BRR15 v Minister for Immigration

[2017] FCCA 942

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRR15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 942

Catchwords:
MIGRATION – Protection visa – inconsistency in claims made – findings of fact – merits review – no error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Applicant: BRR15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1918 of 2015

Judgment of: Judge McNab

Hearing date: 18 April 2017

Date of Last Submission: 18 April 2017

Delivered at: Melbourne

Delivered on: 18 April 2017

REPRESENTATION

The Applicant in person

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The application filed on 20 August 2015 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1918 of 2015

BRR15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

DELIVERED EX –TEMPORE (REVISED FROM TRANSCRIPT)

1. This matter concerns an application made by the applicant on 20 August 2015, where he seeks judicial review of a decision of the second respondent (“the Tribunal”), made on 3 August 2015. The Tribunal affirmed a decision of the first respondent, the Minister, by his delegate, not to grant the applicant a Protection (Class XA) visa (‘the visa’). 

2. Orders were made by Registrar Caporale on 3 February 2016 that the applicant file written submissions 42 days prior to the final hearing. No submissions were filed.

3. The respondent relied on written submissions filed and served on the applicant, which he stated that he had read prior to the hearing. The applicant appeared at the hearing and was assisted by a Tamil interpreter.

Background

1. On 18 December 2012, the applicant filed a statement of claims which was prepared with the assistance of lawyers and was interpreted by a Tamil interpreter for the applicant’s benefit for the purposes of establishing his claims to a Protection visa. Those claims provided:

   a)he was from Point Pedro in the Northern Province of Sri Lanka;

   b)harassments, round-ups and abuses by the Sri Lankan Army (‘SLA’) started in his town in 2008;

   c)between 2008 and 2009 he had to go to a SLA camp every day;

   d)after the civil war, the town was heavily militarised and SLA officers harmed Tamil civilians;

   e)the applicant was personally targeted by the SLA in 2009 as SLA officers visited his house unexpectedly and irregularly. They questioned whether the applicant knew or helped members of the Liberation Tigers of Tamil Eelam (‘LTTE’) and then ransacked his house;

   f)on one visit the SLA shot the applicant’s pet dog;

   g)in 2012, Tamil civilians started being abducted by “white vans”; and

   h)shortly before fleeing Sri Lanka, he went into hiding in Klinochchi.

2. In support of his application for a Protection visa, the applicant filed submissions prepared by his legal representatives that dealt with country information and provided a further summary of the applicant’s claims. The applicant’s representatives summited that the applicant feared  persecution in Sri Lanka due to:

   a)his ethnicity as a Tamil;

   b)his actual/imputed political opinion including of being a “perceived sympathizer/supporter of the LTTE”, or as someone seen to hold Tamil separatist views or views supporting a renewal of hostilities against the government of Sri Lanka.

   c)his membership of a particular social group, being failed asylum seekers.

3. The Delegate of the Minister refused the Visa Application and on 30 April 2014, the Applicant applied to the Tribunal for merits review.

4. The applicant attended a hearing on 23 July 2015 before the Tribunal as a result of an invitation to attend provided to him on 19 June 2015.

5. At the hearing the applicant raised several new claims, including that:

   a)he had been required to pay the LTTE money from 2002 to 2008;

   b)he had been harassed by the EPDP; and

   c)that his son had been injured when the SLA visited his house in 2009.

6. He also provided documents in support of his position.

7. The Tribunal refused the application and affirmed the delegate’s decision not to grant the visa on 3 August 2015.

Consideration

1. The applicant’s grounds of application are that the decision of the Tribunal:

   (a)is affected by an error of law; and

   (b)the Tribunal denied the Applicant procedural fairness.

2. The decision of the Tribunal is comprehensive. The Tribunal sets out the relevant law,[1] outlines the claims made by the applicant in his statement of claims dated 6 December 2012,[2] articulates the concerns that it had in relation to the credibility of the applicant in relation to changing claims; and makes findings in relation to the credibility of the applicant based on the view that it held that he had exaggerated or embellished claims, or made up fresh claims for the purposes of the hearing.

   [1] Tribunal decision dated 3 August 2015 [4]-[8].

   [2] Ibid [9]-[12].

3. One such finding of credibility relates to a claim that the applicant’s son had been injured at the hands of the military or the LTTE. The Tribunal noted that:

   …the applicant has had the assistance of lawyers in preparing his application for a protection visa and in these circumstances the Tribunal does not accept that the applicant would not have been aware of the importance of disclosing all relevant information to his claims prior to the review hearing.[3]

   [3] Tribunal decision dated 3 August 2015 [19].

4. The Tribunal noted that:

   [w]hile the Tribunal accepts that the applicant’s son did incur some sort of injury to his eye, based on the photographic and medical evidence submitted by the applicant at the hearing, the Tribunal does not accept that this injury was sustained in the circumstances the applicant claims given the inconsistencies in the applicant’s evidence in the hearing, as compared to his statutory declaration….[4]

   [4] Ibid [25].

5. The Tribunal also noted that the statutory declaration (statement of claims) makes reference to the fact that the SLA officers would visit his house, and on one of their visits they shot the applicant’s pet dog because it was barking.[5] Of significance to the Tribunal is the absence of any reference in that statement to an injury suffered by the applicant’s son, which was then later raised at the hearing.[6]

   [5] court book, 83 [8].

   [6] Tribunal decision dated 3 August 2015 [24].

6. The Tribunal has set out the reasons for its conclusions in relation to the findings of credibility, and they are not irrational. The elaboration of claims or the introduction of new and significant claims is a rational basis for finding that the applicant’s claim as a whole lack credibility, particularly where the new claims are directly relevant to the grounds of the application. The Tribunal referred to other examples of what it regarded as inconsistencies which adversely affected the applicant’s credibility.[7]

   [7] Ibid [16]-[29].

7. Otherwise, the Tribunal considered the applicant’s claims that he would suffer a real chance of harm if he was to return to Sri Lanka, considered the country information, and made specific reference to it.[8]

   [8] Tribunal decision dated 3 August 2015 [39]-[41].

8. It considered whether the applicant may face a real chance of serious harm given his illegal departure from Sri Lanka and made a finding having considered the country information. It concluded the applicant may face persecution under a law of general application on return to Sri Lanka, which did not amount to persecution for a Convention reason.[9] The Tribunal concluded, after considering the material before it, that the applicant did not meet the complimentary protection criterion, as the applicant did not face a real risk of significant harm in relation to being a suspected LTTE supporter, as a Tamil, or as a failed asylum seeker.

   [9] Ibid [42]-[46].

9. In my view, there is no apparent basis for a finding by this Court that the decision of the Tribunal is affected by jurisdictional error. Whilst I fully understand why the applicant may be aggrieved that his claims have not been accepted by the Tribunal, what the applicant is asking the Court to engage in is merits review, which is not a permissible exercise of the review process by the Court. In that regard, I refer to a decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The Tribunal made findings of fact, based on the evidence before it, that there were inconsistencies in the applicant’s evidence. Those findings were reasonable open to it.

10. In relation to the claim that the decision of the Tribunal failed to accord procedural fairness, in my view it is not apparent that there is any basis to that claim. The applicant attended the hearing before the Tribunal, was on notice of the issues arising in relation to the decision under review, and was able to comment on those issues during the course of the hearing.

11. The applicant was able to submit documentation and put his case. He was not in detention at the time that the hearing occurred, and the matters which concerned the Tribunal in relation to credibility were raised directly with him in the course of the hearing.

12. For these reasons I dismiss the application.

I certify that the preceding twenty (22) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 9 May 2017