BJM15 v Minister for Immigration
[2018] FCCA 894
•16 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJM15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 894 |
| Catchwords: MIGRATION – Application for review of a former Refugee Review Tribunal decision – whether the Tribunal failed to give proper, genuine and realist consideration to the applicant’s claims – Tribunal’s adverse credibility finding arose from inconsistencies in the applicant’s evidence – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 CPE15 v Minister for Immigration & Anor [2017] FCA 591 |
| Applicant: | BJM15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1954 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 July 2017 |
| Date of Last Submission: | 18 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Shelly Legal |
| Solicitors for the Respondents: | Ms N Laing of Clayton Utz |
ORDERS
The application made on 14 July 2015 and amended on 18 July 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1954 of 2015
| BJM15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 14 July 2015 and amended on 18 July 2017, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) dated 12 June 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). Also in evidence is a document also tendered by the Minister, which is a page of the Tribunal’s decision record. That page is missing from the Tribunal’s decision record as it is reproduced in the Court Book (“RE2”).
Before the Court
The parties first came before a Registrar of this Court on 13 August 2015. On this day, orders were made that the applicant file an amended application and any evidence by way of affidavit by 17 September 2015. The applicant did not file any evidence or an amended application by this date. The parties next appeared before a Registrar of the Court on 3 March 2016. On this day, orders were made listing the matter for final hearing on 18 July 2017, and giving the applicant the opportunity to file written submissions 14 days before the hearing, and the Minister 7 days before the hearing.
On 19 June 2017 a Notice of Address for Service was filed on behalf of the applicant indicating that he was now legally represented. The applicant had previously been representing himself before the Court.
No written submissions were filed by the applicant pursuant to the order made by the Court on 3 March 2016.
Given that the applicant had not filed written submissions by the required date, on 7 July 2017 the parties requested that the Court make orders, by consent, which provided for an extension of time for both parties to file written submissions. The Court did not make the proposed orders by consent as it was not satisfied there was a reasonable explanation for the failure by the applicant to file written submissions, as required by the Court’s orders made on 3 March 2016.
After an enquiry was made with the parties’ respective legal representatives on the Court’s record at the time, the Court was informed by the applicant’s representatives that on the basis of advice from counsel, they would not be seeking to amend the application to the Court.
On 14 July 2017, a document entitled “Draft Amended Application” was filed on behalf of the applicant. The document indicated that the applicant was now being represented by a different solicitor to that who previously filed a Notice of Address for Service on 19 June 2017, however no new Notice of Address for Service was filed on behalf of the applicant at that time. Written submissions were also filed on behalf of the applicant on 14 July 2017, however due to an issue with the Court’s electronic filing system, these did not reach the file until the applicant’s representative emailed the written submissions to chambers on 17 July 2017.
The final hearing of the matter occurred on 18 July 2017. On this day the applicant was represented by counsel and the Minister was represented by a solicitor.
The Minister indicated that he did not object to the applicant relying on the document headed “Draft Amended Application”. But his position remained that the application should be dismissed with costs.
The applicant’s counsel submitted that the reason for the late filing of an amended application and written submissions was due to a change in the applicant’s legal representation at a late stage.
This was not, in the circumstances, a satisfactory explanation. I sought evidence to explain the delay. The applicant’s solicitor, who was present at the hearing, indicated that she could give evidence in chief on the issue.
I note that prior to the applicant’s solicitor giving oral evidence, the applicant’s counsel made an application that I recuse myself from the matter. However, this application was not pressed.
Ultimately, the Court made orders granting leave to the applicant to file an amended application in the form of the document filed previously on 14 July 2017 (without leave). This was subsequently filed by the applicant on 7 August 2017. The applicant was also granted leave to file written submissions in the form of the document that was submitted to the Court on 17 July 2017. The submissions were taken to have been filed in Court.
Background
The applicant is a citizen of Sri Lanka (CB 31). He arrived in Australia as an “Irregular Maritime Arrival” on 11 August 2012 (CB 1 and CB 32). On 11 October 2012 he participated in an entry interview with an officer of the Minister’s department. He applied for a protection visa which was received by the Minister’s department on 13 December 2012 (CB 18 to CB 91). The applicant set out his claims to fear harm in a statement provided with his protection visa application (“the protection visa statement”) (CB 45 to CB 48).
On 27 June 2013, the applicant attended an interview with the delegate (CB 93 to CB 94 and CB 103.7). The delegate refused to grant the applicant a protection visa on 11 July 2013 (CB 97 to CB 119).
