BRU15 v Minister for Immigration

[2017] FCCA 712

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRU15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 712

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal complied with s. 425 of the Migration Act 1958 (Cth) in raising with the applicant the issue of the applicant’s credibility – whether the Administrative Appeals Tribunal failed to assess and weigh documents provided by the applicant – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases cited:
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant s20/2002 (2003) 198 ALR 59; Minister for Immigration and Citizenship v SZNSP (2010) 115 ALD 294

Applicant: BRU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2300 of 2015

Judgment of: Judge Emmett

Hearing date: 11 April 2017

Date of Last Submission: 11 April 2017

Delivered at: Sydney

Delivered on: 11 April 2017

REPRESENTATION

Solicitors for the Applicant: Mr Stephen Hodges (Stephen Hodges Solicitors)

Solicitors for the Respondents: Ms Chloe Hillary (DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2300 of 2015

BRU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 23 July 2015 (“the Tribunal”).

2. The applicant claims to be a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from unidentified persons in Sri Lanka and the Sri Lankan authorities generally.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 26 December 2011, the applicant departed legally from Sri Lanka to Malaysia.

2. On 22 July 2012, the applicant arrived in Australia as an irregular maritime arrival.

3. On 12 December 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

4. On 21 February 2014, the Delegate refused the applicant’s application for a protection visa.

5. On 27 February 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

6. On 23 July 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

7. On 20 August 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

The applicant’s application for a protection visa

1. The applicant’s claims are summarised by his solicitor in written submissions filed 31 March 2017 as follows:

   “8. The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu religion [CB 183, paragraph 9]

   9. The applicant’s claims include the following [CB 183-184, paragraph 9]:

   9.1 From 1997 to 2000, the applicant worked in the trade of rolling cigars.

   9.2 The applicant decided to leave Sri Lanka as he faced problems during the war due to his Tamil ethnicity.

   9.3 Between May 2001 and August 2011, the applicant resided in Saudi Arabia on a work visa.

   9.3.1. During this period, the applicant worked various manual labour jobs.

   9.3.2. The applicant only returned to Sri Lanka once during this period, from August and December 2007.

   9.4 The applicant returned to Sri Lanka in August 2011 and stayed with people he knew in the village instead of his family.

   9.5. A month later, a group of men came looking for him at his house but did not find him as he wasn’t home.

   9.6 After his return to Saudi Arabia in December 2011, the applicant’s family was visited by unidentified men searching for the applicant. On the third occasion, they threatened to shoot him if they saw him.

   9.7. Fifteen days later, the men visited the applicant's family once more and told his parents that they were aware the applicant was back in the country and that his life was in danger if he was seen by them.

   9.8. The applicant departed Sri Lanka on 26 December 2011, travelling to Malaysia legally via a tourist visa before travelling to Australia via Indonesia.

   9.9. The men visited the applicant's home three more times after the applicant left.

   10. The applicant claims to fear harm or persecution from the Sri Lankan authorities if he were to return to Sri Lanka, for the following reasons:

   10.1. He is of Tamil ethnicity.

   10.2. He lived in the eastern province.

   10.3. He departed Sri Lanka illegally.

   10.4. He applied for asylum in Australia.”

The Delegate’s decision

1. On 14 June 2013, the applicant attended an interview with the Delegate.

2. The Delegate was satisfied that the applicant provided plausible responses to questions put to him in the interview and that he recalled evidence from his personal experience. The applicant’s responses were also generally supported by available country information regarding the situation in Sri Lanka. The applicant’s claims were broadly consistent throughout the interview process as well as during his dealings with other Departmental officers.

3. However, the Delegate was not satisfied that the applicant would be specifically persecuted in Sri Lanka on account of his Tamil ethnicity. The Delegate noted that the applicant had not been subjected to any persecutory treatment as a Tamil in the past, and that he has never been detained or questioned by the authorities in Sri Lanka. There is no indication that he or his family suffered mistreatment amounting to persecution in Sri Lanka.

4. The Delegate found that the applicant did not have a real chance of being persecuted for Refugees Convention reasons and was therefore not satisfied that the applicant’s fear is well founded.

5. The Delegate also found that there was no evidence to suggest that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will be subject to significant harm should he be returned to Sri Lanka.

6. On 21 February 2014, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 27 February 2014, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. In addition to providing the Tribunal with the delegate’s decision record, the applicant provided the Tribunal with further submissions on 6 July 2015.

3. On 18 May 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 18 June 2015 to give oral evidence and present arguments.

4. The decision of the Tribunal was accurately summarised in the written submissions of the respondent’s solicitor as follows:

   “9 The AAT accepted that the applicant is from the east of Sri Lanka, that he worked in Saudi Arabia from May 2001 until August 2011, that he left Sri Lanka lawfully on 26 December 2011 holding a tourist visa to travel to Malaysia, and thereafter travelled illegally to Indonesia and then by boat to Australia, [24].

