BNL16 v Minister for Immigration

[2016] FCCA 2771

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNL16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2771

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal complied with its statutory obligations – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.

Applicant: BNL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1590 of 2016

Judgment of: Judge Street

Hearing date: 27 October 2016

Date of Last Submission: 27 October 2016

Delivered at: Sydney

Delivered on: 27 October 2016

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Stephen Hodges Solicitor

Solicitors for the Respondents: Ms G Doyle
Sparke Helmore Lawyers

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1590 of 2016

BNL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 May 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived as an illegal maritime arrival on 7 July 2012.  The applicant made an application for protection on 20 November 2012. 

The Delegate’s Decision

1. On 19 December 2013 the delegate refused to grant the applicant a Protection (Class XA) visa and made comprehensive adverse credibility findings in relation to the applicant. The delegate found the applicant wasnot a witness of truth and that the applicant had presented a mendacious account of the events in his claims.

The Tribunal’s Decision – 31 July 2015

1. An earlier and differently constituted Tribunal affirmed the decision on 31 July 2015.  On 23 October 2015 the matter was remitted back to the Tribunal by consent. 

The Tribunal’s Decision – 14 April 2016

1. By letter dated 22 February 2016 the differently constituted tribunal invited the applicant to attend a hearing on 14 April 2016. The applicant appeared on that date to give evidence and present arguments, and was assisted by his registered migration agent.

2. Following the hearing, the applicant’s registered migration agent provided further submissions in which a submission was included that the documents provided support of the applicant’s claims that he has been the subject of unresolved criminal charges and there was a warrant for his arrest.

3. The Tribunal also had before it a communication from the applicant’s earlier migration agent  who was from the Refugee & Immigration Legal Centre on behalf of the applicant dated 16 June 2015. The email correspondence, enclosed a statutory declaration referring to the applicant having another relationship which his wife did not know about, and the letter noted that the applicant did not wish to raise any new claims.

4. The Tribunal correctly identified the relevant law. The applicant feared persecution because of the imputed or actual political opinion of being opposed to the United National Party (“UNP”), by reason of the fact that the applicant had been falsely charged with assaulting a UNP Member of Parliament, that the applicant’s nephew is a member and candidate of the Janatha Vimukthi Peramuna (“JVP Party”), that the applicant departed to leave Sri Lanka illegally and would return to Sri Lanka as a failed asylum seeker, and on the ground alleged that the applicant had a warrant in Sri Lanka issued for his arrest.

5. In relation to the applicant’s nephew, the Tribunal found the applicant’s answers vague, evasive and lacking in detail. The Tribunal found the applicant’s evidence regarding his nephew’s political association with the JVP Party to lack  credibility. The Tribunal did not accept the applicant’s explanation that false charges were laid against him and he was targeted by a particular person because of his relationship with another particular or because of his imputed political opinion as a supporter of the JVP Party or because he was opposed to the UNP.

6. The Tribunal did not accept that the applicant received phone calls and he had to go into hiding, and that a particular person said people were looking for him and wanted to kill him and throw acid in his face. The Tribunal found the applicant was not a political activist and attended the rally as an ordinary member of the crowd. The Tribunal found the applicant was an ordinary Tamil farmer with no political profile.

7. The Tribunal found there was no evidence that the particular person or his supporters knew the applicant had ever been present at the rally. The Tribunal did not accept that the applicant would be contacted shortly after he left the rally and told that his life was in danger. The Tribunal found the applicant’s evidence not to be credible that he chose to hide in the jungle for three months, but would return home for evening meals.

8. In relation to an alleged knife attack, the Tribunal did not accept the applicant’s claim that he was attacked and cut with a knife and it was arranged by the particular person. The Tribunal was not satisfied there was a real chance that the applicant will face serious harm in Sri Lanka because his nephew is a member and/or candidate of the JVP Party and/or because he is seen as a threat to a particular person in the UNP. 

9. The Tribunal did not accept the applicant’s fears of persecution in Sri Lanka because of his imputed political opinion were well-founded.  The Tribunal found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk he would suffer significant harm.

10. The Tribunal made reference to evidence the applicant provided concerning an undated letter that was not before the delegate, and that the letter alleged that the applicant was a suspect in a case before the Puttalam Magistrates court filed by the person the applicant had alleged to fear.

11. The letter claims that a bogus complaint was made against the applicant. The letter claims there is an open warrant for the applicant’s arrest and that the applicant is facing harassment only because “he is working for the betterment of his community.”No evidence was provided to the Tribunal regarding the applicant’s involvement in the community or why the applicant was being targeted. The applicant also provided a translated letter and an attempted mediation session which was not attended by the particular person.

