BVE16 v Minister for Immigration
[2017] FCCA 1094
•24 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVE16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1094 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Application for a Protection (Class XA) visa – whether the oral evidence enlivened an obligation under s.424A – information relating to inconsistencies mitigated credibility of the applicant and was not information used for the reason or part of the reason for affirming the decision under review – letter sent complied with the requirements of s.425A – no jurisdictional error identified – further amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 424A, 424AA, 425A, 427, 476 |
| Cases cited: Minister for Immigration and Citizenship v SZLFX& Anor [2009] HCA 31 |
| Applicant: | BVE16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1874 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 24 May 2017 |
| Date of Last Submission: | 24 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia On a direct access basis |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Grant leave to the Applicant to rely upon the grounds identified in the annexure to the Applicant’s submissions filed on 23 May 2017 and direct that the Applicant file the further amended application with the Registry on or before 26 May 2017.
The further amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1874 of 2016
| BVE16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
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 a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 June 2016 affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Sri Lanka and her claims were assessed against that country. The applicant arrived in Australia on 30 October 2013 on an FA-600 tourist visa which was granted on 14 October 2013 and was valid until 30 January 2014. The applicant applied for protection on 13 December 2013.
The delegate’s decision
The applicant is a person of Hindu religion and of Tamil ethnicity. The applicant provided a lengthy statement in support of her application for protection dated 13 December 2013 in which she identified various incidents and asserted that she would face persecution on false charges if she returned to Sri Lanka. On 22 September 2014, the delegate refused the applicant’s application for a protection visa and found the applicant failed to meet the criteria under the Act.
The Tribunal’s decision
On 17 October 2014 the applicant applied for review. By letter dated 13 January 2016, the applicant was invited to attend a hearing on 24 February 2016. The applicant appeared on that date to give evidence and present arguments and the review was adjourned. The applicant was sent a further letter on 23 May 2016 inviting the applicant to appear on 1 June 2016. Further evidence and submissions were provided by the applicant on that date. The Tribunal identified the applicant’s relevant background. The Tribunal set out the relevant law. The Tribunal set out the applicant’s claims and evidence.
Applicant’s claims for protection
The Tribunal noted that the applicant claimed she could not return to Sri Lanka because she was targeted by the LTTE in Jaffna up to 1995 when she fled Colombo to be with her husband. The applicant alleged she faced problems from the police and LTTE cadres in Colombo after the peace accord was signed in 2002. The applicant alleged the LTTE took all the produce from her farms in Jaffna and Vanni without payment. The applicant alleged she was arrested in December 2007 and kept at Wellawatta Police Station for interrogation on suspicion of being a LTTE accomplice. The applicant alleged she was beaten. The applicant alleged that she had to pay to be released. The applicant feared to live in Sri Lanka and attempted to escape until the police forgot about her. The applicant applied for a protection visa to Australia and was refused. In 2010 the applicant visited her daughter in the Netherlands who was undergoing an operation and unfortunately the daughter died.
On return to Sri Lanka, the applicant alleged her luggage was confiscated and she was taken by a terrorist interrogation intelligence unit for further questioning about her alleged involvement in selling CDs of the LTTE leader and also selling CDs of LTTE celebrations. The applicant was accused of bringing CDs into Sri Lanka about protest marches of the Tamil diaspora including pornographic materials. The applicant was detained for two hours on false charges. The applicant was released after her husband spoke to the Minister and paid for her release. The applicant feared to travel outside Sri Lanka after these false charges had been laid as the Minister had said she should avoid travelling in the future.
When the applicant’s husband died, the applicant had only one daughter living with her, and her son had married and settled with his in-laws. The applicant alleged that in January 2013, two paramilitary entered her home and questioned her and that the relevant Minister told the applicant that he knew about her husband’s death and that her husband had promised to sell her house in a particular location and her business shop/residence in exchange for releasing her from prison and threatened her with re-arrest unless she gave him the property.
The applicant alleged that she subsequently contacted her children in the UK, Norway and Australia to help get her out of Sri Lanka as soon as they could. The applicant said that her daughter in Australia was planning to have surgery and she sponsored her for a visitor visa. The applicant said she was able to leave Sri Lanka before her property was confiscated. The applicant claimed to fear returning to Sri Lanka as the genocide is continuing even after the end of the military operations against the LTTE as she feared persecution on false charges.
The applicant attended an interview during which the applicant alleged that she would be falsely charged and imprisoned, or killed by the Sri Lankan authorities for her alleged harbouring of LTTE cadres in Colombo, financially assisting the LTTE, lending her property to the LTTE for farming and importing and distributing the LTTE leader’s CDs which included pornographic material.
