BKQ16 v Minister for Immigration
[2018] FCCA 137
•29 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKQ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 137 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.427 |
| Cases cited: Minister for Immigration and Citizenship v Li [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 |
| Applicant: | BKQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1211 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 15 December 2017 |
| Date of Last Submission: | 15 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 29 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burt |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Mr McDermott |
| Solicitors for the First Respondent: | Australian Government Solicitors |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1211 of 2016
| BKQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 26 May 2016 affirming a decision of a delegate of the Minister to refuse the applicant a protection visa.
The applicant travelled to Australia by boat from Indonesia without travel documents, although did provide several documents identifying his name and place of birth, including his national identify card, passport, birth certificate and family ration card. As a result, the Tribunal accepted that he was from Sri Lanka and accepted his evidence as to his identify and place of birth.
The applicant claimed to fear harm from the Sri Lanka army because he is Tamil and that he and his family had been imputed with a political opinion of being associated with the LTTE. In support of this claim he said that his brother had been taken by the Sri Lankan Army (“SLA”) in 1999 and detained for three days, during which time he was interrogated and beaten.
The Tribunal’s finding with respect to the incident involving his brother was:
29. The Tribunal finds the applicant has provided vague and conflicting evidence regarding the circumstances surrounding his brother’s alleged second detention and as such, the Tribunal does not accept that the applicant’s brother was required to report to the SLA in May 2000 or that he was taken by the SLA after being question by them in 1999, during which time he was interrogated again and the applicant’s father was also interrogated. It does not accept that his brother was required to report to the SLA on a monthly basis after being detained for three days in 1999 or that there were two or three visits by the SLA to the applicant’s home looking for his brother after his brother was arrested and released in 1999.
The Tribunal went on to accept that his brother was detained in 1999, although with some reservations, given the large number of discrepancies that appeared in the various versions of events the applicant had given: see [22]-[25] of the decision.
The Tribunal rejected the claims that his father had been apprehended by the SLA, noting the discrepancies in the applicant’s evidence: see [32]-[34].
The Tribunal did go on to accept that his brother had gone missing, saying:
35. While the Tribunal does not accept, for the reasons discussed above, that there was any continuing interest in the applicant's brother after he was interrogated in 1999 including visits by the SLA to the applicant’s family home, the requirement for his brother to report monthly to the SLA or being taken or called in by the SLA and interrogated again in May 2000 or at any other time, the Tribunal does accept on the evidence before it, including a certificate from the Red Cross dated 19 February 2003 confirming that the applicant's brother was reported missing since 22 October 2000 and his details registered with them on 6 November 2002, that the applicant's brother went missing in October 2000. According to the applicant's evidence in the hearing his brother was taking produce to Nelliady market and he never returned and it was assumed that the SLA was responsible because the area which his brother travelled through was army controlled. In his statutory declaration attached to his protection visa application, he claimed he was sure it was the SLA because his brother had been taken in for interrogation so many times.
36. As discussed above, the Tribunal does not accept that the applicant's brother had been interrogated on more than one occasion, therefore it does not accept the applicant's suspicions that the SLA were responsible because they had interrogated his brother many times. While the Tribunal accepts that there is substantial independent evidence regarding the disappearance of young Tamil males, many of which the SLA and other Sri Lankan authorities were said to be responsible for, it also notes that there were other groups that engaged in such acts including the LTTE. On the limited information provided by the applicant regarding the circumstances of his brother's disappearance, it is unable to be satisfied who was responsible for the applicant's brother going missing. However, it does accept, given the country information related to the number of people who were abducted or disappeared during the conflict, that the applicant's brother went missing in October 2000 and has not been heard from since.
37. Though the Tribunal accepts that the applicant's brother may have gone missing in October 2000, the Tribunal does not accept that six or seven months later the SLA came to the applicant's family home and interrogated his father about his brother's whereabouts. For the reasons discussed above, the Tribunal does not accept that the applicant's brother was of any continuing interest to the authorities including the SLA after his arrest in 1999. It therefore does not accept that several years after the applicant's brother's one and only encounter with the SLA in 1999, they would come looking for him. The Tribunal also does not accept that if the SLA was responsible for the applicant's brother's disappearance as the applicant has claimed, that they would come looking for him 6 or 7 months after his brother had gone missing. The Tribunal does not accept the applicant's explanation that the reason for the SLA's enquiries was to show that they were not responsible for his disappearance. Considering the country information, including that provided by the applicant's previous adviser in submissions to the Tribunal, regarding the civil war and the actions of the SLA during the conflict, the Tribunal does not accept that the SLA would have made any effort to try and displace any suspicions on them for his brother's disappearance.
