BIJ16 v Minister for Immigration

[2017] FCCA 3382

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3382

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

Legislation:

Migration Act 1958 (Cth)

Applicant: BIJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1153 of 2016

Judgment of: Judge Riethmuller

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Melbourne

Delivered on: 9 October 2017

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application filed 2 June 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1153 of 2016

BIJ16

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 6 May 2016 affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The applicant in this case is a Sri Lankan citizen who came to Australia as an unauthorised maritime arrival in July 2012.  The applicant claimed to fear persecution from local Sinhalese and police due to his religion as a Muslim, his ethnicity as a Tamil and because he had been a resident in a Sri Lankan refugee camp.  The applicant claimed that he ran a hotel or restaurant at which Sinhalese people and the police would come and eat without paying their bill.  Some of these people were said to be gang members who would assault the waiters, and that the police had sought bribes from him and threatened to kill him.

3. The Tribunal found against the applicant on the basis that they did not accept the credibility of his evidence.  The matters raised are well summarised in the Outline of Submissions of the Minister at [13] which provides:

   13.  The Tribunal rejected the Applicant’s claims, and affirmed the decision of the delegate on 6 May 2016 [FN: AAT decision record, CB 394-415].  The Tribunal made the following findings and observations in rejecting the review application:

   (a) Ownership / operation of the hotel: the Tribunal did not accept that the Applicant owned or ran a hotel or restaurant: at [72]. In rejecting this claim, the Tribunal highlighted that the Applicant had produced two leases with different dates, only one of which contained his name. The document which contained the Applicant's name was provided under cover of a letter which post-dated the Visa application: at [70]. The Applicant also provided incoherent evidence regarding his brother-in-law's role in the hotel: at [71].

   The Tribunal did accept however that the Applicant worked at the hotel as a cashier, and that the hotel was leased by his brother-in-law: at [72];

   (b) Claim of harassment from underworld gangs and police: the Tribunal did not accept that the Applicant was targeted or at risk of harm by underworld gangs or the police during the time he worked at the hotel for the following reasons:

   (i) the Applicant 's evidence regarding the incidents with the underworld gang was inconsistent in relation to the dates and number of incidents which he claimed occurred: at [73];

   (ii) the Applicant's evidence regarding the gang's activities, being that they were into 'high level things' and 'probably murder', and were somehow connected to politics, was vague and lacking in detail: at [74];

   (iii) the Applicant mentioned for the first time during his Tribunal interview that his brother-in-law sought the assistance of a member of parliament in relation to the problems at the hotel. The Tribunal found that the late invention of this claim raised concerns about the Applicant's credibility: at [75]-[76].  Furthermore, the Tribunal found that the letter dated 10 February 2016 provided by the Applicant in support of this claim did not correlate with the claims he made before the Tribunal: at [77];

   (iv) in contradiction to his statutory declaration, the Applicant informed the Tribunal during the hearing that the police did not threaten to kill him and that he did not fear the police. The Tribunal found that this inconsistency affected the Applicant's credibility: at [81];

   (v) unlike the statement in his statutory declaration, and the substance of the submissions filed on his behalf, the Applicant did not claim during the hearing that the Sinhalese gangs or police targeted him for reasons of his religion or race. Rather, the Applicant informed the Tribunal that he feared the gang because he had complained to the police and to an MP about them. The Tribunal observed that this evidenced the Tribunal's claims changing over time, and that this affected his credibility: at [82], [84]; and

   (vi) the Tribunal found that the letter provided by the Applicant dated 8 February 2016, from a former member of Parliament, in support of his claims regarding the gangs and the police was inconsistent with the Applicant's claims before the Tribunal, and therefor e gave this letter little weight: at l83].

   On account of these matters, the Tribunal had concerns with the Applicant's credibility and, therefore did not accept that:

   (vii) any problems the Applicant experienced at the hotel were  caused  by  the Applicant's race or religion: at [85];

   (viii) the Applicant's brother-in-law sought assistance from members of parliament, or that the police spoke to the gang: at [86);

   (ix) members of the gang came searching for the Applicant at the hotel in July 2011, and that this caused him to go into hiding: at [88];

   (x) the police threatened to beat, hit or kill the Applicant: at [89]; and

   (xi) the Applicant faced a real chance of serious or significant harm from either Sinhalese gangs or the police: at [90]-[91];

