BDF15 v Minister for Immigration

[2015] FCCA 3014

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDF15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3014

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – procedural fairness – whether the Tribunal failed to put adverse information to the applicant – rejection of post-hearing submissions inconsistent with previous acceptance of claims and evidence – jurisdictional error – application allowed.

Legislation:

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

Applicant: BDF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1726 of 2015

Judgment of: Judge Street

Hearing date: 9 November 2015

Date of Last Submission: 9 November 2015

Delivered at: Sydney

Delivered on: 9 November 2015

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Solicitors for the Applicant: Micheala Byers, Solicitor

Counsel for the Respondents: Mr J. Kay Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari is issued calling up the record of the Administrative Appeals Tribunal and the decision made 3 June 2015 is quashed.

2. A writ of mandamus is issued directing the Administrative Appeals Tribunal to determine the review application before it according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1726 of 2015

BDF15

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 a decision of the Tribunal made on 3 June 2015 affirming the decision of the delegate not to grant the applicant a protection (class XA) visa. The applicant was found to be a citizen of Sri Lanka and his claims are assessed against that country. In a statutory declaration dated 5 December 2012 in support of the applicant’s imminent fears of persecution, relevantly, the applicant said:

   11. At the Tribunal hearing on 29 April 2015, when asked about the above inconsistency, the applicant said inter alia he was afraid he may be harmed in Sri Lanka for what he claimed to have happened to him prior to his departure in July 2012. Be that as it may, the applicant agreed that he provided his real name on arrival. The UNHCR has stated:

   198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.8

   …

   24. The Tribunal understands the applicant’s work for the SLA continued up till the cessation of hostilities in May 2009. He then continued to work as a fisherman in [X] (for around 1month) until July 2009. At the Tribunal hearing, when asked, the Sinhalese applicant eventually said he kept being questioned and threatened by the SLA as a suspected LTTE supporter, even after the war ceased. However, he was not apparently detained or mistreated.

   25. None-the-less, the applicant feared he would be harmed and he ‘escaped’ from [X] in July 2009. He had done this without the permission of the SLA; and this had ‘cemented their view’ that he was fleeing because he helped the LTTE during the war (‘they already suspected the fishermen’ in [X]). The applicant told the Tribunal he ‘fled’ to his own home in his village in [Y] (where his wife then lived). He had purchased this home previously and his wife had lived there while he was in [X]. He then re-engaged in fishing work in [Y]. Between July 2009 and October 2010 the applicant had no further problems with the SLA; or apparently anyone else. At hearing, the applicant explained that he had assumed the Sri Lankan authorities had (words to the effect), forgotten about him.

2. Before the delegate, the applicant’s claim for protection involving the 2006 incident was identified as follows:

   - In 2006, while out fishing, the applicant and a few other fishermen were shot at by the Navy.  Ten fishermen were killed and only two persons including the applicant survived this attack.  After this incident, the applicant had to work more for the SLA and his work involved building bunkers and cutting trees.

3. The delegate made no express finding in relation to the 2006 incident but, in essence, rejected the applicant’s credibility that he had been targeted or was a person of interest to the Sri Lankan government. 

4. The applicant attended a hearing before the Tribunal that commenced on 22 January 2015 and, in the course of that hearing, issues arose in relation to the interpretation and potential inconsistencies in the applicant’s evidence. There was an exchange concerning the applicant’s experience as a fisherman and the Tribunal refers in a general sense to the matter being entirely plausible.  As a result of the concerns expressed, the matter was the subject of a rescheduled hearing that took place on 29 April 2015. 

5. At that hearing in relation to the 2006 incident, the following exchanges occurred (at 34 and 47):

   M: So you said that, you referred to an incident in 200, I understand when you were out fishing?

   A: Yeah.

   M: I don't really want to talk to you much about that incident. It is plausible, based on the country information that I've seen. However, for the purpose of the record, I understand that the Sri Lankan Navy fired upon fishing boats in the general area and killed many persons. I understand you and another person were the only two people to survive. Where is the other person who survived? Is that a Sinhalese fisherman?

   A: Yeah, Sinhalese.

   M: And is he still fishing?

   A: I don't know anything about. .. I don't know anything about him. I don't know now where he is.

   M: When did you lose contact with him?

   A: Yeah, since the war was over, and I just managed to escape from the [Z] area, I didn't see him or anything.

   M: So approximately 2009?

   A: Yeah.

   M: So from approximately 2009 you have lost contact with this person?

   A: No, I didn't have that much contact with him.

   M: So the question was, my apologies, I don't wish to actually ... at this point, so you've never seen him, this other survivor, you've never seen him since 2009?

   A: Yeah, that's right, since 2009, I didn't had any contact with him.

   M: OK. I also understand you became involved in a fishing society in 2006.

   …

   R: .. . I don't think I've taken sufficient instructions on the 2006 incident, it's becoming more glaring to me now.

   M: Which on was that?

   R: In which he survived the Sri Lankan navy firing on the fishing boats.

   M: I'm actually not. .. It's very plausible, based on the information that I've seen, so I wasn't going to dispute that.

