BPI17 v Minister for Immigration

[2019] FCCA 2657

FEDERAL CIRCUIT COURT OF AUSTRALIA

BPI17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2657

Catchwords:
MIGRATION – Application for protection visa – detailed consideration of all of the applicant’s claims for protection by tribunal – adverse credibility findings based upon a number of different inconsistencies and after an assessment of the applicant’s claims as to why he had not made new claims for protection at an earlier time in the visa application process – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429

CED15 v Minister for Immigration and Border Protection [2018] FCA 451
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Applicant: BPI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 744 of 2017

Judgment of: Judge Egan

Hearing date: 9 September 2019

Date of Last Submission: 9 September 2019

Delivered at: Brisbane

Delivered on: 18 September 2019

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr N. Wood

Solicitors for the Respondent: DLA Piper

ORDERS

1. The application for review filed on 12 April 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 744 of 2017

BPI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 12 February 2018, the Federal Circuit Court of Australia made orders dismissing the application for review filed on behalf of the applicant.

2. The applicant appealed the orders for dismissal of such application for review.

3. By order of Charlesworth J made in the Federal Court of Australia on 8 May 2019, such orders dismissing the application for review were set aside. It was further ordered that:

   a)The matter be remitted to the Federal Circuit Court, differently constituted, for the conduct of the final hearing and determination of the application for judicial review.

   b)The applicant’s grounds for review at the final hearing of the application for review were to be those as particularised in the written submissions filed by the applicant on 15 January 2018.

History  

1. The applicant is a citizen of Sri Lanka. For the purposes of this application, he relevantly arrived in Australia in July 2013.

2. The applicant made an application for a protection visa on 14 February 2014. On 4 May 2015 that application was refused.

3. The applicant sought review of that refusal before the Administrative Appeals Tribunal (the Tribunal). The applicant appeared before the Tribunal on 22 February 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages. He was also represented by a registered migration agent.

4. On 3 April 2017, the Tribunal refused the application for review.

5. On 12 April 2017, the applicant filed an originating application for judicial review in the Melbourne registry of this Court.

Grounds for Application and Claims of Applicant

1. The grounds for the application as set out in the application for review were as follows:

   Grounds of Application

   1. The Decision of the AAT is affected by jurisdictional error

   Particulars

   (a) The Tribunal was required to consider if the applicant had a well founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if he returned to Sri Lanka. It was required to consider if there was a real chance or a real possibility of the applicant suffering persecution or harm upon his return and the AAT has formed a mindset that his claim was contrived and then failed to properly address the issue of his fear of UNP political opponents and not taken into account the profile of his father in law.

   (b) Likewise the Tribunal has given scant consideration to his fears of persecution because he was a Buddhist who converted to Christianity and not considered the opportunities he would have to practice his religion openly and without fear of repercussions from the nationalistic Buddhist organisations.

   (c) The Tribunal has not properly considered the alternative criterion in s. 36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, given his religious & political beliefs.

2. The particulars of the grounds for review referred to in the order of Charlesworth J, and as set out in the applicant’s written submissions filed on 15 January 2018, are as follows:

   4. It is my submission, that this case is arguable. The Tribunal was required to consider if I had a well founded fear of persecution or a real risk of significant harm in the reasonably foreseeable future if I returned to Sri Lanka. It was required to consider if there was a real chance or a real possibility of me suffering persecution or harm upon my return and the Tribunal has formed a mindset that my claim was contrived and then failed to properly address the issue of my fear of UNP political opponents and furthermore it has not taken into account the profile of my father in law.

   5. That my father in law was a highly influential politician who was a member of parliament since 2001 and to highlight the friends and influence and political power that my father in law had was best seen by the fact that at my wedding, Mahinda Rajapakse the then Prime Minister and future President of Sri Lanka was present, as was Ranil Wickramasinghe, the current PM and UNP leader and Karu Jayasuriya, the current Speaker, who all were witnesses to my marriage. The very fact that he had politicians from both major political parties at the wedding, shows that he had friends in both camps and could call upon favours when required.

   6. That the Tribunal has failed to take these relevant factors into account and the factors detailed below when coming to its decision.

   7. That is, in 2010 there were General elections & Presidential elections and I was once again actively involved in supporting the local UNP candidates. I provided money and again provided vehicles for the use by the local candidates. I attended rallies and meetings and I was always acknowledged by the candidates for my financial contributions and the provision of the vehicles. I was well known in my area, by both UNP and PA supporters.

