BNK15 v Minister for Immigration

[2015] FCCA 3349

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3349

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division – Protection visa – whether the Tribunal’s decision was manifestly unreasonable or illogical – whether the Tribunal erred in failed to consider if it was wrong in its findings – whether the Tribunal failed to address an express or implied integer of the application – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978
BEV15 v Minister for Immigration & Border Protection (2015) FCCA 3025
SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175

Applicant: BNK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2094 of 2015

Judgment of: Judge Street

Hearing date: 14 December 2015

Date of Last Submission: 14 December 2015

Delivered at: Sydney

Delivered on: 14 December 2015

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Ms R Graycar

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The amended application is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2094 of 2015

BNK15

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 the Migration Act 1958 (Cth) in respect to the decision of the Tribunal made on 22 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 his claims were assessed that country. The applicant arrived in Australia on 28 July 2012. The applicant’s claims were summarised in the applicant’s submission dated 6 May 2015 at para.73 sent to the Tribunal relevantly as follows:

   73. …

   a. he is a young Tamil male from the East of Sri Lanka;

   b. he was of combatant age both during the civil conflict, and at the time of his departure from Sri Lanka;

   c. his brother is suspected of being involved with the LTTE by the Sri Lankan authorities and was detained for a period of three years;

   d. he has been questioned and beaten by the Sri Lankan authorities in 2007 in relation to his involvement with the LTTE;

   e. he has been questioned by the Sri Lankan authorities in 2009 in relation to his involvement with the LTTE;

   f. he has been questioned and beaten by the Sri Lankan authorities in 2012 in relation to his involvement with of the LTTE;

   g. he had not lived permanently in Sri Lanka since 2007; and

   h. he has spent a considerable amount of time in Australia which has large Tamil Diasporas.

2. In the application for protection in response to the reasons to leave and the question, “Why did you leave your country of nationality (country of residence)?”, the applicant relevantly said:

   I was in fear of the security for my life. On the 18 August 2006 my brother was 19 years old at the time, I went and did my farming and went back to my shop and my brother went another shop to get some money, 50,000 rupees and when he was coming back, he got caught. I think it was the CID. They asked him how he got this money. After I found out this was happening I was scared and I was living from the police. They also threatened me with the same beating when I would go walking around the town.

   This was in 2006, what's happened recently? They would come looking for me on a motorbike. 5 month of this year, before I came here.

   Who was looking for you? Don't know, but it was a group joined with the government. In the government camp that's where all the people operate.

   What happened when they came looking for you? Since I was at work, there was a group of men who came to my house looking for me, my mother told me. When I was at work about 6pm, a group of men came and asked me why I had not been home for 3-4 days, the government camp is 300m from my house. I said I do not know who you are. They said you have to come to this place at this time. They came and picked me up on a motorcycle and took me there. They asked me why I was in Iraq and Qatar. They asked me about my work. I also had a tractor and they asked about who owned the tractor, and then they asked me to give them 5 lakhs. They told me not to tell anyone or they will shoot me. When I said that I do not have this much money, they said that because I was working in Iraq and Qatar, I should have the money. Then they tied me up and beat me. One month before I came here.

   How long did they keep you for? 3 days in the army camp. They kept me in a room like, they asked for my house number. What did you do for 3 days in the room? Did not let me out, hands tyed up, gave me food and let me go to toilet.

   Why did they let you go? They asked for my house phone number, and they called my house asking for money. They threatened my family and said they will shoot your son, so my family gave 2 lakhs.

   After they gave the 2 lakhs, The army are selfish and they beat me.

   What information did they want from you? They wanted money from me, that was the main reason.

   When did this happen? May 2012

   Anything else happen to you? In December 2006, they took me into a camp and kept me for 2 days on suspicion of LTTE, usually people aged 18-35. If they see a new face they will just grab them.

   You came from Qatar where your life was safe and you had a good job, back to SL where your life was in danger? The work was too hard in Qatar.

