BDJ15 v Minister for Immigration

[2016] FCCA 2608

FEDERAL CIRCUIT COURT OF AUSTRALIA

BDJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2608

Catchwords:
MIGRATION – Visa – protection visa – whether failure to take into account relevant consideration – whether failure to address claims of applicant – credit – weight – no error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) and 65

Cases cited:

Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407

NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Muker v Minister for Immigration & Border Protection [2016] FCA 609
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131
Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6

Applicant: BDJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 227 of 2015

Judgment of: Judge Heffernan

Hearing date: 4 March 2016 & 12 September 2016

Date of Last Submission: 12 September 2016

Delivered at: Adelaide

Delivered on: 20 October 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application dated 24 June 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 227 of 2015

BDJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’), as it then was, dated 22 May 2015 affirming a decision of a delegate of the Minister refusing to grant the applicant a protection visa under s.65 of the Migration Act 1958 (‘the Act’).  The applicant was self-represented in this matter and received the assistance of an interpreter in the Tamil language.  His grounds of application are as follows:

   “1.The Applicant was denied procedural fairness by the Refugee Review Tribunal member’s failure to address part of the Applicant’s claim and/or the failure to take into account a relevant consideration.

   2.More details will be provided later.”

2. On 31 July 2015, the Registrar made orders giving the applicant leave to file any amended application and such further material, including the transcript of the proceedings before the second respondent, that he may seek to rely on.  No amended application was filed and as at the first date of hearing this application, no further materials were filed by the applicant.  The applicant was also ordered to file a written outline of submissions 10 business days prior to the hearing.  No outline of submissions was filed by the applicant.

3. The applicant relies on his affidavit dated 24 June 2015.  That document annexes a copy of the decision of the Tribunal subject to this application and refers to no other matters of substance.  He also relies on the materials in the Court Book filed by the first respondent.  When this matter came on for further submissions on 12 September 2016, the applicant sought to tender further materials not under cover of an affidavit.  Those materials were a copy of a letter written in Tamil and an English translation of that letter, together with some photographs, that the applicant advised me were taken about a month before the second hearing date, and some photocopies of some xrays.  I received those materials, subject to relevance and admissibility, without objection from the first respondent.  I will refer to them later in these reasons.

Background and Tribunal hearing

1. The applicant is a 28 year old Sri Lankan National and a Hindu of Tamil ethnicity[1] who arrived in Australia in June 2012 as an unauthorised maritime arrival.  He comes from Udappu in North Western Sri Lanka.  He applied for a protection visa on 20 December 2012.[2]

   [1]     Court Book (‘CB’) p 183 at [18].

   [2] CB p 182 at [2].

2. The applicant claims to have been a fisherman between 2006 and 2010 but was unemployed between 2010 and 2012[3].  He claimed to fear persecution on the basis of his race, real or imputed political opinion, and as a member of a particular social group.[4]  In the statement of claims that accompanied his visa application, the applicant identified a number of incidents relevant to his claims.  He claimed that once in 2007 he had been accosted and seriously assaulted by members of the Sri Lankan armed forces while at sea with his boss whilst working as a fisherman.[5]  Further, he claimed that in 2008 about 15 male Tamil youths had been abducted by unknown persons from his village.  Thirdly, he expressed concern that his illegal departure from Sri Lanka would expose him to persecution on his return.  His failed asylum seeker status would, he claimed, draw attention to him.  Suspicion would fall on him as having had links to, or membership of, the Liberation Tigers of Tamil Elam (‘LTTE’),[6] particularly, given the fact that he came from an area known for its longstanding support of the LTTE.[7]  Relocation was not an option for him, he claimed, because it is the authorities who are responsible for persecution and they had the ability to find Tamil males anywhere in Sri Lanka.

   [3] CB p 183 at [17].

   [4] CB p 183 at [10].

   [5]     CB p 78.

   [6]     CB p 79.

   [7]     CB p 184.

3. The Tribunal hearing took place on 16 February 2015.  The applicant appeared with the assistance of an adviser and an interpreter.  The Tribunal took into account a written submission on behalf of the applicant dated 8 January 2013, and a further written submission dated 27 April 2014.