The Tribunal referred to the delegate’s decision where the delegate noted that the applicant had been able to leave Sri Lanka on two previous occasions in 2004 during the conflict without any problems and that her departure in June 2010 was without incident. The Tribunal noted that the delegate concluded that the applicant’s true motive in lodging a protection visa was not out of a genuine fear of persecution but rather as an alternative migration pathway to remain in Australia with her two daughters.
The Tribunal summarised what occurred at the hearing. In that regard, the applicant has read an affidavit annexing a transcript of the hearing in respect of which the applicant and two of her daughters gave evidence.
Consideration of applicant’s inconsistencies
The Tribunal in its reasons raised inconsistencies between the applicant’s own evidence and that of her daughters. The Tribunal’s reasons record that that was done pursuant to s.424AA of the Act. It is apparent on the face of the transcript that there was not compliance with s.424AA of the Act so far as the inconsistencies are concerned, if they constitute information within section 424A.
The matters referred to in the Tribunal’s reasons about having put inconsistencies referred first to an occasion at the hearing on 24 February 2016 and at an interview with the delegate where the applicant said she had sent her daughters to live in Colombo in 1990 but she herself resided in Jaffna/Kilinochchi until 2006, when she moved to Colombo, and that she travelled regularly between Jaffna and Colombo. The Tribunal noted that the applicant’s daughters had both stated that they had moved to Colombo in 1990 and she had remained in Jaffna until 1995 when she returned to Colombo. The Tribunal noted that the applicant’s daughters said that the applicant stayed there until 2002 when it was safe for her to travel between her family holdings in Jaffna and Colombo but mostly that she resided in Colombo.
The second inconsistency raised by the tribunal was the fact that at no time during the hearing or during the interview with the delegate did the applicant mention that people came to her home between the time she was released from prison in 2010 and January 2013 demanding money or making threats to her. The Tribunal noted that the applicant stated that nothing happened between January 2013 and her departure in Sri Lanka after she had promised to sell the home after her daughter’s wedding. The Tribunal noted that the applicant’s younger daughter gave evidence that after the applicant’s release from prison in 2010 people came to her home a number of times and threatened her and demanded small amounts of money and that they continued to do so after January 2013.
The third inconsistency noted by the Tribunal was about the Tribunal as the applicant had told the Tribunal that she had no contact with her son since she left Sri Lanka and did not know where he lived. The applicant gave evidence to the Tribunal she could not seek his protection because her son was more concerned about his wife’s Sinhalese relatives than about her welfare. The Tribunal noted the applicant’s daughters told the Tribunal that the applicant’s daughter in law was Tamil and her daughter in law’s sister had married a Sinhalese person. The Tribunal noted that everyone in the immediate family was said by the daughters to be Tamil. The daughters gave evidence that the applicant’s daughter in law did not want the applicant to live in her household as she was fearful they would be threatened also if she was there, and not because of her Sinhalese relatives.
The Tribunal noted that the applicant stated that she was living in Colombo from 1995 and 2002 and that in 1995 she went to Vandi due to the unrest. The Tribunal noted the applicant did not have an explanation for her previous evidence that she had been living in Jaffna/Kilinochchi during these years.
The applicant stated to the Tribunal that she did not mention people coming and making demands for money after her release from prison and after January 2013 because she got used to giving them small amounts of money. The applicant gave an explanation that as it was always happening she did not think to mention it. The applicant gave evidence that from 1995 she had been paying money to the LTTE and the SLA in respect of her family properties. The applicant gave evidence that after her release from prison in 2010 people would come to her house demanding small amounts of money such as RS2 2-5000 and she would pay them. The applicant alleged they would often come in the evenings and sometimes in the day, even when her husband was ill at home.
The Tribunal noted that it raised with the applicant that her daughter had said that she never witnessed people coming to her house and demanding money. The Tribunal raised that if this was happening in the evenings, then surely she would have been there. The Tribunal recorded the applicant said that most of the time her daughter was not there, but that occasionally she could have been there when it happened in the evenings. The applicant gave evidence it was a continuous process of extortion and that she feels mentally distressed even recalling those events.