   R: Not that I'm saying dispute, it's that, well, things like, were they aware that he survived, different things I haven't taken enough instruction on.

   M: I was aware of that, which is one of the reasons I was focusing on what was happening after that period.

   R: And I do have difficulties getting instructions from my client for some reason, maybe it's the interpreter that I use, or the actual going back in time to get the information, and I don't think there's enough detail there that I would like to have time to seek more instructions from him on that incident, because I think that's a glaring error on my part that I haven't got more information there on that incident.

   M: Well I'll make a formal request for further submissions from you, how long would you need?

6. In the applicant’s statutory declaration dated 13 January 2013, the applicant referred to the 2006 incident relevantly, as follows (CB151):

   10. Some time between March and September 2006, I am my two companions set to sea to fish about 6:30am.  We went to one of our usual fishing grounds about 15kms seaward from the shore.  There were about 5 other boats in the same area visible to me. About 7:30 am 4 Navy vessels approached us at high speed. The were grey, I remember the number 4 painted on the hull of one of them, they were all about 30m long.  They all had large machine guns mounted on the deck in the prow.  As they approached the area, they split up, some going towards the other fishing boats, one headed straight for us. 

   11. We were in the process of hauling in our nets.  We let go of the nets and put our hands in the air.  Nevertheless, without warning of any kind they opened fire on us with the heavy machine gun.  My boat caught fire and I jumped into the sea. While I was attempting to avoid them and not drown I could see that other boats were also on fire and were sinking.  I lost track of my companions as I desperately tried to avoid the Navy boat and keep from drowning. 

   12. The Navy boat pursued me and the sailors on it tried to shoot me using T56 rifles, but I kept diving

   14. On arrival to shore, I went to the Church to give thanks to God for my escape.  I received not medical treatment despite having burns on my face.  I was not interviewed by any official about the incident. 

   15. Later I found that only one other man survived, 8 were killed, one of them was my brother-in-law.  I come to help them save their friends and that is why the Army boat accompanied them.  However, it was only about a third of the Navy boats.  (emphasis added)

   (numbering errors in original)

7. It is of significance that the applicant referred in that statement in para.15 to the fact that one of the persons killed was his brother-in-law.  That was the description of the incident relating to the 2006 incident in respect of which the Tribunal had conveyed to the applicant’s representative a level of plausibility of that incident.  In the Tribunal’s summary of findings, the Tribunal relevantly said:

   33. …

    The Tribunal accepts the applicant was a member of a Fishing Society and also that some [Z] fishermen were abducted and killed by the LTTE (between 2005 and 2009 as he claimed).

8. The Tribunal also addressed the 2006 incident relevantly under a heading The 2006 Incident relevantly as follows:

   37. In 200616 the applicant had been fishing when four Navy boats came and started firing on six fishing vessels (including the applicant’s) that they suspected of helping the LTTE. Based on the evidence, I am not satisfied the applicant was personally attacked in this incident, just that he was then in a group of fishing boats that were suspected and attacked. That said, between 8-10 persons were killed and the applicant and one other person were the only two survivors. He had to swim for about two hours to return to shore. When asked at hearing, the Tribunal understands the applicant does not know what happened to the other survivor since the applicant departed [Z] in July 2009. As stated at hearing, and though I did not locate any record of the incident, the country information seen by the Tribunal has satisfied it the claimed 2006 incident is plausible. I have therefore accepted the incident as true.

   38. Be that as it may, the applicant subsequently made some “corrections” and “additions” to his prior evidence by post-hearing statutory declaration dated 8 May 2015.17 That included (but was not limited to) the month of the attack (November 2006); how he managed to get to shore (by boat and not by swimming), and that a brother-in-law was also killed in the incident. He said everyone knew he was involved in the incident and that 100 persons saw him arrive back on shore. He also said (again for the first time) that 2 or 3 days later he and other villagers (3 busloads), travelled to Colombo (to the Ministry of Fisheries) and complained about the Navy attack (though they were all prevented from entering the Fisheries building). He did not explain how he so readily travelled to Colombo when he had previously said he was only allowed to return to his home in [Y], on the west coast of Sri Lanka, from where he worked in [Z], with some difficulty and for short periods.

   39. At any rate, in the accompanying post hearing submissions by email of 19 May 2015, the applicant’s migration agent said as the applicant was one of only two survivors (witnesses) to a war crime committed by the Sri Lankan Navy, his details would be known. However, both survivors were allowed to continue to fish in and around [Z], at least till the applicant’s departure to [Y] (in July 2009). By the same migration agent post hearing submissions, it was also claimed the applicant would not have been of any interest to the Sri Lankan authorities until “the United Nations, European Union and human rights organisations et al, was said this may explain the interest in the applicant in October 2010, to ensure he did not give evidence as a witness to a war crime.