4. The Tribunal made detailed and extensive findings in relation to the claims of the applicant.  This included significant adverse findings with respect to his credit.  In summary, the credit findings concluded that his claims were either fabricated or exaggerated[8] and calculated to give weight to an unmeritorious claim.[9]

   [8]     CB p 207.

   [9]     CB p 201.

5. The applicant gave evidence before the Tribunal, and it raised with him, and then specifically with his advisor,[10] the concerns it had with respect to his evidence.  The Tribunal afforded the applicant time to consult with his advisor before it heard submissions from the advisor.

   [10]    CB p 192.

6. The Tribunal identified an instance of a claim made by the applicant for the first time before it.[11]  This was a claim to have experienced beatings at night time when he was out walking with various of his friends.[12]  It dealt with that claim in a manner that did not specifically reject it.[13]  It is apparent from a reading of that section of the findings as a whole that this claim was rejected.[14]

   [11]    CB p 192.

   [12]    CB p 190 at [76]-[78].

   [13]    CB p 201 at [168]-[169].

   [14]    CB pp 200-201.

7. The Tribunal also advised the applicant of its concerns about the inconsistencies in his account of the 2007 assault by navy personnel and invited his response.[15]  The claim made for the first time before the delegate relating to potential persecution as a consequence of his Hindu faith, and his presence and minor involvement in an animal sacrifice at a temple, was canvassed in detail with the applicant.[16]  The Tribunal considered detailed country information in relation to that claim.[17]  The Tribunal rejected it based on the country information and rejected the claim by the applicant that this religion-based claim was in fact not made late, but that his advisor had failed to raise it with the authorities prior to the hearing of the delegate.[18]

   [15]    CB pp 190-191.

   [16]    CB pp 187-188.

   [17]    CB pp 188-189.

   [18]    CB p 201 at [160]-[162].

8. The Tribunal also considered[19] and rejected[20] a new claim made by the applicant about a land dispute his mother had apparently been involved in with a neighbour.

   [19]    CB pp 189-190.

   [20] CB p 201 at [167].

9. The Tribunal considered country information with respect to the position of Tamils, Tamils with LTTE links, and failed asylum seekers (including Tamils).[21]

   [21]    CB p 193-198.

10. The Decision Record shows that the Tribunal considered and accepted the applicant’s claims to have been subjected to checks by the navy whilst at sea in 2007, but rejected the ‘intensity’ of the incident as claimed.[22]  By that, I infer that it rejected that he had been subjected to the serious assault described by him.  In any event, as this incident had no sequelae, it found that it did not give rise to a real chance of serious harm now, or in the reasonably foreseeable future.[23]

    [22] CB p 200 at [157].

    [23] CB pp 200-201 at [159].

11. The Tribunal considered, but rejected as being of any concern, a claim made for the first time before it that the applicant’s mother had been visited recently by strangers who were looking for him.[24] 

    [24]    CB p 201 at [170]-[171].

12. On the basis of the claims made by the applicant and country information, the Tribunal gave consideration to the claims with respect to: Tamil ethnicity; political opinions (actual or implied); the status of young Tamil males; the applicant’s religion as a Hindu; his illegal departure; and his membership of the social group of failed asylum seekers. It found that the applicant did not meet the criteria of s.36(2)(a) of the Act and accordingly, he did not attract Australia’s protection obligations under the convention. It gave separate and distinct consideration to the question of complimentary protection obligations but found that there were no substantial grounds to believe that as a necessary and foreseeable consequence of being returned to Sri Lanka, that there would be a real risk that he would suffer significant harm.

Submissions

1. On 4 March 2016, the applicant made brief oral submissions before me.  He repeated his claim about the assault by the navy in 2007.  He told the Court that one day he went fishing without a fishing pass.  The navy confronted him and broke his left arm.  He acknowledged that he told the Tribunal about this matter.  When asked if there was anything the Tribunal failed to consider, he submitted that there is no free living in his village because the army is there.  He told me his mother is all alone in Sri Lanka.  He had no job or prospects of safety in Sri Lanka.  He said that he did not believe the Tribunal had properly considered his claims and he wanted to know why they had rejected them.  After he had made his submissions, he claimed to have been confused about whether or not he should have obtained a lawyer for these proceedings.  He asked for an adjournment to enable him to have time to obtain legal representation.  He claimed to have made some contact with a lawyer.

