He was released from detention in April 2011.  The Applicant returned to his home in Pallanaotai Nanattan where he started his own mechanic repair business.  In May 2011, an unmarked white van was parked outside the Applicant’s house and the Applicant was asked what he was doing but the men did not disclose who they were.  A month or so later, the men returned and spoke to the Applicant and his brother.  The Applicant feared he would be abducted by the men in white vans because he was formerly detained as a suspected LTTE member.  He later fled Sri Lanka to Australia. 

The Tribunal

1. At the commencement of its Statement of Decision and Reasons (‘the Decision Record’), the Tribunal correctly set out the relevant law, including the refugee criterion and the complementary protection criterion. The Tribunal then proceeded to consider the claims and evidence before it. 

2. The Tribunal noted that the Applicant departed Sri Lanka illegally on 15 July 2012. 

3. The Tribunal, in paragraph 21 of the Decision Record, noted that the Applicant presented his claims in his protection visa application on 11 December 2012; a Departmental interview he attended on 2 December 2013; submissions from the Applicant’s advisor to both the Department of Immigration and Border Protection (‘the Department’) and the Tribunal; and at his Tribunal hearing on 8 December 2015. 

4. The Tribunal set out the statutory declaration made by the Applicant attached to his protection visa application in paragraph 21 of the Decision Record. 

5. The Tribunal correctly noted in paragraph 22 of the Decision Record, that the primary issue in the review was whether there is a real chance that if the Applicant returns to Sri Lanka, he will be persecuted for one or more of the five reasons set out in the Refugees Convention for the purpose of s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

6. As set out in the Decision Record, the Tribunal had concerns about the Applicant’s credibility generally and serious concerns about various aspects of it as set out in the Decision Record. 

7. The Tribunal did not accept that the Applicant travelled to Killinochchi to carry out mechanic work in July 2007; became trapped there, was unable to return to Vavuniya; and stayed there for some period of time before heading towards Mullaitivu, where he remained until 2009.  This is because the Tribunal found the Applicant gave inconsistent evidence in respect of this part of his history.  When the Tribunal put to the Applicant the inconsistency in his claims, the Tribunal found the Applicant’s explanation for the discrepancy in his evidence unconvincing. 

8. As set out in paragraph 27 of the Decision Record, as the Tribunal did not accept that the Applicant went to Killinochchi in July 2007 and was trapped there, it did not accept that he was displaced to Mullaitivu, where he claimed to live for about a year in various camps.  The Tribunal said:- 

   “It therefore follows the Tribunal does not accept that the applicant was amongst more than 300,000 people who surrendered to the military in February or March 2009, as he claimed in the hearing.  The Tribunal does not accept that the applicant was taken to a camp in Anuradhapura where he was kept for a month, during which time he was tortured a lot and questioned whether he was a member of the LTTE or had any connections to the LTTE.  The Tribunal notes, as it did in the hearing, there was nothing in the Applicant’s statutory declaration or the submissions from his advisor suggesting that he was taken to Anuradhapura and kept in an army camp for one month.  While the applicant stated that maybe he did not say that correctly, as he was under panic and fear, the Tribunal observes that the applicant provided an account of what happened to him from the time he allegedly went to Killinochchi in July 2007 onwards in the statutory declaration attached to his protection visa application and it has difficulty accepting that he would have failed to mention, either in his statutory declaration or at any time prior to the hearing, that he was taken to Anuradhapura and kept there for a month prior to being sent to prison, during which time he was tortured, including being beaten until he lost consciousness, if it in fact occurred. The Tribunal does not accept that the applicant only remembered these events now, as he claimed in the hearing, particularly in light of the relative seriousness of what he claimed allegedly occurred during this alleged period of detention, or that he failed to mention this earlier because it was a Sinhalese name.  Similarly, the Tribunal does not accept the submissions made following the hearing in post hearing submissions, that the applicant had not previously mentioned his time in Anuradhapura because he spent only a short time there as compared to Welikada and Kandakadu/Nelukkulam.  Rather, the Tribunal finds that the applicant has embellished this aspect of his claims in an effort to bolster his case.”

9. The Tribunal further did not accept that the Applicant was taken to Colombo and detained as a suspected LTTE member and fighter.  The Tribunal noted in the hearing that the Applicant claimed he was taken to Boosa Prison in Colombo, where he was kept for three to four months and persecuted very severely. However, as the Tribunal put to the Applicant in the hearing, according to his statement attached to his protection visa application, he claimed he was taken to Welikada Prison in Colombo, which is an entirely different institution to Boosa Prison.

