BHI16 v Minister for Immigration

[2017] FCCA 3380

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3380

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: BHI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1117 of 2016

Judgment of: Judge Riethmuller

Hearing date: 11 December 2017

Date of Last Submission: 11 December 2017

Delivered at: Melbourne

Delivered on: 11 December 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1117 of 2016

BHI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 5 May 2016.

2. On 17 October 2013, the applicant came to Australia to participate in the Australian Masters Games.  The applicant said that she was told that some relatives of high-ranking police officers and politicians were also nominated, and she was threatened to withdraw from her position in the Games so as to allow some of these other people to come.  The applicant said she received threats, including death-threats, and warnings not to return to Sri Lanka.  The applicant said that after coming to Australia, her mother told her that people had come looking for her in Sri Lanka and that her parents were threatened and harmed. 

3. In February 2015, the applicant’s application was refused because the delegate did not believe her. The applicant sought a review of the delegate’s decision before the Tribunal. In April 2016, the applicant appeared before the Tribunal to give evidence. On that occasion, the applicant also claimed to fear harm on the basis that she was a single woman.

4. The Tribunal concluded that the applicant’s evidence was implausible, inconsistent and farfetched.  For example, when the applicant was asked the names of the persons who were making the threats, she was unable to give any names: see [49] and [56] of the decision. 

5. The Tribunal also had regard to the applicant’s claims that she would be at real risk of serious harm because she was a single woman in Sri Lanka, and rejected that claim. 

6. The Tribunal concluded that the opportunity to participate in the Masters Games was not so significant or valuable to lead to people behaving so badly against her.  The Tribunal said: 

   50.  The Tribunal asked to the reasons positions in the Masters Games in Australia were so valuable; the applicant said because they were promised to political supporters of corrupt officials and politicians and that the supporters were angry about being left behind in Sri Lanka despite those undertakings.  The Tribunal asked the applicant if the money used for bribes would have been better spend on visas and airline tickets directly; the applicant responded that they were not very educated.  The Tribunal reminded the applicant she had said earlier that they were relatives of powerful people and mentioned that the Tribunal has had experience of low income Sri Lankan nations gaining passports, visas, airlines fares to depart from Sri Lanka.  The Tribunal also asked why would anyone continue to threaten or harm the applicant in the future given the value of the visa and airline ticket has no current value and that the matter appears to be quite trivial; the applicant, after a long hesitation and much prevarication, did provide a response directly and added that she has a fear as an unmarried woman.

7. The substance of the Tribunal’s findings is set out at [63] to [67], where the Tribunal said:

   63.  At the hearing, the Tribunal found the applicant had provided many inconsistent and unreliable answers to its questions.

   64.  The Tribunal accepts the following limited number of credible facts regarding the applicant and her claims:

   ·   The applicant was born in Colombo and that most of her family, including her parents, continue to reside in Colombo;

   ·   The applicant is a Buddhist; has never married; that she was reads, writes and speaks Sinhala and English; and that her ethnicity is Sinhalese;

   ·   The applicant completed her A-Levels in Sri Lanka; commenced a bachelor degree but decided to attend the police academy and subsequently became a police woman in the Sri Lanka police force and worked in the Presidential Security Service Unit.

   ·   The applicant successfully applied for the Master Games in Australia In 2013 for shot put and discus throwing.

   65.  Overall the Tribunal found the applicant’s claims to be vague, inconsistent and implausible and that her oral testimony was featured by a lack of detail and prevaricating responses to the Tribunal’s enquiries.

