BMU15 v Minister for Immigration

[2015] FCCA 3253

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMU15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3253

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – procedural unfairness – whether problems with interpretation during the Tribunal hearing created procedural unfairness – whether the Tribunal failed to consider the applicant’s medical evidence – whether the Tribunal failed to take into account the applicant’s claims in relation to determining the risk of significant harm – whether the Tribunal’s reasons were unreasonable for illogical – whether the Tribunal allowed the applicant to give evidence and present arguments – no jurisdictional error – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA, 425, 476

Applicant: BMU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2069 of 2015

Judgment of: Judge Street

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Sydney

Delivered on: 7 December 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Mr A. Keevers
Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2069 of 2015

BMU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of Migration Act 1958 (Cth) in respect of a decision of the Tribunal dated 26 June 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and claims were assessed against that country. The applicant is a Tamil by ethnicity and of the Roman Catholic religion and claimed he would face serious harm from the authorities because he is a Tamil and had previously been arrested.

2. The applicant alleges in 2008 on suspicion of LTTE links and was targeted by the CID over his support for the Tamil National Alliance.  Relevantly the Tribunal found the applicant was not a truthful and credible witness.  Further, the Tribunal found that the applicant had fabricated his accounts in order to achieve a migration outcome.

3. On 27 August 2015 a Registrar of the Court made orders for the filing of an amended application, affidavit evidence and submissions.  An affidavit was filed by the applicant, sworn 12 October 2015, asserting problems with the interpreter and asserting that he was fearful of raising the matter throughout the hearing and asserting that he did not know what his rights were otherwise he would have stopped the hearing.  It is clear from the transcript that the Tribunal explained to the applicant the nature of the process in the hearing and relevantly said “If you would like a break at any time please let me know.” 

4. There are two points at which the applicant raised a minor issue concerning the interpreter at pp.8 and 18.  It is also clear that the applicant could speak English and that there were only two occasions where a problem was raised and corrected by the applicant.  There is no identification of any other problem with the interpreter or with the accuracy of the answers given by the interpreter in relation to the evidence of the applicant.

5. The grounds of the amended application are as follows:

   1. The interview conducted by the second respondent was procedurally unfair due to the absence of adequate translation services.

   2. The interview conducted by the second respondent was procedurally unfair due to the absence of a comfortable environment for the respondent to discuss his case.

   3. The second respondent failed to fairly consider the implications of my Mental Health report which was submitted and the second respondent failed to consider the implication of my past injuries obtained from the torture I was subjected to in Sri-Lanka

   4. The second respondent failed to take into consideration the consequences which will stem from my political profile of being anti-government and a person that was viewed under the suspicion of being an LTTE Member. The member did not take into consideration my political association when concluding whether I will face "significant harm" as defined in subsection 36(2A) of the Migration Act and whether my fear about going back to Sri-Lanka is well founded.

   5. The second respondent was illogical when concluding that I did not have a political profile in Sri-Lanka.

   6. The second respondent did not take into consideration my specific situation and past experiences, when concluding that I would not be persecuted at the airport if I was returned.

   7. When assessing my credibility the second respondent placed emphasis on a fact which was incorrectly stipulated and also used illogical reasoning when concluding whether I was a fisherman or not.

   8. There was procedural unfairness as section 424A was not adhered to. No further submission were made by my lawyers after my RRT hearing, and so I was not given an opportunity to address any concerns or queries the second respondent had , as a result

6. In relation to ground 1 it is clear from the transcript as a whole that there was no serious or continuing issue with the interpreter and that the applicant had a real and meaningful hearing.  The applicant had a genuine opportunity to give evidence and present arguments at the hearing that was held on 15 April 2015 at which the applicant was not only assisted by an interpreter but also represented by his migration agent.  Prior to the hearing, the applicant was served with a letter dated 26 February 2015 inviting the applicant to attend to give evidence and present arguments on 15 April 2015. 

