BKY15 v Minister for Immigration

[2017] FCCA 1969

FEDERAL CIRCUIT COURT OF AUSTRALIA

BKY15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1969

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – credibility findings.

Legislation:
Migration Act 1958, s.424AA

Cases cited:
SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69

Applicant: BKY15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1649 of 2015

Judgment of: Judge Riley

Hearing date: 14 July 2017

Date of last submission: 14 July 2017

Delivered at: Melbourne

Delivered on: 14 July 2017

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Julia Lucas

Solicitors for the first respondent: Clayton Utz Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz Lawyers

ORDERS

1. The application filed on 17 July 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1649 of 2015

BKY15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (“Tribunal”).  The Tribunal was incorrectly named in the application as the Administrative Appeals Tribunal.

2. The applicant applied for a protection visa on 17 December 2012.  A delegate of the Minister refused that application on 15 October 2013.  The applicant applied for review by the Tribunal on 21 October 2013.  The Tribunal conducted a hearing on 25 March 2015.  The applicant attended the hearing with the assistance of a lawyer who was also a registered migration agent.  The Tribunal, on 22 June 2015, affirmed the delegate’s decision not to grant the applicant a protection visa.

3. The applicant is a Sri Lankan Tamil.  He has a valid Sri Lankan passport, which is due to expire on 20 June 2021.  At the time of the Tribunal’s decision, the applicant was 32 years old and married with one son.  The applicant’s wife and child, and other members of the applicant’s family, continue to live in Sri Lanka.  The applicant ran a business in Sri Lanka purchasing, packing and reselling fish in Udappu.

4. The Tribunal noted that the applicant had travelled to India five times, being for:

   a)24 days in 2008;

   b)three weeks in January 2010;

   c)two months between January and March 2011;

   d)nine days in January 2012; and

   e)five days in April 2012.

5. The applicant made a statutory declaration on 11 December 2012 in support of his claims.  In that statutory declaration, the applicant said that:

   a)he was rounded up in 2007 by the Sri Lankan Army, questioned about whether he had any involvement with the LTTE[1] and then released;

   [1] Liberation Tigers of Tamil Eelam

   b)he was rounded up again in 2008, when he was questioned and released;

   c)he went to India several times because he feared for his life in Sri Lanka;

   d)his father went missing on 2 August 2008;

   e)the applicant believed his father was involved in political activities, which contributed to his disappearance;

   f)the police did nothing;

   g)the applicant was rounded up again in 2011;

   h)he was forced to participate in a demonstration in support of the Sri Lankan president, and was later released;

   i)he was harassed by the police, the army and the navy because he was a Tamil;

   j)he feared that he would be seriously physically harmed or killed if he returned to Sri Lanka because of his Tamil ethnicity, his perceived support of the LTTE and because he had sought asylum in Australia;

   k)village leaders had visited his home since he came to Australia and his wife told them that he was living here; and

   l)he feared that the village leaders would pass on to the authorities the information about where he is living.

6. The Tribunal noted that the delegate had doubts about the credibility of certain aspects of the applicant’s claims.  The delegate did not accept that the applicant had been mistreated in the way he had claimed or that his father had been abducted.  The delegate considered the applicant’s frequent travel to India was inconsistent with his claims to fear harm in Sri Lanka.

7. The applicant, through his advisers, provided a written submission to the Tribunal.  He said in that submission that he and his father were supporters of the United National Party (“UNP”).  He said he had not mentioned this previously because he was afraid of the Sri Lankan security forces.

8. The applicant was questioned at length during the hearing.  The Tribunal particularly raised with the applicant an inconsistency between what he told the Tribunal and what he said during an entry interview relating to why his father was taken.  In the entry interview, the applicant had said that his father would not participate in anything, whereas the applicant told the Tribunal that his father had been keenly involved with the UNP.  The applicant told the Tribunal that he had been confused during the entry interview.

9. The applicant also told the Tribunal that his younger brother had been arrested in the context of an election.  He said that his brother had been charged, and the family had to pay a large amount of money for his release.  The applicant said that he could provide copies of documents relating to the arrest of his younger brother.

10. The applicant said that he feared harm particularly from a certain Member of Parliament in Sri Lanka.  The Tribunal asked if anyone who would want to kidnap the applicant had ever done anything to his younger brother.  He said that his younger brother had been taken.

11. The Tribunal asked the applicant why he repeatedly travelled to India, but then returned to Sri Lanka.  He said that when he thought his problems had diminished he would return.

12. The Tribunal put certain issues to the applicant pursuant to s.424AA of the Migration Act 1958 (“the Act”).  The Tribunal put to the applicant that, in his entry interview, he had said his father was not someone who would participate in anything.  The Tribunal explained that that information was relevant because it may lead the Tribunal to doubt that his father had been involved with the UNP, and may lead the Tribunal to doubt the credibility of the other claims made by the applicant.  The Tribunal also put to the applicant that the most recent submissions from his representatives made on 18 March 2014 had made no reference to his younger brother having been arrested or released, and that circumstance may lead the Tribunal to doubt the credibility of that claim.