38. Similarly, the Tribunal finds it implausible that six years after the applicant's brother's disappearance, the SLA came again to the applicant's family home and interrogated his mother about his brother's whereabouts and also interrogated him about his brother and beat him. The Tribunal does not accept the applicant's explanation provided during the first hearing that the SLA wanted to show they did not make any mistake or that they wanted to turn the matter around so the fault would be on his family's side because they may have thought they would have to answer questions from high ranking officers. The Tribunal finds it far-fetched that the SLA would have gone to such effort, particularly in light of the number of people who disappeared or were killed during the war, including in the north of the country. Nor does the Tribunal accept that the authorities' alleged enquiries were related to any efforts that were made by the applicant's mother to try and locate the applicant's brother.
The Tribunal’s found that the applicant’s evidence around these issues was inconsistent: see [39]. The Tribunal rejected the claim that the applicant was of interest to the authorities, and that neither he nor his family members were ever suspected of having links to the LTTE in the past: see [48]. The applicant made other claims not relevant to these proceedings, which were rejected by the Tribunal.
Ultimately the Tribunal concluded:
60. Considering the applicant's claims individually, and cumulatively, the Tribunal does not accept that the applicant faces a real chance of being persecuted because of an imputed political opinion of support for the LTTE based on his brother's or family's alleged profile, his Tamil ethnicity, an imputed political opinion based on his Tamil ethnicity or his membership of the particular social groups failed asylum seeker from a western country or returnees from western countries or failed Tamil asylum seekers and/or returnees or failed asylum seekers and/or returnees, being a Tamil originating from the north of Sri Lanka, his prolonged absence from the country or seeking asylum in a western country, from the government or authorities of Sri Lanka including the army or the CID or anyone else. For the reasons provided above, the Tribunal finds the applicant's fear of persecution is not well-founded.
The applicant, in his amended application for review, sets out his grounds as follows:
1. The Tribunal was unreasonable in refusing to gran [an] adjournment of the Applicant’s second hearing although the Applicant provided sufficient and persuasive reasons for such request.
Particulars
a) Please see submissions filed this day.
2. The Tribunal erred in taking into account four specific distinct considerations including delay attributable to the Tribunal, as a reason why the Tribunal ought to refuse the Applicant’s adjournment request.
Particulars
a) Please see submissions filed this day.
3. The Tribunal failed to comply with s 430 of the Migration Act 1958 when the Tribunal failed to set out findings about who was responsible for the Applicant’s brother’s disappearance. This indicated a failure of the Tribunal to take into account relevant information or considerations namely the Applicant’s imputed political opinion as a result of his brother disappearance by the SLA or, alternatively, the LTTE.
Particulars
a) Please see submissions filed this day.
4. The Tribunal failed to apply the ‘real chance’ test correctly when the Tribunal failed to ask colloquially, what if I am wrong? The Tribunal’s readings demonstrate uncertainty about who was responsible for the Applicant’s brother’s disappearance and yet the Tribunal did not consider the consequences for the Applicant of the two possible parties responsible for his brother’s abduction.
Particulars
a) Please see submissions filed this day.
Ground One
The applicant argues that the Tribunal member acted in a way that was legally unreasonable, such as to constitute jurisdictional error in failing to grant the applicant an adjournment of his hearing, relying upon the principles set out in Minister for Immigration and Citizenship v Li [2013] HCA 18.
The applicant relies upon a lengthy chronology in the matter:
a)1 February 2013, applicant applies for a protection visa.
b)7 January 2014 – application is refused by the delegate.
c)14 May 2015 – Tribunal have first review hearing.
d)11 March 2016 – Tribunal writes to the applicant inviting him to attend a further hearing as the Tribunal was reconstituted with a different member.
e)18 March 2016 – the applicant’s migration agent writes to the Tribunal advising they no longer act for the applicant and asking that correspondence be sent to him directly.
f)13 April 2016 – the applicant writes to the Tribunal in the following terms:
To whom it may concern,
My name is [JS] case number 1400554 would like to reschedule which will be held on 22 April 2016 (Friday) due to no representative on that day.
