BSB15 v Minister for Immigration

[2016] FCCA 930

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSB15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 930

Catchwords:
MIGRATION – Visa – protection visa – weight – credit findings by Tribunal – request for impermissible merits review.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A) & 476

Cases cited:
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Applicant: BSB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 305 of 2015

Judgment of: Judge Heffernan

Hearing date: 6 April 2016

Date of Last Submission: 6 April 2016

Delivered at: Adelaide

Delivered on: 4 May 2016

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The Application filed 21 August 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 305 of 2015

BSB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’). The applicant seeks review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 31 July 2015. That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is a Sri Lankan, Sinhalese, Catholic man who appeared unrepresented with the assistance of an interpreter in the Sinhala and English languages.  He arrived in Australia in July 2012 as an unauthorised maritime arrival.  The applicant was represented before the Tribunal by a registered migration agent, but appeared unrepresented before this Court.  His application raises a single ground as follows:

   “The Tribunal fell into jurisdiction error in the assessment of the weight to be attributed to the evidence of the Applicant insofar as the Tribunal misapprehended facts material to that assessment.

   Particulars

   The Tribunal, on a proper understanding of the evidence, proceeded incorrectly on the assumption that:

   1.The death of the Applicant’s father was not reported to the police;

   2.The Applicant made no effort to locate his father’s death certificate;

   3.There was no autopsy of the body of the Applicant’s father nor any enquiry into his death;

   4.Because the Applicant did not know the reason for his father’s death, it was not linked to his political associations;

   5.That the summons issued to the Applicant to attend Court was issued by the District Court rather than the Court in which the Applicant was summonsed to appear.”

Background

1. The applicant claims to fear persecution at the hands of the Sri Lankan Army and the authorities if he were to return to Sri Lanka on the basis of his actual and/or imputed political opinion as a supporter of the United National Party (‘UNP’), his opposition to the Sri Lankan Freedom Party (‘SLFP’) and the United Peoples Freedom Alliance (‘UPFA’).  This fear of persecution arises, he says, in circumstances of his father’s death (who he believed was murdered by SLFP supporters); his assistance to a prominent UNP member; his efforts to enquire into the circumstances of his father’s claimed murder; and an assault committed on him by a person called Chaminda, who is an SLFP supporter.  He claims also to fear persecution as a failed asylum seeker if he were to return to Sri Lanka.  He claims that he would not be able to avail himself of state protection.  It would either not be available or would be withheld from him in a manner which could be regarded as discriminatory.

2. The applicant claims that his father was murdered in 1992 due to his involvement with the UNP.  The applicant himself travelled to Italy in January 2001, “because there was nothing much to do in Sri Lanka”.[1]  He remained in Italy working for seven years.  He travelled back to Sri Lanka in 2005, 2006 and 2007 on a Sri Lankan passport, on each occasion returning to Italy.  In 2008 he claimed that he returned to Sri Lanka financially secure.  It was at this point that he began to look into the circumstances of his father’s death.  He became involved with a politician, Rayaweera Arachhige Royce Vijitha Fernando (‘Royce’), a prominent UNP politician.  As a result of this, he came to the attention of the SLFP people who had, he claimed, been involved in his father’s death.  He claimed that he had been tortured by police, attacked by SLFP supporters, in particular, Chaminda, who struck him on the head with a sword.  He was summonsed to appear as a witness in relation to that assault.  He claims that his wife was questioned by police and required to sign a blank statement.[2]

   [1]     Court Book (‘CB’) p 232 at [21].

   [2]     CB p 232 at [21]-[24].

Tribunal hearing and findings

1. The Tribunal comprehensively set out and considered the claims made by the applicant.[3]  The Tribunal did not accept “any of the claims made by the applicant or that he genuinely (held) fear of any harm should he return to Sri Lanka”.[4]

   [3]     CB pp 232-238.  The Tribunal also specifically referred to having had regard to his entry interview, statement of claims, declarations dated 20 November 2012, 18 December 2012 and 11 December 2013, and his post hearing submissions dated 23 July 2015.

