BDS17 v Minister for Immigration
[2017] FCCA 2757
•13 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDS17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2757 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal failed to consider relevant documents – whether the Tribunal’s failure to enquire constituted jurisdictional error – whether adverse credibility findings were not open – whether Tribunal was biased. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476. |
| Applicant: | BDS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 817 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 13 November 2017 |
| Date of Last Submission: | 13 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Silva on a direct access basis |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
Grant leave to the applicant to rely upon an amended Ground 2 by adding the words after registry, “or the Document Examination Unit of the Department” and the Court dispenses with the need for the filing of a further amended application.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $6,500.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 817 of 2017
| BDS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 21 February 2017 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.
Claims for protection
The applicant claimed to have been involved in politics in Sri Lanka and targeted by opposition supporters in 2010 while putting up political posters. The applicant claimed a particular person called S came to the applicant’s shop and threatened to kill him. The applicant alleges that S was imprisoned for two years for murder and claimed that, in January 2013, S assaulted him and threatened to kill him, and the applicant fears harm from S in the future. The applicant also claimed that his uncle owned a jewellery story and that a particular person called N had used the applicant’s personal account in a scheme to defraud people. The applicant claimed he was charged with this and told police about N and his use of the account and reported N’s location to the police.
The applicant claimed that he was abducted by associates of N and, during this time, he was tortured and assaulted. The applicant claims to have reported this to the police but they did not help him. The applicant claimed to fear harm from N and his associates in the future and claimed that the police would not protect him.
The Delegate’s decision
The delegate did not accept the applicant was threatened by S or that he would kill him after the applicant apologised to him in January 2013 for the incident they were involved in, in 2010, during the campaign election.
The delegate did not accept the applicant was ordered by the Court to identify and locate N, who has been known to the authorities as someone who has been involved in similar criminal activities. The delegate did not accept the applicant was abducted, tortured, or threatened by N for having taken his photos and providing them to the police. The delegate found the applicant failed to meet the criteria of the grant of a protection visa under the Act.
The Tribunal’s Decision
The applicant applied for a review of the decision on 28 January 2015. The Tribunal invited the applicant to attend the hearing at which the applicant was represented by his migration agent and the applicant had an opportunity to give evidence and present arguments. The Tribunal also provided further time after the hearing for the applicant to provide further submissions and further material was provided to the Tribunal following that hearing.
The Tribunal, in its reasons dated 21 February 2017, identified the background to the application for review and set out the relevant law in an Appendix A, incorporated into the reasons of the Tribunal.
Confrontation with S
The Tribunal summarised the applicant’s claims and evidence. In relation to the alleged confrontation with S in 2010, the Tribunal found the applicant’s evidence about the election campaign and its aftermath vague, implausible, and inconsistent with country information from independent sources. The Tribunal provided detailed reasons in support of those adverse credibility findings, including a reference to the applicant shifting his evidence when asked what was discussed at meetings, and also in relation to questions asked about what posters he was required to put up.
The Tribunal found it implausible the applicant would so actively be involved in putting up posters for the Fonseka campaign in 2010 and would not know basic information and was not persuaded by the applicant’s attempt to explain this by comment that the posters were not all the same and that some had the leader of the UNP and some had other leaders featured. The Tribunal found that this concern in relation to the applicant’s credibility was further compounded by the applicant’s inability to remember when the incident with S took place or even the month of the 2010 election.
The Tribunal was not persuaded by the explanation offered by the applicant’s representative that the applicant could not recollect dates because he was nervous and was trying to put his past behind him and move on with his life in a new country. The Tribunal found the applicant gave inconsistent evidence as to what transpired after his initial confrontation with S.
The Tribunal made reference to the applicant’s evidence that S supported the government mainly in order to protect his illicit alcohol production business, and the Tribunal expressed doubt that S would have engaged in the prolonged pursuit of the applicant or election-related violence after his candidate won, as suggested by the applicant.