On end of March i receive a letter by informing that the representatives couldn’t argue for my case due to the government not support them financially. So, they ask me to look for private lawyer or pay to them $4400 upfront for the case. Even I request
t hem to pay them installment but they refuse to do that. All the information given by the receptionist even I ask the receptionist pass to the lawyer for further questions and also pay payment by installment to the lawyer because I don’t have that much money on my hand but the lawyer refuse to answer my call.
So, i look for new lawyer in short time they ask me to pay more than the lawyers demand. certain lawyers refuse to take my case to take my case because not enough time and busy as well. Since no lawyers take my case, so i call legal aid to take my case but they said that the lawyers are busy and time also very short to review my case
Based my case hearing and situation i need more time to get new lawyer as re presenter and to review my case and also prepare money for my case to pay the lawyers. Once i get information on today from MRDivision since i don’t have any solution for my cases to send email to you for reschedule.
Here, my humble request to reschedule my hearing based on my situation since this is my life matter. Please be consider my situation. Don’t hesitate to call me … if any question.
hopefully, the person whom concern will reply me as soon as possible.
Thanks MILLION.
Your Sincerely,
[JS]
The Tribunal refused the applicant’s request, stating:
You have already had a full hearing with a different Member and this is a further hearing to discuss issues arising out of that hearing and more up to date country information. In light of the fact that [your] last hearing was held nearly a year ago, the Tribunal will not be delaying the matter any further in these circumstances.
The hearing proceeded, with the applicant attending and giving evidence with the assistance of an interpreter. There is no evidence to suggest that the applicant renewed his adjournment application or put any further material before the Tribunal member.
The Tribunal gave formal reasons for refusing the adjournment application in its decision at [5] where it said:
On 11 March 2016, the Tribunal wrote to the applicant inviting him to attend a further hearing on 22 April 2016. On 13 April 2016, the applicant wrote to the Tribunal requesting a postponement of the hearing to allow him time to obtain a new representative as his previous agent was no longer representing him. The applicant explained the efforts he had gone to in order to engage a new representative and requested time to collect the money required to pay for a new representative. The Tribunal considered the applicant's request but decided to refuse to postpone the hearing on the basis that the applicant had the assistance of an adviser for the hearing with the previous Member and that the purpose of the second hearing was to discuss issues arising out of his evidence given during that hearing, as well as more recent country information. Further, the Tribunal took into consideration the fact that the previous hearing had been held nearly a year before and that there was nothing in the information provided by the applicant to indicate that he would be in a position to engage another representative in the near future. In light of these circumstances the Tribunal was of the view that the matter should not be delayed any further.
There is no question that the Tribunal has a statutory power to adjourn proceedings: see s.427 of the Migration Act 1958. The real question is whether or not there is “evident and intelligible justification” for the decision relating to the adjournment (see Li’s case at [76]). The applicant argues that the case needs to be seen in light of the surrounding circumstances, the important ones which are set out in the submissions:
28. As analysis of the reasoning process in this matter, as evinced from the words of the decision show that the following factors were dispositive of the issue of whether to allow the adjournment request or not:
i) That the Applicant had “had the assistance of an adviser for the hearing with the previous member” (‘the first consideration’);
ii) That “the purpose of the second hearing was to discuss issues arising out of his evidence as well as more recent county information” (‘the second consideration’);
iii) That the Applicant had not indicated he would be in a position to engage another representative in the near future (‘the third consideration’);
iv) That, in the Tribunal’s own words, it “took into consideration that the previous hearing has been held nearly a year before” and noted “the matter should not be delayed any further” (‘the fourth consideration’)
As counsel for the Minister argues, the applicant responded to the Tribunal registry officer who advised that the adjournment had not been granted on 15 April 2016, stating (see Court book p.284):
Ok I happy to attend this hearing because it’s about my future and life matter. Slightly feel sad and worried that I couldn’t get a lawyer as a representer in short time period.