On 17 July 2013 the applicant applied to the Tribunal for a review of the delegate’s decision (CB 121 to CB 126). Written submissions were received by the Tribunal from the applicant’s representative (a solicitor and migration agent) on 6 September 2013 (CB 131 to CB 141) and on 13 April 2015 (CB 152 to CB 161). On 21 April 2015 the applicant and his representative appeared at a hearing before the Tribunal to give evidence and present arguments (CB 144 to CB 148 and [6] at CB 200). At the hearing, the applicant provided additional documents to support his case before the Tribunal (CB 162 to CB 193). The Tribunal affirmed the delegate’s decision on 12 June 2015 (CB 199 to CB 230).
The applicant’s claims to fear harm primarily stem from an incident that he claimed occurred in a nightclub in Colombo, where he was employed as a cashier (“the nightclub incident”). In summary, the applicant claimed to have had an adverse encounter at the nightclub with the son of a prominent Minister (“the SL Minister’s son”) in the ruling party of the Sri Lankan government, due to a dispute over payment of a bill. The applicant claimed that after the nightclub incident, the SL Minister’s son and his associates searched for him and made threats to his life. He also claimed that associates of the SL Minister’s son beat and threatened the applicant’s sister and brother-in-law. He claimed to have fled Sri Lanka as a result (see further below).
The applicant claimed to fear harm in Sri Lanka from the SL Minister’s son and the Sri Lankan authorities, because of the SL Minister’s son’s prominence. Before the delegate, the applicant’s representative submitted that the encounter with the SL Minister’s son was not simply due to a dispute over the bill, but also due to ethnic tensions (the applicant is a Tamil and the SL Minister’s son is Sinhalese) (see CB 110.7).
Both the delegate and the Tribunal found that the applicant lacked credibility (see CB 111 to CB 113 and [22] at CB 204 to [48] at CB 209). This was largely due to various inconsistencies in the applicant’s account of the nightclub incident and what subsequently occurred.
The Tribunal set out five reasons for its adverse credibility finding in relation to the applicant. In summary, the Tribunal found the applicant gave inconsistent evidence on the following.
One, how long the applicant had worked at the nightclub ([26] - [28] at CB 204).
Two, the date and day of the week on which the nightclub incident occurred ([29] at CB 205).
Three, the involvement of guns in the nightclub incident ([30] at CB 205 to [32] at CB 205 to CB 206).
Four, the applicant’s claim that he (and other employees at the nightclub) did not know at the time of the nightclub incident that the person involved was the SL Minister’s son ([33] at CB 206 to [36] at CB 207).
Five, details of the nightclub incident and the events that took place after, including who was responsible for bringing the SL Minister’s son the bill, whether the applicant hit or pushed the SL Minister’s son, whether associates of the SL Minister’s son came looking for the applicant the day after the nightclub incident and assaulted the applicant’s sister and brother-in-law, whether a second visit by the SL Minister’s son’s associates occurred, and whether the Sri Lankan police and Criminal Investigation Department (“CID”) were searching for the applicant ([37] at CB 207 to CB 208).
The Tribunal also considered various evidence provided at the hearing by the applicant ([42] at CB 208 to [47] at CB 209).
This evidence included photographs of the applicant at a nightclub (CB 169 to CB 180). The Tribunal found that the photographs did not corroborate that the applicant worked at the nightclub, as he had claimed ([44] at CB 209).
The applicant also provided a letter to the Tribunal from his sister (CB 181 to CB 191). However, in light of its adverse credibility findings, the Tribunal gave the letter “no weight” ([46] at CB 209).
The Application to the Court
The amended application contains one ground, which is in the following terms:
“The Tribunal failed to give proper, genuine and realistic consideration of the Applicant’s claim to fear harm as a result of a violent interaction with a Minister’s son whilst working at a night club.”
Consideration
The applicant’s ground asserts that the Tribunal failed to give “proper, genuine and realistic” consideration to the applicant’s claim to fear harm if he were to return to Sri Lanka. The basis for the claimed fear was the nightclub incident.
Before the Court, the applicant’s explanation of legal error had a number of elements.
One, the applicant’s claim to fear harm must be considered by the Tribunal in the context of the “real chance” test (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 per Mason CJ at [12] (and see further Dawson and McHugh JJ) (see also [14] of the applicant’s written submissions) which:
“…clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring … if an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.”
I should note that as set out above, the applicant made written submissions with reference to the real chance test. However, I did not understand the ground, as explained before the Court, to go beyond the assertion that the Tribunal failed to give “proper, genuine and realistic” consideration to the applicant’s claims.
Two, that the Tribunal’s assessment of whether there is a “genuine” (well-founded) fear, must be made on the basis of probative material. The Tribunal’s analysis cannot involve “guesswork” (CPE15 v Minister for Immigration & Anor [2017] FCA 591 at [60]).
Three, contrary to the Tribunal’s findings, the applicant gave consistent evidence about key aspects of his claims. For example the length of time he worked as a cashier in the “hospitality area”, and on the matter of guns at the nightclub ([21]a. of the applicant’s written submissions) (and see further below).
