BFF15 v Minister for Immigration

[2017] FCCA 2640

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFF15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2640

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal erred in its assessment of the weight to be given to a document provided by the applicant – the Tribunal gave the document no weight – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2001] HCA 1; (2001) 168 ALR 407

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

Applicant: BFF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1911 of 2015

Judgment of: Judge Nicholls

Hearing date: 10 October 2017

Date of Last Submission: 10 October 2017

Delivered at: Sydney

Delivered on: 10 October 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr Wiese of Clayton Utz

ORDERS

1. The application made on 10 July 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1911 of 2015

BFF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 July 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 16 June 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of Robert Cook, Tribunal Officer, made on 9 October 2017.

3. The following background is relevant. The applicant is a citizen of Sri Lanka (CB 2). He is of Tamil ethnicity and Hindu religion (CB 22). He arrived in Australia as an “Irregular Maritime Arrival” in July 2012 (CB 1 and CB 23), and attended an entry interview on 30 August 2012 (CB 1 to CB 8). On 27 November 2012 the applicant applied for a protection visa (CB 9 to CB 82). He was assisted in this application by a registered migration agent (CB 18). Attached to the application was a Statutory Declaration made by the applicant, in which he set out his claims to fear harm on return to Sri Lanka (CB 36 to CB 43).

4. In summary, the applicant claimed to fear harm due to discrimination as a Tamil ([5] at CB 36). He claimed that he and his family and other Tamils in his village, had been targeted by the Sri Lankan Army, whom he says were involved in the deaths and abductions of  various friends and family members ([8] at CB 37 to [21] at CB 38). He claimed that since 2011, the army have used “Grease Men” to “harass and torture” people in his village ([31] at CB 39 to [37] at CB 40). He also claimed to be targeted by the Sri Lankan police and the Criminal Investigation Department (“the CID”), after they suspected him of being involved in people smuggling ([38] at CB 40 to [53] at CB 42).

5. Of particular relevance to the application before the Court, is the applicant’s claim that the Sri Lankan Army, on behalf of the government, had threatened the applicant and his family due to his father protesting against the government’s proposal to build a Buddhist temple in a playground owned by the Hindu Temple Association.

6. The applicant claimed his father was treasurer of that association. He claimed that other members of the association have been shot and killed for protesting ([22] at CB 38 to [30] at CB 39). The applicant’s father was killed in January 2015, and at the hearing before the Tribunal, the applicant claimed that he believed the Sri Lankan police were responsible for his father’s death due to his involvement in the Hindu Temple Association and the related protests against the building of the Buddhist temple ([50] at CB 230).

7. The delegate refused the application for a protection visa on 7 September 2013 (CB 115 to CB 138). It found that the applicant’s evidence “lacked internal consistency” (CB 124.3). The applicant sought review by the Tribunal on 11 October 2013 (CB 139 to CB 145). He continued to be represented by a registered migration agent as his representative. His representative provided written submissions to the Tribunal on his behalf on 6 January 2014 (CB 149 to CB 177).

8. On 20 January 2015, the Tribunal wrote to the applicant by letter sent to his representative, authorised for that purpose, to invite the applicant to a hearing before the Tribunal, scheduled for 11 March 2015 (CB 178 to CB 180). The applicant and his representative indicated they would both be in attendance on that date (CB 181 to CB 184). About a week prior to the scheduled hearing, the applicant’s representative provided further information and evidence to the Tribunal to support the applicant’s claims (CB 185 to CB 189). This included a copy of the applicant’s father’s death certificate (CB 188).

9. The applicant did not attend the scheduled hearing on 11 March 2015. That same day, his representative contacted the Tribunal by email requesting the hearing be rescheduled, and explained that the reason the applicant did not attend was due to the distress caused to him by the recent death of his father (CB 191 to CB 192). The hearing was later rescheduled for 27 March 2015 (CB 199 to CB 201). It is apparent from the Tribunal’s decision record that the applicant and his representative attended on that day. The applicant was provided with the opportunity to provide any submissions after the hearing by 10 April 2015 ([6] at CB 222).

10. The Tribunal affirmed the delegate’s decision on 16 June 2015. In relation to the applicant’s claims relating to his father’s involvement with the Hindu Temple Association, the Tribunal noted “a number of inconsistencies” (see [49] at CB 229 to [57] at CB 231). The Tribunal specifically considered the applicant’s father’s death certificate. It accepted that the applicant’s father died in January 2015. However, it found that nothing on the death certificate indicated that his death was a result of his involvement with the Hindu Temple Association ([58] at CB 231 to CB 232).