Thanks a lot.
The most significant difficulty confronting the applicant in obtaining the adjournment was that he did not seek an adjournment for a specified timeframe, nor provide any basis upon which it may be concluded that he would ultimately obtain legal representation at the next hearing nor an estimate of the time needed. Had the applicant made a more specific request (for example including some reasonable timeframe in which he hoped to obtain a lawyer) the outcome may well have been different.
Whilst not articulated in argument, this is a case where the need for a further hearing is said to arise out of discrepancies in the evidence, but also clearly arose out of the fact the Tribunal was now reconstituted by a different member. The conduct of the Tribunal administration resulted in a need for a further hearing at a time after which the applicant appears to have exhausted his funds and capacity to obtain legal representation. In these circumstances, had the applicant provided a reasonable basis for explaining how he would obtain legal representation within a reasonable timeframe (not necessarily a short timeframe) one would have expected the Tribunal to grant the adjournment.
On the material referred to, whilst reasonable minds may differ as to whether or not an adjournment should have been granted, I am not persuaded that it could be said to be a legally unreasonable decision.
Ground Two
The applicant argues that the Tribunal had regard to three irrelevant considerations listed as:
a) That the Applicant had “had the assistance of an adviser for the hearing with the previous member” (‘the first consideration’);
b) That “the purpose of the second hearing was to discuss issues arising out of his evidence as well as more recent county information” (‘the second consideration’);
c) That, in the Tribunal’s own words, it “took into consideration that the previous hearing has been held nearly a year before” and noted “the matter should not be delayed any further” (‘the third consideration’)
It is difficult to conclude that these considerations were irrelevant to the question of the adjournment. The first consideration goes to whether or not the applicant had the benefit of a legal advisor at a stage when it was important to ensure that the entirety of his case and the relevant evidence were placed before the Tribunal member. The second consideration was relevant as it indicated that the Tribunal was mindful of the nature of the second hearing in order to take that into account in determining whether or not to grant the adjournment. The third consideration was relevant in that it is important for there to be timely decisions in such matters even if the applicant was not the cause of the delay. Whilst this matter had already been the subject of lengthy delays that were not the fault of the applicant, it was nonetheless important to bear in mind the overall delay in the case. As stated above, if the applicant had provided a reasonable timeline for a further hearing it may be that the delay caused by the Tribunal would weigh in favour of granting the adjournment.
In the circumstances I am not persuaded that in this case the Tribunal has had regard to any irrelevant consideration in determining whether or not to grant the adjournment. I therefore find that the applicant is not able to succeed on either of grounds 1 or 2.
Ground Three
In support of ground 3, the applicant argued that at [35] and [36] of the Tribunal’s reasons (set out above) the Tribunal erred in that it was required to make a determination as to who had been responsible for the applicant’s brother’s disappearance. The Tribunal clearly stated that they were not persuaded that it was the SLA, and noted that there were other groups, including the LTTE who could have been responsible. This does not indicate that the Tribunal were required to conclude that the LTTE were responsible simply on the basis that they or another group were active in the area. As the applicant acknowledges, there is no general obligation upon the Tribunal to make specific findings about every fact: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [77]. This is not to say that there is not a general duty on the Tribunal to make findings of fact in order to set out its reasons: see for example Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 at [48]. Whilst these general obligations are clear, it is a not a requirement that a decision maker make a finding of fact when they are not satisfied to the requisite standard of the facts and circumstances. This point is poignantly explained in the unusual factual circumstances of Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948; [1985] 2 All ER 712.
In the circumstances of this case, I am not persuaded that the Tribunal erred in going no further than reaching its conclusion that the SLA were not responsible (or at least the suspicions that they were responsible were unfounded) with respect to the brother’s disappearance. At this point the applicant’s case, which was always based upon fear of the SLA, was no longer supported by this particular claim. It was not put to the Tribunal that the applicant was at risk from the LTTE.
I am not persuaded of the applicant’s argument that at this point the Tribunal ought to have considered an alternative case theory that he may have been at risk from the LTTE. It is simply because of the possibility that the LTTE may have caused his brother’s disappearance, when his case had never been one of fear from the LTTE. In these circumstances, I find that the applicant has not succeeded on this ground.