12. The Tribunal records having questioned the applicant about the particular letter. It is apparent from the Tribunal’s reasons that the letter was raised as a live issue and the applicant said that he did not read the letter because it was in English. The applicant made reference of a letter being written by his lawyer and his brother, and an opportunity was made to try and contact the lawyer. The Tribunal recorded having dialled that number on two occasions and was advised the telephone number was disconnected.

13. The Tribunal made an observation as to the applicant’s explanation for assistance from a local political leader. The Tribunal then referred to the translated court file purporting to be from the Puttalam Magistrates court relating to the alleged arrest and bail of the applicant and two other suspects. It is apparent from the Tribunal’s reasons that the Tribunal asked the applicant to explain the documents and the charges laid against him. The applicant said that he did not know what he was charged with and had not looked at the documents.

14. The Tribunal raised with the applicant that the Tribunal found it surprising that the applicant claimed that false charges had been laid against him and that the applicant did not look at the documents that are central to his claim for protection. The Tribunal also told the applicant that the court documents appear to contain inconsistent information.

15. The Tribunal put to the applicant the inconsistencies for the applicant to comment on.  In response, the applicant said that he was not familiar with the court documents and the charges laid against him were bogus.  It is apparent that the court documents were a live issue raised by the Tribunal with the applicant. The Tribunal also made reference to country information identifying the availability of fraudulent documents.

16. The Tribunal noted that it discussed that information with the applicant at the hearing. The Tribunal noted that the Tribunal told the applicant that the Tribunal had concerns that the information he had provided in support of his claim in respect of the court documents was not genuine. The applicant claimed that he had the original documents. The Tribunal made reference to the fact that original stamped copies of the court file and an original of the  Kamarudeenletter would be provided after the hearing.

17. The Tribunal made reference to having considered the country information and the inconsistencies in the applicant’s evidence and the information contained in the court file, and found that the court file and Kamarudeen’s letter and the Mediation Board’s report were not genuine.

18. The Tribunal did not accept that a particular person initiated the Sri Lankan police to bring fabricated charges against the applicant.  The Tribunal did not accept the applicant was charged with any offence in Sri Lanka or that a warrant was outstanding for his arrest.

19. The Tribunal did not accept the applicant’s claims that the attack was motivated because his nephew was a JVP political candidate. The Tribunal did not accept the applicant’s fear of persecution because of his imputed political opinion was well-founded. The Tribunal did not accept that the applicant was charged or that a warrant had been issued for his arrest because he had failed to attend court hearings. The Tribunal did not accept that the applicant’s name will be on a police/CIDwatch list or that he would be interrogated, apprehended or jailed, for this reason on his return to Sri Lanka.

20. The Tribunal was not satisfied that there are substantial grounds of believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he would suffer significant harm because he was falsely charged and a warrant was issued for his arrest. The Tribunal did not accept that the applicant was still wanted by Sri Lankan police or that the Sri Lankan police were searching for him.

21. The Tribunal did not accept that if the applicant returned to Sri Lanka in the foreseeable future there was a real risk the applicant would face serious harm in Sri Lanka because of his outstanding court charges or because he has not complied with his bail agreement. The Tribunal found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm.

22. The Tribunal also made reference to the applicant referring to the fact that he was in a new relationship with a Tamil lady under the heading “New Partner in Australia”. The Tribunal noted that it had questioned the applicant about the new relationship and that the applicant had said if he returned to Sri Lanka he would not tell his wife about the relationship. The Tribunal did not accept there was a real chance the applicant would face serious harm in Sri Lanka because he entered into a new relationship with another Tamil woman in Australia.

23. The Tribunal found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he will suffer significant harm because of having a new partner in Australia.  The Tribunal turned to the issue of Tamil ethnicity and did not accept there was a real chance the applicant would be persecuted because of his Tamil ethnicity or race should he return to Sri Lanka in the reasonably foreseeable future. The Tribunal found the applicant’s fear of persecution because of his race was not well-founded.

24. The Tribunal turned to the issue of the applicant being a failed asylum seeker who departed Sri Lanka illegally. The Tribunal did not accept there was a real chance the applicant would be persecuted in the reasonably foreseeable future if he returned to Sri Lanka for reason of departing Sri Lanka illegally or because he was a failed asylum seeker from a Western country. The Tribunal found the applicant’s fears were not well-founded.

25. The Tribunal found it was not satisfied that the applicant would suffer harm of any kind on return to Sri Lanka for reasons he has claimed, such as his race, particular social group, actual or imputed political opinion, being a failed asylum seeker or other matters identified in the Tribunal’s reasons to which the Court has referred. The Tribunal did not accept the applicant would be perceived as an organiser or people smuggler. 