   10 The AAT had serious credibility concerns about the applicant, finding he was not a witness of truth, [28]. It was concerned that the applicant's evidence about visits at his family home was 'changing, inconsistent and not credible', [29]. The AAT set out the inconsistencies in the applicant's evidence at [31]-[51]. It noted that the applicant provided a letter from the Human Rights Commission (HRC) but did not accept it was a genuine letter and did not give it any weight, [55].

   11 The AAT considered the applicant's claims relating to roundups which occurred before he went to Saudi Arabia in 2001, [58]-[62]. The AAT did not accept that the applicant had ever been suspected of LTTE involvement or that he had been harmed or was of any adverse interest to authorities, [63].

   12 The AAT, on the basis of its adverse credibility assessment, was not satisfied that anyone had an adverse interest in the applicant while he was in Saudi Arabia, [67]. Similarly, the AAT was not satisfied anyone had had an adverse interest in the applicant since he returned to Sri Lanka, [68].

   13 The AAT noted that the applicant did not unlawfully depart Sri Lanka, [81]. It considered whether the applicant would suffer any harm as a Tamil, because of an imputed pro-LTTE opinion, or as a failed asylum seeker. The AAT set out the UNHCR risk profiles, [87]-[89] and country information, [90]-[105]. The AAT did not accept that the Sri Lankan authorities treat every Tamil as a suspected LTTE supporter and found that the applicant would not be so suspected, including because of his being a failed asylum seeker, [105]-[109].

   14 The AAT considered the applicant's arrival at the airport, and found that the applicant would be investigated and questioned on return but would not suffer harm, [112]-[113]. The AAT also found the process was non-discriminatory, [114].

   15 The AAT considered the applicant's return to his home area and accepted some Tamil failed asylum seekers may be subject to adverse attention after returning. It found that there was no reason the applicant would be of interest to the authorities or at risk of harm in the future, [127] and would be able to return to the family home and continue to work, [129]. The AAT also rejected a claim it identified, relating to the Sinhalisation of the applicant's area, [130] and fear of paramilitaries, [132].

   16 The AAT considered complementary protection. It recalled its findings that it did not accept the applicant experienced any of the past harm claimed, other than low level harassment 15 years prior, [135]. The AAT recalled its finding that the applicant may be held for a few hours for questioning at the airport, [136].

   17 The AAT considered the circumstances in which the applicant would be held might be uncomfortable, but after considering the PAM3 - Complementary Protection Guidelines, did not consider there was a risk the applicant will suffer significant harm, [137]. The AAT was not satisfied that the applicant would suffer significant harm on return to his home area [140] or for being a Tamil or any other characteristic [141].”

The proceeding before this Court

1. The applicant was represented before this Court by his solicitor, Mr Stephen Hodges.

2. The applicant’s solicitor confirmed that the applicant relied on an Amended Application filed 1 December 2015. The Grounds relied upon are as follows:

   “Ground 1

   The Tribunal committed a jurisdictional error because its credibility/factual findings generally in the decision depart from the Delegate's reasons without warning for the purposes of Section 425 of the Migration Act and contrary to the requirements described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA63.

   PARTICULARS

   (i) The delegate's decision against which the applicant appealed accepted facts alleged by the applicant that were rejected by the Tribunal [28].

   (ii) During the hearing the tribunal informed the applicant [14] that “it would be making fresh findings on all matters".

   (iii) In part, the findings of the Tribunal were inconsistent with the findings of the Delegate, without the applicant and his representative being aware of the particular facts to be challenged.

   (iv) The findings on point were fundamental to the decision of the tribunal; The applicant did not have any or sufficient notice that the findings of the Delegate were to be departed from.

   (vi) In particular, it is submitted that general advice to the effect stated in (ii) above is insufficient so as to constitute a “warning” within the meaning of the High Court in SZBEL.

   Ground 4

   The tribunal fell into jurisdictional error by failing to “assess and weigh" the documents provided by the applicant [decision Court Book 190 [55]. See Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50.”

3. Grounds 2 and 3 were withdrawn.

Ground 1

1. The applicant’s solicitor, Mr Hodges, made no oral submissions in support of Ground 1. Rather, he relied on his written submissions in support of that Ground.

2. Those submissions first cited s.425 of the Act and then cited various passages from SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. The submissions then referred to the Delegate’s acceptance of the applicant’s claims as “internally consistent”. The submissions then referred to the Tribunal’s adverse credibility findings and asserted that the Tribunal should have raised specific aspects of the applicant’s account that it considered to be important and open to doubt. This was because the Tribunal’s adverse credibility findings were contrary to the Delegate’s findings.

3. I accept the applicant’s submission that the Tribunal’s concerns about the applicant’s credibility was a dispositive issue which the Tribunal was required to raise with the applicant.

4. However, the Tribunal’s decision record makes clear that it discussed with the applicant the foundation for each of its credibility concerns about the applicant’s claims with the applicant at the hearing in great detail. The Tribunal also noted the applicant’s responses and gave reasons why it did not find those explanations persuasive.