Ground Four
The applicant argues under this ground that although the Tribunal appears to have applied the “real chance” test properly (see [60] as quoted above) that in the context of this case the Tribunal failed to have regard to the potential risk to the applicant of the person who may have abducted his brother. The Tribunal were not satisfied that there was any risk of harm to the applicant from the SLA as a result of his brother’s disappearance. There was no evidence upon which to make a finding as to whether it was another group or even simply criminals operating in the area, who had caused the brother’s disappearance.
On the case as put to the Tribunal, it does not appear to me that there was an error in failing to specifically contemplate that the LTTE or some other non-army actor was a potential risk to the applicant when he had never expressed a case of fear from anyone else.
In substance, this is a restatement of the previous ground and should not succeed for substantially the same reasons.
Additional Ground
During the course of argument, counsel for the applicant raised concerns that at [40] of the decision the Tribunal had materially misstated the nature of the evidence to which it had regard. Paragraph 40 of the reasons states:
40. The Tribunal has also taken into consideration the inconsistent evidence the applicant has provided in relation to where he was living after these alleged visits by the SLA. The Tribunal notes in the applicant's statutory declaration attached to his protection visa application, the applicant claimed that in 2007 he went and stayed with an uncle in a different district in Jaffna and that his mother initially sent him to Colombo so he could get his passport. There was nothing in his statutory declaration to indicate he spent a period of at least a year living in Colombo. However, in his protection visa application the applicant provided residential details showing that he was living in Kadathanai village from 21 May 1988 to 1 October 2007 and in Colombo from 1 October 2007 to 1 October 2009 (which was the original departure date included in the applicant's protection visa application before being amended to 2008). In the delegate's decision, a copy of which was provided to the Tribunal, the applicant's evidence was that he was living in Colombo from 2006 to 2008. Further, as the Tribunal put to the applicant in the hearing, in accordance with the requirements in s.424AA of the Act, the record of the applicant's entry interview provides that the applicant stated that he had lived in his village in Amban from birth to 2008 and he made no mention about living either in Colombo or in another part of Jaffna district with his uncle. The Tribunal does not accept the applicant's explanation for the discrepancy in this evidence, as compared to his later evidence, that he was in a confused state at the time of the entry. The Tribunal does not accept that the applicant would fail to mention that he lived in Colombo for a period of a year prior to his departure from Sri Lanka, if in fact he had been.
It was said that the statement by the Tribunal that the applicant had never said in his statutory declaration attached to his protection visa application that he had spent at least a year living in Colombo was a misquote of the evidence. This is based upon a brief note at p.26 of the Court Book as to reasons given by the applicant about why he left Sri Lanka: he said that in 2006 “they came approx. 3 times and after the 3rd time my MUM took me to COLOMBO and told me to leave SRI LANKA”. However in the same form the applicant sets out a history of his residential addresses at Items 12 and 13 (Court Book pp.15 and 16), and does not include in that history (which dates from 1988) any history of living in Colombo. In a statement that appears at Court Book p.65, the applicant said:
28. From 2007 until went to stay in hiding with my uncle in a different district in Jaffna because I was fearful of being taken by the SLA.
29. Initially my mother sent me to Colombo so that I could get my passport and make arrangements with an agent to get me to Malaysia. My mother mortgaged the land in order to may for me to go to Malaysia.
The inconsistency referred by the Tribunal appears at Court Book p.87 where the applicant gives another list of residential addresses, and on this occasion says that from October 2007 to October 2009 he lived in Colombo, although says that he does not remember his address throughout that two year period. Clearly this cannot be reconciled with the initial statement at Court Book pp.15 and 16. To the extent that there is reference to going to Colombo at Court book p.26 and Court Book p.65 (in the context of the forms) it appears that the references are to travelling to Colombo for the purpose of obtaining a passport, not living there. It was open to the Tribunal to real the evidence in this way.
When the material is viewed as a whole I am not persuaded that the Tribunal has misstated the evidence or misunderstood the evidence as set out in the Court Book, rather has taken a view of that evidence which was open to them on the face of the material. In these circumstances, I am not persuaded that these arguments provide a basis for judicial review in the context of this case.
I therefore dismiss the application.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 29 January 2018
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