BLO15 v Minister for Immigration
[2016] FCCA 423
•9 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLO15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 423 |
| Catchwords: PRACTICE & PROCEDURE – Procedural fairness – obligation of Tribunal to call witnesses. |
| Legislation: Migration Act 1958 (Cth), ss.361(2)A & (3) & 476 |
| Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 |
| Applicant: | BLO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 265 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 12 February 2016 |
| Date of Last Submission: | 12 February 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 9 March 2016 |
REPRESENTATION
| The Applicant: | In person with an interpreter |
| Solicitors for the Respondents: | Ms C Stokes for the Australian Government Solicitors |
ORDERS
The Application filed 21 July 2015 is dismissed.
The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 265 of 2015
| BLO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for constitutional writs made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) in relation to a decision of the second respondent (‘the Tribunal’) to affirm a decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant applied to this Court on 21 July 2015. The grounds of application state as follows:
“1.The Applicant was denied procedural fairness by the Refugee Review Tribunal member’s failure to address part of the Applicant’s claim and/or the failure to take into account a relevant consideration.
2.More details will be provided later.”
The first respondent opposes the application and submits that the grounds pleaded by the applicant do not identify any jurisdictional error in the decision of the Tribunal, or any procedural unfairness, which might amount to jurisdictional error. For this reason, it submits that the application should be dismissed with costs.
Background and Tribunal Hearing
The applicant is a Sri Lankan national born on 13 November 1993 in Uddapu, Pattalam, Sri Lanka, who arrived at the Cocos Islands on 30 June 2012. He was an unauthorised maritime arrival and was accordingly at first detained before being released into the community on 16 October 2012.[1]
[1] Court Book (‘CB’) p 168.
He applied to the Department of Immigration for a protection visa on 26 November 2012. This application was refused by a delegate of the Minister on 10 December 2013.[2]
[2] CB p 167.
The applicant applied for a merits hearing before the Tribunal and this took place on 9 December 2014. He gave evidence on this occasion and arguments were presented on his behalf. He was assisted by an interpreter who spoke both Tamil and English. He was represented at the Tribunal hearing by a Registered Migration Agent.
The Tribunal noted that the applicant claims to have both parents still living in Sri Lanka, although he was unable to state their address. He claimed to have one sister living in Uddapu. He was educated for 10 years and completed his O levels.
The Tribunal considered the detailed written statement made by the applicant at the time of his initial application. I will not repeat those claims verbatim. They are summarised in detail by the Tribunal at paragraph 20 of its decision record.[3]
[3] CB p 168–170.
In short, the Tribunal considered his claims that in March 2012 he was stopped by a person in plain clothes after he had been fishing alone in his father’s boat. He was asked whether or not he had a fishing licence and replied that he did not. This person slapped him in the face and in order to defend himself, the applicant fell to the ground. He claimed that he saw that person enter a nearby Navy camp. He assumed this person was a member of the Sri Lankan Navy. He claimed that he suspected the source of the problem between him and this man was that he was a Tamil and the man was Sinhalese.
The next day when his father went fishing, he was stopped by a Naval officer who asked him the identity of the person who had used the boat the day before. When his father refused to mention the applicant’s name, the officer then slapped him and threatened to restrict his father from fishing with any other person, despite of the fact that he had a fishing licence. The applicant claimed that his father feared for the applicant’s safety and accordingly he went into hiding with his aunt for three months. It was whilst staying with his aunt that he and his friends were involved in a physical altercation during which a person called Kamal tried to hit him. Kamal’s brother, Subash, arrived at the scene and threatened to kill the applicant. This was not reported to the police.
The applicant claimed, in his initial written statement, that his father had advised him to flee on a boat leaving for Australia in about May of that year, however he was intercepted by the authorities and told to report to the police station on the next day. He failed to report and the police attended at his house threatening to take him to court. A bribe was paid to the police by his uncle and the incident was resolved.
It was a few weeks later in June that the applicant claims to have successfully boarded a boat and fled Sri Lanka.
In his initial application, the applicant claimed that he believed that he will be harmed, mistreated and/or killed if he was returned to Sri Lanka, and that this would happen from either the Sri Lankan authorities and/or the Navy.[4] In his initial application, the Tribunal noted that he advanced a claim relating to his Tamil race, and his membership of a social group consisting of people who had opposed government authority, and thirdly as a member of the social group of failed Tamil asylum seekers. He claimed that the authorities in Sri Lanka would not protect him.
[4] CB p 170.