10. The Tribunal noted, in paragraph 28 of the Decision Record, that it put to the Applicant that Boosa and Welikada Prisons were two different prisons and that it had serious concerns that the Applicant would provide the name of a different prison to the one he had previously claimed he was detained at, if he had actually been detained.  The Tribunal found:-

    “…it implausible that if the applicant was detained in either Boosa or Welikada that he would not provide consistent evidence regarding which prison he was allegedly detained in for several months and tortured.  The Tribunal is therefore further satisfied that the applicant was not detained in Colombo for several months during, which time he was repeatedly tortured, on suspicion of association with the LTTE.”

11. The Tribunal found significant discrepancies in the Applicant’s evidence provided over time.  As a result of the Tribunal’s non-acceptance of the Applicant’s history as provided by him, the Tribunal placed little weight on documents provided by the Applicant.  The Applicant provided documents in relation to his release from what appeared to be two different rehabilitation centres. Country information the Tribunal referred to during the hearing (regarding the prevalence of document fraud in Sri Lanka) led the Tribunal to place little weight on the documents provided by the Applicant. The Tribunal did not accept that the Applicant was kept in a rehabilitation camp in Vavuniya as he claimed. Nor did the Tribunal accept, as a consequence, that after the Applicant was allegedly released from the rehabilitation camp in 2011, the military would come and inquire about him once a month and again beat him. 

12. The Tribunal noted in the hearing that in the Applicant’s statutory declaration received the day before the hearing, the Applicant claimed that the military or the CID came many times to his house.  According to his evidence in the hearing, they came 10 to 15 times up to July 2012, beat him, asked him if he was still in the LTTE, if there were people known to him in the LTTE, and twice took him away in a white van. The Tribunal found, in paragraph 30 of the Decision Record, that the Applicant had made no mention of being beaten at any time after his release from the rehabilitation centre in his statement attached to his protection visa application. In fact, there was nothing in the Applicant’s statement attached to his visa protection application about him receiving numerous visits from the military or the CID and, instead, he only claimed that they came once in May 2011, when they spoke to him and asked what he was doing.  The Tribunal did not accept that if the Applicant had received 10 to 15 visits during which he was beaten, the Applicant would fail to mention this significant claim.

13. Similarly, as stated in paragraph 31 of the Decision Record, the Applicant did not claim that he was taken in a van on two occasions in his statement attached to his protection visa application, as he claimed in the hearing.  In contrast, the Applicant spoke, in his statement, about his fear of being abducted.  The Tribunal did not accept that if the Applicant had in fact been taken in a white van on two occasions, he would have failed to mention this in his statement, particularly in light of his stated fear of being abducted by a white van.

14. The Tribunal took into consideration the Applicant’s response that during the interview at the camp he was in fear, and did not provide sufficient details. In paragraph 32 of the Decision Record, the Tribunal said:-

    “As the Tribunal put to the applicant, these are significant details that are of importance to his application for protection, so it has serious doubts that if they occurred he would not refer to these in his statement outlining his claims for protection, particularly when he discussed other alleged visits by the authorities where they simply questioned him.  The Tribunal finds it far-fetched that, in circumstances where the applicant has specifically referred to two visits in his statement, he would fail to mention that the military or army came many times (between 10-15 times) and they beat him during most of those visits.  The Tribunal has also taken into consideration the applicant’s evidence that he mentioned being taken in the white van and his suggestion that the interpreter may have “dropped it”.  As the Tribunal noted in the hearing, he had signed his statement as being true and correct.  Further, the interpreter declaration attached to the statement confirms that the statement had been interpreted to him so in these circumstances, the Tribunal does not accept the applicant’s explanation.  The Tribunal finds the applicant has embellished his claims regarding the regular visits by the army or CID and the beatings he received, in addition to being taken twice in the van and beaten, in an effort to bolster his case.”

15. The Tribunal did not accept that the military or CID spoke to any member of the Applicant’s family, including his brother, about the Applicant or for any other reason.  The Tribunal also did not accept that, after the Applicant left Sri Lanka, the CID had gone to his home and inquired about him. 

16. The Tribunal found the Applicant’s evidence regarding what allegedly happened to his brother to be vague and lacking in detail.  Further, the Tribunal took into consideration the fact the Applicant did not mention anything about his brother being questioned in either his statement attached to his protection visa application or during the interview with the Department and found that raised further doubts about the credibility of these claims.  As such, the Tribunal did not accept the Applicant's claim in the statutory declaration submitted the day before the hearing, that his brother was captured by the Sri Lankan authorities somewhere between August and September 2012.