   8. It is well known that during elections, political violence is rife as there are acts of revenge committed by all political parties against each other. I came in for a lot of threats and harassment and I believe that my father in law was behind the majority of those threats.

   9. That the PA was successful in regaining power and Rajapske was re-elected as President. In Sri Lanka the winning party will often seek to exact revenge against its opponents. I remarried in 2011 and my business picked up and I purchased land to build a house, and that is when my father in law resumed his threats and harassment and used his political influence to hurt me for being a strong supporter of the UNP and for not paying a proper property settlement to his daughter.

   10. Suddenly, the cars that I was importing from overseas were being held in customs for a very long time or would go missing or they would be held by customs, whilst further investigations were made and I was made to pay large demurages.

   11. I also received threats from the father in law and he got his political PA thugs to come to my workplace to threaten me and put me in fear and they kidnapped me, stole cheques and abused me. My father in law is also still a member of Rathnapura Pradeshiya Saba and therefore still has a lot of political clout.

   12. It is my submission that the Tribunal formed an initial mindset that my claims were contrived and has given no consideration to case law on witness credibility assessment when concluding that my story was contrived. In other words the Tribunal was saying that I was not a credible witness.

   13. The Full Court in CQG15 v Minister for Immigration and Border Protection extensively reviewed the law concerning adverse credibility findings and earlier authorities than that case from the Federal Court have held that adverse credit findings do not shield the Tribunal from scrutinising its decision-making process. Those cases include Minister: for Immigration and Citizenship v SZRKT, SZLGP v Minister for Immigration and Citizenship and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.

   14. The mere fact that the Tribunal takes an adverse view of credit as against the applicant, that in and of itself does not render the Tribunal decision impervious from judicial review. In this case, I claim the Tribunal failed to properly assess my claim for a protection visa because of its mindset that mine was a contrived claim and it did not consider any of the cases cited above and it should have assessed my credit, that my claim was contrived according to applicable law. I submit that credit assessment since CQG15 involves a vastly more sophisticated process than what the Tribunal undertook in this matter.

   15. Complementary protection; My other ground of review was that the Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of me being removed from Australia to Sri Lanka, there is a real risk that I will suffer significant harm, given my religious & political beliefs.

   16. In considering whether there is a real risk of me experiencing treatment involving "significant harm" for the purposes of s.36(2)(aa), I submit that as a person who is returning as a failed asylum seeker, I may in some instances be detained ( because of influence of father in law) and the Tribunal should have considered if it could be satisfied that any pain or suffering caused by poor prison conditions which take in severe overcrowding and poor and unsanitary conditions, should I be remanded in custody, would be intentionally inflicted on me, as required by the definition of cruel or inhuman treatment or punishment.

   17. In other words, the Tribunal should have evaluated the nature and gravity of that loss of liberty.

   18. In the recent MRD AAT decision, member Stuart Webb included an extensive amount of country information on prison conditions in Sri Lanka. The Tribunal should have taken this relevant and reliable country information into account. After taking this information into account, member Webb made the following findings; (emphasis added) The Tribunal finds that the country information set out above indicates that individuals who are held in prison in Sri Lanka for anything other than a very short period of time face a real chance of suffering cruel or inhuman and degrading treatment because of the extremely poor conditions of prisons in Sri Lanka. The Tribunal notes and takes into account the change of political circumstances in Sri Lanka, the Sirisena presidency and new coalition government that emerged out of the August 2015 general elections. The Tribunal considers that these political steps and the removal of the Rajapaksa regime that had facilitated the ongoing mistreatment of Tamils in custody is a significant development in Sri Lanka and the prospect of improvement in the future exists. However, the Tribunal also notes the issues that have existed in Sri Lanka for an extended time and accepts that the change in political leadership will take time to influence all levels of society, including those who are in charge of prisons and security services.

   19. The Tribunal in my case should have taken into account or even given consideration to the above matters before making its final decision.

3. The circumstances of the applicant’s arrival in Australia prior to July 2013 are somewhat confused. At [21] of its reasons, the Tribunal noted as follows:

   [21] The delegate noted that the applicant had been to Australia on 3 occasions, in 1998, in 2008 for 8 days and from 25 July 2013 to 25 October 2013. He returned to Australia again on 14 November 2013 and lodged the protection visa application on 14 February 2014. The delegate noted multiple trips to other countries from 2003 – 2013 for business, tourist and religious reasons.