The Tribunal noted that the applicant said that the reason she could not live in her son’s house was for the reasons that the daughters had stated. The Tribunal recorded that it showed the applicant a photo of the house taken with Google Maps in November 2015. The photo shows the windows of the house are clearly open and there is no indication of neglect or damage from rain after a period of two years during which the house had allegedly been vacant to the elements. The Tribunal put to the applicant that it would expect to see some mould eight years later in a tropical climate. The applicant stated that the paintwork was of good quality and that this was why there was no sign of mould. The Tribunal put to the applicant that it appeared to be somewhat implausible that the house would remain open to the elements for over two years, particularly when she had claimed to have left important documents such as title deeds to her property and the house showed no signs of damage or growth, even for example, the grass in the front of the house. The applicant repeated that it was empty.
Consideration of the applicant’s credibility
The Tribunal found significant credibility issues with the applicant’s claims. The Tribunal noted that the applicant’s evidence that she gave the Tribunal is different from the evidence she provided to the department. The Tribunal also referred to the difference of that evidence to the evidence of her daughters. The Tribunal noted that the applicant’s evidence about where she was residing between 1995 and 2002 changed after the Tribunal put to her the daughter’s evidence was different to that of her own.
The Tribunal noted that similarly when her younger daughter gave evidence that her mother had been continuously extorted for smaller amounts of money since 2010 that both the applicant and the elder daughter changed their evidence. The Tribunal found that that reflected poorly on their credibility. The Tribunal found that the applicant’s evidence relating to her claims of authorities somehow associating her with the LTTE members and to be threatened by the Minister lack credibility for the reasons set out by the Tribunal.
The Tribunal referred to the applicant’s absence in seeking protection when she went to Norway or the UK where her daughters were living. The Tribunal accepted the applicant’s evidence that she was able to obtain a visa and exit the country with no difficulties. The Tribunal found that the applicant departed Sri Lanka in June 2010 and that the applicant was of no adverse interest to the authorities and was not suspected to be an LTTE member or supporter or having connections to the LTTE.
The Tribunal was not satisfied the applicant had a well-founded fear of persecution for a Convention reasons as a result of her imputed or actual membership or association with the LTTE or that there is a real chance that she will suffer serious harm (having regard to the examples provided in s.91R(2) of the Act), if she returns to Sri Lanka.
Consideration of complementary protection criterion
The Tribunal was not satisfied there are 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 will suffer significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of her imputed or actual membership or association with the LTTE.
Consideration of the applicant’s claims relating to extortion and possible harm or threat to life
The Tribunal placed no weight on the applicant’s evidence at the second hearing given that the applicant only mentioned that people frequently came to her house to demand small amounts of money after she had heard her daughter’s evidence and after the tribunal put to her the inconsistency in the evidence.
The Tribunal did not accept the applicant would leave valuable documents such as title deeds to her properties in a vacant house which was left open to the elements without having anyone check that the house continued to be locked up and her documents safe, given her evidence about the concerns about money and assets. The Tribunal considered that it is more likely that either her son is residing in the house or that the applicant has rented it. The Tribunal did not accept her evidence that it had been vacant since she departed Sri Lanka in 2013.
The Tribunal considered the applicant’s evidence relating to extortion threats made against her since 2013. The Tribunal considered the applicant’s evidence relating to extortion threats made against her since 2013 to lack credibility given the inconsistencies in her evidence to both the Department and the Tribunal and the inconsistencies in her evidence to that of her daughter’s and the fact that her evidence had been increasingly embellished over a period of time.
The Tribunal placed no weight on the applicant’s daughter’s evidence, given that neither daughter had witnessed anyone threatening the applicant or demanding money from her. The Tribunal concluded the applicant’s motivation for her application for protection is to migrate to Australia where two of her four remaining daughters reside, rather than because she has a genuine fear of persecution in Sri Lanka.
The Tribunal having taken into account the evidence both individually and cumulatively, found that it was not satisfied the applicant has been subject to extortion or been threatened by thugs, paramilitary or people related to the Minister either since her claimed detainment in 2010 or since January 2013 after the applicant’s husband passed away.
The Tribunal was not satisfied there is a real chance that the applicant will suffer serious harm as a result of her membership of a particular social group (business owners) or for any other Convention reason.
The Tribunal was not satisfied that there is a real risk that the applicant will suffer significant harm, (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as the Tribunal did not accept that extortion demands or threats were made to the applicant by the Minister, the EPDP paramilitaries, thugs or any other persons.
The Tribunal did not accept that the authorities have any interest in the applicant on her return. The Tribunal was not satisfied that the applicant is of any adverse interest to the Sri Lankan authorities and found that the applicant will not be subjected to any detention or interrogation on arrival in Sri Lanka other than the standard questioning and procedures described in the DFAT country information. The Tribunal found the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka.
