BNU15 v Minister for Immigration

[2016] FCCA 2085

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2085

Catchwords:
MIGRATION – application for protection visa – whether Tribunal failed to afford the Applicant procedural fairness – whether Tribunal failed to perform its statutory task – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Luu v Renevier (1989) 91 ALR 39
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

Applicant: BNU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1745 of 2015

Judgment of: Judge Jones

Hearing date: 9 May 2016

Date of Last Submission: 9 May 2016

Delivered at: Melbourne

Delivered on: 15 August 2016

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for judicial review filed on 29 July 2015 is dismissed.

2. The Applicant pay the First Respondent a fixed amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1745 of 2015

BNU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter involves an application for judicial review of a decision of the (then) Refugee Review Tribunal (“the Tribunal”) made on 23 June 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). The Applicant had applied for a protection visa on 16 January 2013.

Background and Applicant’s Claims

1. This background and summary of the Applicant’s claims are drawn from the Minister’s written submissions, which accurately summarise relevant background facts and the Applicant’s claims.

2. The Applicant is a Sri Lankan national. On 16 January 2013, he made an application for a protection visa (CB 29). On 20 January 2014, a delegate of the Minister (“the delegate”) refused to grant the Applicant a visa (CB 135). On 23 January 2014, the Applicant applied to the Tribunal for review of the delegate’s decision, attaching a copy of the delegate’s decision (CB 161).

3. The Applicant’s claims and evidence arise from:

   a)his claims in his protection visa application (CB 55-60);

   b)evidence given in an interview with the delegate (CB 135-145);

   c)written submissions, statutory declarations, a video and correspondence to the Tribunal (CB 213-219, 291-292); and

   d)the Applicant also giving oral evidence at a hearing before the Tribunal (CB 287).

4. In his protection visa application, the Applicant made claims to the following effect:

   a)since 2005, he had been a “staunch supporter” of the United People’s Freedom Alliance (“the UPFA”). He “worked closely” with a Member of Parliament. In 2009, S’s son, K, began visiting his house and seeking “sexual favours” from his wife. In November 2009, K and other men attempted to rape his wife. His brother attempted to intervene and was beaten by them. The Applicant grabbed a pole and beat them and they fled;

   b)he lodged a complaint with the police about the incident described above. A few days later, “unknown persons” abducted, beat and tortured him at an “unknown location”. His abductors threatened to press false charges against him if he did not withdraw his complaint. He did so;

   c)towards the end of 2009, he was invited to join the United National Party (“the UNP”) by friends who were strong supporters of the UNP. He was “actively involved” in the 2010 presidential elections and supported Sarath Fonseka and his party. He witnessed “many illegal activities”, which he recorded on video. Members of the “ruling party” became aware of his activities, and he received “threatening calls”, threatening to kill him if he did not give them or the police the video;

   d)in 2010, he “fled” to Dubai, where he lived for approximately six months. He returned to Sri Lanka after he learnt that K was harassing his wife again;

   e)towards the end of 2010, he was abducted by six men, who were supporters of K, beaten and tortured again. His abductors asked for “the video recording [he] had taken during the 2010 elections”. He informed them that he did not possess the recording. He subsequently gave a copy of the recording to the police. He was not able to work for three months, because of the injuries. He reported the incident to the police, but they did nothing;

   f)under pressure he handed over a memory card of the video recording to the Secretary of the UNP;

   g)in May 2011, he was riding his motorcycle, with his father on the pillion. After his father got off, his father was “knocked down” by a van. The Applicant reported the incident to the police, “as [he] remembered the registration number of the van”. When he was leaving the police station, he recognised one of the men in the van. He informed the police and they assured him they would look into the complaint;

   h)subsequently, “unknown persons began causing problems” for him and his family. They harassed his wife when he was not home;

   i)in July 2012, he decided to flee Sri Lanka; and

   j)while he was in detention in Australia, his wife told him the situation was getting worse. He decided to return to Sri Lanka with the help of the Australian authorities. He changed his mind when his wife told him that his father and son had been assaulted and his wife verbally abused.