4. It was noted by the Tribunal at [22] of its reasons that the delegate had recorded as follows:

   “In December 2013 he travelled to Australia to attend a cricket match and save his life from his father-in-law and his men who want to harm him.”

5. It was further noted by the Tribunal, at [65] – [67] inclusive of its reasons, as follows:

   [65] The Tribunal noted that the applicant had arrived in Australia in July 2013, remained in Australia until 25 October 2013, left for Singapore for business reasons, then returned to Australia on 14 November 2013. He lodged his protection visa on 14 February 2014 and had not left since then.

   [66] The Tribunal noted that the applicant had taken the full six months of his valid tourist visa to apply for his protection visa. The Tribunal noted that the applicant had arrived and left 3 months later, spent 3 weeks in Singapore, then returned to Australia and waited a further 3 months before applying for protection.

   [67] The applicant stated he had gone to Singapore to renew his right to return to Australia on his visa. The Tribunal noted that the applicant had in fact spent 3 weeks in Singapore, on business as stated in the application, and had not left Australia then sought a quick re-entry into Australia. The applicant stated he did not want to be stopped on his return to Australia. The Tribunal notes that the applicant had a multiple entry visa, and that he had travelled to many countries in the past decade. The Tribunal does not accept that the applicant was concerned about his entries into Australia.

6. At [22] of its reasons, the Tribunal considered the applicant’s claims for protection, which claims were relevantly recorded by it as follows:

   [22] In December 2013 he travelled to Australia to attend a cricket match and to save his life from his father-in-law and his men who want to harm him.

   They want to kill him because he and his first wife (Sameela) divorced in 2009 and her father has been claiming money for divorce settlement. His father in-law's men threatened to kill him if he did not pay 50 million rupees to his father-in-law for bringing shame to their family and ruining his daughter's life. He thought that his father-in-law would leave him alone after the divorce in 2009. He travelled in and out of Sri Lanka and lot of time has passed since the divorce which was initiated by his wife. His father in-law has connection to underworld people (gangs) and has been harassing and threatening him

   His business (importing and exporting cars) was not going well and he lost lot of money. He believes his father-in-law was aware of his financial situation and has stopped harassing him for money till late 2010.

   On 20 January 2011, he married his current wife who worked as an assistant Manager for HSBC Bank. With her assistance he was able to improve his finances and start a new company Hirini Motors PVT Ltd.

   He started receiving daily phone calls from his ex-father-in-law demanding money.

   Beginning of 2013 with the news spread that he was building a new house his ex-father- in-law started visiting the applicant's work (show room) making threats. He ignored these threats and continued his work and live normal life.

   On 11 June 2013 while he was walking to his car two armed men asked him to get into their jeep. They verbally abused the applicant and gave him two months to make the payment. The applicant believed these men worked for his ex-father-in-law. He was released after signing few blank cheques and was dropped off in Negambo.

   Soon after this incident he received an abusive phone call and he agreed to pay to gain time and to think.

   He feared for his life and decided to run away and remembered that he held an Australian visa. He planned his trip within three days without telling his wife or his staff and departed Sri Lanka in July 2013.

   After the presidential election on 8 January 2015 in Sri Lanka the government changed and Mr Maithripala Sirisena become president of Sri Lanka. He won the election with joint hand with Mr Ranil Wickremasingha (UNP). His ex-father-in-law now has more power as he is very close with Mr Ranil Wickremasingha and therefore the applicant fears for his life and returning home.

   He fears that his ex-father-in-law and his men will create a false case against him and that the authorities will be on their side and will not protect him and he will be harmed or killed if he returns to Sri Lanka.

   He married his first wife in June 2005. It was a very short love marriage. Though she was 17 years older than him they got married with both parents' blessings. Not before long he realised that she did not share the same interest and was not ready to settle down and started complaining to her father about the applicant.

   After several months she decided to separate and file for a divorce. He attempted to save his marriage but failed and she demanded money from the applicant. He was accused of ruining her young age and therefore asked to pay substantial amount of. Settlement money.

   His ex-father-in-law is involved in politics and is very close with, Mr Ranil Wickremasingha, the regional leader of the United National Party (UNP). He has connections to the authorities and underworld men.