The Tribunal found there is no real chance or real risk that the applicant in her circumstances will be harmed because of any imputed LTTE link or imputed anti-government view as a result of seeking asylum or that she will be harmed as a result of her Tamil ethnicity.
The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found the applicant did not meet the criteria under s.36(2)(a) of the Act and found that the applicant failed to satisfy the criteria under s.36(2)(aa) of the Act.
Before this Court
The grounds in the further amended application are as follows:-
1. The second respondent failed to comply with the requirements of section 424A of the Migration Act 1958 (Act) in relation to oral evidence of the applicant's daughters.
2. Further or in the alternative, the second respondent failed to comply with section 424A of the Act in relation to “a photo of her house taken on Google maps.”
3. Further or in the alternative to 1 and 2, the second respondent failed to give the a1mlicant valid notice of invitation to appear under section 425A of the Act.
Particulars
The second respondent’s letter dated 23 May 2016 did not comply with paragraphs 425A(3) and (4) of the Act.
Consideration
Grounds 1 and 2
In relation to grounds 1 and 2, Mr Chia of counsel sought to argue that the oral evidence of the applicant’s daughters and the photograph of her house were information enlivening an obligation under s.424A of the Act. It was common ground that the Tribunal did not comply with the requirements of s.424AA of the Act in the conduct of the oral hearings. Mr Chia of counsel argued that the evidence of the daughters was a matter that in terms constituted a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed a protection obligation. Mr Chia of counsel argued that the photograph also constituted information that in its terms constituted a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed protection obligations.
The Court was taken to a number of authorities, including the helpful identification of circumstances in which information may enliven an obligation under s.424A and the judgment by the learned Heerey J in MZXBQv Minister for Immigrationand Citizenship and Another (2008) 166 FCR 483. The Court was also taken to the observations of Flick J in SZNKO v Minister for Immigration and Citizenship and Another (2010) 184 FCR 505 at [29] – [31]. Those observations by Flick J were identified in SZTGV and Others v Minister for Immigrationand Border Protection and Another (2015) 229 FCR 90 as reflecting the terms of the relevant provisions and orthodox principles. Mr Chia also took the court to the decision of SZBYR and Another v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609, in particular at [17] – [19].
I accept the submissions of the first respondent that the decision of the High Court in Minister for Immigration and Citizenship v SZLFX& Anor [2009] HCA 31 establishes that it is relevant to have regard to the reasons of the Tribunal in determining whether or not there was enlivened any obligation of the s.424A of the Act.
The evidence of the applicant’s daughters was not evidence that in its terms constituted a rejection, denial or undermining of the applicant’s claims to be a person to whom Australia owed a protection obligation. The information identified by the Tribunal in its reasons in relation to inconsistencies was information used to evaluate the credibility of the applicant and it was not information which would itself be information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review.
The oral evidence of the applicant concerning the applicant’s in relation to the photograph does not establish that the photograph contained information or was information that gives rise to a rejection, denial or undermining of the applicant’s claim to be a person to whom Australia owed a protection obligation. The photograph was clearly on its face information that did not contain a rejection, denial or undermining of the applicant’s claims. The photograph related to whether or not the house had been vacant at the time the applicant had sought protection in Australia.
I accept the first respondent’s submission that the evidence of the daughters and the photograph were not of dispositive relevance to the applicant’s claims, but at most merely inconsistent in some respects with the applicant’s evidence and credit. The alleged information identified in grounds 1 and 2 is not information that enlivened an obligation under s.424A of the Act. No jurisdictional error is made out by grounds 1 and 2.
Ground 3
In relation to ground 3, Mr Chia of counsel submitted that the second hearing required the Tribunal to comply with s.424A of the Act. That proposition is inconsistent with the decision in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML and Another (2006) 154 FCR 572 at [82]. The submission was advanced by Mr Reilly of counsel that there was not any unreasonable exercise of power by the Tribunal under s.427 of the Act, because on the face of the material before the Court, the Tribunal complied with its obligations in relation to the first hearing by the sending of the letter dated 13 January 2016 and that that letter complied with the statutory requirements of s.425A of the Act.
Mr Chia of counsel suggested that although the matter had been the subject of a second hearing, Mr Chia submitted that there had not been an adjournment or exercise of the Tribunal’s powers under s.427 of the Act. On the face of the material before the Court, following the first hearing there was an exercise of the tribunal’s powers under s.427 of the Act to adjourn review. No submission was advanced that the letter dated 23 May 2016 provided an unreasonable timeframe for the adjourned review and no such issue was raised before the Tribunal. No jurisdictional error is made out by ground 3.
Conclusion
The further amended application is dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 June 2017
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