11. Ultimately, the Tribunal found that the applicant did not face any risk of harm as a result of his father’s involvement with the Hindu Temple Association and his father’s protests against the Buddhist temple, and “reject[ed] his claims in this regard in their entirety” ([59] at CB 232).

12. At the final hearing, the applicant appeared in person before the Court with the assistance of an interpreter in the Tamil language. He stated to the Court that he could read “some English”, but that he had explained to a “friend” what he wanted to put in the ground of the application to the Court, and the “friend” then drafted it for him. That ground is in the following terms:

    “1. The Tribunal erred in making an irrelevant consideration in weighing up the evidence of the applicant’s father’s death certificate

    Particulars

    a. At #49 the applicant squarely raised that other Hindu Temple Association office bearers had been killed. The Tribunal did not question that fact.

    b. At #58 the Tribunal found that because the death certificate did not provide evidence to indicate the motivation for the applicant’s father’s death then the death certificate is irrelevant to the applicant’s claim about those motivations. The tribunal did not consider if the cause of death was relevant.

    c. Death Certificates only provide evidence of the cause of death not the motivation behind any implied actors in the death.”

13. I sought to explain to the applicant at the hearing that, generally, there is no legal error in circumstances where a Tribunal makes findings that were reasonably open to it on the material before it. Even if the Court were to disagree, it has no power to intervene to change findings of fact made by the Tribunal in those circumstances

14. Particular “a” to ground one is obviously focused on [49] (at CB 229 to CB 230) of the Tribunal’s decision record. The central assertion of that particular is that the Tribunal did not “question [the] fact” that “Hindu Temple Association [office] bearers had been killed”. 

15. As the Minister, correctly in my view submits, this is a mischaracterisation of what the Tribunal set out at [49] (at CB 229 to CB 230) of its decision record.  It is clear on any plain, let alone a fair reading, that what the Tribunal set out at [49] (at CB 229 to CB 230), was a recitation of the applicant’s claims in relation to his father’s involvement with the Hindu Temple Association. The Tribunal’s references to other office bearers having been killed at [49] (at CB 229 to CB 230), cannot be properly, or fairly, characterised as findings made by the Tribunal.  Rather, the references set out the applicant’s claims which the Tribunal then subsequently considered. The particular, at best, seeks impermissible merits review.

16. Particular “b” takes issue with what is said to be the Tribunal’s finding that the cause of the applicant’s father’s death was not relevant.  Again, this is not, with respect to the applicant and his “friend” who drafted the ground for him, a fair or accurate representation of what the Tribunal has done.

17. The Tribunal rejected the applicant’s claims in relation to his father, and it gave reasons and made findings reasonably open to it.  The Tribunal specifically considered the applicant’s father’s death certificate. In the circumstances, it was reasonably open to the Tribunal to find that the certificate did not indicate the motivation for the applicant’s father’s death.  That is, the motivation of any other person in relation to the applicant’s father’s death.  In that light, it was reasonably open to the Tribunal to place no weight on this document, as clearly it did not provide any support for the claim as to any motivation in relation to the death of the applicant’s father.

18. It is of note that this was the only document that the applicant provided to the Tribunal in relation to the claims relating to his father, and more specifically, as to the claimed cause of his father’s death.  While the applicant confirmed before the Court that he had given other documents to the Tribunal, the death certificate was the only document in relation to his father’s death. I note that the Tribunal reported that at the hearing, the applicant agreed that the death certificate did not set out the motivation for the death of his father ([40] at CB 228). Indeed, particular “c” to the ground makes the very point that the death certificate only provides evidence of the applicant’s father’s death, not the motivation behind any implied actors in his death.

19. Further, I agree with the Minister’s submission, that the weight to be assigned to evidence before the Tribunal is for the Tribunal to decide in the proper exercise of its jurisdiction, within its function as the relevant decision-maker (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2001] HCA 1; (2001) 168 ALR 407).

20. I cannot see that there is any legal error in the Tribunal’s findings in relation to the claims relating to the applicant’s father. Nor is there any legal error in its finding that it could place “no weight” on the applicant’s father’s death certificate. That finding was made in the context of whether the death certificate provided support for the applicant’s claims as to the motivation of those who caused his father’s death.