2. The first respondent submitted that there was insufficient information before the Court to justify such a late request for an adjournment.  The applicant has had, it was submitted, sufficient time to engage a legal representative.  It conceded that it would suffer no prejudice if an adjournment was granted, except as to costs thrown away.  It pointed, reasonably, to the fact that the application was lodged in June 2015. 

3. Mr Tredrea proceeded to present the balance of his argument and submitted that on the basis of the submissions made by the applicant, only two issues arose.  He submitted that the claim as to the assault by the navy had been comprehensively dealt with by the Tribunal.  Mr Tredrea characterised the applicant’s submission that he had no way of safely living in Sri Lanka as a generalised claim based on his ethnicity.  He submitted that this had also been conclusively considered and addressed by the Tribunal by an appropriate reliance on country information.  This country information was considered against the claims the applicant had made.  Mr Tredrea submitted that there was no jurisdictional error demonstrated and that the application should be dismissed. 

4. The matter was adjourned to enable the applicant to consider his position with respect to legal representation and for the Court to consider the question of re-listing for further submissions.  When the matter was called on for further directions in August, the applicant was unrepresented, but with the assistance of an interpreter.  I made orders on that occasion listing the matter for further submissions in order for the applicant to have one further opportunity to attempt to obtain legal representation.  I listed the matter for further submissions on 12 September 2016, a period of approximately one month.

5. It was explained to the applicant that it was expected that final submissions would be heard on the adjourned date and that he should not attend at Court expecting a further adjournment.  This seemed a reasonable expectation because the applicant submitted that he did have a lawyer who was delayed in arriving at Court that morning.  I adjourned the directions hearing to enable the applicant to telephone his lawyer.  After the adjournment, the applicant confirmed that his lawyer, who he had earlier said was based in Melbourne, would not be able to attend at the directions hearing.  I made orders giving the applicant leave to file and serve further material on or before seven business days prior to the adjourned date.  He was ordered to file an outline of submissions seven business days prior to the adjourned date.  Leave was given to both parties to apply for further directions with 3 days’ notice to the other party.

6. When the matter resumed on 12 September 2016, the applicant was again unrepresented.  Prior to the hearing, the solicitor for the first respondent received on 11 September 2016, an email from a ‘S Barataraj of Counsel’.  This was provided to my chambers and tendered at the hearing by the first respondent and I marked it ‘R1’.

7. I drew this to the applicant’s attention.  He had not raised the matter with me at that stage.  The text of the email is as follows:

   “Dear Colleague

   This above matter is coming to trial at 2 pm on 12 September 2016 at Adelaide.

   I have just been given instructions to appear on his behalf.

   Unfortunately, I have a commitment of a trial in Melbourne on the 12^th and appear in the High Court Brisbane on the 13^th.

   I seek your permission to adjourn the matter if possible in chambers.

   If that is not possible, the Applicant will appear in person on the day and seek the adjournment.

   S Barataraj of Counsel”

8. The first respondent opposed a further adjournment.  It submitted that whilst it would not be occasioned any prejudice by a further adjournment, the history of the matter weighed against it.  It submitted that the applicant had been given sufficient opportunity to obtain legal representation. 

9. The applicant submitted that he did have a solicitor on 15 August, but that he had to recently obtain a different lawyer.  The applicant submitted that the reason for wanting a barrister to attend was, as I understand the submission, so that fresh evidence would be placed before the Court.  At no stage had any solicitor filed a Notice of Acting on his behalf.  No amended or further particularised grounds of application had been filed, and the applicant had not filed any further materials for the consideration of the Court.  He had a period of 9 months in which to engage counsel between the directions hearing before the Registrar and the hearing date in March 2016.  He was on notice of being given a further month to arrange a lawyer from 15 August 2016.  I declined to grant a further adjournment.

10. The applicant submitted that he wanted to provide the Court with further materials from the bar table.  These were the materials I have referred to earlier in these reason.  I have marked them for identification as ‘MFI A1’.