   Since his arrival in Australia he has not contacted anyone in Sri Lanka except his current wife. He is in hiding and is not seeing any of his friends in Australia just in case the word travels to his home town. No one knows he is here.

   Few days after his departure his wife spotted an unmarked car on front of his house and rang the police. He believes the car belonged to his ex-father-in-laws men.

   His wife also mentioned that she received some calls and some people were looking for him and asked for his whereabouts. He did not immediately apply for protection on his last visit as he was hoping the situation would improve. He cannot seek assistance from the Sri Lankan police because the situation would get messy. There would be no guarantee for his safety if he relocated to another part of Sri Lanka.

7. The Tribunal, at [26] of its reasons, further noted the contents of a statement provided to the Tribunal, which statement set out in greater detail the earlier claims of the applicant as noted by the delegate. In such statement, the applicant relied upon two convention grounds in support of his application for refugee status, namely:

   a)Political belief – his support of the UNP.

   b)Religion – Roman Catholic – converted from Buddhism.

8. In the same statement, the applicant set out the grounds on which he sought Complimentary protection. [1] The applicant’s statement provided to the Tribunal was as follows:

   [1]        Court Book page 365.

   [26]  The Convention grounds on which the applicant bases his application for Refugee Status are:

   (a) Political belief – his support of the UNP

   (b) Religion – Roman Catholic – converted from Buddhism

   I am a 45 year old Sinhalese man who comes from a good and well respected family in Sri Lanka.

   My father was in the army and had a high position. That he was a UNP man and in Sri Lanka, politics has been dominated by two main parties, the UNP and the SLFP, which in 1994 became the PA. That the UNP was in power until 1994 and my father was rewarded by the UNP for his loyal service. That because of my father being a member and supporter of the UNP, I too supported the UNP.

   That in Sri Lanka politics is taken very seriously and if you serve your party faithfully, you will be rewarded with numerous perks and benefits. Often you can call upon the party for help when you are in trouble. This applies whether you are UNP or SLFP.

   On the other hand, you quickly make political enemies and both parties are well known for exacting revenge against political opponents. The PA has often been involved with the criminal underworld, in that many of its politicians have been associated with thugs who do their dirty work. Having said that the UNP has also been accused in the past of hiring thugs to do their political work. The fact is this is endemic in third world countries such as Sri Lanka. The history of Sri Lankan politics is littered with politicians crossing over from one party to the other, depending on what rewards have been offered.

   It was against this political background that my situation went from living a very good life to one where I forced to flee Sri Lanka, because of my political opinion.

   In June 2005, I got married and my wife's father was a highly influential politician who was a member of parliament since 2001. Initially, I got on well with her father and he supported me. I was a businessman, who had been a car importer since 2001 and I managed to build up a very successful business. Unfortunately, as previously stated, the marriage broke down and we separated and then divorced.

   That to highlight the friends and influence and political power that my father in law had was best seen by the fact that at my wedding, Mahinda Rajapaksa the then Prime Minister and future President of Sri Lanka was present, as was Ranil Wickramasinghe, the current PM and UNP leader and Karu Jayasuriya, the current Speaker, who all were witnesses to my marriage. The very fact that "he had politicians from both major political parties at the wedding, shows that he had friends in both camps and could call upon favours when required.

   That during this time, I would support the UNP by giving money and I would provide motor vehicles for the various UNP candidates to have at their disposal, to use in their election campaigning. These cars would be decorated with UNP flags and slogans and have the names of the UNP candidate. It was well known at the time that I was the one who provided all of these vehicles.

   That during this time the PA was in power and Mrs. Chandrika Kumaratunge was the then President of Sri Lanka and she was replaced by Mr. Rajapaksa at the Presidential elections in November 2005.

   My father in law was always asking me to support the PA, because the PA was in power and to support Mahinda Rajapaksa who had political aspirations to be the President of Sri Lanka. I refused to do so, because our family had been such a strong UNP family and my father's wish had always been for his family to actively support the UNP.

   That this fact that I actively supported the UNP was of great annoyance to my father in law, who did not want his daughter to be married to a UNP man. At first, he believed that I would change my mind and cross over to the PA. However, when it became obvious over the next few years that I would not change my political allegiance to the PA, our relationship became very strained. He would often tell me how important it was to have political connections within the ruling government of the day and what economic benefits it would have for me and his daughter.