5. He claimed to fear harm in Sri Lanka from K and his associates. He also claimed to fear harm on the basis of having left Sri Lanka illegally, and on the basis of having claimed asylum in Australia.

The Tribunal’s decision

1. The Tribunal found that the Applicant was not a credible witness, and that “significant parts of his evidence should not be accepted” (at [13] of the Tribunal’s decision record).

2. The Tribunal did accept certain claims; such as, the Applicant’s identity, family, employment and qualifications (at [14]-[16] of the Tribunal’s decision record). The Tribunal also accepted that the Applicant had had “some minor and low level involvement” with the UPFA between 2005 and 2009, and that he participated in some activities during the 2009 municipal election campaign (at [17] of the Tribunal’s decision record). The Tribunal also accepted the Applicant’s claims, clarified in the Tribunal hearing, that he had met S “once or twice” (at [19] of the Tribunal’s decision record). The Tribunal also accepted that K and his men had harassed his wife in late 2009 (at [20] of the Tribunal’s decision record).

3. The Tribunal did not accept that the Applicant and his family had been harassed, threatened or assaulted by K and his men, as claimed, since 2009. The Tribunal said that it “considers the applicant’s evidence on key events relevant to his claims has changed significantly over the course of these proceedings, that it contains significant internal inconsistencies and is inconsistent with information from independent sources” (at [21] of the Tribunal’s decision record).

4. In particular, the Tribunal noted as follows:

   a)at the Tribunal hearing, the Applicant’s story evolved, with the Applicant making two additional claims about complaining to S at his office about the November 2009 rape, but that S had had him forcibly removed. The Applicant also claimed that he was involved in an “altercation” in a restaurant with K and his men. The Tribunal was not satisfied that these events occurred, given they had not previously been raised with the delegate, and also having regard to a number of other concerns about the Applicant’s credibility (at [22] of the Tribunal’s decision record);

   b)the Applicant’s claims about the dates of his involvement in the 2010 presidential election at the Tribunal hearing were inconsistent with independent country information. Also, the Applicant had said in his protection visa application that he was invited to join the UNP by a few friends, who were supporters of that party. However, the Applicant later provided a letter to the Tribunal, purporting to be from Dr Jayalath Jayawardana, the Assistant Secretary of the UNP, stating that the Applicant had joined the UNP at his personal invitation (at [24] of the Tribunal’s decision record);

   c)at the Tribunal hearing, the Applicant failed to mention the serious allegations made in his protection visa application, including the claim of having been abducted, beaten and tortured towards the end of 2010, until prompted about them, despite recounting a significant number of less serious allegations (at [25] of the Tribunal’s decision record);

   d)inconsistencies between his claims in his protection visa application and at the Tribunal hearing about when he had provided his video recording of “illegal activities” to the UNP and police (at [26] of the Tribunal’s decision record);

   e)in his protection visa application, the Applicant claimed that he returned from Dubai to Sri Lanka, because he found out that K was again harassing his wife. However, at the Tribunal hearing the Applicant explained that the main reason that he returned to Sri Lanka was because he was being paid less than he wanted there (at [27] of the Tribunal’s decision record);

   f)in his protection visa application, the Applicant claimed that in 2009 “unknown persons” abducted, beat and tortured him at an “unknown location”. However, at the Tribunal hearing, the Applicant said that the persons who abducted him were “police officers”, and that that incident occurred 200 metres from the police station (at [28] of the Tribunal’s decision record); and

   g)in his protection visa application, the Applicant said that he had remembered the registration number of the van that knocked his father down, and that he recognised one of the men in the van. However, at the Tribunal hearing, the Applicant said that he did not get the registration number of the van. The Applicant also said that, when he reported the matter to the police, the police said that he could not make a report, because he did not have the registration number of the van or any other relevant information (at [28] of the Tribunal’s decision record).