   I left Qatar because me mum told me that the issues had died down.

   When you realised that the issues had not died down, why not go back to Qatar? I can't go back to Qatar, the company cancelled my contract.

   Why did you go to Iraq? Security for my life.

   Why leave Iraq and go back to SL? My passport expired

   Could have gone back to Qatar for work? If I tried I could but I do not like that company, I worked long hours in the sun.

   Tried to go to Dubai as a driver. I went for an interview in SL for a job as a heavy vehicle driver in Dubai, about 10 days after this my friend told me about going to Australia.

   (Emphasis by underlining added)

3. In relation to the alleged detention of the applicant in 2012 for three days, the delegate did not accept that any such incident occurred.  The Tribunal did accept that the applicant was detained for three days but rejected the assertion that the applicant was the subject of any physical harm.  The applicant also provided to the Tribunal a statement made on 13 December 2012 that referred to the incident in which the applicant was allegedly detained for three days.  That version made no reference to the alleged demands for money or threats to the family for money and relevantly provided:

   16. Within the camp I was put in a room with eight army officers, they were aware that I had travelled overseas and wanted to know how I was linked to the LTTE. I was made to sit on the ground where I was punched, kicked and beaten all over my body with a wooden stick. My skin was badly bruised and swollen and bleeding, but yet they still continued to beat me, I just wished these thugs would stop. Every couple of hours they would leave me alone and then come back to further interrogate and beat me. This continued for three days, I thought I would be killed.

   17. My mother took me home, when she was notified I was released from the camp, she tended to my wounds and gave me medicine. I was in bed for nearly 6 weeks recovering from my injuries.

4. In the submissions advanced by the applicant relevantly there was identified the following:

   38. The Applicant was released after his mother paid a bribe 200,000 rupees to a top CID officer. The Applicant's mother told him after he was released that originally, the CID had asked for 500,000 rupees but she told them she could not afford this and they subsequently accepted 200, 000 rupees.

   …

   47. Sometime in about February 2013, the Applicant's mother informed the Applicant that some unknown people came on three motorbikes to the family home and enquire as to his whereabouts. The Applicant's mother responded that she did not know where he was. These people responded that they knew the Applicant was in Australia and then left the house.

   …

   78. Country information regarding the time spent in remand varies. Imprisoned returnees from Australia on 14 and 15 October 2013 were detained for up to 15 days. Similarly, a vessel returned from Australia indicated that five individuals were remanded in custody for two weeks.

   …

   83. Accordingly, the Applicant's detention whilst on remand awaiting bail and any other period of detention the Applicant may experience as a result of being suspected of Tamil separatist involvement or leaving Sri Lankan illegally, constitutes a threat to the Applicant's liberty, and subsequently, serious harm and persecution.

   …

   96. Most - but not all - returnees are granted bail based on personal recognisance with a family member standing as guarantor. Certain returnees (including repeat offenders and those suspected of facilitating the illegal movement of people) are not granted bail. Returnees granted bail must return to court at a later date to answer to charges under the I&E Act. By law, convicted returnees are liable for up to five years in prison or a fine up to 200,000 SLR.

5. The transcript was tendered in the present case and the incident in which the applicant was detained in 2012 was raised at pp.21 to 23. The Tribunal raised inconsistencies in respect of the version of events the applicant advanced and reference was made to the applicant being released after three days as a result of his mother providing money to higher authorities in the CID.  The Tribunal explored the applicant’s evidence with the physical effects upon him as a result of the alleged beatings and the alleged need for treatment in the context of making the adverse findings that the applicant was not physically harmed during that three days detention.

6. An alleged incident in February 2015 with unknown people visiting the applicant’s mother in Sri Lanka was also the subject of exploration with the applicant by the Tribunal in the transcript at 27:

   MEMBER: Would this just be ah I mean it seems to me like i-it could be a fairly routine enquiry um giving that you hadn't been around um they just come to enquire the authorities might of come to enquire ah where-where you were.