11. I will summarise those materials.  The letter from his mother is dated 16 August 2016.  The letter warns him against a return to Sri Lanka.  It claims that recently a group of people attended at her house late at night seeking the applicant’s whereabouts and asserts his mother’s fear that his life would be in danger in Sri Lanka.  The photocopies of the xrays are undated, unidentified, and come with no explanatory material.  There were also some photocopies of photographs of a timber house that has possibly sustained some damage to the roof.  None of these materials were before the Tribunal. 

12. The applicant made a brief further oral submission that in effect, reiterated the matters he had ventilated during the first hearing.

13. Counsel for the first respondent relied on the submissions he had made on the previous occasion.

Consideration

1. I decline to admit the new materials on which the applicant seeks to rely.  They were not before the Tribunal.  A failure on the part of the Tribunal to take them into account could hardly be said to have been an error, let alone a jurisdictional error.  They have been proffered by the applicant in an effort to have the Court reconsider the facts of the matter and conduct a merits review, which is beyond my jurisdiction.

2. The oral submissions of the applicant were, similarly, not directed to establishing jurisdictional error but rather towards re-agitating the merits of his claim.  As far as the complaint made that he wanted to know why it was the Tribunal did not accept his evidence, the reasons are contained in the Decision Record and I am satisfied that these reasons adequately explain why it reached the conclusion it did.  However, even if I accepted the submission of the applicant that the Tribunal reasons did not clearly identify why it rejected his evidence, that would not amount to a jurisdictional error.  The Tribunal had an obligation to provide reasons and it did so.  There was no requirement on it to articulate a “sub-set of reasons why it accepted or rejected individual pieces of evidence.”[25]

   [25]    Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

3. The ground of application raised by the applicant complains of a lack of procedural fairness caused by the Tribunal’s failure to address part of his claim.  The applicant did not identify what part of his claims he said the Tribunal failed to address.  He did not identify the relevant consideration he says should have been taken into account.  As I have already summarised in these reasons, his submissions amounted to a repetition and endorsement of his claims, not an identification of any manner in which the Tribunal erred.  Implicit in his submission was that the Tribunal should have accepted his evidence.  The answer to that is that it is for the Tribunal to consider the evidence of the applicant, determine the facts, and make such findings on matters of credit as are reasonably open to it.[26]  The credit findings of the Tribunal in this matter were at least open to it.  However, even if it had made erroneous findings on matters of credit, this would not generally speaking amount to jurisdictional error.[27]  Similarly, if the applicant was expressing dissatisfaction that more weight was not given to his evidence, or any aspect of the submissions made on his behalf, that too was a matter for the Tribunal, except in so far as a failure to accord weight to a matter rendered its decision unreasonable in the legal sense.[28]  I am satisfied that the decision of the Tribunal was not unreasonable, illogical, or irrational.  I am satisfied the Tribunal took all relevant matters into account and addressed the claims made on behalf of the applicant.

   [26]    Durairajasingham, ibid at [67].

   [27]    NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].

   [28]    Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [41]; Muker v Minister for Immigration & Border Protection [2016] FCA 609 at [30].

1. I will address briefly the final submission made by the applicant when he was asked if there was anything further he had to add.  He submitted that the interpreting service provided to him at the Tribunal hearing was not adequate.  This was not a ground in his application.  He was given leave, firstly by the Registrar and later by me, to file material, including transcript, if he wished to rely on it.  He did not do so.  He was represented at the Tribunal hearing by an “advisor”[29] who I assume was an employee of the firm of registered migration agents he had engaged.  There is no evidence that there was any complaint raised about the quality of the interpretation at the time of the Tribunal hearing.  There is no evidence before me to establish a deficiency in the interpretation that might have affected the quality of the hearing or the findings and decision of the Tribunal.  It is not apparent that the applicant was effectively prevented from giving his evidence because of mistranslation or non-translation.[30]  The applicant did not apply to amend his grounds of application to include a ground based on mistranslation.  Given the lack of any evidence on this point in the materials, such a ground could not have succeeded in any event.

   [29]    CB p 171.

   [30]    WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.

2. I can identify no jurisdictional error in the decision.  Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 20 October 2016