   66. 66. The Tribunal has considered the credibility of her claims that she was threatened with harm after her arrival in Australia because she had not stepped aside to allow unqualified applicants to attend the Masters Games. The applicant provided oral evidence that the selection process was overseen by corrupt officials. When it was put to the applicant at the hearing, if that was the case the applicant would not have been selected in the first instance, the applicant claimed she was qualified and the media would cause the officials embarrassment. The Tribunal does not accept the applicant's explanations as they are implausible. Had the officials genuinely been as corrupt and had favoured cronies on behalf of corrupt and powerful people as claimed, the applicant would never have been offered the position to attend the Masters Games in 2013. Secondly, the Tribunal does not accept that there was any media interest in the events in which the applicant was competing as it was not of any national significance. Thirdly, the Tribunal does not accept that the position to attend was coveted by anyone in authority or close to it as the matter is trivial and inconsequential. The Masters Games that was held in Geelong in the State of Victoria in 2013 is a sporting event of little national or international importance designed to encourage multi-sport participation with a general minimum age of 30 years for participants.  Furthermore international travel to Sri Lankans is not unaffordable or restricted to citizens of that country outside of those affected by claims to have supported the Tamil Tigers. There is no suggestion by the applicant that she is connected with the Tamil Tigers, imputed or otherwise. In this regard, the applicant's claim she had been targeted for attending the Games in lieu of others, is highly implausible. The serious or significant harm arising from the applicant's claim is disproportionately trivial given the travel to Australia was of little value. Based on the applicant's implausible, inconsistent and far-fetched evidence, the Tribunal does not accept the applicant was threatened with harm on arrival to Australia for the reasons claimed, including taking the position corruptly set aside for someone else or that she caused humiliation towards anyone in authority. In making this finding on credibility, the applicant has invited the Tribunal to consider other credibility concerns with her evidence in this review.

   67.  Of particular concern to the Tribunal was her inability to present consistent evidence between the applicant's written claims and her vague oral evidence at the scheduled hearing regarding her alleged persecutors and past threats . On the one hand, the applicant claimed in her written claims that among those seeking to harm her were 'higher rank police officers and politicians' 'top government bodies and some of the underworld figures in Sri Lanka'; at the hearing on the other hand, the applicant claimed it was figures from the underworld and retired army personnel. The applicant had to be pressed to remind her that she feared people in politics and high ranking police officials by the Tribunal reading to her the contents of her January 2015 statutory declaration. The Tribunal notes the applicant made no claim to suffer forgetfulness or any mental symptom that might affect her memory. Had the applicant a genuine fear of politicians and high ranking police officers, the applicant should have been able to recount her fears to the Tribunal in a consistent manner.  Similarly, it was also of particular concern to the Tribunal the applicant was unable to identify any political figure, senior police figure or organised crime figure by name or position or with any descriptors despite being given the opportunity to do so. The Tribunal notes the applicant was unable to nominate the Sports Minister at the time of her departure at the hearing despite raising his corrupt behaviour in her written claims.  It is also of concern to the Tribunal that the applicant changed her testimony during the hearing when she originally stated the position the applicant refused to concede to someone else prior to her departure had been for those connected to rich and powerful people and that later in the hearing the applicant claimed the positions were for less educated people in politics. When the applicant was challenged by this inconsistency at the hearing, the applicant was unable to provide a direct response. The Tribunal finds the applicant fabricated this specific claim and does not accept the applicant had been targeted by anyone in Sri Lankan parliament, a political party or the government more generally. The Tribunal notes that as a former police woman in a unit dedicated to the protection of the nation's president, the applicant was well placed to be able to identify or nominate senior police officials who had allegedly threatened her but was unable to do so, despite working in the same organisation. Based on the applicant's vague and inconsistent testimony, the Tribunal does not accept the applicant was ever targeted or threatened by anyone in the police force in Sri Lanka for any reason.  The specific claim the applicant was targeted by figures in the underworld or organised crime (or centralised criminal syndicates) was undermined by her testimony at the hearing when the applicant said she had specifically feared petty or violent criminals who operated randomly and opportunistically. In this regard the Tribunal does not accept she was specifically targeted by any one in organised crime or any specific underworld figure in Sri Lanka as claimed in her written claims. While the Tribunal acknowledges she was able to mention by name the chair of a sporting selection committee and an army major in a consistent way, the Tribunal places little weight on this evidence as the applicant's evidence was overwhelmingly vague, inconsistent and lacking in conciseness as outlined above. Based on the applicant's lack of consistency outlined above and in the context of the Tribunal's considerable credibility concerns, the Tribunal does not accept the applicant was targeted or threatened by anyone in authority in Sri Lanka in the past, including officials in the sporting committees, the police force, the army, organised crime or in parliament, political parties or in government in general.