26. The Tribunal made reference to having considered the applicant’s claims cumulatively and that the Tribunal was not satisfied that during any questioning at the airport, there was a real risk that the applicant would suffer arbitrary depravation of life, death penalty, torture, cruel or inhumane treatment or punishment, or degrading treatment or punishment.

27. The Tribunal found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm in terms of s.36(2)(aa) of the Act, and did not accept that there is a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture, that he would be subjected to cruel or inhumane treatment or punishment, or to degrading treatment or punishment.

28. The Tribunal did not accept the applicant’s claims that he was falsely charged and arrested and that a warrant had been issued for his arrest. The Tribunal was not satisfied that the applicant is a person with respect to whom Australia has protection obligations and found that the applicant failed to meet the criteria under s.36(2) of the Act, and affirmed the decision of the delegate.

Proceedings Before this Court

1. The grounds of the amended application are as follows:-

   Ground 1

   The Tribunal committed jurisdictional error in failing to properly address an integer of the applicant's claim.

   PARTICULARS

   (i) The Tribunal noted that the applicant was in a relationship in Australia with a person other than his legal wife who remains in Sri Lanka.

   (ii) The Tribunal failed to inquire, note facts, make findings, give reasons as to or assess the legal effects of that relationship.

   (iii) Further particulars will be provided once the Appeal Book is to hand.

   Ground 2

   The Tribunal committed error by raising new issues without warning to the applicant.

   PARTICULARS

   (i) The delegate made no assessment in relation to the genuineness of the court document submitted by the applicant [CB 118, 124].

   (ii) The delegate made no reference to the genuineness of Kamarudeen's letter or the Mediation Board's report.

   (iii) The Tribunal found the Sri Lankan court file, Kamarudeen's letter and the Mediation Board's report not to be genuine [CB 215, paragraph 55].

   (iv) That finding was significant to the Tribunal not accepting that Ismail initiated the police to bring fabricated charges against the applicant, that the applicant was charged with any offence or that a warrant is outstanding for his arrest, as well as to the Tribunal ultimately concluding that the applicant's fear of persecution because of his imputed political opinion was not well-founded [CB 216, paragraph 59-60].

   (v) The Tribunal committed error by failing to inform the applicant that the genuineness of the court file, as well as the other documents, were at issue.

   (vi) In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court stated at [3 5]: ' ... [I]f the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.”

2. In relation to Ground 1, on a fair reading of the Tribunal’s reasons, the Tribunal took into account the possibility of a claim arising in respect of the applicant having a new partner, and made adverse findings that were open to the Tribunal. 

3. I reject the submission that the Tribunal did not engage in adequate or proper consideration of that claim. The adverse findings made by the Tribunal in relation to that claim were open and cannot be said to lack an evident and intelligible justification. No jurisdictional errors are made out in relation to Ground 1.

4. In relation to Ground 2, I accept the first respondent’s submission that the Kamaraudeen letter was not a document before the delegate and could not give rise to any issue under SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. Further, this is not a case where the whole of the transcript has been tendered. I reject the foundation for the applicant’s submission that the applicant was the subject of a positive favourable finding in relation to the court documents.

5. There was overwhelming adverse findings in relation to the applicant’s evidence. Mr Hodges, the solicitor for the applicant, skilfully took the Court to part of the Tribunal’s reasons where the delegate referred to the fact that it could not rule out the possibility that the documents relating to the Court case related to a genuine case concerning the applicant.

6. The Court was also referred to the delegate identifying the possibility in relation to the Court hearings that the hearings did occur, and relevantly said:

   Whilst I note that none of the hearing dates stated on the court document match what the applicant stated during The PV interview, I am conscious that these events happened sometimes ago and I have applied a degree of tolerance regarding memory of specific dates when giving the applicant the benefit of the doubt that the court hearings did occur.

7. When the comprehensive adverse credit findings made by the delegate are taken into account, this is not a case where it can be said that the applicant had the benefit of a positive finding in relation there being an outstanding warrant in relation to the applicant or that the court documents and mediation report were genuine.

8. Further, for the reasons identified above, it is apparent that the    Tribunal raised as a live issue with the applicant during the course of the hearing, the genuineness of the court documents, and that the applicant was given a real and meaningful opportunity to respond to that issue. 

9. The fact that in submissions post-hearing that topic in relation to the original court documents was addressed with purported originals being provided to the Tribunal, reaffirms that it was a live issue before the Tribunal. Further, this is a case where there has been no tender of the transcript of the whole of the hearing before the Tribunal. 

1. On the face of the Tribunal’s reasons, the issues in relation to the lack of genuineness of the court file and other documents was a live issue raised by the Tribunal. On the material before the Court, I find that the Tribunal complied with its statutory obligations and that the applicant had a genuine and meaningful hearing. I find that there is no jurisdictional error of the kind alleged in Ground 2. 

2. The amended application is dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 November 2016