BEA15 v Minister for Immigration
[2017] FCCA 289
•21 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEA15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 289 |
| Catchwords: MIGRATION – Protection (Class XA) visa – whether the Tribunal failed to consider relevant considerations – the adverse findings were open on the material before the Tribunal – the Tribunal in the course of the hearing raised concerns and credibility issues in respect of the letter – the applicant had a real and meaningful hearing – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 425, 476, 499 |
| Applicant: | BEA15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1747 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 21 February 2017 |
| Date of Last Submission: | 21 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw |
| Solicitors for the Applicant: | Craddock Murray Neumann |
| Solicitors for the Respondents: | Mr J Pinder Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1747 of 2015
| BEA15 |
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 Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 May 2015 affirming a 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. The applicant is a Tamil and claims to fear harm by reason of his ethnicity, by reason of an imputed or actual involvement in the LTTE, and by reason of concerns in relation to the CID and by reason of being a failed asylum seeker and an illegal departee.
The applicant and his family lived in various refugee camps in Sri Lanka between 2006 and 2010 whilst the applicant finished his education. The applicant asserted that he had never been employed. Between November 2010 and July 2012, the applicant alleged that he resided in Trincomalee. On 16 July 2012 the applicant left Sri Lanka illegally and arrived in Australia on 31 July 2012. The applicant applied for protection on 17 December 2012.
The Delegate
The delegate identified the applicant’s claims and evidence and accepted that the applicant was a displaced person who resided in several camps between 2006 and 2010. The delegate also accepted that the applicant was questioned about his uncle’s whereabouts in 2008 and that his uncle had since disappeared.
The delegate expressed credibility doubts in relation to some of the applicant’s claims. The applicant alleged there had been a bombing around February 2011. The delegate gave reasons in support of the adverse finding made by the delegate that the delegate did not accept that there was a bombing attack in 2011. The delegate did not accept that the applicant was detained, questioned and assaulted in relation to that event. The delegate did not accept the bombing occurred and did not accept that the applicant was of interest to the Sri Lankan authorities for reasons of his Tamil ethnicity and/or language and did not find that the applicant would be imputed with any LTTE association.
The delegate found the applicant’s claims in relation to his fears concerning the LTTE and being a Tamil were not well-founded. The delegate found that the applicant did not have a real chance of being persecuted for a Refugees Convention reason and that the applicant’s fears were not well-founded.
The delegate was not satisfied there was substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will be subject to significant harm.
The delegate found that the applicant did not meet the criteria under s.36(2) of the Act and that the applicant was not a person in respect of whom Australia had a protection obligation.
The Tribunal
The applicant applied for review on 7 January 2014. By letter dated 6 March 2015, the applicant was invited to attend a hearing on 7 May 2015. That letter conveyed to the applicant that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.
Prior to the hearing, on 30 April 2015, the applicant’s migration agent provided detailed submissions which relevantly included both country information and supporting documents. Part of the supporting documents referred to an attachment at Annexure 2 being a translation allegedly procured by the applicant’s family from a translator in Sri Lanka. This document was said to be a letter from the Sri Lankan authorities delivered to the applicant’s family home in recent months which requested the applicant report to the offices of the Terrorist Investigation Division to provide evidence.
The submission noted that it sought to highlight an error in the translation notes which refers to a date as 2012/02/07. The submission noted that the original untranslated copy indicated that the date was clearly 2015/02/07. Also provided was a translation of a letter from the applicant’s grandmother in relation to the applicant’s uncle’s disappearance which had a different address to that in the other document.
Issue of credibility
The applicant attended the hearing to give evidence and present submissions and the applicant’s migration agent also attended the hearing. The transcript of the hearing was in evidence. The transcript confirms that the applicant’s credibility was clearly raised as a live issue in the course of the hearing that took place on 7 May 2015. In particular, the transcript reveals that there was a credibility issue raised in relation to the applicant’s evidence about how long his siblings had been living in a particular place, as well as a credibility issue in relation to the document purportedly delivered, being a message from the police, to the applicant’s family home.
The Tribunal identified the relevant law in an attachment to the Tribunal’s reasons. The Tribunal identified the relevant issues in the present case including in particular, the credibility of the applicant.
The Tribunal referred to the applicant’s claims and the submissions adding further claims, including the message note from police that the applicant was to come to the Terrorist Investigation Division to give evidence on 24 February 2015.
The Tribunal considered the applicant’s claims in relation to his family’s involvement in the abduction of his uncle and the Tribunal did not accept that this past harm raises the applicant’s profile or means that he faces a chance of harm in the future.