Four, the applicant gave “plausible” explanations for any “alleged discrepancies” in his evidence ([21]a. of the applicant’s written submissions).
Five, the Tribunal drew “[u]nfavourable credit inferences” as to the applicant’s credit from “minor discrepancies” in his accounts of relevant events. These inferences were inconsistent with the proper application of the “real chance” test ([21]b. of the applicant’s written submissions).
These “unfavourable credit inferences” were identified in the applicant’s written submissions as ([21]b(i) – (iii)):
“[21]b Unfavourable credit inferences were drawn from minor discrepancies inconsistent with the application of the real chance test, including:
i. the fact that the Applicant was unable to nominate the day of the week the events took place; [CB 122] at [29]
ii. The weight given to concerns by the Tribunal as to whether anyone in the night club could recognise the Minister’s son on the basis of a newspaper articles (sic); [CB 206] at [34]
iii. the weight given to evidence given by the Applicant that nobody at the club recognised the Minister’s son despite ‘elite and influential people’ attending the club; [CB 207] at [35].”
Six, the Tribunal failed to give any “genuine or realistic consideration to corroborative evidence provided by the [a]pplicant” ([22] of the applicant’s written submissions).
Seven, in all therefore, the Tribunal’s adverse inferences about the applicant’s credit were based on “supposition”, and contrary to the “strong evidence” provided by the applicant which “affirm[ed]” his account of relevant events ([23] of the applicant’s written submissions). The applicant asserts that this was a failure to give “genuine and realistic consideration” to his claims.
To make good his contention of legal error on the part of the Tribunal, the applicant referred to various stages of the explanation of the applicant’s claim to fear harm, and what were described as the “iterations” of his evidence. These were:
a)One, an interview conducted with the applicant on his arrival in Australia by an officer of the Minister’s department (on 11 October 2012).
b)Two, in a statement of his claims dated 29 November 2012 and submitted with his protection visa application (defined above as “the protection visa statement”) (CB 45 to 50).
c)Three, before the delegate (with reference to the delegate’s decision record) (CB 102 to CB 119).
d)Four, before the Tribunal (with reference to the Tribunal’s decision record) (CB 199 to CB 230).
Given the expression of the detail of the applicant’s claims at the various stages, a summary of the applicant’s evidence as against each item of concern, as identified by the Tribunal, is set out in the Schedule 1 to this judgment.
The term “proper, genuine and realistic” consideration of an applicant’s claims was the subject of consideration in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (“SZSHV”) (per Flick J). In that case, the assertion against the relevant Tribunal (amongst others) was that it had failed to “genuinely consider the evidence which supported [the applicant’s] claims” (SZSHV at [6]).
For current purposes, it is instructive to respectfully note the following from what is set out in SZSHV at [10] and [12]:
“[10] The need to consider the claims being made and the conduct in support of such claims is a requirement that the Tribunal give ‘proper, genuine and realistic’ consideration to those claims and that conduct: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29]; (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291:
‘[W]hat was required of the decision-maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision-maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...’
In New Zealand a comparable approach is recognised where it is said that a decision-maker must ‘give genuine, and not merely token or ... superficial regard, to mandatory considerations...’: New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 at 552 per Cooke P; Ye v Minister of Immigration [2009] 2 NZLR 596 at 618 per Glazebrook J. A statement by a decision-maker that consideration has been given to particular matters tends to suggest that that process of consideration has in fact been undertaken: Bat Advocacy New South Wales Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], [2011] FCA 113; (2011) 179 LGERA 458 at 478 per Cowdroy J. But ‘mere advertence to a matter required to be taken into consideration is not sufficient’. An appeal from that decision has been dismissed: Bat Avocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, (2011) 180 LGERA 99. The reason it is insufficient to simply advert to such a factor is not because the primary decision-maker may have undervalued it, but because (despite appearances) in truth the decision-maker may not have considered it at all: Commissioner of Taxation v Pham [2013] FCA 579 at [39]; (2013) 60 AAR 264 at 275 per Katzmann J.
…
[12] A further difficulty to be confronted by a party who seeks to advance the present argument is that considerable care needs to be exercised to ensure that the argument does not invite ‘a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any Tribunal decision can be scrutinised’: Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274 at [65]; (2001) 106 FCR 426 at 442 per Heerey, Goldberg and Weinberg JJ. See also: Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337 at [56]; (2008) 251 ALR 633 at 650 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). ‘Considerable caution’, it has similarly been said, needs to be exercised when applying the epithet ‘proper, genuine and realistic consideration’ lest ‘the Court slide into an impermissible merits review’: SZQGC v Minister for Immigration and Citizenship [2012] FCA 598 at [32]; (2012) 128 ALD 338 at 345 per Griffiths J. See also: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [30]; (2010) 243 CLR 164 at 175-176 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The epithet nevertheless remains a useful touchstone and has been applied (for example) to reach a conclusion that an administrative policy had been applied at the expense of genuine, proper and realistic consideration being given to other relevant factors when resolving a development application: Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154 at [109] to [115] per Emerton J.”
