BQQ15 v Minister for Immigration
[2017] FCCA 3412
•23 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQQ15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3412 |
| Catchwords: MIGRATION – Application for judicial review – protection (class XA) visa – whether the Tribunal considered all evidence – Tribunal did not find claims credible – whether Tribunal failed to afford Applicant procedural fairness or natural justice – Tribunal complied with procedural fairness and natural justice obligations – application dismissed. |
| Legislation: Migration Act 1958 (Cth), div.4 pt.7 |
| Cases cited: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 |
| Applicant: | BQQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1865 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 23 March 2017 |
| Date of Last Submission: | 23 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2017 |
REPRESENTATION
| The Applicant in person |
| Counsel for the Respondent: | Mr Hibbard |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application filed 13 August 2015 be dismissed.
The Applicant is to pay the respondent’s costs fixed in the sum of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLG 1865 of 2015
| BQQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
DELIVERED EX-TEMPORE (REVISED FROM TRANSCRIPT)
Introduction
This application comes before the Court by way of an application filed 13 August 2015 for judicial review of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 21 July 2015. The Tribunal affirmed the decision of a delegate of the First Respondent to refusing to grant the Applicant a Protection (Class XA) Visa.
The Applicant appeared before me today unrepresented but with the assistance of a friend who spoke good English and who assisted the Applicant with his case and English translation. An interpreter was booked to assist the Applicant but was, for some administrative reason, unable to attend. The opportunity was given to the Applicant not to proceed, but he indicated he wished to proceed with the assistance of his friend. The matter proceeded without objection.
Background
The background circumstances to this matter have been accurately summarised by the First Respondent and are replicated exactly from
[4] – [12] (citations omitted).
The Applicant is a citizen of Sri Lanka. On 12 August 2012, he arrived at Christmas lsland. On 10 December 2012, he applied for a Protection (Class XA) visa (Visa). The Applicant was assisted by Playfair Visa and Migration Services, which represented him for the purpose of the application.
In his Visa application, the Applicant claimed:
a)he was from a small island called Batalan Gunduwa off the coast of Sri Lanka;
b)his father was a Catholic Sinhalese and his mother was a Catholic Tamil. At home he spoke Tamil, though he could not read or write Tamil. He considered himself a Catholic Tamil, although he went to a Sinhalese school and could speak, write and read Sinhalese;
c)a Sinhalese person on the island asked the Applicant's father for a loan. His father refused to grant the loan. The hut in which the Applicant's family lived was subsequently burnt down, and the Applicant's father suspected it had been burnt down by the person who asked for the loan;
d)he and his family were subject to a “pattern of persecution” from Sinhalese people on the island. He later discovered other Tamil people on the island had the same trouble;
e)he and his family confronted the people who were persecuting them, but they hit the Applicant's father with an engine shaft;
f)he was threatened by Sinhalese people because he spent time with Tamil people. The Sinhalese told him they had contacts high in the police force, so the Applicant did not complain to the police;
g)at some point he travelled to live with his aunt in Mannar. While there, army officers checked the Applicant's ID card and told him not to “go around” the area. Members of the Sri Lankan navy asked the Applicant's friends about his whereabouts; and
h)on 22 February 2012, he participated in a demonstration against fuel prices in Chilaw. He accidentally touched a member of the navy, and was warned by him. Members of the navy killed someone else in the same demonstration group.
On 9 September 2013, the Applicant attended an interview with the Department. At the interview, in addition to the claims made above, the Applicant claimed:
a)after discovering other Tamils were having trouble on Batalan Gunduwa, the Applicant's father helped to hold a meeting of the fishing co-op. At the meeting, the president and secretary of the co-op (who were Sinhalese) asked people not to talk to the police; and
b)the men he thought had burnt his house down had come to his family's house threatening to kill the Applicant. The Applicant's mother had sex with the men so that they would not harm the Applicant.
On 24 March 2014, a delegate of the Minister refused the Visa application. The delegate did so primarily on the basis of the Applicant's credibility. The delegate stated:
In my view the Applicant has not demonstrated reasonableness, consistency and the general plausibility which his claim relies on. Nor are his claims supported by known country information.
I find it more likely these claims were fabricated by the Applicant to enhance the application. I find that the information was not presented consistently because the circumstances did not exist as described by the Applicant.
I do not find it credible that the Applicant is of Tamil ethnicity. Or that he is being pursued by a local fisherman because his father refused to lend them money or that the authorities are after him because he touched a navy personal [sic] during a fuel rise protest in Chilaw. Or that the claim that his mother has been harmed is in any way related to his own personal claims of harm.
On 27 March 2014, the Applicant applied to the Tribunal for merits review. The application indicated that the representative would act for the Applicant in the course of the review.
By letter dated 29 May 2015, the Tribunal invited the Applicant to attend a hearing on 3 July 2015 in Sydney.
The hearing was moved to Melbourne. On 3 July 2015, the Applicant and the representative attended the hearing. Among other things, at the hearing the Applicant raised a new claim that his mother was continuing to have an affair with a person who attacked him to prevent the person from attacking the Applicant again.
By email dated 14 July 2015, the representative provided written submissions to the Tribunal in support of the application. The submissions reiterated the Applicant's claims, and provided country information in support. The submissions also claimed that the Applicant would face harm on his return to Sri Lanka due to being a member of the particular social group "failed asylum seeker returnees who departed Sri Lanka illegally".