5. Accordingly, the Tribunal did not accept that the Applicant had been truthful in relation to the alleged events since 2009. The Tribunal did not accept that he campaigned for the UNP in the lead up to the presidential election in January 2010, or that he had recorded “illegal activities” in the course of the alleged campaign work (at [30] of the Tribunal’s decision record). It did not accept that he had been harmed or harassed as a result of the alleged campaign work, nor that such matters caused him to flee to Dubai (at [31] of the Tribunal’s decision record). It did not accept that he had returned to Sri Lanka from Dubai, because his wife had been harassed by K (at [31] of the Tribunal’s decision record). It did not accept that he had been harmed or harassed in September 2010 by K or his men, nor that those men had harmed or harassed members of his family since he had fled to Australia (at [31] of the Tribunal’s decision record). It did not accept that the Applicant would campaign for the UFPA or UNP, if he was to return to Sri Lanka in the reasonably foreseeable future (at [31] of the Tribunal’s decision record).

6. The Tribunal concluded as follows (at [32]):

   While the Tribunal has accepted that the applicant had an altercation with [K] in 2009, it considers that incident to be isolated and unlikely to be repeated given the passage of time and the Tribunal’s findings about later events. On the evidence before it the Tribunal does not accept there to be a real chance that the applicant would be targeted for serious harm by [K] or other members and supporters of the UFPA for any reason relating to his dispute with [K] or his withdrawal of his support for the party if he returns to Sri Lanka, now or in the foreseeable future. For the same reasons the Tribunal does not accept there to be a real chance that the applicant would be targeted for serious harm by any person for reasons of his actual or imputed political opinion if he returns to Sri Lanka, now or in the foreseeable future.

7. The Tribunal accepted that the Applicant may be identified in Sri Lanka as a person, who had unsuccessfully sought asylum in Australia (at [33] of the Tribunal’s decision record). Having regard to country information, the Tribunal accepted that the Applicant is likely to face questioning on his return (at [36] of the Tribunal’s decision record). However, the Tribunal considered that such questions “will quickly establish that the applicant is not regarded as a security risk”, and accordingly did not accept that there was a real chance that the Applicant would face harm a result (at [36]-[37] of the Tribunal’s decision record).

8. The Tribunal also accepted that the Applicant would probably be charged with having left Sri Lanka illegally (at [38] of the Tribunal’s decision record). Having regard to country information, the Tribunal found that the Applicant would be held on remand for a period of “up to several days”, while awaiting a bail hearing (at [40] of the Tribunal’s decision record). However, having regard to country information, the Tribunal did not consider that there was a real chance that the Applicant would face serious harm during the questioning or any period that he is remanded awaiting a bail hearing (at [40] and [49] of the Tribunal’s decision record). Further, having regard to country information, the Tribunal found that the Applicant would be granted bail on his own recognisance, and that he would ultimately face a small fine (at [40] to [41] and [49] of the Tribunal’s decision record). The Tribunal said that the Applicant had not suggested he could not pay the likely fine of between 5,000 to 50,000 rupees and found that he will (at [41] of the Tribunal’s decision record). Having regard to country information, the Tribunal found that the criminal process would involve a “non-discriminatory enforcement of a law of general application and … does not involve systematic and persecutory conduct” (at [42] of the Tribunal’s decision record). Further, while the Tribunal accepted that prison conditions in Sri Lanka are generally poor, it did not accept there to be a real risk that the Applicant would face significant harm while in custody (at [49] of the Tribunal’s decision record).

JUDICIAL REVIEW

1. In his application for judicial review, the Applicant identified the following grounds:

   1.  The Refugee Review Tribunal did not afford me procedural fairness

   2.  The Refugee Review Tribunal applied the wrong legal test

2. The Minister submitted that the two grounds of review identified in the application are so general and abstract that they are effectively devoid of content. Reliance was placed on the decision of Reeves J in SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at [21], where his Honour said that it is impossible for the Court to engage in judicial review by reference to such generic grounds. Accordingly, the Minister submits, unless the Applicant identifies a specific error by the Tribunal, the Court may dismiss the application.