I agree with the applicant’s submission that the applicant’s evidence was consistent in relation to some matters. However, some care needs to be taken with the submission that the applicant was consistent (over the various iterations of his claims) “on all the key integers”, as was submitted before the Court.
Even having made that submission, it was acknowledged by the applicant that there was a “one day discrepancy” as to the date of the nightclub incident. Further, the applicant acknowledged that it was not clear in the “first iteration” of his claims, whether he saw the SL Minister’s son’s companions enter the club with guns directly, or was told that it had occurred.
I understood the applicant’s submission that he had been “consistent” on “key integers” of his claims, to be made with reference to such matters as him having worked at the nightclub, that he had worked there for some time before the nightclub incident, on the night of the nightclub incident the “[SL] Minister’s son had entered the club”, and that “violence had occurred”.
Ultimately, because of its adverse credibility finding, the Tribunal rejected the applicant’s entire factual account. In particular, it found that he did not work at the nightclub, and did not accept that the nightclub incident had occurred, nor that he suffered any of the claimed consequences ([50] at CB 210).
I understood the applicant’s argument, in short, to be as follows. The applicant gave consistent evidence about the claimed nightclub incident. In some “minor matters” where there was some discrepancy, he gave “plausible explanations” for these. The Tribunal also found adversely to his credit in spite of corroborative evidence. This reveals the Tribunal did not give “proper, genuine or realistic” consideration to his claims or evidence.
Unlike as in SZSHV, the current complaint about the Tribunal’s decision is not necessarily that the Tribunal failed to take into account the claims made. Rather, the current complaint is that it was not open, on the evidence, to find adversely to the applicant’s credit. This is because his account should have been believed, and his explanations and corroborative evidence should have been accepted.
When properly understood in this light, the “considerable caution” as referred to in SZSHV (at [12], with reference to SZQGC v Minister for Immigration and Citizenship [2012] FCA 598; (2012) 128 ALD 338 (“SZQGC”) at [32] per Griffiths J and Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) is apposite to the current case.
A fair reading of the Tribunal’s analysis and reasoning, when seen in light of the various “iterations” (to use the applicant’s counsel’s description) of the applicant’s evidence, reveals that the ground, in the circumstances, is an invitation to “slide into an impermissible merits review” (SZQGC at [32]).
As set out above, the applicant has identified a number of items which he says reveal a lack of “proper, genuine, and realistic” consideration. I pause to note in this consideration [I also note the matters in Schedule 1 to this judgment], that the applicant has not taken up the opportunity to provide a transcript of the Tribunal hearing to the Court. Therefore, the only available account of what occurred at the hearing is what is set out in the Tribunal’s decision record.
First, regarding the matter of how long the applicant had worked at the nightclub. Before the Court, the applicant’s submission was that he gave “consistent” evidence about this.
The Tribunal identified inconsistency in regards to this matter. In the protection visa statement, the applicant stated “[s]ince March 2012 I began working as cashier at a nightclub ([t]he Fuze Colombo) … which was newly opened” ([6] at CB 45). On the evidence before the Court, he told the Tribunal he started working at the nightclub “around March 2011” and had worked there “for longer than one year” ([27] at CB 204).
It was reasonably open to the Tribunal to find that the applicant’s evidence was inconsistent. There is plainly a difference between working at the nightclub for four months, and for a period of over one year.
Before the Tribunal, the applicant sought to explain this inconsistency by stating that he had previously worked for the same employer in a restaurant and then “mov[ed]” to the nightclub. However, the Tribunal found this was also inconsistent with what he had put in the protection visa application where he stated that he “did not work” between March 2011 and March 2012 (CB 74.2). This finding was also reasonably open to the Tribunal on what was before it.
I pause here to note that in submissions before the Court, the applicant focused on the interview before the delegate, and findings made by the delegate, to assert that “a most unsatisfactory reasoning process [was] engaged in by the delegate”.
Two matters are of note. One, in the circumstances presented, this Court has no jurisdiction to review the delegate’s decision (s.476(2)(a) of the Act). Two, it may be that this submission was an attempt to link the Tribunal’s analysis to the delegate’s decision, to say that the Tribunal’s analysis did not reveal a “proper, genuine and realistic” consideration of the claims. If so, then in relation to this finding, the Tribunal did not rely on any finding made by the delegate (however, see further below where it did rely on the delegate’s decision record for what the applicant is reported to have told the delegate).
Second, the applicant asserts error in the way the Tribunal reasoned in relation to the involvement of guns in the nightclub incident. The applicant’s submission is that there was no inconsistency in his evidence in this regard, and again, any “minor” discrepancies were explained by the applicant’s evidence.
