BKV15 v Minister for Immigration

[2017] FCCA 358

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKV15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 358

Catchwords:
MIGRATION – Findings of fact regarding credibility – merits review.

Legislation:

Migration Act 1958 (Cth), ss.36, 65, 424AA

Applicant: BKV15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1643 of 2015

Judgment of: Judge McNab

Hearing date: 14 February 2017

Date of Last Submission: 14 February 2017

Delivered at: Melbourne

Delivered on: 14 February 2017

REPRESENTATION

Counsel for the Applicant: IN PERSON

Counsel for the Respondent: Mr Gauntlett

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed 17 July 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7.206.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1643 of 2015

BKV15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX-TEMPORE

1. The Applicant filed an application on 15 July 2015.  The grounds of the application are that the decision of the Second Respondent, the Refugee Review Tribunal, was affected by legal error.  Orders of the court were made on 9 December 2015 granting leave to the Applicant to file an amended application, if any, a supplementary court book, if any, and written submissions 42 days prior to the final hearing.  No amended application has been filed. 

2. The Applicant is a citizen of Sri Lanka who applied for a Protection Visa under section 65 of the Migration Act on 12 November 2012. The Applicant was required to establish before the Tribunal one of the alternative criteria under section 36(2)(a), (aa), (b) or (c), that is, he is either a refugee or satisfies the complementary protection grounds. The Applicant appeared unrepresented today, with the assistance of a Tamil interpreter. He was served with the Respondent’s submissions on 31 January 2017 and accepts that he had had the opportunity to have those submissions interpreted.

3. This is a case where the Tribunal member, by a decision made on 18 June 2015, had serious doubts about the credibility of the Applicant.  The principal grounds for concern were that the Applicant had provided, in the course of providing information to either the Tribunal or to delegates of the Minister, varying stories as to the background to his application.  When he appeared this morning, he was invited to address the court as to any grounds that he had or any submissions that he wished to make in relation to the decision under consideration.  At that time, the Applicant told the court that his case had been handled by a legal firm and that he had been advised to tell a different story. 

4. He told the court that he had been told by the lawyers that, “If you tell it this way, they will accept,” and he said that he was given that advice at about the time that he gave the port interview.  He also raised that his brother had been a member of the LTTE and had been killed by military. I pointed out that the Tribunal member had considered and accepted that matter and referred to that at paragraph 35 of the decision.

Background 

1. The Applicant is a 31 year old Tamil citizen from Sri Lanka who arrived in Australia on 22 July 2012 as an irregular maritime arrival. 

2. On 12 November 2012, the Applicant applied for a Protection Visa under section 36 of the Migration Act, and the grant of the visa was refused on 4 March 2014. An application to appeal the decision of the delegate was made to the Administrative Appeals Tribunal for merits review on 7 March 2014.

3. The decision of the delegate was affirmed by the Tribunal on 18 June 2015.  I have set out the grounds of review earlier.  In the course of the progress of this matter to the Tribunal, the Applicant has given varying accounts of his treatment in Sri Lanka.  He gave an initial account on his arrival or shortly after his arrival. 

4. In November 2012, he gave a differing account, which is set out at pages 51 to 68 of the court book, and the statutory declaration is found at pages 69 to 72. In April 2013, through lawyers, he provided what was said to be a correcting document, and that is found at court book 115 and immediately following. On 14 May 2013, through the same firm of lawyers, he provided a further account with further details, and that is found at court book 122. Faced with competing versions of events, the Tribunal raised with the Applicant its concerns in relation to the material that had been put and concerns in relation to credibility and, as was appropriate, put those matters to him pursuant to section 424AA of the Migration Act.

5. At the hearing before the Tribunal, the Applicant, who was then represented, was given an opportunity to respond to matters at the hearing and was given further opportunity to file written submissions.  Those written submissions are found at pages 245 and following of the court book. At 246 the lawyers then acting stated:

   As outlined by the Applicant at his hearing, he was misled to provide incorrect information at his departmental interview.  The Applicant is remorseful for his actions and, as such, made a concerted effort to ensure he has clarified his claims and provided the true and correct particulars of same to the Tribunal.

6. The letter then went on to give an account and make further submissions. This is a case where it was clear to the Applicant that the Tribunal had concerns in relation to the Applicant changing his story and the provision of fraudulent documents in his application; that is dealt with at paragraphs [9] to [15] of the decision. 

7. At paragraph [24] of the decision, the Tribunal properly considered the key issues to be considered by it were:

   a)is the Applicant credible;

   b)does Australia have protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 protocol relating to the Refugees Convention; and

   c)does Australia have protection obligations under the complementary protection criterion?

8. The Tribunal found that the Applicant was a national of Sri Lanka and considered problems of proof that refugees may face bringing their case and in particular made reference to those matters at paragraphs [28], [29] and [33] of the decision.  At [33], the Tribunal said:

The Tribunal accepts the Applicant may have been traumatised upon arrival after his boat journey to Australia, but the Applicant’s entry interview was nearly a month after his arrival.  The Tribunal accepts the details of all his claims may not have been provided at the first immigration interview and he may have been fearful.  However, the Tribunal does not accept that key claims, even if fearful, lacking trust of officials, past mistreatment such as being detained by the LTTE or arrested (by CID or authorities) would not have been made as they go to the core of the Applicant’s claim. 

1. The Tribunal did accept that the Applicant was from a LTTE controlled area and that his family were displaced and living in IDP camps and that his older brother was killed in 1992, and that is referred to at paragraph [35] of the decision.  However, after considering the versions of events and the various changing claims that had been made by the Applicant, or changing accounts that had been given by the Applicant, the Tribunal at paragraph [63] concluded that it did not believe that the Applicant was being truthful when giving evidence concerning whether he was detained in 2010 or 2011, or discussing whether a human rights complaint had been made by his mother.

2. The basis for that conclusion is set out in detail in paragraphs [33], [38] and [41] of the decision.  At [41], the Tribunal said:

   The Tribunal considers the Applicant has given a number of different accounts of his time in the IDP camp and finds that he has embellished his claims to enhance his protection claims.

3. In my view, the Tribunal has considered the claims made by the Applicant in support of his claim that he was a refugee, has considered the matters of credit which are matters for the Tribunal, and has made a finding of fact in relation to those matters on the material before it.  The Tribunal also considered Australia’s obligations under the Refugee Convention as to whether there was a real chance that the Applicant would face serious harm if he was to return to Sri Lanka.  Those matters are dealt with in detail at paragraphs [64] to [91] of the Tribunal’s decision. 

4. The Tribunal was not of the view that the Applicant would be of particular interest to authorities in Sri Lanka and made particular reference to the Applicant’s travel from Sri Lanka to Australia on a passport, the details of which are found at paragraphs [58] to [63] of the Tribunal’s decision.  It did not accept accounts given by the Applicant as to how he was able to obtain a passport and a visa to travel.  The Tribunal stated at paragraph [58]:

   The fact that he (the Applicant) was able to travel through the airport three times without any problem or being questioned further reinforces to the Tribunal that he was not wanted by authorities, suspected of being LTTE or of adverse interest.

5. In my view, the Applicant is asking the Tribunal effectively to substitute its view for the decision of the Tribunal and in so doing is asking the Court to engage in an impermissible merits review.  Having had the benefit of the careful submissions, both written and oral, of Counsel for the Minister, who traversed the material in the court book and made submissions which were mindful of the fact that the Applicant was unrepresented and with a view to assessing whether there were arguments that were reasonably open to the Applicant, in my view, there is no apparent error in the decision of the Tribunal. In those circumstances, I dismiss the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 3 March 2017