7. In response to that invitation and prior to the hearing date, the applicant’s representative also provided material to the Tribunal under cover of a letter dated 7 April 2015. Also prior to the hearing, the Tribunal was provided with a psychologist’s report which included a synopsis of the psychological assessment report together with an index that made reference to pp.8, 12, 14 and 15.  However the psychological report provided to the Tribunal omitted pp.8 to 15.  There was also provided to the Tribunal an X-ray scan report dated 12 July 2015 which relevantly said:

   …..made of involution and fatty atrophy of a segment of the posterior erector spinae musculature on the left side.  This can be seen following previous trauma or degeneration.  Is there a history of this?

8. It is apparent from the transcript that the applicant was able to raise with the Tribunal any concern that the applicant had in relation to the interpreter and that the applicant did so when that occurred.  Neither issue was of any materiality and no other specific issue with interpretation was raised.  Ground 1 fails to make out any jurisdictional error.

9. In relation to ground 2 the applicant was told at the commencement of the Tribunal hearing that if the applicant needed a break the applicant could say so. It was entirely appropriate for the Tribunal to explore with the applicant the nature of the applicant’s claims and there is no substance in the assertion that there was any denial of procedural fairness in the conduct of the hearing. I am satisfied that the applicant had a real and meaningful opportunity to give evidence and present arguments. The applicant was represented by an agent and at no stage was any adjournment sought or a request made for a further opportunity to adduce further material. I am not satisfied that there is any breach of s.425 of the Act. Ground 2 fails to make out any jurisdictional error.

10. In relation to ground 3 it is apparent from the Tribunal’s decision that it took into account “copies of medical documents” that were provided to the Tribunal as referred to in para.14 and it is clear that the Tribunal was aware that it had been provided with such medical reports as identified in appendix B, referred to in para.6 of the Tribunal’s reasons.  It was a matter for the applicant’s migration agent and the applicant to select the material to be provided to the Tribunal.  From the evidence before the Court it is clear that pp.8 to 15 of the medical report were not provided to the Tribunal.  It is equally clear from the summation of the psychological report that the applicant alleged he had been the subject of torture and trauma.  The psychologist was not in a position to opine further on the issue addressed in the radiographer’s report identifying the potential consistency of either previous trauma or denervation. 

11. Neither the X-ray report nor the psychologist’s report was material that was capable of proving that the applicant suffered trauma in particular circumstances relating to his alleged fears and it is clear that it was for the Tribunal to assess the applicant’s credibility in relation to the trauma that he alleged.  In that regard the adverse findings of credit by the Tribunal were open and cannot be said to lack an evident and intelligible justification.  This is not a case where the absence of the complete psychologist’s report was a matter that required the Tribunal to take further steps in relation to the same, nor given the issue of the applicant’s credit, was the complete psychologist’s report a matter that required the Tribunal to raise the missing pages with the applicant.  Accordingly, ground 3 fails to make out any jurisdiction error.

12. In relation to ground 4 it is clear that the Tribunal did take into account the applicant’s alleged involvement with the TNA and LTTE.  Relevantly the Tribunal found inconsistencies in the applicant’s evidence in relation to these claims and that the inconsistencies appeared to stem from the applicant’s effort to enhance his socio-political profile to establish himself as an individual to whom protection is owed.  The adverse findings by the Tribunal in relation to the applicant’s claims were open and this is not a case where the Tribunal has failed to address the claims advanced by the applicant.  Rather, the Tribunal found that the applicant’s claims were ones in respect of which they had been fabricated to achieve a migration outcome.  Those findings were open and cannot be said to lack an evident and intelligible justification.  Ground 4 fails to make out any jurisdictional error.

13. Ground 5 is, in substance, an impermissible challenge to the adverse finding on the merits.  For the reasons given, the adverse findings cannot be said to be unreasonable or illogical and ground 5 fails to make out any jurisdictional error.

14. In relation to ground 6 it is clear that the Tribunal took into account the applicant’s claims and evidence and is in substance an impermissible challenge to the adverse findings that were open to the Tribunal to make.  Ground 6 fails to identify any jurisdictional error.

15. In relation to ground 7, this is again an impermissible challenge to the merits of the matter that were for the Tribunal to determine.  The adverse findings as to the applicant cannot be said to be illogical or unreasonable and it was open to the Tribunal to conclude that the applicant was never engaged in fishing as a means of earning his livelihood and to reject the applicant’s alleged incident whilst fishing in 2008.  Ground 7 fails to make out any jurisdictional error.