This complaint directs attention to [30] (at CB 205) to [32] (at CB 205 to CB 206) of the Tribunal’s decision record. The Tribunal found that the applicant had not mentioned the matter of “guns” during the nightclub incident in his protection visa statement, nor at the hearing when he had explained what had happened “step-by-step”.
The Tribunal noted further inconsistencies in the entirety of the applicant’s account. For example, at the interview with the delegate, the applicant was reported as saying that the reason he left the nightclub was because the SL Minister’s son tried to draw his companion’s gun after the applicant hit him. The Tribunal contrasted this with what it found to be no mention of guns at the entry interview, or the protection visa statement, or at the Tribunal hearing, of the SL Minister’s son trying to take out a gun.
The Tribunal’s reasoning was that the matter of the SL Minister’s son trying to take out the gun was “significant”. The Tribunal found that the applicant’s explanation that he did not want to confuse the Tribunal, did not satisfactorily explain why he failed to mention the matter of the SL Minister’s son having access to a gun. Noting of course, as the Tribunal did, that that omission was also in relation to the protection visa statement.
Before the Court, the applicant emphasised that the report of the entry interview recorded that the applicant had mentioned “guns” at the entry interview. This appears to have been part of the applicant’s explanation to the Tribunal’s questioning of him on this matter. The applicant’s representative before the Tribunal also emphasised this to the Tribunal. I note that the applicant’s reference to “guns” at the entry interview was to the SL Minister’s son’s “[b]odyguards” entering the nightclub “with their guns” (CB 12.3).
The Tribunal’s reasoning was that it ([32] at CB 205 to CB 206):
“… considers the issue of whether or not the Minister’s son had access to a gun, or whether he thought this was the case such that he fled the nightclub, to be significant, and it is not satisfied as to why the applicant did not mention this in his statement, Entry Interview, and at hearing.”
Again, the Tribunal’s findings in this regard were all reasonably open to it on the material before it. The findings were probative of the evidence before it. It may be that a different decision maker may have found differently. The issue now is whether it was reasonable of the Tribunal to make these findings. The answer is that demonstrably it was.
With specific reference to the ground of the amended application, the Tribunal’s analysis reveals a “proper, genuine and realistic” consideration of this matter. The Tribunal’s alleged failure to accept the applicant’s explanations, in the circumstances, does not rise above a request for impermissible merits review.
Third, the applicant complained about the following. One, the Tribunal’s finding that the applicant was unable to nominate the day of the week the nightclub incident took place (with reference to [29] at CB 205 of the Tribunal’s decision record). Two, the weight given by the Tribunal to its concerns as to whether anyone in the nightclub could recognise the SL Minister’s son ([34] at CB 206). Three, the weight given by the Tribunal to the applicant’s evidence that no one recognised the SL Minister’s son despite “elite and influential people” attending the nightclub ([35] at CB 206 to CB 207).
The applicant’s complaints direct attention to [29] (at CB 205), [34] (at CB 206) and [35] (at CB 206 to CB 207) of the Tribunal’s decision record as follows:
“[29] Secondly, the Tribunal was concerned about the applicant’s evidence as to when the incident which caused him to flee the nightclub occurred. The applicant had told the Tribunal that the nightclub was busier, and made more money on Friday and Saturday nights; the other days were normal. When the Tribunal asked the applicant what night of the week the incident had occurred, he said he thinks it occurred on a Thursday or Friday, he thinks Thursday. The Tribunal noted that, according to his statement, it occurred on 15 or 16 July 2012, and these dates were Sunday or Monday. The Tribunal asked why he would not know which day of the week this occurred, especially as the nightclub had different capacities on different days. The applicant said he did not wish to comment. The Tribunal considers that, in the circumstances, the applicant as floor manager/cashier of a nightclub with different capacities on different days, would have known which night of the week this event, which changed his life, occurred. The Tribunal considers that his evidence undermines his credibility and his claims.
…
[34] Not only does the applicant’s own evidence refer to the son, the Tribunal noted there were further newspaper articles, going back to 2004, indicating that Malaka [the SL Minister’s son] was well known for thuggery and intimidation at night clubs in Colombo. The Tribunal put this information to the applicant pursuant to s.424AA of the Act. Although the applicant responded (saying that Malaka is powerful and has government protection), he did not engage with the Tribunal’s concern that the evidence showed that Malaka was known, in particular in nightclubs, before the claimed incident in 2012 with the applicant, which made it difficult to accept that no one working in this nightclub knew that he was in the nightclub.