The Tribunal accepted that the applicant’s home might have been the subject of the throwing of rocks in 2008 and 2011 but did not accept that that was a serious or significant harm. The Tribunal did not accept that the applicant was questioned in relation to a grenade blast in February 2011. The Tribunal did not accept that the February 2011 incident occurred or that the incidents related to the claimed threats or the uncle’s abduction.
Consideration of the 2015 Terrorist Investigation Division/police summons
The Tribunal expressly addressed the alleged police summons of 2015 in its reasons. The Tribunal noted that it discussed at length the applicant’s claims about the letter from Sri Lanka that he recently received. The Tribunal noted that the police message note was dated 7 February 2015 and required the applicant to come to the Terrorist Investigation Division to give evidence on 25 February 2015 at about 10:00am. The Tribunal did not accept that the applicant had been summoned by the Terrorist Investigation Division to give evidence or that they are looking for him. The Tribunal observed that the applicant’s evidence about how the applicant’s family got the document and informed him about it was inconsistent and lacked credibility. The Tribunal found that when the Tribunal expressed its doubts, the applicant’s explanations were inconsistent and lacked credibility.
The Tribunal made reference to the applicant’s explanation proffered that the letter was sent to their old home address and that a neighbour gave it to the applicant’s mother. The Tribunal referred to the concerns expressed by the Tribunal about inconsistent evidence that the applicant’s family had moved address as at the outset the applicant claimed that his family had been living at the same place for the last five years. The Tribunal made reference to the applicant saying that they were in one house for two years before he left Sri Lanka and he did not know when they moved to another house. Reference was made that the applicant added that they moved six or seven months ago but he the applicant did not know their address.
The Tribunal observed that it considered the applicant to have given inconsistent evidence about whether his family had moved. The Tribunal considered that the applicant was being evasive and making up answers to coincide with trying to explain the delay in receiving the police letter and his inconsistent evidence about whether the family moved address.
The Tribunal made reference to the fact that the applicant claimed his mother had called him and told him there was a letter in his name but it was in Sinhalese. The Tribunal made reference to the applicant telling them to have it read by someone who could read Sinhalese. The Tribunal expressed doubts as to how the applicant’s family knew the letter was for the applicant if they could not read Sinhalese. The applicant noted that the applicant said his name was in English on the envelope and that his sister can read English. The Tribunal referred to expressing doubt that the letter would be addressed in English and written in Sinhalese and the applicant did not know the reason why. The Tribunal did not accept that the police message note written in Sinhalese would be addressed to the applicant by his name in English on the envelope. The Tribunal observed that many Tamils do not read Sinhalese or English and found that the proposition it was addressed to the applicant in English was not credible.
The Tribunal referred to the applicant’s evidence that he said his family received the message about two months ago and that they did not tell the applicant about the letter until two or three weeks ago. The Tribunal found that the failure of the applicant’s family to tell the applicant about the letter, given that the family are in daily contact, lacked credibility. The Tribunal referred to the applicant initially claiming that he was told about the letter when the applicant called about sending his uncle’s ID card. The Tribunal expressed concern that his family would hold on to a police document for two months and would not tell the applicant about it.
The Tribunal made reference to the applicant explaining that they did not know it was from the police as it was in Sinhalese. The Tribunal noted that the document said Sri Lanka Police in English and his sister read English and the applicant said they did not open the letter but it had a name on it. The Tribunal found this was inconsistent with the applicant’s earlier evidence that his parents had told him there was a letter in his name and it was in Sinhalese. The Tribunal found that the only way the parents would have known it was in Sinhalese would have been to open it. The Tribunal made reference to the message heading of Sri Lanka Police being written in Sinhalese and English and that on the evidence, the applicant’s sister read English.
The Tribunal did not accept the migration agent’s submission that the applicant said they knew the message was about the applicant because it had his ID number. The Tribunal considered that the applicant’s evidence that his family knew the letter was for him as his name was written on the envelope, was contrary to the applicant’s claim that they did not open the letter and noted that his ID number was in the message. The Tribunal having considered the applicant’s evidence and explanations about the summons and document that found the applicant was not telling the truth and was making up the story as he went along.