5. Further, the Tribunal informed the applicant at the outset of the hearing that it would be making “fresh findings on all matters”. The respondent’s solicitor, Ms Chloe Hillary, referred to Bennett J in SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [16] where Her Honour stated as follows:

   “If every aspect of the claim is in issue or if an issue is made clear to the applicant, it is then open to the Tribunal to accept or reject some or all aspects of the applicant’s account”.

6. In the case before this Court, the Tribunal both put the applicant on notice that it would be making fresh findings on all matters and then raised with the applicant each of its concerns. That went to the applicant’s credibility.

7. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

8. A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.”  (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

9. In the circumstances, the Tribunal complied with its obligations under s.425 of the Act.

10. Accordingly, Ground 1 is not made out.

Ground 4

1. Ground 4 asserts that the Tribunal failed to assess and weigh documents provided by the applicant.

2. The applicant’s solicitor, Mr Hodges, identified the five documents relied upon. The first four of those documents, whilst for the most part in a foreign language, were provided to support the applicant’s identity. The Tribunal accepted the applicant’s identity in accordance with those documents.

3. The fifth document purported to be a letter on the letterhead of the Human Rights Commission of Sri Lanka and appears to be addressed to the applicant and states as follows:

   “Dear Sir/Madam,

   Complaint Number: HRC/KL/27/10/F

   This is to inform you that your complaint dated 25.02.2010 has been registered under the above number and is receiving attention of the commission.

   MM Zarook

   Regional Coordinator

   Human Rights Commission of Sri Lanka

   Regional Office

   Kalmunal”

1. The letter was dated 25 February 2010.

2. The Tribunal made the following findings in relation to that letter:

   “The applicant provided supporting documents. The Tribunal noted at hearing that there was country information indicating that documents can be fabricated, and it would have to weigh up that information together with credibility concerns. The documents provided included a letter from the HRC which acknowledged a complaint had been made. Having regard to the credibility concerns and the country information, the Tribunal is not prepared to accept that this is a genuine letter. The Tribunal does not give this letter any weight.”

3. The Tribunal then identified with particularity the country information relied upon in relation to that finding.

4. Mr Hodges submitted that the Tribunal had failed to give a sufficient degree of consideration to the HRC letter. Mr Hodges submitted that the applicant’s claim of having received a death threat in 2010 via his parents whilst he was overseas, the HRC letter was potentially corroborative of his assertion of the alleged threats and that his parents went to the Human Rights Commission in Sri Lanka following that event. Ultimately, as stated above, the Tribunal rejected those claims.

5. The Tribunal was concerned that the applicant’s evidence about threatening visits from unidentified persons at his home was “changing, inconsistent and not credible; and that the applicant had a propensity to change his evidence when the Tribunal put its concerns to him.”

6. In relation to these visits the Tribunal stated as follows:

   “The applicant gave vague evidence about when the visits occurred; this caused the Tribunal concern, noting these visits were the reason he claimed to fear harm in Sri Lanka. Finally, he said there were five visits (before he finally left Sri Lanka); namely the first in the end of 2009, the second in early 2010, and then three visits when he was back in Sri Lanka, namely in September 2011, and two visits in October 2011. The applicant’s evidence was inconsistent with his statement concerning the number of visits and what was said during the visits.”

7. The Tribunal stated that it was aware that the applicant claimed that he was not present during the visits and that for some of the time he was in Saudi Arabia. However, the Tribunal noted that the applicant did not provide specific details of those visits in his statement and in his evidence at hearing. The Tribunal stated that the problem it had was that the applicant’s evidence was so different. The Tribunal also considered the applicant’s explanation that the threats happened some time ago and that his memory may be affected. However, the Tribunal noted that the alleged visits formed the reason why the applicant claims to have fled Sri Lanka in fear of his life as well as the reason why he cannot return. The Tribunal considered that, in the circumstances, the applicant would have given more consistent evidence. The Tribunal found that the applicant’s changing evidence in response to his expressed concerns undermined the applicant’s credibility.

8. The Tribunal did however acknowledge that the applicant had provided some consistent evidence, but was not persuaded that it was sufficient to overcome the Tribunal’s overall difficulties with the applicant’s evidence detailed by it in its decision record.

9. It was open to the Tribunal to assess the credit of the applicant and then, in light of that assessment, consider what weight should be given to the HRC letter (Re Minister for Immigration and Multicultural Affairs; Ex-parte Applicant s20/2002 (2003) 198 ALR 59; Minister for Immigration and Citizenship v SZNSP (2010) 115 ALD 294 at page 299, para 33).

10. The Tribunal’s finding to put no weight on the HRC letter was made in the light of country information before it that documents can be fabricated and its adverse credibility findings in respect of the applicant. Moreover, the HRC letter itself gave no information whatsoever about the nature of the complaint, although it was dated early 2010.

11. In the circumstances, the Tribunal considered the HRC letter and what weight to give it. Its conclusion that it gave it no weight was open to it on the evidence and material before it and for the reasons it gave.

12. Accordingly, Ground 4 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal identified independent country information to which it had regard.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  11 April 2017