[35] The Tribunal’s concerns in this regard were heightened because the delegate also put information to the applicant that, in May and July 2012, there were reports on the [SL] [M]inister’s son having been interviewed by a reporter, where he revealed that he had eight bodyguards, a girlfriend, and a car worth 400 lakhs; and he was a typical playboy son of a [SL] Minister. The delegate put to the applicant that the write-ups show that even before the incident involving the applicant, the [SL] Minister’s son was already popular, and the delegate also put to the applicant that it was surprising that no one in the club knew the [SL] Minister’s son (except perhaps the boss’s brother which the applicant claimed in his statement, but later resiled from, as set out below). In response, the applicant had said that in Sri Lanka, his boss is the only Tamil person who owned a club and his boss is new in the business, and if the boss had been in the business for a long time he might have known the [SL] Minister’s son. The Tribunal has considered this explanation. However, it does not find it persuasive in light of the claim that the club is frequented by elite and influential people; the Tribunal finds it highly unlikely that the people involved with the operation of the club would not know who the elite and influential people were, and convey this information to their staff.”
In my view, it is possible that on its face, the applicant’s inability to recall the exact day of the nightclub incident may, in some circumstances, be described as a “minor discrepancy”.
However, that on its own, is not sufficient to reveal a failure to give proper consideration to the applicant’s claims.
Each of the impugned parts of the Tribunal’s reasoning deals with inconsistencies in the applicant’s evidence, variously as between his evidence at the Tribunal hearing, his protection visa statement and what he told the delegate at the interview. The Tribunal’s findings were all reasonably open to it on what was before it. This again reveals that the applicant’s complaint really seeks impermissible merits review. The fact that a different decision maker may have made different findings of fact does not reveal a failure of this Tribunal to give proper consideration to the applicant’s claims.
Fourth, the applicant also referred to the Tribunal’s acceptance that, contrary to the assertion by the delegate, there may not have been metal detectors at the nightclub (and therefore guns could have been brought in undetected).
It was not made clear before the Court as to how this could be said to reveal that the Tribunal failed to give “proper, genuine and realistic” consideration to the applicant’s claims.
It is the case that the Tribunal accepted that there may not have been metal detectors at the nightclub. However, the Tribunal found that this did not explain the lack of any reference to guns in the protection visa statement and at the Tribunal hearing. Again, this complaint is a request for impermissible merits review.
Fifth, the applicant further complained that the way the Tribunal dealt with various corroborative evidence reveals its alleged failure to give “proper, genuine and realistic” consideration to the applicant’s claims. The complaints were as follows.
One, the Tribunal failed to give the required consideration to country information, which suggested that the SL Minister and his son had “corrupt connections”.
At [47] (at CB 209) of its decision record, the Tribunal stated that:
“...the country information provided, and accessed by the Tribunal, suggests that the [SL] Minister and his son have corrupt connections…”.
It is factually incorrect to say that the Tribunal did not give consideration to the relevant country information. The complaint that the consideration was not “realistic”, in the circumstances, is no more than a disagreement with the Tribunal’s finding. That finding was that that even if the SL Minister and his son had corrupt connections, that did not mean that, in the circumstances, the applicant’s claims were true. Again, this complaint seeks impermissible merits review.
Two, the complaint is also that the Tribunal failed to give weight to a letter from the applicant’s sister provided to the Tribunal at the hearing (see CB 181 to CB 189).
At [45] – [46] (at CB 209) of the Tribunal’s decision record, the Tribunal gave reasons as to why it attached “no weight” to the letter. The Tribunal’s reason for assigning “no weight” was “[i]n light of its credibility concerns”.
On a fair reading of the entirety of its analysis, the Tribunal had considered that the applicant was not a “witness of truth” ([38] at CB 208), and gave reasons for rejecting the applicant’s entire factual account of the sole basis of his claim to fear harm. That is, the nightclub incident ([26] at CB 204 to [38] at CB 208).
The Tribunal’s approach here was consistent with what was explained in Re Minister for Immigration and Multicultural Affairs; Ex Parte ApplicantS20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [49]:
“In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross‑examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party. If the critical passage in the reasons of the Tribunal be read as indicated above, the Tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration. The appellant's argument in this Court then has to be that it was irrational for the Tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.”
Three, the applicant also complained that the Tribunal failed to give “proper, genuine and realistic” consideration to the applicant’s claim, with reference to photographs provided by the applicant to the Tribunal which he claimed depicted him working at the nightclub (see CB 169 to CB 180).
Before the Court, it was not clear whether the applicant’s argument here was an assertion of a failure to give proper consideration, or that the Tribunal’s ultimate treatment of the photographs was illogical or irrational, or even both.
The applicant’s complaint is that the Tribunal accepted that the photographs supported the applicant’s claims to have “been to the club” and “may have had friends working in the club/he may have known the owner/or assisted behind the bar in the cub/for photographs” ([44] at CB 209 and see [21]c. of the applicant’s written submissions).
However, as with the other complaints made by the applicant, it was open, in the circumstances for the Tribunal to find that the photographs did not establish that the applicant actually worked the nightclub as he had claimed. Again, this complaint is a request for impermissible merits review.