The Tribunal did not find it plausible, knowing of S’s activities and the imprisonment for murder, that the applicant would draw attention to himself in a chance encounter by apologising to him about an altercation several years later, rather than escaping. The Tribunal was not persuaded by the applicant’s claim that he did so thinking that it was New Year’s Day, and that S might be ‘gracious and not hold anger against him’. The Tribunal concluded that the applicant was never involved with the UNP, nor campaigned for the S Fonseka in the 2010 election.
The Tribunal did not accept the applicant ever had a physical altercation with S during the campaign, or apologised for it two years later. The Tribunal did not accept that S threatened to kill the applicant, broke windows in his house, or burnt his bike, either in 2010 or 2013.
The Tribunal was not satisfied that, if the applicant returned to Sri Lanka, the applicant will suffer persecution due to his imputed political opinion and membership of a particular social group of campaign supporters over his encounter with S or for any other Convention reason.
The Tribunal found the applicant had fabricated these claims for the purpose of seeking a protection visa in order to remain in Australia. The Tribunal found that this cast credibility concerns over the whole of the applicant’s claims.
Involvement with N
The Tribunal then turned to the applicant’s alleged claims concerning N. The Tribunal noted the applicant’s claim regarding his unwitting involvement in N’s scam and the sequence of events that followed, which the Tribunal found to be vague, convoluted, and confusing.
The Tribunal was not persuaded by the explanation offered by the applicant’s representative in his post-hearing submission as to why the applicant could not recollect particular dates. The Tribunal made reference to the applicant introducing new evidence on a number of issues. The Tribunal also noted the applicant failed to explain how it was that nothing happened to him when he failed to report for four months after moving to Chilaw.
The Tribunal made reference to the applicant at the end of the hearing saying he had been issued with an arrest warrant and the Tribunal expressed credibility concerns in that regard, given that the applicant had not mentioned this before, nor provided the warrant with the Court documents that the applicant had submitted to the Department. The Tribunal made reference to the prevalence of document fraud in Sri Lanka and their use in the protection visa process. The Tribunal found that it could not attach any weight to any of the documents provided by the applicant.
The Tribunal made reference to discussing at the hearing the implausibility that in 2012, when the Sri Lankan Police Force was still under the Defence Ministry reporting structure, that the Court would order a 20-year old applicant to produce a criminal like N. The Tribunal did not believe that N and his gang would go through the elaborate sequence described of kidnapping, torture, and raping, and getting the applicant to phone home to arrange collection of his computer, yet not kill the applicant if they wanted to eliminate him.
The Tribunal considered the applicant’s explanation contrived and self‑serving, that the police were supporting N and informed him that the applicant had given them a photograph but did not know there was a photo on his computer, so this was done to obtain the computer.
The Tribunal took into account its credibility concerns in relation to having found the applicant fabricated his claims about S, and in those circumstances the Tribunal was not satisfied the applicant had been truthful in his claims about N. The Tribunal was not satisfied N misused the applicant’s bank account illegally, as claimed, nor that the applicant was summoned to Manar Police Station, accused of cheating anyone, has been/is involved in any Court procedure, has any outstanding Court matters, or is of any interest to any of the Sri Lankan authorities over this issue. The Tribunal did not accept the applicant was required to produce N to the Court, nor that he photographed him or reported this to the police.
The Tribunal did not accept that the applicant was abducted, tortured, sexually assaulted by N or his associates, nor that he fled Sri Lanka because he feared being killed by these people. The Tribunal did not accept that if the applicant returned to Sri Lanka these people will find him and kill him because of these matters as claimed. The Tribunal was not satisfied the applicant will suffer significant harm from N’s criminal gang due to a lack of police protection or for any other reason.
Illegal departee / failed asylum seeker
The Tribunal referred to the applicant’s illegal departure and being a failed asylum seeker. The Tribunal was satisfied the applicant did not have any adverse political profile before he left Sri Lanka or any outstanding criminal matters that might make him a person of interest to the authorities.
The Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk he will suffer serious or significant harm when he is questioned at the airport, during any period in which he may spend in jail on remand, or upon return to his hometown or, indeed, elsewhere in Sri Lanka. The Tribunal found there was no real risk that the applicant will suffer significant harm for any other reason or reasons.