   My marriage was having its ups and downs, there was a big age difference between my wife and I and then this split between my wife's father and myself only exacerbated our relationship. In Sri Lanka, politics is taken very seriously and families are often torn apart because of different political ideals and this is what happened to me.

   My wife and I divorced in 2009 and as I have detailed in previous accounts, it became very acrimonious and there were disputes over a property settlement, which finally resulted in me giving her 20 Lakhs (2 million Rupees). That prior to the final settlement, the father in law was very threatening and harassing in that he made threats that he had political connections and he could use those connections to make my life very difficult, especially given I was a known UNP member and supporter and that there were often confrontations between .the supporters of the UNP and the PA.

   That in 2010 there were General elections & Presidential elections and I was once again actively involved in supporting the local UNP candidates. I provided money and again provided vehicles for the use by the local candidates. I attended rallies and meetings and I was always acknowledged by the candidates for my financial contributions and the provision of the vehicles. I was well known in my area, by both UNP and PA supporters. It is well known that during elections, political violence is rife as there are acts of revenge committed by all political parties against each other. I came in for a lot of threats and harassment and I believe that my father in law was behind the majority of those threats.

   That the PA was successful in regaining power and Rajapaksa was re-elected as President. In Sri Lanka the winning party will often seek to exact revenge against its opponents. I remarried in 2011 and my business picked up and I purchased land to build a house, and that is when my father in law resumed his threats and harassment and used his political influence to hurt me for being a strong supporter of the UNP and for not paying a proper property settlement to his daughter.

   Suddenly, the cars that I was importing from overseas were being held in customs for a very long time or would go missing or they would be held by customs, whilst further investigations were made and I was made to pay large demurages.

   I also received threats from the father in law and he got his political PA thugs to come to my workplace to threaten me and put me in fear and they kidnapped me, stole cheques and abused me and that is when I decided to depart the country for my safety and I came to Australia. That after coming to Australia, my wife has informed me that unidentified people have come to our home seeking my whereabouts and making death threats against me.

   I say that I cannot return to Sri Lanka, as since I left, Rajapaksa lost the Presidency in January 2015 and a new President has been elected, Mr. Sirisena who is a PA man. However, Mr. Rani I Wickramasinghe is now the Prime Minister and Mr. Karu Jayasuriya is the present Speaker of the House. These two men are very close friends of my father in law and are the very two persons who were at my wedding. My father in law is also still a member of Rathnapura Pradeshiya Saba and therefore still has a lot of political clout. My father in law will use whatever power at his disposal to seek revenge against me and my life will not be safe. I will be arrested, tortured or just disappear and I am afraid that false charges will be made against me, such is the power my father in law has with the police and other government authorities.

   I need to clarify the above information, in that I had mentioned most of the above to my previous migration agent, but was told that I do not need to go into detail, as I can mention all of this when I have my interview. However, given the agent attended the interview, I was of the belief that he would raise these issues, but he never did, nor did he make any further submissions. Given he was the professional and I was a lay person, I was reliant upon his advice. However, in retrospect, I believe that I was not properly advised and that he was not experienced in PV applications and my full claim has not been properly put before the department.

   That in relation to my business, I say that my business Hiruni was registered in 2009, however I did not commence or start operating that business until 2011, after my second marriage, as my second wife did not like the name.

   That in relation to a comment by the delegate about me being assaulted on 11 June2013, where I was assaulted by two men and hit with the butt of a gun, I acknowledge that I did not include the incident in my application, but I maintain that the incident did happen.

   That in relation to travelling to Singapore, I travelled there specifically to extend my visa. I had a multiple visa and I had 30 days in which to extend it, and therefore I had to travel outside Australia to do so and that is why I went to Singapore. I did not go to Singapore for any business purpose and it had nothing to do with business.

   The Delegate than discusses about me applying for a visa. I applied for a visa to attend the World Cup in Australia to watch Sri Lanka play in the cricket, however, I did not travel to Australia. I then had this visa in my possession and when the troubles escalated, the visa allowed me to depart Sri Lanka without having to go through any of the usual procedures and leave Sri Lanka. I had a valid visa and so I travelled to Australia to escape my problems and was able to do so without any delay.

