BVB15 v Minister for Immigration and Anor (No.2) - [2019] FCCA 1264

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVB15 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2019] FCCA 1264

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether it was unreasonable for the Tribunal not to obtain a translation or inform the applicant – no jurisdictional error made out – second amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 36, 91R, 476

Cases cited:

BVB15 v Minister for Immigration & Anor [2018] FCCA 3616

Applicant:

BVB15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 408 of 2015

Judgment of:

Judge Street

Hearing date:

14 May 2019

Date of Last Submission:

14 May 2019

Delivered at:

Sydney

Delivered on:

14 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr N van Hattem

Solicitors for the Applicant:

George Papamihail Barristers and Solicitors

Counsel for the Respondents:

Mr P Macliver

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Grant leave to the Applicant to rely upon the Second Amended Application filed on 4 April 2019.
The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of a further document in that regard.
The Second Amended Application is dismissed.
The Applicant pay the First Respondent’s costs not including today’s hearing fixed in the amount of $7,467.00.

NOTES

Order 3 means that the whole of the proceedings have been dismissed.

DATE OF ORDERS: 14 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 408 of 2015

BVB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 August 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.
The applicant, in summary, claimed to fear harm in part because of guns the police found in a house with which the applicant was associated, his Tamil ethnicity, and an actual or imputed political opinion and membership in relation to the Liberation Tigers of Tamil Eelam (“LTTE”).
These proceedings were initially heard before a Judge of this Court on different grounds, see BVB15 v Minister for Immigration & Anor [2018] FCCA 3616. The Judge of this Court found the other grounds did not make up any relevant error, but identified that there was a possible error arising from the absence of consideration of exercise by the Tribunal of its powers to obtain a translation of a particular document. That decision included the following relevant quote at [76]:
76. The TIU Document might, if translated, assist the applicant’s case. Alternatively, it might not. At this stage, it is impossible to make any finding in that regard because the TIU Document has not been translated. The applicant offered to have the TIU Document translated, and the Tribunal indicated that it would “think about it”, but did not, it appears, ever indicate to the applicant what position it had decided to adopt with respect to the offer to have the TIU Document translated, or if it did indeed actually think about the offer. In the Court’s view the Tribunal’s failure to do so was unreasonable in the sense that it was unjust to indicate to the applicant that the offer to translate would be thought about, and then to fail to indicate to the applicant (at least on the record as it stands before this Court) whether the Tribunal had thought about the offer to have the TIU Document translated, or alternatively, what view the Tribunal had come to with respect to whether or not it would receive a translation of the TIU Document. There might also be an arguable case that the making of a finding that the TIU Document ought to be afforded little weight (or was possibly not authentic) was unreasonable because it was arbitrary or unjust in circumstances where the Tribunal did not have the benefit of a translation of the TIU Document. The importance of the TIU Document cannot be understated: if accepted as genuine by the Tribunal it might have impacted upon the Tribunal’s assessment of the applicant’s credibility, and, therefore, its factual findings about the applicant’s claims, and whether or not he had a well-founded fear of persecution or a fear of significant harm if returned to Sri Lanka.
Given the summary of the Tribunal’s findings in the earlier decision by a Judge of this Court, it is not necessary for this Court to set out the background in the same detail that the Court otherwise would.
The Tribunal in its reasons made adverse credibility findings because of implausibilities and inconsistencies in the applicant’s evidence. The Tribunal did not accept the applicant’s claim that the police found guns in the house he was renting to three Tamils and as a result held him responsible or are seeking him in connection with those guns. The Tribunal did not accept that the police have visited the applicant’s home and followed up with his family as to his whereabouts. The Tribunal did not accept that the applicant is of any interest to the police, Criminal Investigation Department (“CID”), Sri Lankan authorities, or any underworld thug for any reason. The Tribunal did not accept that the applicant has any criminal charges or warrants issued against him in respect of the guns he claimed were found in his house or that the applicant is suspected of being involved in terrorist or LTTE activities because guns were found in his house.
The Tribunal found that the applicant had not been consistent in his evidence in relation to when the police had searched his house and found guns. The Tribunal did not accept as plausible that the applicant failed to remember the time the incident occurred as this was a central and principal reason for seeking protection. The Tribunal took this into account in assessing the credibility of the applicant.
