BFT15 v Minister for Immigration

[2015] FCCA 3338

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFT15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3338

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection visa – whether the Tribunal improperly failed to disclose information – whether the Tribunal failed to take relevant considerations into account – whether the Tribunal erred in making adverse credit findings against the applicant – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 476

Applicant: BFT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1826 of 2015

Judgment of: Judge Street

Hearing date: 14 December 2015

Date of Last Submission: 14 December 2015

Delivered at: Sydney

Delivered on: 14 December 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr M Glavac
Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1826 of 2015

BFT15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of 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.

2. The applicant is of Tamil ethnicity and a Hindu from the North Western Province and was living in a particular area almost all his life in Sri Lanka before he left.  The applicant travelled to India for one week for a sporting competition and left Sri Lanka illegally in July 2012 and arrived in Australian on 13 August 2012 and applied for protection on 3 May 2013. 

3. By letter dated 16 March 2015, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments.  Following the sending of that letter, the applicant’s representative sent pre-hearing submissions to the Tribunal dated 27 April 2015, which were identified in para.61 of an appendix to the Tribunal’s decision. 

4. The applicant attended the hearing to give evidence and present arguments and was assisted by his registered migration agent, who attended the hearing by teleconference. 

5. The applicant claimed to fear harm by reason of his Tamil ethnicity, the disappearance of his father and his father’s involvement in the LTTE, the involvement of a cousin or uncle in the LTTE, steps he said the CID were taking in relation to him, a TV interview given by the applicant in which he asserted criticisms were made by him of the government, as well as being an illegal departee and failed asylum seeker. 

6. Prior to leaving Sri Lanka, the applicant had completed year 12 and was studying tourism and hotel management, as well as being involved in competitive cricket. 

7. The applicant’s claims can be summarised as follows:

   10. The applicant's key claims in his statement can be summarised as follows:

   a. He has not seen his father since 2000. His father, who worked in a fish drying business went to get fish and never returned. No one knows what happened to him and they feared 'something bad occurred'.

   b. Because of his Tamil ethnicity, he has been unable to pursue his dream of a cricketing career in spite of superior cricket skills; was denied entry into the Chilaw Marians Cricket Club, beaten and abused. He also attributes to his Tamil ethnicity the withdrawal of an offer to enter teacher training in Vavuniya in 2010 and his displacement by students with lower marks who paid bribes.

   c. Around May 2012, while he was studying in Anuradhapura, police officers came to his home in Udappu and handed his mother a letter requesting that he, his cousin Kokulakanth and another friend attend the Criminal Investigations Department (CID) office in Chilaw on a date in May 2012. He then pulled out of his course and returned to Udappu.

   d. He did not attend the CID Office on the date required in the letter for fear he may be detained or face problems as he suspected that his cousin, who had been taken away for interrogation by the CID the previous month and had not been seen since, was in hiding from the CID.

   e. Around the end of May 2012, CID officers came to his home in Udappu looking for him while he was at his auntie's house. His mother told them he was not there and called him to say he should not return home that day. After this he lived at different places, including his auntie's home and his uncle's prawn farm, only returning home in the morning for half an hour.

   f. CID officers came to his home again at the beginning of June 2012. His mother told them he was not at home. While she could not understand everything the men said, she sensed that they were threatening towards her and that he was in trouble.

   g. Around the end of June 2012 some Sinhalese men, who he assumed were from the CID, came to his home while he was there eating. They took him outside the house and beat, kicked and hit him. A neighbour who spoke Sinhalese told him the men were saying that he had failed to report to them and were asking for his cousin's whereabouts. They tried to put the applicant in the van but when the neighbours gathered around, got into their van and left, threatening that they would take him to the 'fourth floor' if he did not give them information as to his cousin's whereabouts.

   h. After this incident the applicant became concerned for his safety and arranged to leave Sri Lanka on a boat around 26 July 2012.

   i. After arriving in Australia he found out from his cousin [K], who was then in Sydney, that the CID initially interrogated him about his travels overseas and accused him of going to India in an attempt to escape from them.

   j. His mother has received two or three further visits from men asking for his whereabouts while he has been in Australia, the last time being in August 2012, and the neighbours have told her that they have seen strangers around their home.

   k. He fears that if he returns to Sri Lanka he will face serious harm, including detention, interrogation, torture or possibly death from the Sri Lankan authorities, including the CID.

   l. He believes the CID are interested in him because of his close relationship with his

   cousin, and his situation has become worse because he failed to attend the CID office. He believes the CID will harm him because he is a Tamil and has no one to speak on his behalf or to protect him.

   m. He also fears that, because he is a Tamil, he will continue to face severe discrimination from members of the Sinhalese community around his area, and has been denied the opportunity to pursue a career as a cricketer, despite being a talented player, recognised on the TV news and through awards.

   n. He fears harm from the Sri Lankan government and does not believe they will protect him from such harm, as agents of the Sri Lankan government, like the CID, are able to act without restrictions on their power, while Tamils, like the applicant, are particularly vulnerable and lack protection.