Conclusion
In all the sole ground of the amended application is not made out. It is appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 April 2018
Schedule 1
| Claim | Entry Interview (11 October 2012) | Protection Visa Statement (29 November 2012) | Delegate Decision Record (11 July 2013) | Tribunal Decision Record (12 June 2015) |
| How long the applicant had worked at the nightclub. | CB 12.3: The applicant reported that he worked at the restaurant Modara Matakuliya “in the last 1 ½ years”. He started working at the nightclub in Bambalapitiya “once I left this job”. | [6] at CB 45: The applicant stated that he had worked at the nightclub since March 2012. | Not specifically addressed. [It appears that the delegate accepted what was written in the applicant’s protection visa application (CB 105.8). | [27] at CB 204: “…when the Tribunal asked the applicant when he started working in the nightclub, he said it was in around March 2011. When the Tribunal put to him that it understood he had worked there for about four months prior to coming to Australia (in July 2012), he disagreed and said he worked there for longer than that, the club opened in 2011, and he worked there for longer than one year … [the applicant] said that he did not shift from one job to a different job, instead he worked for the same employer, moving from one job to the next… and this is why he cannot recall how long he worked in the nightclub”. |
| The matter of guns during the nightclub incident, including whether | CB 12.3: Reference to the SL Minister’s son’s “bodyguards” “enter[ing] the club with their guns”. No reference by the applicant to the SL Minister’s son drawing a gun. | No reference by the applicant to the matter of guns. | CB 107.2: When asked by the delegate whether the SL Minister’s son, or his “companions”, were armed, the delegate reported that the applicant said that “one of the companions had a weapon and the applicant’s (sic) [SL Minister’s] son tried to draw it. However, the companion stopped him. Seeing this, the applicant fled”. CB 107.4: The applicant reported that the SL Minister’s son could “circumvent the rules regarding the gun (sic) prohibition” in nightclubs. CB 107.5: When the delegate suggested that the security guards at the nightclub must have recognised the SL Minister’s son [in order for his companions to circumvent the rules prohibiting guns], the applicant stated that “the security guard did not know that those particular guests were carrying a gun” and that the security guards only had a “quick look at the guests and would not know if a gun was hidden somewhere”. CB: 107.7: When the delegate queried whether the nightclub had metal detectors to detect guns, the applicant stated that there was only “one club” in Sri Lanka with metal detectors. CB 109.5: The delegate raised with the applicant that during his entry interview, the applicant had said that “he saw the [SL Minister’s son’s] bodyguards enter the club with their guns”. However, during the protection visa interview, the applicant stated that “he just saw the bodyguards when he was outside and was not sure if they entered the club or not”. CB 109.7: The delegate reported that the applicant stated that [at the entry interview] he did not mention that the [SL Minister’s son’s] bodyguards had weapons. The applicant stated that he only said that one of the companions had a weapon but not the bodyguards”. | [30] at CB 205: The Tribunal raised its concern with the applicant that he had failed to mention that the SL Minister’s son had had access to a gun in the protection visa statement or at the hearing. “The Tribunal noted [at the hearing] that it had asked the applicant why he was scared [in the nightclub] and in response [the applicant] had said nothing about a gun”. In response to the Tribunal’s concern regarding the applicant’s failure to mention the matter of guns, the Tribunal reported that “the applicant said that he mentioned these things in the earlier interview, that the [SL] Minister’s son was about to take a gun and he was so scared”. [32] at CB 205: The Tribunal noted the applicant’s reference in the entry interview to the SL Minister’s bodyguards having guns (which was inconsistent to the applicant’s evidence at the protection visa interview). It stated “[t]his is not a reference to the companion of the [SL] Minister’s son having access to a gun…The agent in oral submissions at the end of the hearing confirmed that guns were mentioned in the Entry Interview in relation to the bodyguards coming into the club, and noted that the applicant was now saying that he had thought there was a gun separate to the bodyguards’ guns”. |
| Claim | Entry Interview (11 October 2012) | Protection Visa Statement (29 November 2012) | Delegate’s Decision Record (11 July 2013) | Tribunal Decision Record (12 June 2015) |
| The date on which the nightclub incident occurred. | CB 12.3: On 15 July 2012. | [7] at CB 45: The applicant stated that the nightclub incident occurred on “either the 15th or the 16th of July”. | CB 105.7: Not specifically addressed, although when summarising the applicant’s claims based on his statement, the delegate referred to the incident as occurring on “either the 16th or 17th July 2012 … at 4:00am.” | [29] at CB 205: “The applicant had told the Tribunal that the nightclub was busier, and made more money on Friday and Saturday nights; the other days were normal. When the Tribunal asked the applicant what night of the week the incident had occurred, he said he thinks it occurred on a Thursday or Friday, he thinks Thursday. The Tribunal noted that, according to his statement, it occurred on 15 or 16 July 2012, and these dates were Sunday or Monday”. |