   [4] CB p 231 at [18].

2. The Tribunal made a number of credit findings adverse to the applicant.  Those findings underpinned its rejection of his claims.  It summarised those findings in these terms:

   “The Tribunal has had regard to the applicant’s inability to recall important dates, inconsistencies in the applicant’s evidence regarding crucial events relevant to his claims, and inconsistencies between the applicant’s evidence in his statement of claims and that provided to the Tribunal at the hearing”.[5]

   [5] CB pp 231-232 at [19].

3. In considering the applicant’s claims, the Tribunal found that it did not accept the following matters:

   a)His account of the circumstances of his father’s claimed murder.  It was not prepared to accept that the evidence supported a finding that his father was in fact murdered, or that his death was in any way related to the domestic political conditions in Sri Lanka.  Accordingly, it found that there was no real chance that he would be persecuted now, or in the reasonably foreseeable future, on account of having made enquiries into his father’s death.[6]

   b)It did not accept the claims relating to the applicant’s actual or imputed involvement with the UNP, or his involvement with Royce.  As a result, it found that there was no reasonable chance of him being persecuted now or in the reasonably foreseeable future by Chaminda, or any persons involved with the UPFA or the SLFP.[7] 

   c)The Tribunal was prepared to accept that there might have been an assault on the applicant by Chaminda, however it was not prepared to accept that the assault was motivated by the enquiries the applicant had been making into the circumstances of his father’s death.  In particular, it did not accept that the enquiries made by the applicant posed any threat to Chaminda’s family.  It did not accept that he had come to the attention of Chaminda or the SLFP because of any political activities on his part.  Accordingly, the Tribunal concluded that there was no real chance that the applicant will be persecuted by Chaminda if he returned to Sri Lanka now or in the reasonably foreseeable future.  It found that his fear of harm because of his imputed or actual political opinion, was not well founded.[8]

   d)The Tribunal did not accept the applicant’s claim to have been tortured by police.  It specifically found that the applicant had falsified this evidence.[9]  In making that finding, the Tribunal made the following observation:

   “The Tribunal found the applicant’s account of the police abduction, torture and subsequent hiding and attack by Chaminda lacking in credibility, inconsistent and difficult to accept.  It is unclear from the applicant’s evidence why the police would torture him.  Despite his claim to have scars, there is no evidence he sought medical treatment for the injuries.”[10]

   e)It did not accept the claimed circumstances surrounding the legal proceedings.  The applicant claimed that legal proceedings were initiated against Chaminda for the assault on him, but Chaminda had been protected by the authorities and the charges were never resolved.[11]  He claimed that he had failed to answer a summons in relation to that matter because he was scared of the consequences to him.  The Tribunal did not accept this aspect of the applicant’s evidence as any evidence that he had been denied state protection and found this aspect of his claims to be lacking in credibility.[12]  The applicant’s representative provided post-hearing what was claimed to be a copy of a witness summons to the applicant issued by the District Court of Negombo.  It was said that this had been provided to the applicant after the Tribunal hearing.  On account of country information, the Tribunal found that it had to treat that document with caution due to the prevalence of false and forged documents emanating from Sri Lanka.

   [6] CB p 236 at [60].

   [7] CB p 263 at [60].

   [8]     CB pp 236-237.

   [9] CB p 238 at [79].

   [10] CB p 238 at [79].

   [11] CB p 238 at [81].

   [12] CB p 238 at [81].

4. For this reason, it chose to give the document little weight.[13]  The Tribunal was prepared to accept that proceedings had been commenced against Chaminda for the assault, but it rejected the applicant’s explanation for his reasons for apparent non-attendance at the hearing.  The Tribunal took into account country information in reaching the conclusion that there was no real chance that he will be denied state protection because of his actual or imputed political opinion should he return to Sri Lanka in the reasonably foreseeable future.  For that reason, it found that his fear of persecution on that basis not well founded.[14]

   [13]   CB p 239 at [82]-[84].

   [14] CB p 240 at [90].

