BNM16 v Minister for Immigration

[2018] FCCA 2145

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2145

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – interpretation error – procedural fairness – no error – application dismissed.

Legislation:

Migration Act1958 (Cth), s.476

MZARG v Minister for Immigration and Border Protection [2018] FCA 624
Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775
VZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: BNM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1330 of 2016

Judgment of: Judge McNab

Hearing date: 2 August 2018

Date of Last Submission: 2 August 2018

Delivered at: Melbourne

Delivered on: 9 November 2018

REPRESENTATION

The Applicant in person

Solicitors for the Respondent: Clayton Utz (Mr Lipinski)

ORDERS

1. The application filed on 23 June 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1330 of 2016

BNM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant, by an application filed 23 June 2016, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 3 June 2016. The Tribunal affirmed the decision of the First Respondent Minister by his delegate not to grant the Applicant a Protection (Class XA) visa.

Chronology

1. On 11 December 2012 the Applicant applied for the visa with the assistance of Fragomen (Australia) Pty Ltd as his representative. 

2. On 9 December 2013 a delegate of the Minister refused to grant the visa on the basis that the delegate was not satisfied that the Applicant was a person to whom Australia had protection obligations under s 36 of the Migration Act1958 (Cth) and the regulations.

3. On 6 January 2014 the Applicant applied to the Tribunal for merits review of the delegate’s decision, and the Applicant was invited to attend a hearing on 10 November 2015. That hearing was postponed and a hearing was rescheduled to 28 January 2016. The Applicant appointed another representative, Wimal & Associates, and requested that the Tribunal postpone the hearing on the basis the Applicant did not have in his possession the department file and that more time would be needed to prepare any necessary submissions.

4. The Tribunal notified the Applicant that it would postpone the hearing date and subsequently invited the Applicant to attend a rescheduled hearing on 17 May 2016 which the Applicant attended with the first representative, Fragomen. The Applicant was also assisted at that hearing by an interpreter.

5. The Applicant’s representatives provided post hearing submissions to the Tribunal which are set out at Court Book 343-363. Those submissions address:

   a)credibility;

   b)imputed political opinion of supporting the LLTE;

   c)failed asylum seekers, and;

   d)complimentary protection.

6. On 3 June 2016 the Tribunal made its decision.

Background

1. The Applicant is a national of Sri Lanka and of Tamil ethnicity. The claims of the Applicant are set out in the Tribunal decision from

   
   

   [19] - [52].[1] Those claims in summary are that:

   [1] Court Book

   a)in 1990 the Applicant’s family was displaced from Kallady Batticaloa for 10 months due to fighting, and when they returned their house had been damaged and looted by the Sri Lankan army;

   b)that in April/May 2005 a teacher known to be a supporter of the EPDP was shot dead at the Applicant’s college;

   c)in October 2005 the LTTE organised a meeting at the Applicant’s college for Martyrs Day for which the Applicant helped decorate and put up flags. That night the college was broken into and the decorations destroyed. The assailants alleged that they had videos of the people involved in the event and planned to kill them. The Applicant suspects that the police were involved because the college was opposite a police station. He is not an LTTE supporter but was scared that he was seen as LTTE associated. Because of these issues he was not able to complete his studies that year;

   d)around 2007 a paternal cousin was forcibly recruited into the LTTE while the Applicant was in Saudi Arabia. That cousin was sent to fight and killed after three to four months;

   e)around December 2009 the Applicant returned to Sri Lanka after spending three years in Saudi Arabia. His shuttle bus from the airport to the railway station was stopped by TMVP (Karuna Group) members and all four Tamils on the bus were taken into a TMVP office near the airport. There the Applicant was questioned about links to the LTTE, compared him to photos of LTTE members and released after four to five hours;

   f)in July or August 2010 he was pulled over while riding his motorbike and questioned by three to four TMVP members for three to four hours;

   g)in October 2010 while travelling to Batticaloa on his motorbike the Applicant was stopped by men he believes were CID, patted down and his bike was searched. He was allowed to leave after half an hour;

   h)in November 2010 he was talking with a friend outside when two Tamils on motorbikes he believes were from the Karuna Group approached him and asked to see their IDs and noticed the Applicant’s ID card and address. His family was scared because the Applicant was becoming a person of interest to the Karuna Group, so he went to live with his sister in the Matele district, but it was difficult because it was a Sinhalese area and people were suspicious of a new face; and

   i)he travelled to Malaysia in December 2010 for work and from there he went to Indonesia in 2012.

2. The Tribunal summarised the evidence given at hearing which effectively supplemented the claims that the Applicant made before the delegate.

3. At [37] the Tribunal refers to evidence that was given by the Applicant that he had received letters in November 2010 from the Karuna Group and had various exchanges with members of the group.

4. At [40] the Tribunal noted that he gave evidence that:

   … after he came to Malaysia the Karuna Group came to his house once and gave a letter. They said wherever you are, when you return home you have to return to the office. That was in February 2011. After that there was no more contact. In the third letter they mention that whenever he returns home he must report.

5. The Tribunal notes that it questioned the Applicant as to why he did not mention the letters from the Karuna Group in his previous evidence to the department and the Applicant responded that he did not mention the letters because he had heard that whatever information he gives will be verified in Sri Lanka. They think he is in Malaysia. If they find out that he is in Australia they may torture his family. The Tribunal asked why disclosing those letters would lead to his family being tortured but disclosing his other claims was fine. He advised that if those letters were verified with the Karuna Group and if they know he was in Australia they might hurt him. The Tribunal put to the Applicant that it might not accept this evidence, given that he had been told that his information would be kept confidential.