In a written submission dated 15 November 2013, the applicant’s Migration Agent provided a further claim which stated that the applicant had a friend, named Dimilah, who had been murdered in July 2013, and the applicant suspected that the murderers were the same people that had threatened him in about August 2011 during a time in which he was staying with Dimilah to attend a festival. While staying there, he and his friends were intercepted by a group of five people and one of those individuals slapped him in the face, which caused the other members of that group to hit both him and his friend. Both he and his friend managed to escape, but heard members of the group threatening to kill them.
Against this background, the applicant claimed that his friend Dimilah return to Chilaw and was murdered in July 2013.
The applicant claimed that he would also be killed by these people because of his association with Dimilah. It was explained that he had not raised this claim earlier because he had not appreciated its significance.
He further claimed that the Naval officers attended at his mother’s house in August 2013 asking about the whereabouts of he and his father and that they made an implied threat towards him.
The Applicant also made a claim that whilst staying at his aunt’s house he commenced a sexual relationship with her.[5] His mother found out and threatened suicide. The applicant fears that if he returns to Sri Lanka his mother will suicide and his uncle will return from London and confront him.
[5] CB p 171.
A further claim was made on behalf of the applicant the day before the Tribunal hearing, to the effect that a further friend, called Dilshan, who had been present at the incident in Chilaw, had since arrived in Australia.[6] There was apparently no request in that submission for Dilshan to give evidence. I note the Response to Hearing Invitation, dated 22 October 2014, indicated that no witnesses would be called by the applicant at the Tribunal hearing.[7]
[6] CB p 143.
[7] CB p 142.
When the Tribunal observed that the applicant had made no request to call witnesses and that simply mentioning the existence of a witness would not assist his claim, the applicant requested the Tribunal to call Dilshan.[8] The Tribunal made a phone call to Dilshan and attempted to speak with him through the Tamil interpreter who was present at the hearing. The witness indicated that he could not speak Tamil.[9] It seems that the applicant informed the Tribunal that the witness spoke Sinhalese.
[8] CB p 176.
[9] CB p 176.
For this reason, the Tribunal was not able to take evidence from the witness on the day of the Tribunal hearing. The Tribunal declined to adjourn the hearing for that purpose noting that the applicant had apparently known of Dilshan’s whereabouts and contact details for about 12 months. The applicant was invited to submit a statutory declaration from Dilshan which would be considered in light of the fact that the applicant had not arranged for him to be present to give evidence, and that the declaration would have been prepared after the applicant had been advised of the potentially adverse consequences of failing to call him as a witness.[10] On 2 February 2015, a written submission was sent to the Tribunal indicating that Dilshan did in fact speak Tamil and that the applicant knew this.
[10] CB p 179.
A statutory declaration from Dilshan, dated 27 January 2015, was received by the Tribunal[11]and the Tribunal considered and summarised the version of events contained in it.[12] Dilshan claimed to believe that Dilimah had been killed by the same people who had attacked their group in 2011.
[11] CB pp 161-163.
[12] CB pp 179-180.
The applicant’s representative requested that the Tribunal reconvene and that Dilshan be allowed to give oral evidence, but the Tribunal declined this request.
Tribunal Findings
The Tribunal identified the applicant’s claims to be that he feared serious harm for reasons of his race, as a Tamil, his membership of a particular social group of people opposed to the government, and membership of a group of failed Tamil asylum seekers.
Having considered the written submission; the evidence given before the Delegate; the evidence given by the applicant before the Tribunal; and, the statutory declaration of Dilshan, the Tribunal proceeded to summarise in detail the applicant’s claim. This summary included the apparent incident involving the Navy; the altercation in Chilaw; the evidence of Dilshan; the claimed murder of Dilimah; the circumstances surrounding the applicant’s first claimed attempt to leave Sri Lanka; the claimed fight with the brother of Subash and other people; and, the claimed affair that the applicant had with his aunt.[13]
[13] CB pp 184-191.
The Tribunal concluded that none of the claimed harm came within the ambit of a convention reason to fear serious harm. With respect to the position of the applicant as a Tamil in Sri Lanka, it found that the applicant’s situation as a young Tamil male had not been in the past a reason for any serious harm, and that it would not be in the reasonably foreseeable future.[14] On the evidence before it, the Tribunal found that there was no real chance of serious harm by reason of any political opinions that he held, or might be imputed to him.[15]
[14] CB p 191.
[15] CB p 191.
The Tribunal gave detailed consideration to the status of the applicant as a failed asylum seeker and illegal departee, and concluded that any consequences to the applicant as an illegal departee and failed asylum seeker would be as a result of a law of general application, and would not amount to a real chance of serious harm now, or in the reasonably foreseeable future.[16]
[16] CB p 193.
The Tribunal correctly identified the complimentary protection obligations under s.36 of the Act. It concluded that the applicant was not at risk of being deprived of his life, suffering torture or being subjected to either cruel or inhuman punishment, or of being subjected to degrading treatment or punishment.