5. With respect to the failed asylum seeker aspect of the applicant’s claim, this was considered and rejected by the Tribunal based on country information. The Tribunal concluded that whilst the applicant may be arrested and brought before a Magistrate, it was not prepared to accept that there was a chance that he would be given a custodial sentence as punishment for having left Sri Lanka illegally. It specifically found that the treatment of returned asylum seekers in the applicant’s position did not amount to discriminatory conduct, and rejected that it would be persecution for a Convention reason. It found that the relevant laws, were laws of general application and that the applicant would not experience ‘significant harm’ as defined by s.36(2A) of the Act. The Tribunal found on the basis of the evidence, that the applicant did not meet the refugee criterion in s.36(2)(a) or the complementary protection obligations in s.36(2)(aa). The complementary protection obligations were mentioned only briefly in the reasons of the Tribunal. However, given that it had rejected the underlying factual foundation for all of the applicant’s claims, it cannot be inferred that the Tribunal failed to give separate and proper consideration to those obligations.

Oral submissions

1. The applicant gave brief oral submissions in this Court.  He reiterated that everything he told the Tribunal was true.  He was critical of the Tribunal for not understanding the problem that he had faced when he was in Sri Lanka.  The applicant made a series of submissions that in effect sought to establish why the Tribunal should have accepted the evidence and materials that formed the basis of his claim.  He was in reality being critical of the findings of fact made by the Tribunal.  He reiterated that the political issues and all of the things that he had told the Tribunal had actually happened to him.  For this reason, when things were bad, he made a journey to Australia to protect his life.  He said that in Sri Lanka there was no-one he could speak to about these matters and asked rhetorically; how he could possibly be protected if he were to return to Sri Lanka?

2. The first respondent submitted that the ground of application, particulars, and the oral argument of the applicant, really amounted to a request for a merits review.

3. It submitted that the facts were a matter for the Tribunal and that this encompassed the weight to be given to evidence and findings of credit.

4. It submitted that there was nothing in the approach taken by the Tribunal that suggested it had failed to comply with its obligation to invite the applicant to participate in a hearing.  The applicant had been given an opportunity, of which he availed himself, to give evidence, present arguments, and provide the Tribunal with written submissions.  In this regard, it noted that the applicant had been represented at the hearing by a registered migration agent.

5. The effect of the Minister’s submissions was that the findings made by the Tribunal were open to it on the evidence.

Consideration

1. The first matter to address on the grounds of application is that a complaint that insufficient weight was given to an aspect of the evidence is not something to which I can have regard.[15]  This Court is not permitted to undertake a merits review of the Tribunal’s decision and mere preference for a different result is not sufficient to allow me to interfere.  It is for the Tribunal to determine the facts and what weight to accord to any evidence.  This is particularly so where findings of credit are concerned.  In so far as the applicant complains that the Tribunal misapprehended, or was in error with respect to any findings of fact, it is not a jurisdictional error for the Tribunal to make a mistake of fact.[16]  Clearly the applicant is dissatisfied with the findings of the Tribunal.  That dissatisfaction does not establish that the Tribunal made a jurisdictional error.  Parties against whom an adverse decision is made will invariably be unhappy with the result and very often will regard it as unfair to them.  It is not the role of this Court to reconsider the merits of the Tribunal decision and substitute its own view for that of the Tribunal.  As stated by Gray, Tamberlin and Lander JJ:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal.  In many cases, those exceptions were purely on the basis that the appellants disagree with the findings.  In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.  As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.  Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[17]

   [15]   NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.

   [16]   NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167.

   [17]   NAHI (supra) at [10].

2. Even if the Tribunal made some or all of the factual errors complained of by the applicant, that would not be sufficient to establish jurisdictional error.[18]  The applicant’s ground amounts in reality to a request that this Court conduct a merits review.  I have no power do so.

   [18]   See also Abebe v The Commonwealth of Australia (1999) 197 CLR 510.

3. There was nothing unreasonable (in the relevant legal sense), irrational or illogical in the decision of the Tribunal.  The findings were at least open to it on the evidence. 

4. Jurisdictional error has not been established.  I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  4 May 2016