   INTERPRETER: I don't know but because I-I know of a if I were there I will have like this kind of small small problem but now I told them because I I'm already here tell them ah if anyone looking for me that I am already in Australia.

7. In the course of the hearing it is apparent from the transcript that the Tribunal also raised with the applicant the consequences of having illegally departed from Sri Lanka and the information that bail is routinely granted. 

8. The grounds of the application are as follows.

   1. The Tribunal engaged in jurisdictional error in that it made a finding that was manifestly unreasonable or illogical or it failed to have regard to a relevant consideration.

   Particulars

   a. The Tribunal accepted that the CID made inquiries at the applicant’s home in February 2013 and that the inquirer knew that the applicant was in Australia. However, the Tribunal found that the reason was that there were no records of the applicant leaving Sri Lanka, hence it was a routine inquiry as to his whereabouts (at [29]);

   b. The finding referred to in (a) was manifestly unreasonable or illogical because the Tribunal accepted that the inquirer knew that the applicant was in Australia. In the circumstances, it was unreasonable or illogical that the CID, with that knowledge, would engage in a routine inquiry as to the applicant’s whereabouts;

   c. In the alternative, the Tribunal failed to take into account a relevant consideration; viz the implication of its own finding that the CID knew that the applicant was in Australia.

9. In addition to the three grounds Mr Reynolds of counsel sought leave which was granted to raise a further fourth ground, namely an alleged failure to consider a claim or a component integer of a claim made by the applicant or squarely raised in the material before the Tribunal.  In support of that fourth ground Mr Reynolds relied upon a reference to the CID wanting money from the applicant which was raised in the irregular maritime arrival interview and the reference in the submissions to the fact that the applicant was released after his mother paid a bribe of 200,000 rupees to a top CID officer. The applicant’s mother allegedly told the applicant that he was released only after the CID had asked for 500,000 rupees and she told them that she could only afford 200,000 rupees.

10. Mr Reynolds of counsel also made reference to the oral evidence given in the transcript referring to the applicant being released after his mother allegedly paid a bribe.  In relation to ground 1, the relevant finding of the Tribunal was at para.29, which is as follows:

    29. The Tribunal accepts that in February 2013 some unknown person, who he claimed his neighbours had indicated was from the CID, had called at his home asking after his whereabouts. It accepts that the person knew that he was in Australia. The Tribunal discussed with Mr Rasalingam at hearing that if it was the CID who were making the enquires this may have been a routine enquiry as to his whereabouts in circumstances where there was no record of him leaving Sri Lanka, given that he left illegally, and the Tribunal so finds that this was the nature of any enquiry that was made.

11. Mr Reynolds of counsel submitted that there was an internal inconsistency with the proposition that people asking questions about the applicant knew he was in Australia and the finding made by the Tribunal that it was a routine inquiry as to the applicant’s whereabouts in circumstances where the Tribunal accepted that the person who made the inquiries knew the applicant was in Australia.  Mr Reynolds contended that the finding that it was a routine inquiry was not open and was unreasonable or illogical in light of the Tribunal having accepted that the person making the inquiries knew the applicant was in Australia.

12. An inquiry as to the whereabouts of the applicant does not necessary confine itself to the country in which the applicant may be.  The Tribunal’s findings cannot be said to be unreasonable and cannot be said to lack an evident and intelligible justification.  The finding by the Tribunal that the purpose of the inquirer was a routine inquiry as to the applicant’s whereabouts was open on the material before the Tribunal and was not a matter of speculation.  The context was unknown persons who made the inquiry and consideration was given to the possibility that it may have been the CID who were making the inquiries. In the circumstances identified by the applicant’s evidence, referred to above, the Tribunal’s finding as to the purpose of inquiry was open.

13. Mr Reynolds of counsel alternatively put in relation to ground 1 that the Tribunal had failed to take into account a relevant consideration, being the implications of the CID knowing that the applicant was in Australia.  In my opinion, it is clear from the content of para.29 that the Tribunal took into account the possibility that it was the CID that had made the inquiries.  Ground 1 fails to make out any jurisdictional error.