8. In the proceedings before this Court, the Tribunal decision is said to be affected by error on the following basis:

   The Tribunal did not consider properly the risk chance of serious harm or real risk of significant harm as a single woman, especially in the light of her past occupation and the ramifications that will have in seeking the protection of the authorities and also in light of the threats and harassment suffered by her parents in the interim.

9. The Tribunal considered and rejected her claims that she was at real risk of harm on account of being a single woman: see [72] to [78] of the decision.  The Tribunal also considered her claims about being at risk as a policewoman, and rejected those claims at [64] and [67].  The Tribunal rejected her claims of fear of harm to her family at [68], where the Tribunal said:

   68.  In the context of the applicant's overall lack of credibility and detail provided to the Tribunal, the applicant has invited the Tribunal to consider whether the past harm to her family members and threats to the applicant occurred at all. The applicant claims that her parents have been harmed in 2013 soon after she departed; that her sister made a formal complaint to the police in 2014 about threats from an army major; and that her parents' neighbours have been asked about the applicant's whereabouts. At the hearing, the Tribunal noted that the authorities would not have required to intimidate or monitored the applicant's family members because the applicant's whereabouts would have already been known through its centralised computerised system for international departures and arrivals. The Tribunal has already made a number of findings it does not accept the applicant was targeted by any one authority or organised crime for the reasons stated. Based on the applicant's overall lack of credibility, the Tribunal does not accept the applicant's family were ever harassed, monitored or harmed in the past as claimed by the applicant.

10. The Tribunal did not reject the applicant’s claims of fear on the basis of being a single woman by simplistic reasoning. The Tribunal considered her particular circumstances and the circumstances of single women who may be at risk in Sri Lanka, for example, widows, women who are heads of households or women who live in particular regions. The Tribunal concluded:

    78.  The applicant makes no claim to be a widow, a war widow or a woman who is the head of a household. There is no suggestion the applicant will reside in either the Northern or Eastern Provinces as a single woman. The applicant however claims she will be vulnerable as a single woman in Sri Lanka and she has a fear of crime rates in Sri Lanka in these circumstances. As discussed at the hearing, the applicant has the support of her family and male members of her family as well as her sisters who are readily available to accompany her in public places, if required. It was further noted the applicant had spent considerable time in Sri Lanka as a single woman and has not been harmed and that she had been trained to defend herself as a policewoman. The applicant expressed concern that she would not return to Sri Lanka in the police force and would be considerably vulnerable. The Tribunal does not accept the applicant faces a real chance or a real risk to serious crimes in Sri Lanka as a single woman. The applicant has the ongoing support of her family and has spent considerable time as a professional single woman in Sri Lanka, traveling to and from her workplace, without being harmed. Based on country information, the Tribunal is also not satisfied the crime rate is substantially rising as claimed. It is also not satisfied that at its current rate the risk to the applicant would amount to a real chance or real risk of harm to her or any similar Sri Lankan citizens, including single Sinhalese women. Based on the applicant's individual circumstances and the available country information, the Tribunal finds that the applicant will not face a real chance of serious harm or a real risk of significant harm of any kind, if she were to return to Sri Lanka arising as a single woman or because of criminal activity or because of a combination of these factors, now and into the foreseeable future.

    79.  Individually and cumulatively, the Tribunal has considered the claims made in her visa application for protection and at the scheduled hearing to be lacking any substantive or reliable written, documentary or oral evidence to support her critical claims. Based on its extensive credibility concerns, the Tribunal does not accept the applicant faces a real chance of serious harm or a real risk of significant harm, now or into the foreseeable future.

11. The submissions of the applicant are effectively a request that I make a different decision to that made by the Tribunal.  The applicant was unable to point to any error of law.  It appears that the applicant was given a reasonable opportunity to be heard and put evidence before the Tribunal.  The applicant has not pointed to any claim or significant piece of evidence that was not considered by the Tribunal.  It could not be said that any of the Tribunal’s findings were illogical or unreasonable based upon the evidence before the Tribunal. 

12. In the circumstances, I am not persuaded that the applicant’s case can succeed. Therefore, I dismiss her application. 

    [Further argument ensued]

13. Costs ordinarily follow the event in cases of this type.  Poverty is not a reason not to make a costs order.  The amount sought by the Minister is in my view reasonable. It is less than the scale fee.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  7 March 2018