13. The applicant requested, and was given, a brief adjournment to consider, with the benefit of his representatives, his response to the s.424AA information. After that adjournment, the applicant told the Tribunal that he had not said anything about his father’s involvement with the UNP initially because he feared he would face problems if he did so. He said that he had not mentioned that his brother had been arrested and released because he was busy trying to raise funds to ensure his release.

14. The Tribunal gave the applicant an opportunity to provide post-hearing submissions.  The Tribunal took that response into account.  The post-hearing submissions included scanned copies of documents relating to the applicant’s brother’s arrest and release.

15. The Tribunal accepted that the applicant had been rounded up in 2007 and 2008 along with many other Tamils.  Otherwise, the Tribunal found that the applicant’s claims lacked credibility.  The Tribunal based that conclusion on various inconsistencies, which it explained in detail.

16. In particular, the Tribunal noted that the applicant had said in his entry interview that his father was not someone who would participate in anything, but later claimed that he and his brother and father were all very active supporters of the UNP.  The Tribunal did not accept the applicant’s explanation for this inconsistency, for reasons which it gave.  The Tribunal also considered that the applicant’s evidence about his father’s abduction was “vague and generalised” and “implausible”.[2]

    [2] Tribunal’s reasons for decision at paragraph [80]

17. The Tribunal did not accept that the applicant was rounded up in 2011, particularly in the context of his evidence about travel to India.  The Tribunal considered the applicant’s evidence about his reasons for returning from his frequent trips to India to be “vague and inconsistent” and “without any reasonable explanation”.[3]  The Tribunal did not accept that the applicant would have returned from India if he really feared that he was at risk of harm from the Member of Parliament he had identified.  The Tribunal found the timing of the applicant’s claims about his brother having been arrested was highly implausible, given that the applicant had not raised those claims with his own representatives until early 2015.

    [3] Tribunal’s reasons for decision at paragraph [82]

18. In view of the country information about document fraud being prevalent in Sri Lanka, the fact that only scanned copies of documents had been provided, and the Tribunal’s earlier findings about the applicant’s credibility in general, the Tribunal considered that the documents in support of the applicant’s brother’s arrest were fraudulently created to strengthen the applicant’s protection claims.  The Tribunal considered that the applicant’s willingness to provide fraudulent documents further diminished his credibility.  The Tribunal did not accept that the applicant was a witness of truth.

19. The Tribunal considered the applicant’s position as a Tamil, as a person who might be perceived to support the LTTE, and as a failed asylum seeker who had departed Sri Lanka illegally.  Based on country information, the Tribunal did not accept that the applicant was at risk of persecution for any of those reasons.

20. The Tribunal also considered the complementary protection criteria. The Tribunal accepted that the applicant might be held on remand for a few days. The Tribunal accepted that the Sri Lankan prison conditions did not meet international standards. However, the Tribunal did not accept that being held on remand for a few days would amount to significant harm as defined in the Act. In the alternative, the Tribunal did not accept that the Sri Lankan authorities would intend to cause the applicant significant harm. The Tribunal concluded that the applicant would not face serious or significant harm if he were to return to Sri Lanka.

21. The applicant applied to this court, and appeared in court today, without the benefit of legal assistance.  The grounds of the application were that:

    (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 Victoria Legal Aid and am waiting for a decision.

22. The application was lodged on 28 July 2015.  There was no suggestion that Victoria Legal Aid had not had sufficient time to consider the applicant’s application.  Ground 2 is without substance.

23. The applicant did not provide any particulars of ground 1, nor did he file written submissions.  The affidavit in support of the application does not provide any clue as to what defects the applicant might wish to raise.

24. The applicant said in oral submissions to the court today that the decision was not fair to him.  The applicant said that, in paragraphs 65, 67, 80 and 84 of its reasons for decision, the Tribunal said he was using the same sentences over and over again.  Those paragraphs are as follows:

    65.I put to the applicant under s.424AA of the Act that during the entry interview the applicant stated (see the back of D1, folio 97) that his father was “not someone who would participate in anything”. The applicant stated that he understood what I put to him. I explained to the applicant that this information was relevant to the application for review because it may lead me to doubt that his father was involved with the UNP and I may decide it was inconsistent with the applicant’s later claims that his father was involved with the UNP, which may lead me to doubt the credibility of those claims and other aspects of the applicant’s claims, which would be a reason or part of a reason for affirming the decision under review. The applicant stated that he understood my explanation of the relevance of the information and requested an adjournment before he responded to the information. I granted that request.

    …

    67.After a brief adjournment, the applicant stated that he had not said anything about his father’s involvement with the UNP because he feared he would face problems if he did so. He said that he feared that he would also be suspected of being involved with the UNP if he said anything. He said that he had been trying to raise funds for his brother’s release so he had not told the representatives about it. I suggested to the applicant that if his younger brother had been working for the UNP, like he and his father had, it seems very surprising he would not have mentioned this. He repeated that he had been spending all his time trying to get his younger brother released.