On 21 July 2015, the Tribunal affirmed the delegate's decision not to grant the Visa. In reaching its decision, the Tribunal:
a)set out the relevant law;
b)described the Applicant's evidence and claims;
c)described the Applicant's conduct at interviews with the Department;
d)considered the Applicant's claims, and dismissed all of them due to the Applicant's poor credibility. Significantly, the Tribunal found at that the Applicant did not actually identify as Tamil and would not be identified as Tamil; and
e)found that Australia did not owe the Applicant complementary protection obligations.
Application
The Applicant did not file written submissions in this case. His sole ground of review has been extracted from his application and supporting affidavit. It is as follows:
The AAT erred in not giving consideration to the evidence that the Applicant being myself will suffer and will be persecuted in the hands of the offenders who had already caused harm to me before fleeing to Australia upon my return to my home country. I provided evidence to that regard in support but the Tribunal Member disregarded such evidence and or did not give consideration to that evidence. Accordingly the Tribunal Member has erred as a matter of law.
Representatives of the First Respondent, acting as a model litigant, brought the issue of a possible failure by the Tribunal to accord the Applicant procedural fairness or natural justice to the attention of the Court. This claim was not raised by the Applicant.
Consideration
In its decision, the Tribunal set out in detail the Applicant’s evidence and claims. It is apparent that much of that is extracted from the documents that were submitted by the Applicant himself, including the Visa application. The Tribunal described the Applicant’s conduct in interviews with the Department of Immigration at the entry interview and the Departmental interview in particular at [47] - [54] and [55] - [58]. The Tribunal then went on to consider the Applicant’s claims and set them out in detail at [55] - [102].
A significant part of the Tribunal’s decision deals with the reasons why it did not accept the Applicant’s claims as credible and, indeed, dismissed them all due to the Applicant’s poor credibility. At [91] of the decision, the Tribunal found that it did not accept that the Applicant identifies as Tamil or is identified as Tamil and explained its reasoning.
The Tribunal found that:
it does not accept that he has suffered any harm in the past, including when he was small because of his actual or imputed Tamil ethnicity or that there is a real chance that he will suffer serious harm or real risk that he will suffer significant harm because of his actual or imputed Tamil ethnicity if he returns to Sri Lanka.
At [103] - [105] the Tribunal stated that it did not consider that the Applicant would suffer any real risk or harm or significant harm because he had left Sri Lanka illegally. Its reasoning on this matter was set out at [96] - [98]. In particular, at [98], the Tribunal stated:
[f]urther, the Tribunal is considering the particular circumstances of the Applicant. Information about claims by Tamil prisoners of harassment in the Anuradhapura Prison or reports of family members of suspects being arrested and Tamils suspected of attempting to revive the LTTE is of little or no relevance to the assessment of the Applicant’s circumstances.
It is not suggested in this case that any treatment suffered by the Applicant either in Sri Lanka or any treatment that he may suffer upon his return is a result of any association with the LTTE. At [103] - [105], the Tribunal did not accept that Australia owed the Applicant complementary protection obligations and set out its reasoning on that finding.
Accepting the difficulty the Applicant faces because he is self-represented, he has been unable to identify any particular evidence that the Tribunal failed to address or failed to consider.
The Tribunal is not required to address each and every matter which is raised by the Applicant before the Tribunal. As stated in Minister for Immigration and Multicultural Affairs v Yusuf,[1] it is only necessary for the Tribunal to:
set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.[2]
[1] [2001] HCA 30.
[2] Ibid [69].
The Tribunal has identified those persons to whom the Applicant said he feared harm. Those persons were; a person to whom his father had refused to lend money, certain Sinhalese people, members of the
Sri-Lankan navy (particularly following the Applicant’s participation in a protect in Chilaw), relatives of his father, one or more the attackers who visited the Applicant’s house, and a person his mother was having an affair with to prevent attacks upon the Applicant.
The Tribunal had regard those claims and made reference to that at [24]-[29], [38]-[39], [53], [62]-[67], [69]-[75], [78]-[89] and [95].
A fundamental point in this case is that the Tribunal did not accept the Applicant as credible and its decision followed that finding. The Tribunal was not bound to accept the Applicant’s claims and ultimately, the issue of the credibility of the Applicant’s claims is one for the Tribunal. The Tribunal set out its findings in a comprehensive and detailed way and has not disregarded any evidence provided by the Applicant.
At [100], the Tribunal noted that the Applicant gave evidence that his father continues to fish at the island and has recently acquired his own boat. The Tribunal did not accept that the Applicant will be unable to fish with his father or work at the hotel as he has in the past because it does not accept his claims relating to feared harm. The Tribunal did not accept that there is a real chance that he will suffer serious harm or a real risk that he will suffer significant harm because he will be prevented from fishing by the Sinhalese people, the Sri-Lankan navy, the person to whom his father refused to give the loan or by anyone else. The Tribunal did not accept that he will not be able to make a living or that the Applicant’s father’s family in Negombo will treat him poorly if he returns to Sri Lanka. Those finding were open to the Tribunal.
In relation to the matter of procedural fairness and/or natural justice raised by the representatives of the First Respondent, I find that there has been no failure to accord procedural fairness or natural justice to the Applicant. The Applicant attended the hearing, was aware of the issues under consideration at the hearing and was able to make comment. The Tribunal followed all the obligations upon it under Division 4 of Part 7 of the Migration Act 1958 (Cth).
Conclusion
Ultimately, the application is an invitation to review the merits of the Tribunal’s decision in relation to the findings of credibility, which is beyond the scope of this Court. In those circumstances I dismiss the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab.
Date: 29 May 2017
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