The Tribunal expressed doubt that the applicant’s family would hold on to a letter in his name for about two months and would not discuss or tell the applicant about it. The Tribunal noted the applicant said that the letter had been kept in the cupboard. The Tribunal did not accept the applicant’s explanations and found that they lacked credibility and that he was making up responses to the Tribunal’s concerns as he went along. The Tribunal did not accept that the family would receive correspondence with his name on it and put it in the cupboard or not mention it for two months. The Tribunal also expressed concerns about the document. The Tribunal noted that the document would be addressed to the applicant on the envelope but the message said, “You [are to] inform one”, and then it had the person’s name was inconsistent with that assertion.
The Tribunal also expressed concern that the proposition the document required him to give evidence at “about 10am” lacks credibility. The Tribunal did not accept that an official summons document would be imprecise and informal. The Tribunal observed, having heard the applicant’s evidence about the document and given the prevalence of fraud in documents and problems with it, the Tribunal considered the document was not genuine and placed no weight on the document.
The Tribunal did not accept that the police or Terrorist Organisation Division were looking for the applicant or summoned him. The Tribunal found the proposition that the police or Terrorist Organisation Division would summon the applicant in 2015 when he had left Sri Lanka in 2012 lacked credibility. The Tribunal observed in that regard that the applicant on his evidence had no dealings with the authorities since February 2011.
Further, on the applicant’s evidence nothing happened after the message was delivered or since the failure to respond to the message and the Tribunal noted that the applicant claimed his family did not respond to the message. The Tribunal observed that if it were a real summons or enquiry from the Terrorist Organisation Division, the Tribunal does not accept that the Terrorist Organisation Division would not have followed up the summons. The Tribunal observed the seriousness of suspicions of terrorisms and the fact that it was not followed up reinforced the Tribunal’s view that the applicant was not summoned or wanted by the Terrorist Organisation Division or anyone.
The Tribunal did not accept the applicant was questioned about a bomb blast in February 2011, or that the applicant’s mother received threatening phone calls, or that the applicant was threatened. The Tribunal did not accept that the Terrorist Organisation Division, or police, or Karuna, or anyone is looking for the applicant or wants to abduct him, or that anyone has any adverse interest in the applicant. The Tribunal did not accept that he is perceived LTTE supporter as the applicant was never detained or sent to a rehabilitation camp and he also confirmed neither he, nor his uncle or cousins or family were involved in the LTTE, nor was he interested in reviving the conflict or LTTE.
Assessment of Refugee Convention criterion
The Tribunal made reference to the comments of the PAM3 Refugee and Humanitarian – Refugee Law Guidelines as required by Ministerial Direction No.56, under s.499 of the Act.
The Tribunal made reference to raising the country information with the applicant. The applicant observed that he could not guarantee or prove he would not be harmed upon return. The Tribunal expressly referred to having considered the applicant’s claims and representative’s submissions and country information. In that regard, the Tribunal then referred to having also considered the DFAT reports, UNHCR guidelines and UK upper tribunal decision country information. The Tribunal referred to the submission that the DFAT reports should be treated with caution. The Tribunal was satisfied the DFAT reports are compiled with the greatest degree of scrutiny of information, independence and verification, with adequate research and a great degree of accuracy. The Tribunal noted that the DFAT report refers to and acknowledges discrimination in practice and the UNHCR risks profiles and other independent information and sources. The Tribunal was mindful that the February 2015 DFAT report is considerably more recent and more detailed than many of the reports on which the applicant relies and gave the DFAT report more weight.
The Tribunal did not accept that threats were made to the applicant, or his mother, or that the Terrorist Organisation Division, or the police, or Karuna were looking for the applicant or want to abduct him, harm him or extort money or that he is of interest to anyone.
The Tribunal made reference to the country information in relation to LTTE association and risk of harm. The Tribunal made reference to considering the applicant’s circumstances and profile. The Tribunal did not accept that the applicant may be suspected LTTE or criminal or fall within any of the UNHCR risk profiles. The Tribunal did not accept the applicant has any anti-government or pro-LTTE or human rights activist profile. The Tribunal did not accept the applicant is at risk of abduction or extortion by the Karuna or anyone else.
The Tribunal found that Tamils do not face a real chance of suffering serious harm solely on account of their ethnicity from the Sri Lankan authorities. The Tribunal did not accept the applicant faced a real risk of suffering mistreatment or discrimination that would cause the applicant serious harm for the purpose of s.91R(1)(b) of the ACT having regard to the guidance provided by the examples as set out in s.91R(2) upon return to Sri Lanka. The Tribunal observed that it had considered the harm the applicant faces and was not satisfied that the applicant faces a real chance of suffering discrimination and mistreatment that would amount to serious harm.