17. The Tribunal took into account relevant country information, which it put to the Applicant during the course of the hearing. 

18. The Tribunal considered, in a very detailed Decision Record, each of the claims put before it by the Tribunal and for the most part, found the Applicant to be not credible.  His lack of credibility derived from the inconsistency in statements made by him in the various materials which were before the Tribunal.

19. The Tribunal noted, in paragraph 43 of the Decision Record, that at the hearing, the Applicant referred to some black marks on his hands and suggested that he would be suspected as being LTTE because of these marks.  The Tribunal said:-

    “There is nothing before the Tribunal suggesting that these marks are consistent with scars and given the Tribunal’s finding above regarding the credibility of the applicant’s claims regarding the torture and beatings he allegedly was subjected to by the authorities, the Tribunal does not accept that these marks are the result of any mistreatment he was allegedly subjected to by either the military or the CID.  As the Tribunal put to the Applicant in the hearing, such discolouration is consistent with his employment as a mechanic.  In light of this, the Tribunal finds the applicant’s claim that he would be suspected of being LTTE as a result of such marks on his hand, consistent with his occupation, to be purely speculative and it does not accept that he faces a real chance of persecution now or in the reasonably foreseeable future for this reason.”

Consideration

1. The Applicant made additional oral submissions on the hearing of this matter.  He claimed his lack of success at the Tribunal was both the fault of the interpreter and his lawyer.  There was no evidence before the Court to substantiate those allegations. The Applicant did not particularise in any way what it was the interpreter failed to interpret.

2. In essence, the Tribunal made its adverse credibility claims based on the significant discrepancies in the Applicant’s own evidence. Many examples of differing claims made at differing times appear throughout the Decision Record. The Applicant claimed to have had no opportunity to comment on country information, but on a careful reading of the Decision Record it is obvious there was considerable opportunity afforded to the Applicant to comment on relevant country information. In any event, s.424A(3)(b) of the Act places country information into a category that does not give rise to the necessity of putting such information to the Applicant, it being about a class of person of which the Applicant is a member.

3. The Applicant puts nowhere before the Court any evidence of a denial of procedural fairness to him by virtue of the conduct of his lawyer and/or of the interpreter.

Ground 1(a)

1. The Applicant alleges the Tribunal did not properly consider an integer of his claim, namely, that he is a single Tamil male who came from the Ampara District and then resided in Mannar, considered in light of his illegal departure from Sri Lanka and his status as a failed returned asylum seeker.

2. The Tribunal noted that it had considered country information, which it put to the Applicant at the hearing, which suggested that the humanitarian situation had improved greatly since the end of the conflict in May 2009.  It noted that the UNHCR in their guidance dated 2010 referred to some reports that young Tamil men from the north and east of Sri Lanka may be disproportionately affected by security measures on account of their suspected affiliations with the LTTE.  It also stated that there was no longer a need for group-based protection mechanisms of a presumption of eligibility for Sri Lankans of Tamil ethnicity.  In particular, the Tribunal pointed to country information which indicated that not all Tamils from northern and eastern Sri Lanka are vulnerable to harm due to imputed links with the LTTE.  However, the Tribunal noted that people with “more elaborate links to the LTTE may require protection” and further, that “only Tamils who are identified as having connections with the LTTE or who are in other ways opposed to the current Sri Lankan Government face a risk of serious harm in Sri Lanka and not Tamils generally”.  The Tribunal did not accept that the Applicant fell within any of the profiles identified by the UNHCR as being at risk of serious harm, nor that he had any involvement or association with the LTTE or was suspected of any links with the LTTE in the past.  The Tribunal’s consideration of these matters is set out in paragraphs 40 and 41 of the Decision Record.

1. The Tribunal said at paragraph 45 of the Decision Record:-

   “The Tribunal finds that the country information before it, including information provided by the applicant’s advisor in their submissions to the Tribunal, does not suggest that all Tamils face a real chance of suffering serious harm solely on account of their Tamil ethnicity, nor would it be assumed that all Tamils were connected with the LTTE.  The Tribunal does not accept on the country information before it, and its findings that the applicant had not experienced any problems in the past because of his Tamil ethnicity or any suspected or perceived association with the LTTE, that the Applicant would face a real chance of serious harm, now or in the reasonably foreseeable future from the authorities, including the military or the CID or anyone else, if he returns to Sri Lanka because of his Tamil ethnicity, including being imputed with a political opinion of support for the LTTE or as a young Tamil male or a young Tamil male who originated from the east or young Tamil male who lived in the north.”