3. The Applicant appeared on his own behalf and was assisted by an interpreter in the Sinhalese and English languages. As the Applicant was self-represented, I attempted to explain to him the nature of judicial review and its difference to the merits review conducted by the Tribunal. I explained to the Applicant that the function of the Court was to consider the procedure adopted by the Tribunal and the Tribunal’s decision, to decide whether there was, as I put it, “a serious legal mistake”. I then asked the Applicant to explain to the Court his grounds for review.

4. With Respect to Ground one, the Applicant said that the Tribunal did not give him a fair decision. He said that he had produced “all the evidence”. The Applicant identified, in particular:

   a)the video (CB 291) (see 5(c) and (e) above); and

   b)correspondence from Dr J Jayawardana MP, UNP Chief Organiser.

5. The Applicant submitted that this evidence was not taken into consideration or into account properly.

6. The Applicant said he did not know what the second ground of review meant. I take this to mean that he does not pursue the second ground of review.

Consideration

1. There is no doubt that the Tribunal considered the video the Applicant submitted to the Tribunal. In its decision record at [18], the Tribunal said:

   Independent sources indicate that [S] is a UPFA member of Sri Lanka’s parliament in the electoral district of Gampaha. The Tribunal has had regard to an untranslated news media video played to the Tribunal by the applicant at hearing and submitted to the Tribunal by email after that hearing. The applicant told the Tribunal that the video showed [S] and his men entering the opening ceremony of a building being opened by the mayor in April 2015 and having an argument with the mayor because they hadn’t been invited. The Tribunal accepts the contents of that video to be as described by the applicant.

   (footnotes omitted) (my emphasis)

2. Clearly, the Tribunal viewed the video and the contents of the video as described by the Applicant.

3. It is impossible to understand how the contents of the video corroborate or in any way support the Applicant’s claims. Consequently, even if the Tribunal failed to consider this evidence, it would not give rise to jurisdictional error.

4. The Tribunal also considered the correspondence said to be from Dr Jayawardana. The paragraph preceding that in which the correspondence was considered in the decision record, sets out the inconsistencies the Tribunal found in his claims, regarding his involvement in the 2010 elections. This paragraph ends as follows (at [23]):

   … The applicant’s lack of knowledge of the timing of the presidential election, together with the other concerns the Tribunal’s holds about the credibility of the applicant’s claims, causes the Tribunal not to accept that he campaigned for the UNP during that election as claimed.

5. The Tribunal then proceeded to consider Dr Jayawardana’s correspondence (at [24]) as follows:

   In making this assessment the Tribunal has had regard to the letter dated 10 December 2012 produced at hearing purporting to be from Dr Jayalath Jayawardana, Assistant Secretary of the UNP which makes reference to some of the incidents set out in applicant’s protection claims. Somewhat confusingly it commences by stating that the applicant is an ardent supporter of the UPFA although it goes on to state that the applicant parted from the UPFA after problems with one of the minister’s sons, joining the UNP and canvassing for General Fonseka during the 2010 election campaign on Dr Jayalath Jayawardana’s personal invitation. However the applicant did not suggest in his own evidence that he joined the UNP at the invitation of Dr Jayalath Jayawardana. In his written claims he states that he was invited to join the UNP by a few friends who were supporters of the opposition party. When asked at hearing how he came to work for the UNP, the applicant stated that got to know General Fonseka was going to be an opposition candidate through a UNP MP from his village called Royce Wijithaweera who knew he had issues and invited him to join his party.

6. The Tribunal considered the evidence, but identified inconsistencies between the Applicant’s claims and Dr Jayawardana’s correspondence.

1. The Applicant’s complaint that the Tribunal did not properly consider the correspondence is, in essence, a complaint about the manner in which the Tribunal dealt with the evidence. The Tribunal was not required to accept, uncritically, the Applicant’s claims: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170; Luu v Renevier (1989) 91 ALR 39 at 45; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596.