8. The Tribunal also noted from the applicant’s pre-hearing submission the following claims:

   11. …

   a. On 15 September 2013 the applicant's brother and mother were taken blindfolded by the CID; held for two days and questioned as to his whereabouts, then released after paying 200,000 Sri Lankan Rupees.

   b. His cousin [K] returned to Sri Lanka about a year ago and was missing.

   c. The CID visited his mother's home on 14 April 2015 looking for the applicant. His maternal uncle was at home and asked the CID why they were searching for him. When he told the CID the applicant was not there, they beat him severely.

   d. One possible reason that the CID have been pursuing him is that his father's cousin carried weapons and fought with the Liberation Tigers of Tamil Eelam (LTTE). He had not mentioned this previously, as he thought he was being pursued because of his close relationship with his cousin. However, he now believes it is a combination of his connections with both his cousin and his father's cousin.

   e. The applicant fears that, if forced to return to Sri Lanka, he will be arrested, questioned and seriously harmed by the security services on his return to his hometown and/or on arrival at the airport because:

   • he is a Tamil and the authorities have already targeted him and his family for their imputed links to the LTTE; and

   • he will be imputed of adverse political opinion to the current regime in Sri Lanka and suspected of being an LTTE sympathiser as a result of seeking asylum in Australia.

9. On 6 August 2015, a Registrar of the Court fixed the matter for hearing and made directions providing an opportunity to file an amended application, affidavit and submissions.  No such documents were filed. 

10. The grounds of the application are as follows:

    GROUND ONE:

    The Tribunal failed to disclose information it had in its possession under s424 (AA).

    Particulars

    The Tribunal noted in paragraph 61 that it has the applicant's entry interview record dated 14 January 2014. This particular document was not provided either during the DIBP interview or during the RRT hearing.

    GROUND TWO:

    The Tribunal failed to consider relevant consideration.

    i. The applicant mentioned that he was forced to withdraw of an offer to enter teacher training in Vavuniya in 2010 due to his Tamil ethnicity. The Tribunal failed to assess and ask relevant question as to whether it would amount to significant economic hardship to subsist amounting to persecution.

    ii. The Tribunal failed to consider whether the applicant is a whistle-blower exposing the discriminative practices prevailing against Tamils in Sri Lanka Cricket. The applicant during the hearing advised that he gave an interview in a national wide TV channel of Shakthi and MTV channel appealing for Tamils to be given opportunities in cricket. The applicant's evidence implicitly confirm that he raised the issue of whistle blowing (IE- exposing the severe discrimination prevailing in Cricket, a popular sport in Sri Lanka)

    GROUND THREE:

    The Tribunal failed to assess applicant claim under the Complementary Protection criteria.

    Particulars

    The applicant in his evidence noted that he exposed severe discrimination faced by Tamils in Sri Lanka Cricket. The Tribunal failed to assess the applicant's claim that by exposing severe discrimination suffered by Tamils by the powerful Sinhala personalities holding the position in the Sri Lanka Cricket Board including Sinhalese Businessmen and politicians, whether the applicant would suffer a real risk of significant harm including degrading, inhuman and cruel treatment from these personalities. Though, those holding the powerful position within the Sri Lanka Cricket Board were appointed by the government, nonetheless, by exposing their corrupt practices within the Sri Lanka Cricket Board, the applicant exposed the non-state actors' behaviour towards Tamil. Due to that, they would be perceived as not fit and proper persons holding such position which would affect their career and business. As a result of that those who hold the position in the Sri Lanka Cricket Board would perceive the applicant as their enemy and would target him. The Tribunal failed to asses this significant claim under the complementary protection ground because it well fit within the Complementary Protection ground.

11. In relation to ground 1, it is apparent that the Tribunal identified the applicant’s entry interview record to which it had had regard. The identification by the Tribunal in para.61 of material to which it had regard was not material of a kind that enlivened an obligation under s.424A of the Act.