   40. That said, it is perplexing that in the multiple opportunities the applicant had to put this information, he only first lodged much of this material evidence in a post-Tribunal hearing submission (and the applicant has always had the assistance of registered migration agents). However, and for the reasons set out herein, I am not satisfied the applicant was in hiding between October 2010 and his departure from Sri Lanka on 27 July 2012. If the Sri Lankan authorities were interested in the applicant for any reason, I am satisfied he could have been contacted prior to his departure from Sri Lanka (and I do not accept any effort was made to contact the applicant). Further, though not apparently eye-witnesses to the shooting, even the applicant’s statutory declaration dated 8 May 2015 stated inter alia that other fishermen “heard the shooting and saw the flames and the burning boats” and though the SLA had instructed them not to intervene, they had “sent a boat out to accompany us” (at [7]). It may therefore appear there are multiple witnesses to the incident in question and no evidence was available to the fate of same.

   41. At any rate, the Tribunal does not accept the migration agent submissions, and I do not accept the applicant has a real chance of being subject to serious (or significant) harm for this, or any related reason, should he return to Sri Lanka.

9. The finding at the end of para.37 that the incident was accepted as true as well as the finding referred to above in para.33 are entirely consistent with what was said to the applicant and the applicant’s representatives at the hearing.  However, what occurs thereafter in para.38, at least in respect of the reference to the brother-in-law being killed, appears to treat that as a new matter as if raised in post hearing submissions for the first time. 

10. The Tribunal’s reasons are not to be read with a keen eye for error and are to be read as a whole.  The reference in para.38 to other matter “again for the first time” supports on a fair reading that the Tribunal has raised the issue of the applicant’s brother-in-law being killed in the incident as being raised for the first time in post hearing submissions.  Not only was that not correct, it is contrary to what was represented in the transcript by the Tribunal that it accepted the incident as plausible and that incident included the reference to the brother-in-law being killed. 

11. The applicant filed an amended application, ground 1 of which is as follows:

    1. The Tribunal failed to afford the applicant a fair hearing as required by section 425 of the Act.

    Particulars

    a. The applicant made a post-hearing submission on the 2006 Incident that the applicant was a survivor/witness to a war crime which the Tribunal made adverse findings at paragraphs 40 to 41 that were not put to the applicant for comment;

    b. The Tribunal made findings that the applicant claims were false without putting this finding to the applicant for comment in relation to:

    i. Harassment by the Sri Lankan authorities after the cessation of hostilities;

    ii. The applicant was approached by the Sri Lankan authorities for the reasons he claimed:

    iii. The applicant was in hiding but visited his family if he feared the Sri Lankan authorities as claimed; and

    iv. Regularly returned to visit his wife at home.

12. Counsel for the applicant did not press ground 2 and the Court notes that, given the findings in para.65, ground 2 was without substance. 

13. Over the course of argument, it became clear that para.38 of the Tribunal’s reasons was not simply rejecting post-dated evidence by the applicant but in fact was rejecting part of the evidence the applicant had already earlier given to the Tribunal concerning the 2006 incident in respect of which the Tribunal had said that it was not going to dispute that 2006 incident. 

14. It is true that the applicant’s legal representative had the benefit and opportunity to put on further evidence and submissions relating to the 2006 incident in the context of a discussion about the need for further instructions.  But that did not put the applicant or the applicant’s advisor on notice that the Tribunal may not accept the whole of the 2006 incident that had been described by the applicant at the time of the hearing and relevantly, the reference to his brother-in-law being killed.

15. In this case, in para.40, the Tribunal described the post-hearing statutory declaration in a way which clearly identified it as having a materiality in the reasoning of the Tribunal.  The reference to ‘He only lodged much of this material evidence in a post-hearing submission’ in para.40 is clearly a reference back to what has been described in para.38, including the reference to the fact his brother-in-law was killed. The reference by the Tribunal in para.38 to “again for the first time” reinforces this material error. I note that the reference by the Tribunal in para.38 to “by boat and not by swimming” also appears incorrect. 

16. In these circumstances, I am satisfied that the applicant has been denied a fair process in the hearing under s.425 where the applicant was informed by the Tribunal that his evidence as to the 2006 incident would be accepted and without further notice the Tribunal has changed that position. The Tribunal has erroneously treated a supplementary submission as raising for the first time the reference to the applicant’s brother-in-law being killed and identified that as material evidence. On a fair reading, the Tribunal was expressing concern in paras.38 and 40 in relation to credibility that led to the key finding in para.41 as to whether the Tribunal accepted the applicant as having a real chance of being subject to serious or significant harm as a result of the 2006 incident.

17. I am satisfied that the departure by the Tribunal from what was represented to the applicant at the hearing in the present case as to the acceptance of the 2006 incident and then without notice a changed position by the Tribunal gives rise to a practical injustice which cannot be said not to have had no possible impact on the outcome. Given the Tribunal’s representation of acceptance of the 2006 incident, I find that the Tribunal failed to afford the applicant a fair hearing as required by s.425 of the Act in relation to the applicant’s evidence as to the 2006 incident at the time of the hearing, which included the fact that the applicant’s brother-in-law was killed without giving the applicant notice that the Tribunal’s acceptance of the plausibility of that evidence had changed. I find this was a jurisdictional error.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 November 2015