Grounds of Application

1. The grounds of application are 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 Victorian Legal Aid and I’m waiting for a decision.

2. Notwithstanding that orders were made by the court on
   23 November 2016 by Registrar Allaway giving leave to the Applicant to file an amended application with proper particulars of the grounds of the application, no amended application with particulars has been provided.

3. In relation to whether there has been an error of law made by the Tribunal, in my view the Tribunal has comprehensively set out the Applicant’s claims, dealt with those claims by reference to the law. Regarding ss 36(2)(a) and 36(2)(aa) of the Act the Tribunal also set out the requirements to consider the Department of Immigration PAM3 Refugee and Humanitarian Complementary Protection Guidelines and PAM3 Refugee and Humanitarian Refugee Law Guidelines and the country information prepared by DFAT in accordance with Ministerial Direction No. 56 made under s.499 of the Act.

4. There is no error in the Tribunal’s application of the appropriate risk threshold for the complimentary protection criteria.

5. The Court appreciates that there are decisions binding on this Court that unparticularised grounds of review that are no more than assertions are insufficient to support an application for judicial review and may be dismissed on this basis alone: see SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21] and VZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] and MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25].

6. Notwithstanding those decisions, the Court has approached this application on the basis that the Applicant is unrepresented at this hearing and accordingly has reviewed the decision for the purposes of determining whether there is any apparent error in the approach taken by the Tribunal. On that basis the Court is unable to discern that there is any error in the approach taken by the Tribunal in relation to determination of matters. The credibility findings that were made by the Tribunal were open to it.

7. The Tribunal noted that it had serious concerns about the Applicant’s credibility due to the late disclosure of significant claims and inconsistencies in relation to the key details of the claims and the plausibility of some of the Applicant’s evidence at [54] and found on the evidence before it that the Applicant did not face either a real chance of serious harm or a real risk of serious harm at the hands of the authorities or the Karuna Group due to his Tamil ethnicity, any family links to the Liberation Tigers of Tamil Eelam or any imputed pro LTTE political opinion.[2]

   [2] 91.

8. The Tribunal did not accept that the Applicant would face a real chance or real risk of serious or significant harm as a result of being a failed returned asylum seeker.

9. It found that the Applicant was not a person in respect of whom Australia had protection obligations under the Refugee Convention and therefore did not satisfy the criterion set out in s.36(2)(a) of the Act[3] and found that the Applicant was not a person with respect to whom Australia has protection obligations under s.36(2)(aa) of the Act.

   [3] 101.

10. The post hearing submissions submitted by the Applicant’s representative raised at [5], Court Book 344, an issue with translation, interpretation. At [5] the submission provided:

    We draw the Tribunal’s attention to the difficulty faced by the interpreter used throughout the interview. As such, we respectfully submit that the information that the Applicant intended to provide during the interview was to supplement the information already provided in his statement.

11. At [58] of its decision, the Tribunal stated that it did not accept that the evidence provided by the applicant at the hearing, which effectively expanded upon the Applicant’s claims to have been involved in a leading role in the LTTE, was merely a clarification of his earlier evidence.

12. At the hearing before the Court today where the Applicant appeared with the assistance of an interpreter, the Applicant again raised the issue of interpretation. He stated as an example:

    For example, I was asked if I had any children, and I was asked to give a yes or no answer. I was not given the opportunity to say that my wife was five months pregnant when I left the country.

13. He also spoke about another translation problem that he had mentioned before the Tribunal. He stated that he has told the Tribunal that he had met a friend outside the country which had been interpreted that he had met a friend outside his house. In relation to this interpretation issue, the Tribunal stated in its decision at [55]:

    Post hearing submissions make reference to the difficulty “faced by the interpreter” used throughout the interview and refers to the Tribunal’s credibility guidance on assessing credibility, specifically the need to be mindful of difficulties assessing oral evidence provided through an interpreter. The Tribunal acknowledges this and has taken this into account in the assessment of the Applicant’s evidence. 

    It acknowledges that at the hearing it was noted that the interpreter interpreted a word as outside when the Applicant claimed he was referring to being overseas. It appears that this was a question of context. The Tribunal acknowledges that such issues may occur even with the most professional and conscientious of interpreters. No other matters in relation to the interpreting were raised at the hearing or in the post hearing submissions, despite the Applicant being provided with a copy of the hearing and recording.

    The Tribunal is satisfied on the evidence before it that the interpreting was of a satisfactory standard that the Applicant was able to meaningfully participate in the hearing. It does not accept on the evidence before it that any of the concerns it has with the Applicant’s evidence set out in detail below can be explained by any issues with interpreting.

14. The Applicant before the Court today did not raise any issues regarding interpretation which effectively go to undermine the credibility findings of the Tribunal, and I accept what the Tribunal says. The Applicant did have a copy of the audio recording and invited the court to listen to the recording, which the court declined to do on the basis that the Applicant had been provided with ample opportunity to raise those matters as a ground of his application, and he was also given an opportunity at the hearing to raise specific examples of where a failure in interpretation had led to a misunderstanding of the evidence by the Tribunal which affected the substance of the decision.

15. The Tribunal recognised that the standard of interpretation is not one of perfection, and it’s not a case where the Applicant has been denied the opportunity to provide his evidence: see Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 [24], [41].

16. Otherwise there is no apparent basis for asserting that there has been a want of procedural fairness in the way that the Tribunal conducted the hearing or the proceedings generally.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  9 November 2018