| Claim | Entry Interview (11 October 2012) | Protection Visa Statement (29 November 2012) | Delegate’s Decision Record (11 July 2013) | Tribunal Decision Record (12 June 2015) |
| The account of the nightclub incident [not specifically addressed in the applicant’s written submissions to the Court]. | CB 12.3: “on 15/07/12 the [SL] Minister[‘]s son was in the club when I gave him his outstanding bill and he took his anger out on one of the [w]aiters by beating him up. I then went across to his table, not knowing who he was, and he hit me. I then hit him back and after that his [b]odyguards, who were waiting outside, entered the club with their [guns]. The brother of the [c]lubs boss was inside and he told me to run out the back door and to go home and not to come back to work”. | [11] – [19] at CB 46: [11] “At approximately 4am in the morning on the 15th or the 16th of July 2012 as the night club was about to close for the day, I noticed that a group of persons were yet to settle their bill. [12] I sent the bill to persons at this table through one of the stewards (Suthan). [13] Suthan informed me that the men at the table were refusing to pay the bill. [14] I took the bill and proceeded to meet the men at this table. [16] I fell down and as I got up my attackers tried to bash me again. I defended myself and pushed my attacker. [17] My attacker fell down and his mates stood up. [18] One man ran outside. [19] My employer's brother (Sherman) came down from the 1st floor and asked me to run to the rear end of the club as it was a minister's son”. | CB 106.7: The delegate asked the applicant whether “the [SL] Minister’s son did anything to the steward when he (steward) gave the Minister’s son the bill. The applicant replied in the negative”. CB 106.8: The applicant said that when the bill was returned to him [by the waiter] “he took the bill and went to the table…he asked the customers to pay for the bill and that if they wanted to order some more later, he could issue them with another bill”. The customer (the SL Minister’s son) “squashed the bill and hit him. He fell to the ground and when he rose up he pulled his shirt and the [SL] Minister’s son fell down. He clarified that he held his shirt and pushed him and he fell to the ground.” CB 106.9 The delegate asked the applicant if he hit the “opponent”, “[h]e said that he hit the [SL] Min[i]ster’s son and he fell down. The waiters then came to them and one of the [SL] Minister’s son’s companions went out The boss's brother who was watching TV upstairs heard the commotion and he went down. The boss's brother asked him to go out and when he went out he saw a lot of people heading towards the club. The person who earlier went out apparently called other people and they came to the club. However, they did not notice the applicant and they were not able to hurt him.” CB 107.2 The delegate asked the applicant “if the bodyguards who were summoned by the [SL] Minister's son's companions entered the club. The applicant said he did not see them enter as he was on his way away from the club”. | See the reference above to the Tribunal’s decision record at [30] (at CB 205) and [32] (at CB 205 to CB 206) regarding the matter of guns during the nightclub incident. |
| Claim | Entry Interview (11 October 2012) | Protection Visa Statement (29 November 2012) | Delegate’s Decision Record (11 July 2013) | Tribunal Decision Record (12 June 2015) |
| Whether the applicant, or others, knew it was the SL Minister’s son during the nightclub incident [not specifically addressed in the applicant’s written submissions]. | CB 12.3: The applicant reported that he did not know who the SL Minister’s son was at the time of the nightclub incident. | [19] at CB 46: The applicant did not know it was the SL Minister’s son until “[m]y employer's brother (Sherman) came down from the 1st floor and asked [him] to run to the rear end of the club as it was a [M]inister's son…” [22] at CB 47: “Suthan [the waiter] informed me that it was the notorious [M]inister’s…son…who I had an altercation with…”. | CB 106.3: The delegate reported that the applicant said that he knew it was the SL Minister’s son when “one of the waiters in the club… told him that the person he encountered was the son of a notorious Minister”. CB 106.7: When asked whether the steward [who gave the bill to the SL Minister’s son’s group] knew that the person involved was the Minister’s son, “[t]he applicant said no. He explained that the club was just new and so no one in the club knew the Minister’s son”. CB 109.1: When asked to confirm whether his boss knew it was the Minister’s son, the applicant “said he was not sure”. The delegate put to the applicant that his “boss’s brother knew the [SL] Minister’s son…the applicant stated that the boss’s brother did not tell him that it was the [SL] Minister’s son. He told him to just go away.” CB 109.3: When the delegate asked how the applicant came to know that the SL Minister’s son was involved, the applicant said “after the incident, he called up the club and one of the waiters told him that the person he had an altercation [with] was the son of Minister Silva”. | [36] at CB 207: “…When the Tribunal asked the applicant if the boss’s brother told the applicant who [the attacker] was, he said the boss’ brother only said run back because there are people coming from the front door. The applicant did not say that the boss’s brother told him that it was a Minister’s son, which was inconsistent with his statement”. |
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