21. In addition to the sole ground in his application, before the Court, the applicant stated that there appeared to have been some “error” or “mistake” by his lawyers, and that he should not be disadvantaged because of that. I cannot see that this reference provides a basis to assert error on the part of the Tribunal or that the applicant was disadvantaged.  At best, the “error” appeared to have been a reference in a document dated 20 April 2015 by the applicant’s representatives, to written submissions said to have been submitted by them (CB 212 to CB 217).

22. The evidence of Mr Cook is directed to a document reproduced at CB 213, which is a letter to the Tribunal from the applicant’s registered migration agent, who represented the applicant before the Tribunal.  It is dated 20 April 2015 and, amongst other things, the letter makes reference to what are said to be post-hearing written submissions made on behalf of the applicant to the Tribunal on 10 April 2015. 

23. Mr Cook’s evidence is to the effect that he has reviewed the Tribunal’s relevant records, specifically to ascertain whether the Tribunal received any written submissions dated 10 April 2015, from the applicant’s representatives.  Mr Cook’s evidence is that he undertook a number of investigations and inquiries and that the result was that there was no document, or record of any document, relevant to the applicant dated 10 April 2015.

24. First, there is no reason not to accept Mr Cook’s evidence.  Second, having regard to [2] (at CB 213) of the representative’s letter of 20 April 2015, what was said to have been the subject of the submissions of 10 April 2015, is not relevant to the applicant’s ground for review before the Court today.  That is, it does not relate to the death of the applicant’s father. While [2] (at CB 213) of the letter of 20 April 2015 makes reference to two persons who were charged with people smuggling offences, neither of those two persons is the applicant. In any event, the Tribunal dealt with the applicant’s separate claim involving people smuggling at [66] (at CB 233) to [82] (at CB 238) of its decision record.

25. There is nothing in the Tribunal’s analysis at [66] (at CB 233) to [82] (at CB 238) of its decision record to say that the Tribunal made any finding that the two persons named in the document were, or were not, people smugglers.  The Tribunal’s relevant assessment properly focused on the applicant’s claim to fear harm because he would be suspected of being involved in people smuggling.  The Tribunal found that the applicant was not a credible witness in relation to this claim. It gave comprehensive reasons for that conclusion and made findings that were reasonably open to it.

26. As stated earlier, on the question of the matter of the claim relating to the applicant’s father’s involvement with the Hindu Temple Association, the Tribunal found that the applicant was not credible in his evidence as to those claims. The Tribunal gave reasons for this conclusion. The Tribunal’s conclusion and the findings that informed it were all reasonably open to it on what was before it.  It was on the basis of the applicant’s lack of credibility, that the Tribunal found that it did not accept that the applicant’s claims in relation to his father. That is, that he was treasurer of the Hindu Temple Association, and had participated in the events concerning the protests in relation to the building of a Buddhist temple.

27. Before the Court today, the applicant raised the question of his “poor memory”. He submitted that he could not be expected to remember details from his childhood which, apparently, he linked to the Tribunal’s findings of inconsistencies in his evidence. 

28. In that regard, I note that such a claim, or explanation for these inconsistencies and “deficiencies” in his evidence, was raised before the Tribunal. At [55] (at CB 231), the Tribunal squarely addressed that matter. Ultimately, I cannot see any legal error in the Tribunal’s findings that it could not be satisfied that the applicant’s evidence was affected by memory difficulties, and was a reason for the inconsistencies or confusing evidence, and the Tribunal’s subsequent finding as to the applicant’s lack of credibility.

29. In short, there is no evidence before the Court to support the proposition that the applicant was prevented from giving his evidence to the Tribunal, including by reason of any relevant medical difficulty. I note, specifically, that the Tribunal asked the applicant to provide evidence to support this claim from a counsellor or a doctor, and that no such evidence was provided.  The sole ground of the application to the Court is not made out.

30. For the sake of completeness, I agree with the Minister’s written submissions at [13] – [14] in that the Tribunal’s consideration of the applicant’s complementary protection claims was consistent with the majority of the High Court in   SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34.

31. For today’s purposes also, I looked at the remainder of the Tribunal decision record, but I cannot otherwise see any other jurisdictional error on the part of the Tribunal.  As I explained to the applicant, absent any such legal error, the application to the Court must be dismissed.

Conclusion

1. The grounds in the application do not reveal any jurisdictional error. It is appropriate to dismiss the application to the Court. I will make the appropriate order.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  6 November 2017