12. The focus of the Tribunal’s criticisms in relation to the applicant’s credit were by reference to his statement of claims prepared with the assistance of an IAAAS adviser. There was no information identified in relation to the entry interview record dated 14 January 2014 on the issue of credit that enlivened any obligation under s.424A. I accept the first respondent’s submission that ground 1 fails to make out any jurisdictional error.

13. In relation to ground 2, the proposition of the applicant facing significant economic hardship to subsist was not a claim advanced by the applicant before the Tribunal.  I accept the first respondent’s submission that particular (i) in its reference to significant economic hardship and inability to subsist was not a claim that was raised by the applicant or was sufficiently apparent that it should have been the subject of consideration by the Tribunal.  Ground 2, particular (i), fails to make out any jurisdictional error.

14. In relation to ground 2, particular (ii), the assertion of the applicant raising the proposition in the TV interview that he was a whistle-blower is, again, a claim that was not raised on the material by the applicant, nor was that a claim that was apparent such that it should have been addressed by the Tribunal.  It is clear that the Tribunal took into account the applicant’s assertions in relation to the TV interview and referred to the applicant embellishing his evidence in relation to what he said in that interview.  This is a case where the Tribunal found the applicant was not a truthful and credible witness for identified reasons based on the evidence before the Tribunal.  The adverse findings of credit cannot be said to lack an evident and intelligible justification.  There is no relevant consideration identified to which the Tribunal was required to have regard and which it failed to consider.  Ground 2 fails to make out any jurisdictional error.

15. In relation to ground 3, this is, in substance, an expansion on the whistle-blower assertions in relation to corrupt practices involving Sri Lankan cricket, albeit advanced as an alleged error in relation to complementary protection.  The Tribunal addressed, first, the applicant’s claims and evidence in relation to the criteria of being a refugee and made adverse findings in relation to the applicant’s claims in that regard, and then turned to consideration of the complementary protection criteria. 

16. The issue of corrupt practices by the Sri Lankan Cricket Board and being a whistle-blower in that regard was not a claim advanced by the applicant before the Tribunal or apparent on the material such that it should have been addressed by the Tribunal.  I accept the first respondent’s submission that on the face of the Tribunal’s reasons the Tribunal has properly addressed the considerations in relation to complementary protection and the adverse finding as to the applicant not being a person to whom Australia owes a protection obligation and the adverse findings were open. Ground 3 does not make out any jurisdictional error.

17. The applicant from the bar table raised concern as to the adverse findings of credit and maintained that what he had said was true and that a document identified at para.23 of the Tribunal’s reasons and on p.138 of the court book was authentic.  It was a matter for the Tribunal to determine what weight to give documents as well as to assess the credit of the applicant.  The adverse findings of the Tribunal in this regard were open and this Court is not in a position to make fresh findings of fact in relation to credit. 

18. It is apparent that the Tribunal took into account the alleged letter relating to the CID and it is also apparent from what was said by the applicant in relation to what occurred at the hearing before the Tribunal that the Tribunal squarely raised the issue of authenticity in respect of that letter.  Nothing said by the applicant in relation to the Tribunal’s adverse findings of credit or the rejection of the letter, in terms of giving it no weight, identifies any jurisdictional error.

19. The applicant also referred to more recent country information, asserting the danger faced by Tamils in Sri Lanka and alleged recent statements by a monk that Tamils in particular areas should not exist.  The applicant made reference to recent atrocities and expressed fear for his life in returning to Sri Lanka.  The applicant made reference to his mother in respect of whom he was provided with information in April 2015 in relation to the CID and that was a claim that was considered by the Tribunal.  The applicant said he did not want his mother to lose him, having lost his father in 2000. 

20. The Tribunal took into account the applicant’s claims in relation to the CID and the information allegedly provided by his mother.  It is also apparent from para.29 of the Tribunal’s reasons that the Tribunal took into account country information and it was a matter for the Tribunal to make findings of fact in relation to the applicant’s fears, including the fear alleged in relation to his Tamil ethnicity.  The adverse findings by the Tribunal in that regard were open on the material before the Tribunal.  Nothing said by the applicant from the bar table identified any jurisdictional error. 

21. As explained to the applicant, this Court is not in a position to rehear the matter on its merits and is confined in its jurisdiction to determining whether there has been any jurisdictional error in that the Tribunal has exceeded its statutory powers or denied the applicant procedural fairness.  The Court explained to the applicant that there was no jurisdiction to make fresh findings of fact in relation to his claims or in relation to his credit.

22. I am satisfied that nothing said by the applicant identifies any jurisdictional error and that the application fails to disclose any jurisdictional error.  Accordingly, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 December 2015