The Tribunal, having considered the matters cumulatively, was not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk the applicant would suffer harm which would amount to significant harm.
The Tribunal found that the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.
Proceedings before this Court
Grounds in the application
The grounds in the amended application are as follows, and I will have the grounds set out.
(1) The Tribunal made jurisdictional error in that it failed to consider vital documents supportive of the applicant's case and it thus it (a) failed to take a relevant consideration (b) failed to exercise jurisdiction (c) failed to give proper, genuine and realistic consideration
Particulars
The Tribunal failed to consider the following documents:
(i) CB 100-107 - Submission of information and further Report to Magistrate by Sri Lank.an Police with translation;
(ii) CB 108-111 - Letter by Hatton National Bank to Special Criminal Investigation Bureau, Mannar, with translation;
(iii) CB 112-115 - Submission of information to Magistrate by Sri Lankan Police, with translation; and
(iv) Statement by the applicant's lawyer, with translation.
(2) If it had considered the documents, the Tribunal made jurisdictional error in that the Tribunal failed to inquire with the Mannar Police and/or Mannar Magistrates Court Registry or the document examination unit of the department, or with the applicant's former lawyer about the genuineness of documents vital to the applicant's case
Particulars
The Tribunal failed to inquire about the following documents:
(i) CB 100-107 - Submission of information and further Report to Magistrate by Sri Lankan Police with translation;
(ii) CB 108-111 - Letter by Hatton National Bank to Special Criminal Investigation Bureau, Mannar, with translation;
(iii) CB 112-115 - Submission of information to Magistrate by Sri Lankan Police, with translation; and
(iv) Statement by the applicant's lawyer, with translation.
(3) If it had considered the documents, the Tribunal made jurisdictional error in that it was (a) not open for the Tribunal to impliedly find that the documents were fraudulent and/or (b) not open for it to give no weight
Particulars
The Tribunal failed to inquire about the following documents:
(i) CB 100-107 - Submission of information and further Report to Magistrate by Sri Lankan Police with translation;
(ii) CB 108-111 - Letter by Hatton National Bank to Special Criminal Investigation Bureau,Mannar, with translation;
(iii) CB 112-115 - Submission of information to Magistrate by Sri Lankan Police, with translation; and
(v) Statement by the applicant's lawyer, with translation.
(5) The Tribunal made jurisdictional error in that it made exaggerated adverse credibility findings which were not open
Particulars
(i) CB 250- [18] -vague, implausible and inconsistent with country information
(ii) CB 252 - [25]- vague, convoluted and confusing
(iii) CB 252 - [26] An arrest warrant and he had a copy in Sri Lanka ... dubious cannot attach any weight to any of the documents provided by the applicant.
(iv) CB 252 - [27] Implausible that Court would order ... contrived and self serving 'eliminate him'
(v) CB 252 -[28] fabricated his claims about [S] - serious finding of fabrication and total dismissal of the claims
(6) The Tribunal made jurisdictional error in that the Tribunal caused apprehension of bias by its hostility to the applicant
Particulars
(i) Transcript Pg 18 ln 23-24, Pg 18 Ln 36-37
Okay. How do you know that? Have you been involved in illegal activity, that you know this?
How do you - do you know this from personal experience? Have you been involved in illegal activity to know this?
(ii) Pg 21 ln 24-28 - Because he didn't recall the month although he recalled the year
Okay. I find it very difficult to believe that someone who was as involved as you say you were, wouldn't remember something like that.
(iii).Pg 22 ln 41- Pg 23 ln ln 16
Where do you get this information from .............. Election was over
(iii) Pg 23 ln 10-16
I find it very curious that someone who is running an alcohol manufacturing ring ............ .
Election was over
(iv) Pg 23 ln 37-40
I'm finding it very difficult to believe that ........... take the computer, shoot you and be finished?
(v).Pg 29 Ln 25 - 41
I find it difficult to believe that someone ................... I find it difficult to believe that your thought processes, if you were fearful of this man, would go through a thought process that says I have humiliated this big guy, and I'm only a kid, so I'm going to go and seek forgiveness. I just find it implausible, sorry. . ............ Do you have crocodiles in Sri Lanka?