The Tribunal did not accept the applicant faces a real chance of persecution because of being a Tamil, because of his Tamil race or ethnicity or membership of a particular social group as a Tamil male or a young single male Tamil from a particular area or from the East.
The Tribunal considered the applicant’s claims in relation to being a failed asylum seeker. The Tribunal was not satisfied that the applicant had a real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker from a Western country or Australia due to his extended presence in Australia or being an illegal departee or for any imputed political opinion.
The Tribunal did not accept that the applicant faced a real chance of serious harm for religious reasons.
The Tribunal addressed the applicant’s illegal departure and the process to which the applicant would be subjected as a result of the Immigrants and Emigrants Act and the conditions in the Sri Lankan prisons. The Tribunal was not satisfied that any problems the applicant would face as a result of being charged, questioned, held on remand in cramped or uncomfortable and unsanitary conditions are aimed at the applicant for any Convention reason.
The Tribunal was not satisfied that the questioning, arrest, poor conditions in remand, or any subsequent monitoring or questioning and the application of the penalty for illegal departure amounted to systemic and discriminatory conduct as required by s.91R(1)(c) of the Act. The Tribunal found that the applicant does not have a well-founded fear of persecution due to his illegal departure from Sri Lanka.
The Tribunal found that the applicant being questioned, bailed and fined and any subsequent monitoring or reporting would not amount to any harm so serious as to be serious harm. The Tribunal found the applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for any Convention reason now or in the foreseeable future if he returns to Sri Lanka.
Assessment of complementary protection criterion
The Tribunal was not satisfied there are substantial grounds for believing, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant would suffer harm which would amount to significant harm.
The Tribunal found that the applicant did not meet the criteria under s.36(2) of the Act and affirmed the decision under review.
Before this Court
The grounds of the application are as follows:-
1. The second respondent (“the Tribunal”) failed to comply with its obligation under the Migration Act 1958 to review the decision of first respondent by making erroneous findings or omissions based on a misstatement or miscomprehension of the evidence and/or failing to consider the evidence. The Tribunal expressly relied on those errors to place no weight on a letter that showed the Sri Lankan authorities had summoned the applicant or that they were looking for him, and to make an adverse credibility finding against the applicant (at 0[261).
Particulars
a. The Tribunal's conclusion (at D[27]) that the applicant gave inconsistent evidence about whether his family had moved addresses does not reflect the evidence as the applicant's evidence was consistent.
b. The Tribunal stated (at D[28]) that it had expressed doubt to the applicant that the letter would be addressed to him in English and written in Sinhalese and the applicant is alleged to have said that he did not know the reasons why, but that does not reflect the evidence. In fact, there was never such a question put to the applicant and thus no such response was ever given by the applicant.
c. The Tribunal erroneously stated (at 0[29]) that the "only" way that his family would have known that the letter was in Sinhalese would have been to open it, but the Tribunal failed to consider that the front of the envelope may have been in Sinhalese, except for the applicant's name, which is consistent with the applicant's evidence. Further, that conclusion was never put to the applicant.
2. The Tribunal failed to comply with s.424A and/or s.424AA of the Migration Act (1958) and/or a denial of procedural fairness in the way the Tribunal dealt with the letter; and further or in the alternative, the applicant did not have a meaningful opportunity to participate in the hearing as required by s.425 of the Migration Act (1958) Cth.
Particulars
a. The Tribunal's conclusion (at D[27]) that the applicant gave inconsistent evidence about whether his family had moved addresses does not reflect the evidence as the applicant's evidence was consistent.
b. The Tribunal stated (at D[28]) that it had expressed doubt to the applicant that the letter would be addressed to him in English and written in Sinhalese and the applicant is alleged to have said that he did not know the reasons why, but that does not reflect the evidence. In fact, there was never such a question put to the applicant and thus no such response was ever given by the applicant.
c. The Tribunal erroneously stated (at D[29]) that the "only" way that his family would have known that the letter was in Sinhalese would have been to open it, but the Tribunal failed to consider that the front of the envelope may have been in Sinhalese, except for the applicant's name, which is consistent with the applicant's evidence. Further, that conclusion was never put to the applicant.
3. The Tribunal relied substantially on DFAT country information about the treatment of failed asylum seekers and returnees who had illegally departed Sri Lanka. However, the Tribunal fell into jurisdictional error by failing to consider the other sources of country information contrary to the DFAT information provided by the applicant in written submissions, and/or the Tribunal failed to provide reasons for rejecting the applicant's contrary evidence and to justify the selective use of the country information that it had before it.