   The Tribunal did accept however that the Applicant experienced occasional problems from Sinhalese customers who refused to pay their bills. The Tribunal also accepted that the Applicant may have been physically assaulted in a minor way: at [85];

   (c) Particular social group, 'successful business owner': because the Tribunal did not accept that the Applicant owned or operated the hotel, it did not accept that the Applicant faced a real chance of serious or significant harm for his membership of this particular social group. Because the Applicant did not own or operate the hotel, the Tribunal also rejected the suggestion that he was a 'Muslim businessman': at [92];

   (d) Imputed political opinion: Although the Applicant did not squarely raise any claim to fear harm in relation to an association with the LITE, the Tribunal found, in reliance on independent country information, that the Applicant would not be perceived as an LTTE supporter on account of his race as a Tamil: at [93]-[97]. In particular, the Tribunal found that the Applicant would be more likely to be perceived as a Muslim, which is a distinct ethnic identity in Sri Lanka. This was supported by independent country information and the Applicant's birth certificate which referred to him as a Sri Lankan Moor (and not a Tamil): at [93], [95];

   (e) Fear of harm as a Tamil Muslim, or a Tamil speaking Muslim: relying upon independent country information, the Tribunal found that Muslims in Sri Lanka enjoy considerable freedom, including in relation to the practice of their religion: at [98]. The Tribunal also observed that the Applicant was unable to describe any problems he faced due to his faith beyond a vague claim to have been beaten up by police in 1990-1992 at a cricket match. While the Tribunal accepted this claim, it found that the Applicant did not face the prospect of serious harm on the weight of current country information: at [100];

   (f) Displaced person: The Tribunal did not accept that the Applicant faced a real chance of harm on account of being a displaced person who formerly resided in a refugee camp. The Tribunal found that the Applicant's evidence in this regard was vague and lacking in detail. While the Tribunal accepted that the Applicant may face discrimination in the location of the refugee camp, the Applicant's evidence that he had obtained gainful employment lent support to the Tribunal's finding that he would not face serious or significant harm: at l101]-[105];

   (g) Failed asylum seeker/returnee from the West: the Tribunal put to the Applicant independent country information which suggested the Applicant would not be at risk of serious or significant harm upon his return to Sri Lanka, though he may be questioned and there might be security checks. In this regard, the Tribunal considered it to be far-fetched that the Applicant would be perceived as a dissident or spy for having departed the country illegally: [110). Further, because the Applicant would not be perceived as having links to the LTTE, and does not have a political profile of any kind, the Tribunal found that the Applicant would not be subject to serious or significant harm: [106]-[112]; and

   (h) Complementary protection: relying on independent country information, the Tribunal accepted that the Applicant would be held on remand for a short period of time upon his return to Sri Lanka due to leaving the country illegally, but would be bailed a short time later: at [113]-[117] . In the event the Applicant were to be convicted of a relevant offence, the Tribunal found (again in reliance on country information) that the Applicant would be required to pay a fine only and that this would not constitute significant harm: at [119]. In any event, the Tribunal found that the Applicant would not be at risk of significant harm in relation to any short period of time he may spend in prison: at [122].

4. The grounds of the application are as follows:

   1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.

   2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

5. The applicant did not identify any specific error of law. The applicant did not file any outline of case. At the oral hearing before me, the applicant identified two arguments. The first was that the Tribunal failed to have regard to letters from members of parliament which appear at court book pp.357 to 359. These letters were specifically considered in some detail by the Tribunal at [40] and [83]. The Tribunal said:

   40.  He was asked again if he heard anything about the group inquiring about him after he went to Vavuniya.  He did not try to inquire about them, at that time he was only worried about his life and safety.  The tribunal asked if he had heard anything about the group searching for him in the last several years since 2011.  He advised that his brother in law had approached an MP ([R]) and told him that the applicant had not even gotten his deposit money back.  The applicant had told the police that if they did not take any action, he would reach senior people there.  He was asked what time period he was referring to; he stated that it was June 2011.  He did not mention this MP’s name before because that person is a ‘big shot’ and he thought that he would get more problems.  Only after that did the applicant have more pressure and ‘they’ searched for him.  After he came here, they also searched for him.