    …

    80.I otherwise found the applicants [sic] explanation of the circumstances of his father’s abduction to be vague and generalised. I find it highly implausible that if the applicant’s father was abducted by supporters of Mr Perera or elements within the Sri Lankan security forces because of his support for the UNP there were no threats made to the applicant’s father or his family in the lead up to the abduction or any subsequent communication, either in the form of a demand of payment of a ransom or a further warning ascribing the applicant’s father’s death or disappearance to his political activity. I similarly found the applicant’s explanations of when people came looking for him, who the people were and where they came to look for him – being his mother’s home rather than his own –implausible and generalised. The applicant was unclear in the answers he provided about why people were looking for him, and what they wanted, to a degree that I find to be inconsistent with these claims being true. Again, I give this finding significant weight in assessing the applicant's credibility generally.

    …

    84.I find it highly implausible that the applicant would not have advised the representatives about the arrest and detention of his brother in early 2015 if it had in fact taken place. I do not accept the applicant’s explanation that he did not tell the representatives about the arrest and detention of his brother because he did not understand its relevance to his own protection claims. Given that the applicant’s claims substantially turn on his and his family’s support for the UNP, I find that if the applicant’s brother had been arrested and detained because of UNP activity he would have advised the representatives of this before the hearing. In light of the country information before me (see in particular [5.42] of the DFAT report referred to in appendix 1) about the prevalence of document fraud in Sri Lanka, of only scanned copies have been provided and of my findings about the applicant’s credibility generally, I find that the documents provided after the hearing are not genuine and have been fraudulently created in order to strengthen the applicants protection claims. I give these documents very little weight in assessing the applicant’s claims. I give the applicant’s willingness to provide fraudulent documents in support of his claims, and to make a false claim that his younger brother has been arrested and detained by the Sri Lankan authorities, significant weight in assessing the applicant’s claims generally.

25. Those paragraphs do not say that the applicant was using the same sentences over and over again.

26. The applicant also said that, in paragraph 32 of its reasons for decision, the Tribunal said he had embellished his claims.  Paragraph 32 is as follows:

    I also raised with the applicant the inconsistency between what he was telling me now and what he had stated during the entry intetview where (see D1, folio 97) the applicant stated that he did not know why his father was taken. I suggested to the applicant that it seemed very odd that he had said during the entry interview that he did not know why his father was taken if his father had been an active supporter of the UNP. The applicant stated he had been confused during an interview.

27. That paragraph does not say that the applicant embellished his claims.  It says that his initial claims were inconsistent with his later claims.  There was no error in the Tribunal noting and relying on that inconsistency.

28. The applicant said to this court that the laws and regulations in his country were different to the laws and regulations here, and it was only later that he realised he could tell his true story.  The applicant gave the same reason to the Tribunal as the explanation for the inconsistencies in his account.  The Tribunal rejected that explanation.  It was open to the Tribunal to do so.

29. The applicant also said to the court that he told the Tribunal repeatedly that he feared returning to his country, and, by that, he meant that he feared he would be tortured and would suffer other harms.  The Tribunal clearly considered all of the applicant’s claims, and particularly considered his claimed fears.  However, the Tribunal, largely for reasons of credibility, did not accept those claims.  The Tribunal’s conclusions in that regard were open to it.

30. The applicant also raised concerns about the Tribunal’s conclusion that the documents he had submitted about his brother were fraudulent.  The applicant said that he had obtained the documents from the government.  However, it is not for this court to re-determine matters such as that, which go to the merits of the case.

31. The applicant also asked rhetorically why the Tribunal was not prepared to accept the authenticity of the documents relating to his brother, but did believe him in relation to other things.  The fact is that the Tribunal did not accept the truth of any of the applicant’s significant claims, apart from his claim to have been rounded up in 2007 and 2008.  In any event, it is open to the Tribunal to accept some aspects of an applicant’s claims, but not others.  The Tribunal’s reasons for doing that in this case were open to it.

32. I have looked at the Tribunal’s reasons for decision to see if they disclose a jurisdictional error.  I note that the Tribunal said in paragraph 129 of its reasons that it did not accept that the authorities would, in holding the applicant on remand, intend to cause the applicant significant harm.  The decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 would support that process of reasoning. However, I note that the High Court is presently reserved on an appeal in SZTAL, and the High Court may come to a different view.  However, as the matter stands, the decision of the Full Court of the Federal Court is binding upon this court.

33. Moreover, the Tribunal, in this case, had a separate reason for considering that the applicant did not face significant harm if he were to be held in remand for a few days. That reason was that any mistreatment that the applicant may suffer in that period would not amount to significant harm as defined in the Act. That conclusion was a matter of fact and degree, and it was open to the Tribunal to reach it.

1. All in all, I have been unable to discern any jurisdictional error in this case.  It seems to me that the Tribunal gave the applicant procedural fairness, correctly understood and applied the law, took into account all relevant considerations, did not take into account any irrelevant considerations, reached conclusions that were reasonable in the legal sense, and otherwise did not make any jurisdictional errors.  Consequently, the application will be dismissed. 

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 17 August 2017