   I also say that when I married for the second time in 2011, I married a Roman Catholic, which meant that I converted from being a Buddhist to being a Christian. That this religious conversion did not go well with my parents and relatives, who disowned me and I had very little contact with them after my marriage. Sri Lanka is a Buddhist country and conversion to another religion, especially Christianity is frowned upon by Buddhists, especially the fundamentalist Buddhists, who have in the last few years become a very strong organisation. I believe that I have been discriminated against, when people find this fact out.

   Complimentary protection

   (a) I also submit that the department consider the alternative criterion in s.36(2)(aa), that is, whether I am a person in respect of whom Australia has protection obligations under s.36(2)(aa).This requires a consideration of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of me being removed from Australia to a receiving country, there is a real risk that I will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').

   b. 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1 ). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.

   c. I say that I will face significant harm from the political forces that are associated with my father in law, Ranil Wickraniasinghe and the current Speaker Kara Jayasuriya which also include the police, because of me working for the UN P which amounts to a political opinion, that is, a member and financial supporter of the UNP because of the above and I refer to the incidents above as detailed in this submission.

   I further say that for the reasons stated above, there is a real risk I will face significant harm. On the evidence before you, I say that there are substantial grounds for believing that, as a necessary and foreseeable consequence of me being removed from Australia to Sri Lanka, there is a real risk that I will suffer significant harm.

Analysis of Applicant’s Claims

1. At [5] – [15] of its reasons, the Tribunal appropriately referred to the provisions of Article 1A(2) of the 1951 Refugee Convention, and otherwise set out the relevant criterion for the classification of a person as a refugee. At [16] – [19] of its reasons, the Tribunal set out the relevant criterion by which a person is owed complimentary protection pursuant to the relevant criteria.

2. At [19] of its reasons, the Tribunal recorded that it had considered and taken into account the relevant policy guidelines prepared by the Department in accordance with Ministerial Direction No. 56. It further recorded that it noted its obligation to have regard to country information assessments prepared by DFAT for the purpose of protection status determination.

3. It cannot be said that the Tribunal was not alive to its obligation to have regard to the relevant legal criteria as set out above when considering the application before it.

4. The first ground of review asserted by the applicant is that the Tribunal had formed a “mindset” that the applicant’s claim was contrived. It is also asserted that the Tribunal then failed to properly address the issue of the applicant’s fear of UNP political opponents, or of his father-in-law’s profile.

5. When assessing this ground, the Tribunal at [30] – [34] inclusive of its reasons, properly set out the considerations which it ought to bear in mind when dealing with issues of credibility. It acknowledged that it had to bear in mind a range of difficulties “often faced by asylum seekers”, and it recorded that the benefit of the doubt should be given to asylum seekers who are found to be generally credible but unable to substantiate all of their claims.

6. At [35] of its reasons, the Tribunal recorded that it had significant concerns regarding the credibility of a number of the applicant’s claims. At [36] – [46] of its reasons, the Tribunal analysed in detail not only the nature of the claims made by the applicant concerning his allegedly fearing harm because of his and his family’s political affiliation to the UNP, but also the fact that such claims had only been made in the applicant’s most recent statement provided to the Tribunal before the Tribunal hearing.

7. The Tribunal specifically referred to the applicant having drafted and lodged, in February 2014, a lengthy statement which explained why he feared returning to Sri Lanka. It noted that in such statement there was no mention of his or his family’s affiliation to the UNP. At [37] of its reasons, the Tribunal noted that a further statement provided to the department just prior to his interview with the department in March 2015 also made no reference to any such affiliation being a basis for his fearing harm if he was returned to Sri Lanka. The Tribunal was of the view that had such alleged affiliation to the UNP been a factor which went to the applicant having a well-founded fear of harm at the prospect of being returned to Sri Lanka, the applicant would have raised such claim. Instead, the applicant blamed his agent for not having raised such claims in his statement. That assertion was addressed by the Tribunal at [46] of its reasons. The Tribunal did not accept such assertion because, by the time of the making of such statement, the applicant had already had more than ample opportunity to raise such claim.

8. At [47] of its reasons, the Tribunal found that the applicant had contrived such affiliation claim to bolster his claim for refugee status. The Tribunal was entitled to make such an adverse credibility finding against the applicant.

9. In CQG15 v Minister for Immigration and Border Protection [2], a case referred to by the applicant by way of particulars to his grounds for review, the Full Court there dealt with a range of considerations to be taken into account by a Tribunal when making findings on issues of credibility. The Full Court there found that jurisdictional error would flow from a Tribunal failing to properly assess the evidence before it, or if it otherwise arrived at a decision which was irrational or illogical having regard to the actual evidence before the Tribunal, and the context in which such evidence should be viewed.

