BVX15 v Minister for Immigration

[2017] FCCA 465

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVX15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 465

Catchwords:
MIGRATION – Judicial review of RRT decision to reject application for protection visa by Sri Lankan citizen – whether basis for finding that applicant lacked credibility – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Applicant: BVX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 50 of 2015

Judgment of: Judge Young

Hearing date: 22 September 2016

Date of Last Submission: 22 September 2016

Delivered at: Darwin

Delivered on: 14 March 2017

REPRESENTATION

The Applicant appearing in person

Counsel for the Respondents: Mr Liveris

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Time to make the application is extended to the date of the application.

2. The application is dismissed.

3. The applicant is ordered to pay the first respondent’s costs in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 50 of 2015

BVX15

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 of a decision made by the Refugee Review Tribunal (the Tribunal) on 23 April 2015 affirming the decision of a delegate of the Minister to refuse the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka. He entered Australia on 20 June 2012 by boat. On 6 November 2012 he applied for a protection visa which was refused by the delegate on 4 March 2014. On 7 March 2014 the applicant applied to the Tribunal for a review. On 23 April 2015 the Tribunal affirmed the delegate's decision. On 9 September 2015 the applicant applied to this court. The matter was listed for hearing on 15 March 2016. An interpreter was not available on that date and the matter was relisted and heard on 22 September 2016.

3. The applicant is an ethnic Tamil. He was born in 1990 in Munthal which is a predominantly Sinhalese region of Sri Lanka. He worked there as a fisherman He said his parents had moved there to avoid fighting in their home district of Mullaitivu. The applicant said that in Munthal his family were always being accused of being part of the Tamil Tigers. He said his father and uncle (it appeared that he was referring to the husband of his mother’s sister) worked together as fishermen and used to work away in different areas in different seasons, coming home every month or every two months. He said this attracted the suspicion of the Sri Lankan army and he said his father and uncle were kidnapped in 1996 by the army. He said his uncle was tortured and murdered. He said his father was tortured as well but his father escaped from the army and went into hiding.

4. The applicant said that in November 2011 he returned with his mother to Mullaitivu and the applicant's father came and lived with them again. The applicant said that the army began checking on recently arrived people and his father was told to go to the local army post (or police station – the evidence is not clear) for questioning. The applicant's father fled. The applicant was the only one left with his mother and the army asked him to report for questioning the next day. The applicant said that he was scared and decided to leave. He said his mother helped him by selling what she could and he sold his fishing boat and then took a boat to Australia in May 2012.

5. The Tribunal did not accept the applicant was a credible witness and found that he was "not a witness of truth". The Tribunal accepted that the applicant had lived through difficult and stressful experiences but did not accept that these adequately explained the inconsistencies giving rise to the Tribunal’s doubts about the applicant’s credibility.

6. The Tribunal doubted the chronology of events provided by the applicant. The applicant said he moved to Mullaitivu with his mother in November 2011. He said the army or the police visited his home three weeks later seeking details about who was living there and came back looking for his father one or two weeks later. His father then fled to another area. The applicant said the army or police returned again one week later looking for his father and when they discovered the father was not present asked the applicant to report for questioning. He said the army or police did not take him immediately but gave him a date and time to surrender himself. He said he then went into hiding. The applicant told the Tribunal he was in hiding for three weeks while everything was organised, his boat was sold and the agent was paid and he then left Sri Lanka by boat. The Tribunal noted that this timeline over the period from November to the applicant's departure on 31 May 2012 accounted for only 6 to 9 weeks of at least a six month period.

7. The Tribunal also noted that the applicant's claim that he went into hiding when summoned by the army or police was inconsistent with an earlier claim that he had lived with his mother until his departure from Sri Lanka in May 2012. The Tribunal did not accept the applicant's explanation that he had not been completely in hiding but continued to visit his mother. The Tribunal also did not accept the applicant's claim that the army or police had searched for the applicant's father since 1996 (a period of about 16 years) but had been unable to locate him.

8. The Tribunal also noted the applicant's failure to mention in the interview that he had worked (or, according to the applicant, been forced to provide labour) for the army for approximately two days a week for a month while in Mullaitivu. The applicant had told the delegate of that but did not raise it in his oral evidence before the Tribunal despite being asked whether he had any other contact or involvement with the Sri Lankan army or authorities. The Tribunal doubted the applicant's claim that the army had continued to visit his mother after his departure searching for him despite, on the applicant's evidence, the army or police having earlier stated to his mother that they knew he had left the country.

9. The applicant also claimed that letters had been sent to his home in 2012, 2013 and 2014 requiring him to attend for questioning[1]. The Tribunal was concerned that the applicant failed to mention these letters to the delegate during his interview on 8 May 2013 and did not mention them until February 2015, some two years after he had been first told of the letters by his mother. The Tribunal did not accept the applicant's explanation that he did not realise the importance of the letters when interviewed by the delegate. The Tribunal was sceptical that the authorities would send letters to the applicant if it was already known that he had left the country. The Tribunal took account of country information that fake documents are easily obtained in Sri Lanka. It was not satisfied that the letters were genuine.