16. In relation to ground 8 no information is identified that is said to be the subject of a long compliance with s.424A. It is clear from the transcript at p.31 that the Tribunal did put to the applicant, under s.424AA, the inconsistencies with the applicant’s evidence given at the entry interview and that the applicant could request more time to respond and the Tribunal complied with the obligations under s.424AA in that regard. No other information was identified to enliven any obligation under s.424A. Insofar as ground 8 refers to giving the applicant an opportunity to address the concerns of the Tribunal, it is clear that the Tribunal raised, as a live issue, the credibility of the applicant and there was no failure to comply with ss.424A or 425. Ground 8 fails to make out any jurisdictional error.

17. From the bar table the applicant asked for an opportunity to obtain further information that might be provided to assist the Court to meet any concern the Court had in relation to the applicant’s alleged grounds.  That application was opposed by the first respondent in circumstances where these proceedings were commenced on 24 July 2015, and in light of the orders made by the Registrar on 27 August 2015.  It was submitted by the first respondent that there had been ample opportunity for the applicant to put on the case he wished to advance. 

18. The Court raised with the first respondent the issue of the missing pp.8 to 15 of the psychologist’s report.  The first respondent identified that there is a stamped number sequentially identifying every second page of the document adduced before the Tribunal, and that from that page stamp on p.17 bearing the number 89 and the page stamp 90 on the p.7. 

19. I find that the Tribunal was only provided with the pages of the psychologist’s report that are in the court book.  It was also submitted by the first respondent that the synopsis identified the nature of the information sought to be advanced by the applicant concerning alleged torture and trauma.  I am satisfied that there would have been no utility in granting an adjournment when the circumstances of this case given that the applicant has had ample opportunity to put on evidence in support of his application.  Further, I am satisfied that the only material provided to the Tribunal was that contained in the court book and that the applicant did not put before the Tribunal the complete psychologist’s report.  It is clear that the Tribunal took into account the medical reports with which it was provided, and I am satisfied that the applicant had a real and meaningful hearing before the Tribunal and no jurisdictional error arises from anything said by the applicant from the bar table in relation to the medical reports. 

20. The applicant also complained from the bar table about the Tribunal’s adverse finding in relation to documents provided by the applicant, that because of the prevalence of documentary fraud in Sri Lanka were not treated as having any weight by the Tribunal.  The applicant contended that there were other documents like his identity documents that the Tribunal did accept.  It was a matter for the Tribunal to determine what weight to give to the evidence adduced.  There is no inconsistency in accepting documents in relation to identity and reject the other documents.  Nothing said by the applicant in this regard gives rise to any jurisdictional error.  The applicant asserted that the Tribunal should have taken further steps to verify the documents, or contact those telephone numbers on the documents provided or contact the email addressees.  

21. It was a matter for the Tribunal to determine the weight to be given to the documents and it was not necessary for the Tribunal to engage in further steps of alleged verification, or contacting telephone numbers or emailing addressees, particularly in circumstances where the Tribunal found the applicant not to be a truthful witness and that the applicant had fabricated his claims.  Nothing said by the applicant in this regard identified any jurisdictional error. 

22. The applicant asserted from the bar table that he had instructed his agent to seek more time for him to respond.  Any failure by the applicant’s agent in this regard is not a matter that would give rise to any jurisdictional error.  It is apparent on the transcript that no such request was put to the Tribunal, and it is clear that the Tribunal told the applicant that more time could be requested and no such request was made. 

23. The Tribunal is not required to give the applicant a running commentary in relation to its adverse findings on credit, and it was clear that the Tribunal raised the applicant’s credit as a live issue with the applicant during the hearing.  Accordingly, nothing said by the applicant from the bar table identified any jurisdictional error.  In these circumstances an adjournment would only unnecessarily have increased the costs of the parties and utilised limited Court time.  Accordingly, I am satisfied that this is not a case where there is any utility in granting the applicant an adjournment.  For the reasons given, the adjournment application is refused.  

24. The amended application is dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 December 2015