   [2] (2016) 253 FCR 496 at [38] – [66] inclusive.

10. The Tribunal did not cite CQG15 in its reasons, but at [34] of its reasons it cited the case of Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 at 348 per Heerey J - which at [65] of CQG15 was cited with approval - for the proposition that a Tribunal did not have to find “specific evidence of falsity” before concluding that an applicant was not a witness of truth, nor that a Tribunal could make such a finding only if there was “a direct conflict of evidence”.

11. The Tribunal analysed the facts before it. It did not accept that the applicant would have failed to raise such affiliation claims earlier had such claims been genuine. Such a reasoning process was open to the Tribunal and is commonplace. That is the case even where an applicant might otherwise be accepted on some other aspects of his evidence.

12. At [48] of its reasons, the Tribunal noted inconsistencies in the evidence of the applicant concerning his father-in-law. The applicant had stated in his submission that his ex-father in law was angry with the applicant for not having supported the PA (Peoples Alliance) party, but it was noted by the Tribunal that at the time the applicant had married his first wife, the PA did not exist, it having earlier merged into the UPFA party in 2004.

13. At [49] of its reasons, the Tribunal pointed to further inconsistencies relating to the applicant’s claims concerning his father-in-law’s having previously stood as a candidate for, and been elected as a member of, parliament as a member of the UNP, as opposed to the PA or the UPFA which were the relevant parties at the time.

14. At [52] of its reasons, the Tribunal found that the applicant did not face a real chance or a real risk of significant harm arising as a result of any involvement he had with the UNP.

15. At [64] – [69] of its reasons, the Tribunal closely considered the fact that there had been delay on the part of the applicant in applying for a protection visa. The Tribunal was entitled to take such failure into account when considering, in context, the past entry into Australia by the applicant on previous occasions, as well as the ability of the applicant to travel extensively to places such as Singapore for the purpose of the applicant conducting business or obtaining a further visa to enter Australia.

16. At [68] of its reasons, the Tribunal legitimately questioned why the applicant had not applied earlier for protection when he had first arrived in Australia, that being at a time when he stated that he had been in fear of his life in Sri Lanka. The Tribunal did not accept that the applicant could not find a suitable lawyer or migration agent to assist him in that regard. It can be inferred that the Tribunal took into account the applicant’s extensive travel and business experience in that regard when making such finding.

17. At [70] – [87] of its reasons, the Tribunal dealt at length with claims made by the applicant that if he was returned to Sri Lanka he would face further threats and extortion demands from his former father-in-law. Those claims had been the applicant’s major stated reasons for fearing harm prior to the time that he made the most recent claims just prior to the Tribunal hearing.

18. At [71] of its reasons, the Tribunal found that the applicant’s evidence about the original claim was vague and contradictory. At [72] – [75] the Tribunal dealt with the assertion that the applicant faced being extorted by his former father-in-law should he return to Sri Lanka.

19. At [75] – [87] of its reasons the Tribunal dealt at length with the applicant’s proclaimed impecuniosity, finding that the applicant’s claims that he had not been making good money were without foundation. The Tribunal pointed to internal inconsistencies in the evidence that was provided by the applicant to the Tribunal concerning the financial state of his business. The Tribunal did not accept the applicant’s accounts given in respect of his business of buying and selling cars in Sri Lanka, nor as to the profitability of such business. At [84] of its reasons, the Tribunal found that the fact that his business was doing well would have been well known in Sri Lanka because the applicant had himself stated that it was easy to find out about another person’s business position in a place like Colombo.

20. At [86] of its reasons, the Tribunal found that the applicant had given inconsistent evidence concerning alleged demands made of the applicant in 2013, as well as his allegedly having been threatened by the use of a gun at that time. The applicant also gave conflicting evidence as to the time within which extortion money was demanded to be paid – the applicant said he was given two to three weeks to pay 50 million rupees at one time, and two months at another time. At [91] of its reasons, the Tribunal noted that it had serious concerns regarding the credibility of evidence given by the applicant regarding threats from his former father-in-law, including death threats, as well as in relation to alleged visits to his workplace, and other threats of harm.