   [1] Tribunal reasons [28], CB 228

1. The Tribunal also considered the applicant's situation as a young Tamil man in Sri Lanka and whether that gave rise to a well-founded fear that he would be harmed in Sri Lanka. The Tribunal found on the basis of country information that the situation for Tamils had greatly improved. It did not accept that the applicant would be imputed with links to the Tamil Tigers.

2. The Tribunal also assessed the applicant’s claims in relation to his return to Sri Lanka and while the Tribunal accepted there was a real chance he would be arrested and questioned and possibly imprisoned for a short period before obtaining bail and being fined for illegal departure from Sri Lanka it found there was no evidence that he was at risk of suffering serious or significant harm.

3. The Tribunal assessed the applicant's complementary protection claims and found that he was not a witness of truth in relation to his claims, that he had no perceived or imputed links to the Tamil Tigers and that he was not of any adverse interest to the Sri Lankan authorities due to any connection with his father, uncle or brother.

4. The grounds of the application are as follows:

   1. The Tribunal's decision was affected by an error of law.

   2. The Tribunal failed to consider the possible impact of trauma and lapse of time between events when assessing my credibility.

   3.  Tribunal's decision as to my credibility was unreasonable.

5. The applicant also sought an extension of time because his application was about 3 ½ months out of time. The grounds of his application for extension of time were that he was unable to find legal representation within time and was unaware of how to make the application, that he did not have sufficient funds to finance an application within time and, in his words, "I do not agree with the Tribunal's decision and wish to represent myself in this application".

6. The applicant did not comply with an order to file written submissions. I asked him about each of the grounds set out in his application. He was unable to formulate any comprehensible claim of error of law as claimed in ground 1. A failure to give particulars for a ground of review is sufficient basis for the ground of review to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J. This ground is not made out.

7. I asked the applicant about the claim in ground 2 that the Tribunal had failed to consider the possible impact of trauma and lapse of time when assessing his credibility. I asked him to tell me more. He told me he had been subject to traumatic events since he was a child including being threatened with a gun (I understood by Sri Lankan soldiers). I asked him when that had occurred and he said he did not recall how old he was at the time but he was a small child. More generally, he said that the Tamils had been subject to continuous displacement and his father had been suspected of having links to the Tamil Tigers. He also mentioned other oppressions, particularly by the army, recorded in the Tribunal decision. I asked him how the trauma had affected his credibility and asked him whether he was saying that he gave answers which were wrong or inconsistent because of trauma. He agreed. I asked him what things had he said which were wrong or inconsistent in his statements to the Tribunal. He said he was confused during the Tribunal hearing but was unable to be more specific. He did not give any example of a statement to the Tribunal that was wrong or inconsistent.

8. In a post hearing submission to the Tribunal by his representative the applicant specifically addressed doubts about his credibility. He referred to and quoted from the Refugee Review Tribunal’s Guidance on the Assessment of Credibility and an article by Michael Kagan discussing the effects of trauma on asylum seekers in a UNHCR publication Note on Burden and Standard of Proof in Refugee Claims. The Tribunal specifically referred to these publications at paragraph [16] of the reasons for decision and said:

   The tribunal has taken into account the applicant has lived through difficult and stressful experiences. Nevertheless, the tribunal does not accept that the effect of those experiences explains the concerns raised by the tribunal. The tribunal has concluded the applicant is not a witness of truth and it is not satisfied he has told the truth in relation to critical aspect of his evidence. The reasons for this are discussed below.

9. In paragraph [22] of its reasons for decision the Tribunal observed that exact dates for events that occurred a number of years ago cannot be expected but noted that even the very broad and approximate time periods given in the applicant’s narrative of events were inconsistent.

10. Contrary to the alleged ground, the Tribunal expressly considered the effect of trauma and lapse of time on the consistency and credibility of the applicant’s narrative. Notwithstanding this, the Tribunal found that these matters did not answer its doubts about the applicant’s credibility and gave reasons for its conclusion. In my view, the Tribunal’s adverse credibility findings about the applicant were open to it and “supported by some probative material or logical grounds”: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] per Gummow J. This ground is not made out.

11. I asked the applicant about ground 3 alleging that the Tribunal's decision about his credibility was unreasonable. I asked him whether he meant that there was no basis for the Tribunal's conclusions. He told me that the Tribunal's conclusions, and he referred specifically to the letters purporting to be from the police and summoning him to report (appearing at CB 205 to 208 and translations at CB 209 to 212), were "unreasonable because they mean I will be tortured when I go back".

12. I am not satisfied that the Tribunal’s conclusions, including its conclusion that the letters were fake, were unreasonable. There was an evident and intelligible justification, properly exposed in its reasons, for the conclusions of the Tribunal. This ground is not made out.

13. The applicant has sought an extension of time. Although the grounds for the extension of time might be interpreted as inconsistent or contradictory they appear to indicate that the applicant is unsophisticated and truly had difficulty making his claim within time. The delay is not great and the Minister does not assert any prejudice. I will extend the time but dismiss the application.

14. The application is dismissed and the applicant is to pay the first respondent’s costs in the sum of $7, 206.00

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 14 March 2017