Counsel for the applicant confirmed that Ground 1(d) was abandoned. Counsel for the applicant confirmed, in relation to Ground 2, that the alleged error in respect of non-compliance with s.424A and s.424AA of the Act was not pressed. Counsel confirmed that Ground 2 was confined to the alleged breach of s.425 of the Act in respect of which the applicant relied upon the particulars in Grounds 1(a) to (c).
Consideration
Ground 1(a)
In relation to Ground 1, the adverse credibility findings made by the Tribunal were open on the material for the Tribunal and cannot be said to lack an evident intelligible justification. The proposition in Ground 1(a) that there was a consistency by the applicant in his evidence is not supported by the transcript and the adverse findings by the Tribunal were open. Counsel on behalf of the applicant sought to argue that there was a nuance in the evidence given by the applicant and that the applicant had only been referring to his family being in a particular town for five years and that there was no inconsistency in his evidence as found by the Tribunal.
On a fair reading of the applicant’s evidence, there was an obvious inconsistency in respect to which it was open to the Tribunal to make adverse credibility findings in respect of the applicant’s evidence about how long his family had been at a particular address. Ground 1(a) fails to make out any jurisdictional error.
Ground 1(b)
In relation to Ground 1(b), it is apparent that the Tribunal in the course of the hearing raised concerns with the applicant about the applicant’s evidence concerning the alleged summons or letter from the police and how it came to arrive at the address of the applicant’s family, how it was addressed and whether in English or otherwise on the envelope.
The proposition by counsel on behalf of the applicant was that although the Tribunal asked the applicant about the letter being addressed in English and asked the applicant about it being in Sinhalese, there was no particular question that reflected the Tribunal’s reasons where the Tribunal observed that the applicant did not know the reasons why. The Tribunal’s reasons are not to be read with a keen eye for error. That the Tribunal was expressing doubt in relation to the applicant’s evidence and his credibility in respect of the summons is manifest from the transcript.
On a fair reading of the Tribunal’s reasons, the Tribunal gave the applicant a real and meaningful opportunity to address the Tribunal’s concerns in respect of the letter. I do not accept that the reference by the Tribunal to the applicant not knowing the reasons why was an error by the Tribunal. The Tribunal plainly challenged the applicant’s credibility in relation to the letter, its address on the envelope and the explanation surrounding its delivery to the applicant. No jurisdictional error is made out by Ground 1(b).
Ground 1(c)
In relation to Ground 1(c), the Tribunal’s concerns in relation to the envelope and the letter were proper matters for the Tribunal to explore. Ground 1(c) is in substance an invitation to this Court to engage in impermissible merits review. It was open to the Tribunal to find that the applicant’s evidence was not consistent in relation to the envelope and the letter. No jurisdictional error is made out by Ground 1(c).
Further, I accept the submissions of the first respondent in relation to Grounds 1(a) - 1(c) that even if there was some error of fact in the present case in the Tribunal’s reasons, it was not an error of the kind that gave rise to any jurisdictional error.
Ground 1(e) and (f)
In relation to Ground 1(e) it is not necessary for the Tribunal to refer to all evidence before it. The Tribunal clearly dealt with the essential integers of the applicant’s claims.
It was not necessary for the Tribunal to refer to the applicant’s evidence in relation to his contention as to such messages of the kind the subject of the relevant letter being the norm. No case was advanced that the Tribunal had a duty to inquire. There was no obvious inquiry from an easily ascertainable source as to a critical fact. The proposition that the invitation by the application to check with others meant that there was some obligation on the Tribunal to accept the applicant’s credit is without substance. Ground 1(e) and 1(f) fail to identify any jurisdictional error.
Ground 2
In relation to Ground 2, this was dependent upon an alleged error being made out under Grounds 1(a) to (c). No such error was made out. I am satisfied that the applicant had a real and meaningful hearing. I find that there is no breach of s.425 of the Act. Ground 2 fails to make out any jurisdictional error.
Ground 3
In relation to Ground 3, it was submitted that there had not been a proper engagement by the Tribunal with the applicant’s submissions concerning the country information. It is apparent that the Tribunal’s reasons identify having had regard to the applicant’s submissions in two places in its reasons. There is no proper basis to infer that the Tribunal did not take into account the applicant’s submissions and the country evidence referred to by the applicant. Indeed, the reasons of the Tribunal reveal an intellectual engagement with those submissions and that country information. Ground 3 fails to make out any jurisdictional error.
Conclusion
The application is dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 8 March 2017
0
2