The Tribunal made a number of adverse findings as to the applicant’s credit. It made adverse findings with respect to both the Navy claims and the Chilaw claims.[17] It also made a finding of credit with respect to the submission made on behalf of the applicant on 2 February 2015, in which he acknowledged that he advised the Tribunal that the witness, Dilshan, spoke Sinhalese. He knew he in fact spoke Tamil and that he made that error because of confusion and distress. This was not accepted by the Tribunal.
[17] CB pp 187-188.
The Tribunal rejected the claim that any incident had occurred in Chilaw, as detailed by the applicant in his evidence and by Dilshan in his statutory declaration.[18]
[18] CB p 188 at [231]-[239] and p 189 at [246].
Significantly, given the grounds advanced by the application before this Court, the Tribunal appears to have accepted that Dilimar was in fact murdered, but given that it occurred approximately two years after the claimed events of 2011, it declined to link that unsolved murder with the 2011 incident. The Tribunal found that to do so would be mere speculation.[19] For this reason, the Tribunal concluded that the death of Dilimar did not lead to a finding of any chance of harm to the applicant being linked to that claimed incident.
[19] CB p 189.
Submissions of the applicant
The applicant appeared in this Court unrepresented and with the assistance of an interpreter in Tamil and English. He made brief oral submissions. He repeated that he was appealing to this Court because he had no prospect of living safely if he were to return to Sri Lanka.
With respect to ground one of the application, he stated that the Tribunal hearing was unfair and directed the Court’s attention to the difficulty that arose with the Sri Lankan interpreter. At the time, an attempt was made to receive telephone evidence from Dilshan. His submission to this Court was to the effect that there was no interpreter for the Sri Lankan language, and that for this reason, Dilshan was not allowed to talk to the Tribunal. He submitted that the Tribunal was required to take into account the evidence of Dilshan. It was this aspect of the Tribunal hearing, and the refusal of the Tribunal to later call Dilshan to give oral evidence, that formed the basis of his claim that he had been denied procedural fairness, and that the Tribunal had failed to properly consider a part of his claim and take into account a relevant consideration.
Submissions of the first respondent
The first respondent submitted that the Tribunal did not fall into error by reason of the procedure it adopted when faced with the prospect of the applicant’s failure to arrange for Dilshan to give evidence. It points to the fact that it did make a reasonable attempt to get evidence from Dilshan, but was faced with an apparent dead end because of the lack of an appropriate interpreter. It submits that whilst the failure of the Tribunal to make an enquiry, or call a witness, can amount to a jurisdictional error, it did not do so in this case. The Tribunal did genuinely give consideration to the need to call Dilshan and the likely significance of his evidence. It submits that the Tribunal made a reasonable attempt to do so. The Tribunal gave further consideration to this after receiving the statutory declaration of Dilshan, but concluded that it would not do so.
The first respondent submits that no practical injustice arose as a failure to allow Dilshan to give oral evidence. This is because, ultimately, the Tribunal allowed for the possibility that the friend, Dilimah, had been murdered but that on the state of the evidence before it concluded that it could not be said to have any tangible relationship to the claimed incident in 2011.
The first respondent submits that with one possible exception, a fair reading of the decision record of the Tribunal shows that it properly addressed all the claims made by the applicant. The first respondent quite properly directed the Court’s attention to the topic of illegal departure and potential imprisonment. The submission of the first respondent is that the Tribunal dealt with the implications of returning to Sri Lanka following an illegal departure, but did not deal specifically with the risk of a sentence of imprisonment being imposed as opposed to receiving a fine. With respect to this, the first respondent said that the findings of the Tribunal on this point were subject to a high level finding that the laws were of general application and not discriminatory.[20] For this reason, the applicant’s status as a returned person who had departed illegally would not bring him within the terms of the convention. I accept this submission.
[20] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91].
The first respondent conceded that this issue may also have been relevant to the complimentary protection obligations. However, it submits that the Tribunal gave close consideration to relevant country information, and that this information specifically dealt with the question of potential imprisonment, the procedures of the Courts, and the fact that those who have returned, having departed illegally under Sri Lankan law, have been arrested by police at the airport and taken to the local Magistrates Court at the first opportunity and granted bail.[21] For this reason, the first respondent submits that it can be inferred that the Tribunal considered this issue and that it was not necessary that it make a specific mention of it in light of the country information.
[21] CB p 182-184.