   …

   83.  The tribunal has considered the letter from ex-MP [M] provide by the applicant at hearing.  As with the letter from MP [R], the tribunal holds concerns about the date of the letter (8 February 2016, some five years after the alleged events) and the timing of its provision at the end of the hearing.  The tribunal further notes that the letter contains several discrepancies such as referring to the applicant running the restaurant with his ‘cousin brother’ as opposed to brother in law and stating that the started running the restaurant in June 2011 rather than October 2010.  The letter refers to a gang of Sinhalese trying to assault the applicant ‘severely’, which is inconsistent with the applicant’s claims.  Nor is there any mention in the letter of the gang searching for or inquiring after the applicant.  The letter further repeats assertions that the police threatened to demolish the applicant’s hotel and kill him, which the applicant has claimed did not occur.  Given these significant discrepancies, the tribunal gives the letter little weight.

6. The applicant also said that the Tribunal failed to have regard to the fact that people were searching for him.  The Tribunal did identify this issue at [42] and [43] and formed adverse conclusions against him at [88].  Those paragraphs provide:

   42.  After he came to Australia, his wife told him that 10-15 men were inquiring about him at the main bazar in Puttalam.  Someone from that particular bazar has called his wife and told her that people asked where is the boy who had a shop in Mabole.  The men were told that the applicant had gone overseas and so they have not come back.  This was around August 2012.

   43.  He was asked why he thinks these men are looking for him. He claimed that it is because he had a dispute with them and went to the police because of that and because he approached a high profile person to pressure the police. After he went to the police, they had come to the shop asking for him. He does not know why they came there, probably to beat or kill him. He confirmed that they held his shirt collar and warned him but did not harm him.

   …

   88.  Due to its significant credibility concerns, the tribunal does not accept that members of the Sinhalese gang or group came searching for the applicant at the hotel in July 2011 or that this led the applicant to return to his home area and remain in hiding. The tribunal further does not accept that fear of this gang or any visits from them was the reason for the applicant's brother in law closing the hotel/restaurant in July/August 2011. The tribunal accepts that the applicant travelled and worked in Vavuniya for several months prior to coming to Australia but does not accept that he did so out of fear from the gang/group and does not accept that he was in hiding there. Given concerns set out above, the tribunal does not accept that the gang continued to make inquiries about the applicant, including in the main bazar in Puttalam after his arrival in Australia and does not accept that the applicant was told of such inquiries or visits by his 'boys', customers, a meat vender at the market or his wife.

7. It does not appear to me that it can be argued that the Tribunal failed to have regard to either of these matters in light of the Tribunal’s reasons.

8. I also note that the Tribunal did not simply reject the totality of his evidence, saying:

   89.  The tribunal is willing to accept as plausible that on some occasions police came to eat at the hotel/restaurant while drunk and refused to pay. It accepts as plausible that they may have at times 'lightly' hit or slapped the wait staff. The tribunal does not accept on the evidence before it that this was due to the applicant's status as a Tamil Muslim or refugee/displaced person. The applicant did not claim to the tribunal that he was ever physically harmed by police. Given the significant inconsistencies in the applicant's claims and his evidence to the tribunal about the police's conduct, the tribunal does not accept that the police threatened to beat, hit or kill him and destroy his hotel if he did not bribe them. Nor does the tribunal accept that the police insulted the applicant by insulting his mother with bad words, given its issues with the applicant's credibility. The tribunal does not accept that the police's threats or conduct are the reason he left his employment with the hotel.

   90.  The tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm from either the gang/group of Sinhalese or the police. While the tribunal accepts that the applicant may have experienced harassment from a group or gang of Sinhalese, it does not accept that this constituted either serious harm as required by s 91R(1)(b) of the Act and contemplated by the examples set out in s 91R(2) or significant harm as defined in s 36(2A). On the applicant's evidence, he stopped working at the hotel in July 2011, almost one year before leaving Sri Lanka, and the hotel has changed ownership. On the evidence before it, the tribunal finds the harassment from the gang/group to be an isolated event and does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from these individuals, including if he had to pass on 'their' road. The tribunal does not accept on the evidence before it that the applicant faced either serious or significant harm from the police in the past. On the evidence before it, the tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm from police who frequented the hotel where the applicant worked.

9. The Tribunal gave the applicant an opportunity to be heard in that he had an oral hearing and the Tribunal received pre-hearing and post-hearing submissions: see [23] and following of the decision. 

10. In these circumstances, I am not persuaded that the applicant has made out a ground for judicial review. 

11. I therefore dismiss the application.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  7 March 2018