The Tribunal did not accept that the police had visited the applicant’s house looking for him and ~~does~~ did not accept that the police were interested in the applicant for any reason. The Tribunal found that the applicant had not been consistent in his evidence as to the police visits.
The Tribunal did not accept that any underworld thug had visited the applicant’s parents looking for guns because the Tribunal did not accept guns were found in the house or that the applicant was a credible witness. The Tribunal found that the applicant fabricated this claim for the purpose of his application. The Tribunal did not accept that the applicant is of any interest to any underworld thug and did not accept that there is a real chance that he will face harm from the underworld thugs should the applicant return to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal did not accept the applicant’s claim that the police could not identify the three people renting his house and did not accept the applicant’s claim that because they could not be found he was held responsible for the guns found. The Tribunal did not accept as plausible that the applicant would immediately be suspected of being responsible for the guns because the police could not find the three Tamils.
The Tribunal did not accept that the applicant’s brother was assaulted in the village because of the applicant.
The Tribunal did not accept that the applicant was a credible witness and found the applicant had not been truthful in his reasons for departing Sri Lanka. The Tribunal found the applicant fabricated his claim that the police found guns in his house for the purpose of his Protection application.
The Tribunal did not accept that, on the evidence provided, the applicant was subject to any outstanding criminal charges or warrants because guns were found in his house or that any guns were found in his house. The Tribunal found the applicant is not of any interest to the Sri Lankan authorities, including the police, for any reason whatsoever.
The Tribunal found, upon the applicant’s return, the applicant will not be or perceived to be a terrorist, a member or supporter of the LTTE or actively opposed to the current Sri Lankan government, or suspected of being involved in such activities because guns were found in his house, or be of any interest because guns were found in his house, because he departed Sri Lanka illegally, because he sought asylum in Australia, or for any other reason.
The Tribunal did not accept that the applicant will face a real chance of serious harm because of an actual or imputed political opinion as a terrorist, or supporting the LTTE, or opposing the current Sri Lankan government, if he returns to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal did not accept that there is a real chance the applicant would be regarded as being a member of, or supporting, or having an association with the LTTE. The Tribunal found the applicant has not been perceived to be a member of any category of persons who might be of interest in respect of links with the LTTE and would not be so perceived in the reasonably foreseeable future.
The Tribunal found the applicant had not been imputed with a political opinion of opposing Sri Lankan authorities as a result of applying for asylum. The Tribunal did not accept the applicant would be harmed as a result of being a member of the particular social group of failed asylum seekers returned to Sri Lanka.
The Tribunal found that there is no real chance the applicant would be seriously harmed in the reasonably foreseeable future on account of being a failed asylum seeker and that any fear of persecution is not well-founded.
The Tribunal was satisfied that the provisions of the Immigrants and Emigrants Act 1948 (Sri Lanka) are a law of general application and does not give rise to persecution under the 1951 Refugee Convention (“the Convention”). The Tribunal found there is nothing in the applicant’s circumstances that indicates he would not be granted bail under the Immigrants and Emigrants Act 1948 (Sri Lanka) should he be returned to Sri Lanka.
The Tribunal found that, upon his return, the applicant may face a short-term detention prior to applying for and obtaining bail and a fine as a result of the Immigrants and Emigrants Act 1948 (Sri Lanka). The Tribunal was satisfied on the country information that any detention would not be arbitrary and would be in accordance with the law of Sri Lanka. The Tribunal found such treatment of the applicant would not meet the requirements of s 91R(1)(c) of the Act.
The Tribunal concluded that the applicant does not face a real chance of persecution for reason of being a person who departed Sri Lanka unlawfully. The Tribunal found the applicant did not satisfy the requirements of s 91R(1) of the Act.
The Tribunal found that it was not satisfied the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion or his membership of a particular social group, having left Sri Lanka illegally, being a failed asylum seeker, a returnee who fled Sri Lanka unlawfully, or any combination thereof, or for any other Convention reason if returned to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act.
The Tribunal found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The Tribunal found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The ground