2. The Tribunal’s treatment of the evidence, the Applicant argues, was not considered properly, must be viewed in the context of a decision where the Tribunal made significant adverse credibility findings regarding the Applicant’s claims of persecution for a Convention reason. It is well settled that an assessment of credit involves a factual finding, which is “the function of the primary decision-maker par excellence”: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at [67] (McHugh J).

3. Other than these particular matters referred to by the Applicant, I am satisfied the Applicant was afforded procedural fairness. The Minister’s Outline of Submissions filed on 26 April 2016 correctly sets out the Tribunal’s compliance with its procedural fairness obligation. The relevant extracts follow (at [24] to [27]):

   24.    Part 7 Division 4 of the Act exhaustively states the content of the requirements of the natural justice hearing rule in relation to the matters that it deals with: section 422B of the Act. There is no apparent failure by the Tribunal to comply with the requirements of that code.

   25.    The Tribunal invited the applicant to attend a hearing, and it adequately notified the issues arising in relation to the decision under review (section 425).

   26.    With respect to the limited obligation in section 424A(1) of the Act to put certain “information” to the applicant, all of the “information” that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review fell within one or more of the exceptions to that obligation set out in s 424A(3) of the Act. In particular:

   26.1  The “country information” identified in the Tribunal’s statement of reasons is caught by the exception in s 424A(3)(a), because it is “not specifically about the applicant or another person”.

   26.2  All of the information contained in the delegate’s statement of reasons (including the information given by the applicant in his interview with the delegate, and recorded in the delegate’s statement of reasons) is caught by the exception in s 424A(3)(ba). That is because the applicant attached the delegate’s decision record to his application for review (CB 160 [156]), and he therefore “gave” that information during the process that led to the decision under review.

   27.    In any event, having failed to tender a transcript of the Tribunal hearing in evidence before the Court, the applicant cannot discharge his onus of proving that the Tribunal did not put any relevant “information” to the applicant in compliance with the alternative procedure in section 424AA of the Act. (The absence of any reference in the statement of reasons to s 424AA does not give rise to an inference that the Tribunal did not comply with s 424AA, because the Tribunal was not required to set out in its written statement under s 430(1) an explanation of how it conducted the hearing and any procedural powers that it exercised in that regard.) Compliance with the alternative procedure in section 424AA renders the obligation in section 424A(1) inapplicable: section 424A(2A).

   (footnotes omitted)

4. I am satisfied that no jurisdictional error arises from Ground one.

5. The Minister submits that (at [17] of its Outline of Submissions filed on 26 April 2016):

   It is not incumbent on this Court “independently to consider for itself whether a self-represented litigant might, despite the inadequacies of presentation of his or her position, have a case for the court’s intervention”. But, even if the Court was minded to “run its eye of the materials”, it is not apparent that there is any “obviously arguable ground” that the Tribunal made a jurisdictional error in affirming the delegate’s decision.

   (footnotes omitted)

6. Out of an abundance of caution, I will consider whether the Tribunal engaged in jurisdictional error by applying “the wrong legal test”.

7. I am satisfied that the Tribunal correctly identified the law it was required to apply; both under ss. 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth): see [55] to [59] of the Tribunal’s decision record. I am satisfied that the Tribunal correctly identified the claims made by the Applicant in his protection visa application, during the interview with the Department of Immigration and Border Protection and at the Tribunal hearing, and genuinely engaged with those claims and evidence.

8. The Tribunal considered the Applicant’s claim to fear harm on the basis of his political connection and his membership of a particular social group – failed asylum seeker and a person who had illegally departed Sri Lanka.

9. There is nothing to suggest that the Tribunal failed to perform its statutory task.

10. Accordingly, no jurisdictional error arises from Ground two.

Conclusion

1. For the reasons set out in this judgment, the application will be dismissed and costs ordered.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 15 August 2016