21. Having closely analysed the evidence of the applicant concerning many different aspects of the applicant’s claims, and having meticulously highlighted a large number of factual inconsistencies in relation to such claims, the Tribunal was entitled to make adverse credibility findings against the applicant. It cannot be said that after an examination of all of the applicant’s evidence and claims the Tribunal failed to make an obvious enquiry about a critical fact. [3]

    [3]        Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27].

22. As to the applicant’s criticism of the Tribunal’s reasoning at [64] – [69] of its reasons, the Tribunal was entitled to not only have regard to the fact that the applicant had entered and re-entered Australia on a number of occasions, but also that he had not applied for a protection visa until February 2014, some sixteen years after he had first entered Australia in 1998, and some six months after he had returned to Australia on 25 July 2013. It was noted by the Tribunal that the applicant had applied for his protection visa immediately before the expiration of his previous six month tourist visa.

23. The Tribunal was entitled to find that certain claims made by the applicant shortly before the Tribunal hearing were untruthful on the basis that had they been truthful, they would have been raised by the applicant at a far earlier point in time. As was said by Thawley J in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24]:

    [21] In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

    69.    The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The Tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

    70.    However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The Tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the Tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the Tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

    [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

    [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

    [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].

24. The Tribunal did not fail to relevantly address all of the issues before it concerning the applicant’s claim for refugee protection in a coherent, logical and considered manner. It did not fail to have regard to its fair hearing rule and natural justice obligations as set out in the cases referred to by the applicant in paragraph 13 of his submissions filed on 15 January 2018, namely Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 per Robertson J; SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 per Gordon J; and SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 per Allsop CJ, Flick and Robertson JJ.

25. There is no merit to the assertion made by the applicant that the Tribunal had not properly engaged in a consideration of the applicant’s claims, and that it had fallen into error in assessing the various claims made by the applicant. The applicant’s complaints go to a criticism of the factual findings as made by the Tribunal, rather than to the manner in which the findings were arrived at. The Tribunal was entitled to find that the applicant did not have a well-founded fear of harm regarding his being returned to Sri Lanka. It was open for the Tribunal to make such a finding. There is no merit to this ground.

26. Ground 2 of the application for review asserts that the Tribunal gave “scant consideration” to the applicant’s fears of persecution if he was returned to Sri Lanka because he had been a Buddhist who had converted to Christianity. It was further asserted that the Tribunal had not considered the opportunities open to the applicant to practice his religion without repercussions and without threats from nationalist Buddhist organisations. There is no merit to such ground. At [53] – [63] of its reasons, the Tribunal closely analysed and considered such claims. The Tribunal relied upon DFAT country information reports which recorded that most members of religious groups in Sri Lanka were able to practice their religion freely. It also recorded that DFAT assessed official discrimination on the basis of religion being rare. On the evidence before it, it was open for the Tribunal to find that the applicant did not have a real chance of suffering serious harm, or a real risk of suffering significant harm, by reason of his alleged conversion from Buddhism to Christianity. It cannot be said that the Tribunal failed to consider the claims raised by the applicant in ground 2. Such ground is without merit.

27. Ground 3 asserts that the Tribunal failed to appropriately engage with the applicant’s claims that he was deserving of complimentary protection. The Tribunal did not accept that there was a real risk that the applicant would suffer serious harm from his former father-in-law, by reason of any political belief, or by reason of a religious conversion, should the applicant return to Sri Lanka. As to the former father-in-law, the Tribunal found that it was unlikely that the father-in-law would maintain interest in the applicant bearing in mind that the applicant had divorced his first wife some seven years before the date of the Tribunal hearing.

28. At [99] – [100] of its reasons, the Tribunal found that having considered the applicant’s claims both individually and cumulatively, the Tribunal was not satisfied that the applicant would face a real chance of serious harm should he be returned to Sri Lanka at the time of the hearing or in the foreseeable future.

29. Having concluded that the applicant did not meet the relevant refugee criterion as set out in section 36(2)(a) of the Migration Act 1958 (Cth)(the Act), the Tribunal found that, based on the same findings, the applicant did not have a real risk of suffering significant harm should he be returned to Sri Lanka. The Tribunal did not consider that the applicant met the relevant section 36(2)(aa) complimentary protection criteria. There is no merit to Ground 3.

30. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    [130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

31. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Keifel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] were it was said:

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

1. No jurisdictional error has been established on the part of the Tribunal.

2. The application for review is without merit and is dismissed.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date:  18 September 2019