(vi).Pg 33
It's very vague for something that is so important. Did you appear in Court?
(vi).Pg 37 ln 44 tp Pg 38 ln 14
Okay. I find it very difficult to believe that the Sri Lankan police, who in 2012 ............. .
I mean it's just ludicrous; I'm sorry .................... I find it highly implausible .................... so bring the photo to the Court later.
(vii) Pg 41 ln 32 - You just changed your evidence
(8) The Tribunal made jurisdictional error in that it misapprehended the applicant's evidence and made adverse credibility findings based on that misapprehension
Particulars
(i) Year and month of election- [21]- “The Tribunal's concerns are compounded by the applicant's inability to remember when the first incident with [S] took place, or even the months of the 2020 election”. Applicant said many times it took place in 2010 and the whole discussion was about 2010. Transcript Pg 15, 16 & 21
(ii) Arrest warrant Pg 45 In 29-32
MS MOUSTAFINE: Well, as I said to you, I'm very surprised that if you had that evidence you haven't provided it already and as I said to you, it is very easy to get false documents in Sri Lanka, so I can't attach weight to it.
The tribunal put the words into the applicant's mouth about “arrest warrant” and the applicant was referring to the Summons that was delivered to the Dummalsuriya Police.
See also Pg 44 Ln 19 Pg 45 Ln 37
Pg 241n 29-30 - outstanding matter
Pg 31 Jn 46 to Pg 32 In 45
(iii) Applicant to produce [N]- At [27] The Tribunal found it implausible that in 2012, when the Sri Lankan police force was still under the Defence Ministry reporting structure along with the fierce Sri Lankan Army, the Court would order the twenty-year-old applicant to produce a criminal like [N] (paragraph 7.e).
The applicant didn't say that he was asked to produce [N] at the Courts but asked me to identify [N] to assist the Court with the assistance of the police to locate [N] because it was him who claims about the existence of [N].
INTERPRETER: So I believe they would've let the Courts know that I was no longer in the country. Okay, so because at the Court, I was told that I had to identify [N] in order to secure my release. Okay, so some time later, a friend - friend 's father had passed away and so my friend asked me to come with him to the funeral and when I went to the funeral, I saw [N] at the funeral and I had been told by the police in Manan that if I spotted [N] anywhere that I should go to the nearest police station and report the matter. (bold added)
(9) The Tribunal made jurisdictional error in that it made adverse credibility findings based on speculation rejecting applicant's evidence which is now supported by evidence.
Particulars
The Tribunal at [20] rejected applicant's evidence about the posters, that the election posters were not the same and some of them had leader of the UNP and some had other leaders featured. See the affidavit to be filed on 22/08/17.
Mr Silva confirmed that grounds 4, 7, and 10-13 were not pressed.
Consideration
Ground 1
In relation to Ground 1, Mr Silva of counsel sought to place weight upon the official seal placed upon the alleged reports to the Magistrate in seeking to invite the Court to find that the Tribunal had failed to give proper, genuine, and realistic consideration to the documents submitted by the applicant in relation to his claims concerning N.
The Tribunal’s reasons reflect a proper, genuine and realistic consideration of the applicant’s claims and, in particular, the documents advanced by the applicant. It was not necessary for the Tribunal to refer to every piece of evidence before it. It was open to the Tribunal, having made adverse credibility findings in respect of the claims concerning S, to take that into account together with country information in making adverse findings as to what weight should be placed upon the documents advanced by the applicant.
There was no failure by the Tribunal to take into account a relevant consideration and no failure by the Tribunal to properly exercise its jurisdiction. No jurisdictional error as alleged in Ground 1 is made out.
Ground 2
In relation to Ground 2, leave was granted to amend Ground 2 to insert the words after “registry”, “or the Document Examination Unit of the Department”, and the Court dispensed with the need for the filing of any further amended application.