2. The Tribunal considered whether the Applicant would face persecution as a result of his illegal departure from the country if returned to Sri Lanka.  The Tribunal accepted that the Applicant would face brief questioning and then be taken to Negombo Magistrates Court at the first available opportunity after investigations were completed.  The Tribunal accepted he may be held in police custody at the CID airport office for up to 24 hours and should a Magistrate not be available in this time he would be held at the prison until a Magistrate became available. The Tribunal noted that DFAT country information suggested that in most cases returnees had been granted bail based on a personal reconnaissance with the requirement of a family member to stand as guarantor.  The Tribunal found, that the Applicant had his parents, his two sisters and two brothers-in-law in Sri Lanka who could stand as guarantor for him, and therefore did not accept that the Applicant would face extended detention on return.

3. In relation to any penalty the Applicant might face for breaching Sri Lanka’s departure laws the Tribunal noted that in most cases people had been bailed immediately and later fined between 5000 and 50,000 rupees.  The Tribunal did not accept that the Applicant would not be in a position to pay such a fine and therefore found the chance the Applicant would face a term of imprisonment now or in the reasonably foreseeable future to be remote.

4. The Tribunal concluded that it did not accept that the Applicant had a profile which would be of any concern or interest to the Sri Lankan authorities.  The Tribunal further did not accept that the Applicant faced a real chance of persecution on his return to Sri Lanka as a failed asylum seeker, a Tamil failed asylum seeker, or a returnee, or as a person who fled to a Western country seeking asylum or as a suspected supporter of the LTTE.

5. The Tribunal considered all of the Applicant’s claims cumulatively, including whether he faced a real chance of being persecuted because he is of Tamil ethnicity, his origins from the Ampara District in the Eastern Province of Sri Lanka and/or his residence in Mannar, his attempt to seek asylum in Australia and his membership of a particular social group of failed Tamil asylum seekers or Tamil returnees. 

6. The Tribunal conducted both an individual and cumulative assessment of the Applicant’s claims and found them for the most part to be not credible. Those findings were open to the Tribunal on the evidence before it. There was no failure to consider any integer of the Applicant’s various claims. This ground cannot succeed.

Ground 1(b)

1. Likewise, ground 1(b) cannot succeed. The Tribunal considered the alternative criterion in s.36(2)(aa) and in particular, whether there was a real risk the Applicant would suffer significant harm by reason of investigations concerning him upon return to Sri Lanka; the possibility of the Applicant getting someone to act as surety to pay a fine; and the state of prison conditions in Sri Lanka.

2. The Tribunal considered all of these matters under the rubric of complementary protection.  The Tribunal said at paragraphs 61 and 63 of the Decision Record the following:-

   “61. The Tribunal notes the Applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty.  While the Tribunal accepts on the basis of the country information cited above, that the Applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process.  Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Nor does the Tribunal accept, for the reasons discussed above including the findings regarding his profile, that the Applicant would be singled out for mistreatment, and suffer significant harm as a result, during any period he is held in remand.

   63. The Tribunal does not accept that the process of questioning that the Applicant may be subjected to, the imposition of a fine as punishment and the Applicant’s charge and conviction under the Immigration and Emigration Act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters. Further, the Tribunal finds on the country information cited above, that any treatment the Applicant may face upon return to Sri Lanka, including a fine and short period of detention while on remand and poor prison conditions, would not amount to significant harm, as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the Applicant personally, under s.36(2B)(c) this is taken not to be a real risk that the Applicant will suffer significant harm.”

3. The Tribunal’s findings as set out in the paragraphs above were open to it on the evidence before it and reveal that the Tribunal applied the correct test as set out in SZTAL v Minister for Immigration and Border Protection, SZTGM v Minister for Immigration and Border Protection [2017] HCA 34.

4. Contrary to what is asserted by the Applicant, the Tribunal specifically recorded in its Decision Record that it put to the Applicant in the hearing that the Applicant has his parents, two sisters and two brothers-in-law in Sri Lanka who can stand as guarantor for him.  The Applicant put no evidence to the contrary.

5. The Tribunal evaluated whether the Applicant had the capacity to pay a fine as set out in its Decision Record and in particular at paragraphs 48, 61 and 63.

6. No jurisdictional error attends the decision of the Tribunal. The application is dismissed, and costs follow that event.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  29 November 2017