I accept this submission. Having referred to the DFAT country information which was to the effect that there was no evidence that anyone had been given a sentence of imprisonment rather than a fine, and accepting this, it is appropriate to infer that the Tribunal did consider this issue. In my view, given the finding of the Tribunal, that it was, “possible the applicant could be held on remand for up to two weeks, having considered the evidence before me I am satisfied that the harm he faces as a consequence is not of such gravitas as to constitute significant harm”[22], it is implicit in its reasoning that the consequences for the applicant did not include a real risk that he would sustain significant harm by virtue of a sentence of imprisonment. Accordingly, I find that there is no jurisdictional error in the failure of the Tribunal to specifically mention this in its findings.
[22] CB p 194 at [312].
Conclusion
With respect to the question of procedural unfairness as to the witness Dilshan, I am not satisfied that the Tribunal fell into jurisdictional error in the way it dealt with this matter.
The applicant was aware that Dilshan apparently had evidence that he believed could assist his claim. If the applicant felt unable to present evidence from Dilshan to the Tribunal, then he had options open to him under the Act.[23]
[23] I note at this point that the applicant was represented at the Tribunal hearing by a Migration Agent who was also on notice of the witness Dilshan.
Pursuant to s.361(2)A of the Act, an applicant may give written notice to the Tribunal within seven days after having received the Notice of Invitation to Appear, asking it to obtain either written evidence from a person named in the Notice, or other written material relevant to the decision under review. No such request was received by the Tribunal.
It was also open to the applicant to give written notice to the Tribunal asking it to obtain oral evidence from a person named in the Notice.[24] No such request was made by the applicant.
[24] Section 361(2) of the Act.
Even if such a request had been made to the Tribunal for oral evidence from Dilshan, the Tribunal was not required to comply with that request.[25] In Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin[26] the Full Court of the Federal Court held, at [37]:
“It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s 361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s 361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.”
[25] Section 361(3) of the Act.
[26] [2005] FCAFC 118.
As already noted above, no written notice was given by the applicant at any stage. The claim with respect to the witness Dilshan was only raised with the Tribunal the day before it occurred.
In this matter, the Tribunal was only faced with a request from the applicant to call the witness during the course of the hearing, after it had indicated to the applicant that simply telling it that there was another witness who might be able to give evidence of the 2011 incident in greater detail, was of little probative weight.
Having made its failed attempt to take evidence from Dilshan over the telephone, the Tribunal took a pragmatic and appropriate course by inviting the applicant to present evidence from Dilshan by way of a statutory declaration.
This matter raises similar considerations to those considered in Chen v Minister for Immigration and Citizenship[27]. As with that case, it cannot be said that the applicant was deprived of a real opportunity to give evidence or present argument. The Tribunal clearly gave real and genuine consideration as to whether or not to call the witness Dilshan, and did in fact make an attempt to do so. Further, once the statutory declaration of Dilshan was received, the Tribunal considered it closely and gave consideration to the request made on behalf of the applicant that it be given permission to present oral evidence in support of that statutory declaration.[28]
[27] [2011] FCAFC 56.
[28] CB p 180 at [174].
A letter from the Migration Agent to the Tribunal, dated 17 February 2015, submitted that because of the problem with the interpreter, Dilshan could not be regarded as having had an opportunity to provide oral evidence to the Tribunal. Significantly, that letter does not identify any further matters beyond the content of the statutory declaration of which Dilshan could advise the Tribunal, nor did it suggest any important or obvious question that the Tribunal should put to Dilshan in order to properly consider his evidence. I am satisfied that the observations in Chen’s case are equally applicable in this matter.
“It was for the appellant to make out her case. The Tribunal has no general obligation to call witnesses. The Tribunal’s obligation may have been affected by a notice given under s 361(2) but no such notice was given.”[29]
[29] Chen op cit at [28].
As I have indicated above, I am satisfied that the failure of the Tribunal to reconvene to allow Dilshan to give oral evidence, did not cause procedural unfairness, or give rise to jurisdictional error. The applicant was allowed to adduce evidence from the witness albeit by way of a statutory declaration. The Tribunal concluded that the evidence of Dilshan was inconsistent with the applicant’s version and found it to be fabricated in order to enhance the applicant’s weak claim,[30] and that for that reason gave it little weight. Significantly, as I have noted above, it was still prepared to accept the possibility that Dimilah had in fact been murdered.
[30] CB p 189.
I have considered the decision record of the Tribunal closely and I am satisfied that the claims of the applicant were dealt with comprehensively. With respect to the credibility findings made by the Tribunal, and in particular, with respect to the rejection of the Chilaw incident. I am satisfied that those were open on the evidence presented. There was nothing illogical, irrational or unreasonable about the conclusion reached by the Tribunal.
For those reasons, I dismiss the application and make the orders set out at the beginning of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 9 March 2016
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