The proposition that the genuineness of the alleged Court documents was the subject of a duty to make inquiry is without substance. There was no easily ascertainable, critiquable fact able to be obtained from any identified entity. The suggestion that it was easily ascertainable from the Manawa Police, Manawa Magistrates Court, the Document Examination Unit of the Department, or the applicant’s lawyer are all lacking in substance. No jurisdictional error as alleged in Ground 2 is made out.
Ground 3
In relation to Ground 3, Mr Silva sought to attack the findings of the Tribunal in determining to give no weight to the reports and applicant’s claim concerning N and the involvement of the police. The adverse credibility findings by the Tribunal were open for the reasons given by the Tribunal. The applicant’s credit was a matter for the Tribunal to take into account. It was also a matter for the Tribunal to determine what weight to give to the documents produced by the applicant in support of his claims. No jurisdictional error as alleged in Ground 3 is made out.
Ground 5
In relation to Ground 5, Mr Silva sought to attack particular findings in the Tribunal’s reasons in relation to credit, arguing that they were not open. The substance of Mr Silva’s submissions was to invite this Court to engage in impermissible merits review. There is no substance in the assertion of any inconsistency in the findings made by the Tribunal. The adverse credibility findings made by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in Ground 5 is made out.
Ground 6
In relation to Ground 6, Mr Silva made an allegation of bias by the Tribunal. The allegation should not have been made. Allegations of bias must be distinctly made and clearly proved. There was no proper basis to assert from the transcript that the exchanges by the Tribunal seeking to test the applicant’s credit when raising the Tribunal’s concerns with the applicant gave rise to any proper basis to assert that the Tribunal was acting other than impartially, with an open mind reasonably capable of determining the matter on the merits.
The questions in the transcript to which Mr Silva referred are not conduct by reason of which a fair‑minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits. The allegation of bias has not been proved. Ground 6 fails to make out any jurisdictional error.
Ground 8
In relation to Ground 8, Mr Silva sought to take issue with the Tribunal’s findings in relation to, first, the applicant not remembering when the incident with S took place or in the months of the 2010 election. Given the nature of the encounter, it cannot be said that the adverse finding in that regard was trivial or insignificant. The finding by the Tribunal in relation to the applicant’s credit concerning his ability to remember the date was open to the Tribunal and does not give rise to any misapprehension by the Tribunal of the applicant’s evidence.
In relation to the suggestion that the Tribunal put words into the applicant’s mouth concerning an arrest warrant, the transcript does not support any such assertion. The applicant was asked questions that reflect an opportunity for the applicant to respond fairly. On the face of the material before the Court, the applicant had a real and meaningful hearing. On the face of the material before the Court, including a transcript, the Tribunal conducted the review with an open mind reasonably capable of persuasion.
The third matter, the subject of alleged misapprehension by the Tribunal, involved the applicant’s role that he asserted which he had to take to assist in the location and production of N. The applicant’s statement in support of a visa application expressly referred to the applicant saying that he was informed by the Court to produce N in Court, failing which he would not be released. No misapprehension on the applicant’s evidence is made out. No jurisdictional error as alleged in Ground 8 is made out.
Ground 9
In relation to Ground 9, the Tribunal in the transcript raised with the applicant concerns in relation to the applicant’s knowledge of the posters. Mr Silva of counsel sought to buttress the applicant’s credibility in respect of those claims by relying upon evidence that this Court admitted subject to relevance. The Court admitted the material subject to relevance in circumstances where it can be the case where error is found that an issue can arise as to whether there is any utility in the grant of relief. It is for those reasons the Court took the view that it was appropriate to permit the applicant to put into evidence material that was not before the Tribunal.
However, the receipt of the material into evidence does not mean that it is capable of making out any jurisdictional error in respect of the determination of the applicant’s claims. The adverse finding in relation to the applicant’s credibility in respect of the applicant’s evidence in relation to posters cannot be said to be trivial or insignificant, and it was open on the material before the Tribunal. No jurisdictional error as alleged in Ground 9 is made out.
Conclusion
The amended application is dismissed.
I certify that the preceding forty-three (43 paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 8 December 2017
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