14. In relation to ground 2, Mr Reynolds of counsel skilfully advanced the submission that the Tribunal, in para.29, had identified a possibility and should have gone on to consider what if it was wrong in respect of the purpose of the inquiry.  This is not a case where the Tribunal failed to make a positive finding in relation to the claim, that the CID may have been the persons that came to visit the applicant’s mother.  In my opinion, the Tribunal made a positive finding as to the purpose of that inquiry, and that positive finding was open.  In those circumstances, this is not a case where it was necessary for the Tribunal to postulate, “What if I am wrong in relation to the purpose of the inquiry?”  Ground 2 fails to make out a jurisdictional error.

15. In relation to ground 3, counsel for the applicant again skilfully advanced the submission that a principle could be extracted from the decision in SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978 to the effect that a finding that a family member might provide a guarantee or a suretyship was an issue that, of itself, had to be raised as a live issue by the Tribunal. I reject that submission In the present case, it is apparent that the issue of a family member acting as surety or guarantor in relation to the release of the applicant from remand was raised in submissions of the applicant’s legal representative prior to the hearing. In those circumstances, it cannot be said that there was anything other than a live issue about the bail, of which the applicant was aware at the time of the hearing. Further, the issue of the applicant obtaining bail was also raised by the Tribunal at the hearing as referred to above.

16. Mr Reynolds of counsel drew attention to the fact that the Tribunal’s reasons in summarising what occurred at the hearing combined detail that had been advanced in the earlier submissions by the applicant’s representative with matters raised by the Tribunal.  That is not a matter which, in my opinion, gives rise to any consequence in the present case. Any confusion in this regard had no impact on the proper conduct of the review and did not give rise to a jurisdictional error.

17. The decision in SZTQS can be distinguished for the reasons I gave in BEV15 v Minister for Immigration & Border Protection (2015) FCCA 3025, and I take into account what has been said in the Full Court in SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175 at 76 to 81. There was no non-compliance by the Tribunal with the obligation under s.425, as alleged in ground 3. Ground 3 fails to make out any jurisdictional error.

18. In relation to ground 4, Mr Reynolds of counsel again very skilfully advanced that the claim of the applicant in relation to the incident that had occurred involving the applicant’s detention included as a component integer the payment of the bribe by his mother.  Counsel submitted that if that was not an express claim, it was one that was apparent or implied on the material before the Tribunal and should have been addressed.

19. I reject those submissions.  In my opinion, the nature of the claim being advanced by the applicant was fairly and properly summarised in the applicant’s legal representatives’ submissions referable to that incident, to the effect that the applicant was beaten by the authorities in 2012 in relation to his involvement with the LTTE.  That was the claim which the Tribunal squarely addressed and rejected when finding that the applicant was not the subject of any physical harm in the three days of detention.

20. The payment of the bribe by the applicant’s mother was not something in the initial application by the applicant that was advanced independently as a fear of the applicant in relation to leaving his nationality.  Rather, it was in response to a question put in the context of ascertaining details about the incident in which he alleged he had been beaten and ascertaining when he was let go.  I accept that the applicant’s submissions did refer to the applicant’s version of events in relation to the payment of the bribe, and it is clear this was a matter the Tribunal took into account in its careful and thorough reasons, where it summarised that allegation as set out in para.7 of the Tribunal’s reasons.

1. There was no separate claim of fear because of a bribe being paid, nor was the bribe part of the component integer of the claim in relation to the alleged beatings in 2002. The payment of the bribe did not require a separate finding by the Tribunal. The demand for payment of the bribe was taken into account by the Tribunal. This is not a case where the Tribunal failed to deal with a component integer, as alleged by the proposed ground 4 advanced by counsel.  I find there is no jurisdictional error of the kind raised in relation to the proposed fourth ground.

2. The amended application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 December 2015