The ground in the second amended application is as follows:
The Tribunal acted unreasonably by indicating to the applicant that it would consider his offer to have the Terrorist Information Unit (TIU) document translated, and subsequently:
a) failing to inform the applicant of its position on his offer;
b) failing to inform the applicant whether it had considered his offer; and
c) finding that the TIU document should be given little weight, when the Tribunal did not have a translation of it;
and the failures and finding referred to above were, in light of the potential importance of the TIU document, so unreasonable that the Tribunal fell into jurisdictional error.
Mr van Hattem of counsel on behalf of the applicant contended that there had been legal unreasonableness in the failure by the Tribunal to exercise its powers to obtain a translation of a particular document that the delegate had not accepted and which was touched upon in the hearing before the Tribunal. The kernel of the submissions advanced by Mr van Hattem was the alleged materiality of the document to the applicant’s claims and the assessment of the applicant’s credibility, as well as what occurred during the course of the Tribunal hearing, in which the Tribunal member, on two occasions, addressed the untranslated document.
Relevantly, the transcript provides:
TM: One document you indicate is a document from the police.
AS: Yes.
TM: It’s not translated – it hasn’t been translated into English.
AS: I don’t know. I got it from my home.
TM: The delegate as you are aware had concerns about the document. You also provided some other documents, is that correct?
AS: Yes.
TM: I have some concerns about the documents you have provided. How did you obtain the documents?
AS: It was sent to me by my parents.
TM: Does your father speak English?
AS: No.
TM: Why is the document written in English then?
AS: There’s a lawyer he knows, he has wrote it.
TM: One from the lawyer I assume it’s from a lawyer 10 because it’s signed off Attorney at Law doesn’t have any identifying features on it. I have to say in view of the country information on the availability of fraudulent documents and the obtaining of fraudulent documents I’m not quite sure how much weight to give these documents I’m concerned about. They’re all typed on the same – they’re all very similar and I would have expected a letter from a lawyer to at least be on letterhead and have the lawyer identified. And if you do know a lawyer, wouldn’t you have been able to seek the assistance of the lawyer in speaking to the police on your behalf?
AS: My father got to know the lawyer only recently, he didn’t know him before so (indistinct)
TM: Is there anything else you’d like to tell me in relation to your claims of fear, to fear harm when you return to Sri Lanka?
AS: I shall definitely be in jail.
Further in the transcript, there is the following exchange:
TM: I’ll think about it. I don’t think that’s actually going to solve my genuine concerns about the nature of the documents provided as well.
Is there anything else you’d like to say to me in support of your application?
Mr van Hattem focused on the comment “I will think about it” and contended that, in those circumstances, it was legally unreasonable for the Tribunal not to take further steps to convey to the applicant that the Tribunal was not going to obtain a translation of the document, or give the applicant an opportunity to translate the same, or exercise the Tribunal’s powers to obtain a translation.
The observation in the course of the hearing before the Tribunal was immediately followed by the statement:
I don’t think that’s actually going to solve my genuine concerns about the nature of the documents provided as well.
The observation made by the Tribunal in that regard was plainly putting the applicant on notice as to the Tribunal’s concerns in respect of the credibility of the applicant. Those concerns in respect of the credibility of the applicant were up in lights as a result of the decision of the delegate. The delegate, in assessing the credibility of the applicant, expressly referred to the applicant providing an original document in which the applicant stated he was wanted for questioning by the TIU.
The delegate’s decision notes that the applicant said his parents received the document whilst he was still in Sri Lanka, although he is not sure when. The delegate noted the document is not dated and has inconsistencies in font and printing. The delegate noted that the applicant claimed that he was never aware that the document existed until December 2013 because his parents did not take the document seriously caused the delegate to speculate regarding the document’s authenticity in the reasons of the delegate. The delegate did not accept that the document provided was genuine.
It is in these circumstances, where the applicant was clearly on notice that the delegate had not accepted the document as genuine and where it was the applicant that was seeking a review and had the obligation under s 5AAA of the Act, that this Court does not accept that it was legally unreasonable for the Tribunal not to expressly consider or exercise its power to obtain a translation of the document, or to inform the applicant that it was not proposing to obtain a translation of the document.
The applicant was on notice from the delegate’s decision as to the issue that may be raised in respect of the genuineness of the document. The applicant had ample opportunity to provide a translation of the document to the Tribunal prior to the hearing on 2 July 2015 and, indeed, in the intervening almost six weeks that then followed before the Tribunal delivered its reasons on 14 August 2015.
In circumstances where the applicant was aware that the delegate had raised an issue as to the genuineness of the document and where the applicant was aware that the Tribunal had no translated copy of the document, it cannot be said that the absence of any consideration by the Tribunal as to the obtaining of a translation or not informing the applicant as to the absence of an intention to obtain a translation could be said to lack an evident and intelligible justification. The evident and intelligible justification is that it was patent that the untranslated document was the subject of a live issue in respect of the applicant’s credibility and the applicant had ample opportunity prior to the hearing on 2 July 2015 and, indeed, thereafter if the applicant wished, to provide a translation of the document.
Further, the applicant was represented at the hearing. The Court does not accept that the comment by the Tribunal, in the context of the transcript as a whole, conveyed that the Tribunal member had engaged in a reservation of a formal request concerning whether or not the document should be translated.
It was up to the applicant to establish the applicant’s claim. The applicant was represented at the hearing and it was up in lights that the Tribunal member had serious credibility concerns in respect of the applicant’s claims and other documents that had been provided, purportedly supporting the applicant’s claims in respect of the discovery of guns in the house, in which he was linked to the renting of the same.
The Court agrees with the observation made by the learned Judge Lucev of this Court that the document, based on the translation that has been provided to this Court, is one that could possibly have impacted on the credibility of the applicant and the outcome of the review, whereby it cannot be said to be immaterial. The applicant, however, has not made out that there was any legal unreasonableness in the failure by the Tribunal to exercise its powers to obtain a translation or to inform the applicant as to the Tribunal not taking any such step to translate the same. The applicant had been given an adequate opportunity to provide a translation and did not do so. No jurisdictional error as alleged in the second amended application is made out.

Accordingly, the second amended application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 26 June 2019