BZAFB v Minister for Immigration
[2017] FCCA 833
•27 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAFB v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 833 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – whether the Tribunal breached ss. 424A or 424AA or whether the Tribunal erred in assessing prison conditions in Sri Lanka considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 424AA |
| Cases cited: SZBYR v Minister for Immigration (2007) 235 ALR 609 SZTAL v Minister for Immigration [2016] FCAFC 69 |
| Applicant: | BZAFB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2671 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 April 2017 |
| Delivered at: | Sydney |
| Delivered on: | 27 April 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore |
ORDERS
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2671 of 2015
| BZAFB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 September 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s written submissions filed on 19 April 2017.
Background
The applicant is a 43 year old citizen of Sri Lanka of Tamil ethnicity and Hindu faith[1]. He arrived in Australia on 17 May 2012, having departed illegally by boat from Sri Lanka[2]. The applicant lodged his application for a protection visa on 4 August 2012, which was refused by the delegate on 18 October 2012[3].
[1] Court Book (CB) 30-32
[2] CB 32
[3] CB 84
The applicant sought review of the delegate’s decision, which decision was affirmed by a differently constituted Tribunal on 28 June 2013[4]. The applicant successfully sought judicial review of the differently constituted Tribunal decision in this Court, and the matter was remitted on 18 November 2014[5].
[4] CB 108
[5] CB 176 at [3]
On 27 July 2015, the Tribunal wrote to the applicant inviting him to appear before it at a hearing on 28 August 2015[6]. The applicant appeared at the Tribunal hearing with the assistance of a Tamil interpreter[7]. On 4 September 2015, the Tribunal affirmed the decision under review.
[6] CB 159
[7] CB 169
On 29 September 2015, the applicant filed an application to show cause in this Court.
Applicant’s claims
The applicant’s claims were set out in a statutory declaration attached to his application for a protection visa[8]. In summary, those claims were as follows:
a)The applicant claimed to have been harassed by the Sri Lankan Army while working as a fisherman in areas around Udappu, especially while crossing Army checkpoints, on account of his being suspected of involvement with the Liberation Tigers of Tamil Elam (LTTE), and that he was subject to harassment and beatings. He claimed that in 2010, he was detained by the Army while fishing in Mullaithivu, taken to an Army camp and beaten. The ongoing harassment while the applicant was fishing was impeding his ability to earn a living.
b)After returning from travel to India in 2011, the applicant was approached by the Criminal Investigation Division (CID) who told him that they suspected him of involvement in “other activities”, and if they found evidence of this, they would kill him.
c)A cousin of the applicant’s wife was kidnapped in a white van in 2004 or 2005 and had not been seen since. The applicant was fearful that this would happen to him, as the Army and CID harassed him and continued to check on him.
d)The applicant had been informed by his wife that the CID came looking for him on 24 July 2012 and told his wife that they would kidnap him and “finish him off” if he returned to Sri Lanka. They further threatened to kidnap the applicant’s nephew.
[8] (CB 46-49)
Tribunal decision
The Tribunal found that the applicant gave “entirely inconsistent evidence in relation to most aspects of his claims regarding his alleged past problems in Sri Lanka”, which led it to find that the applicant was not a witness of truth and that his claims were not credible[9]. The Tribunal referred to numerous inconsistencies between the applicant’s written statement, his evidence before the differently constituted Tribunal and his evidence at the Tribunal hearing in relation to his claims concerning his being a fisherman; It found that these claims were “fabricated” and rejected them in their entirety[10]. The Tribunal did not accept that the applicant was ever accused of being an LTTE member or suspected of involvement with the LTTE in India[11].
[9] CB 182 at [32]
[10] CB 182-186 at [33]-[44], [46]-[48]
[11] CB 186-187 at [49], [51], [55]
The Tribunal considered whether the applicant would face harm based upon his Tamil ethnicity or by virtue of his membership of a social group, being Tamils from the North and East of Sri Lanka, finding that he was not at risk of harm on the basis of country information before it[12]. The Tribunal considered the applicant’s claim to fear being abducted in a white van, but did not accept that the applicant faced a real chance of abduction[13].
[12] CB 188-189 at [56], [59]
[13] CB 189 at [60]
The Tribunal considered the applicant’s treatment as a failed asylum seeker by virtue of the operation of the Immigrants and Emigrants Act 1949 (IE Act), finding that any charge laid against him would be the subject of a law of general application[14]. The Tribunal accepted that the applicant may be detained at the airport or in Negombo prison while waiting to be taken before a magistrate for a bail hearing[15]. The Tribunal did not accept that the applicant would not be able to pay any fine that may be imposed on him for reason of his illegal departure, nor did it accept that the applicant may suffer harm from the Sinhalese boat crew who brought him to Australia.[16] For these reasons, the Tribunal did not accept that the applicant would face harm for reason of his illegal departure from Sri Lanka[17].
[14] CB 189 at [61]
[15] CB 189 at [61]-[62]
[16] CB 190 at [64], [66]
[17] CB 190 at [67]
The Tribunal considered the applicant’s claim in respect of the complementary protection criterion, but on the basis of its anterior findings of fact, did not accept that there was a real risk that the applicant would suffer significant harm if returned to Sri Lanka[18]. Nor did the Tribunal accept that the applicant would face significant harm from the manner of treatment he would likely face by operation of the IE Act[19]. Accordingly, the Tribunal affirmed the decision under review.
[18] CB 192 at [75]
[19] CB 192-193 at [76]-[79]
Present proceedings
These proceedings began with a show cause application filed on 29 September 2015. There are three grounds in that application:
1. I will provide further details of these grounds and any other ground after I have listened my RRT hearing CDs and after a lawyer has been given by this court.
2. When deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.
3. The RRT did not comply with the section 242AA and it has breached its statutory duty imposed by section 242A of the Act as well as the RRT has failed to put the concern and adverse information to be during the RRT hearing and in writing the concerns and adverse information which arose in my review (reasons for refusing my review) and it has failed to invite me for my comments, after the hearing, before it made its decision.
(errors in original)
The application is supported by a short affidavit filed with it which I received. The applicant also sought to rely upon a second affidavit made on 1 February 2016 which incorporated in the body of it a purported transcript of the Tribunal hearing held on 28 August 2015. The Minister objected to the receipt of that evidence. Among other things, there is no indication who prepared the transcript and it is impossible to verify its accuracy. The applicant told me from the bar table that he had lost the CD containing the sound recording of the Tribunal hearing. The applicant asserts that there was an interpretation problem at the Tribunal hearing. I received the affidavit and transcript provisionally for the purposes of hearing submissions on it. I ultimately received the affidavit as evidence limited to the single issue raised by the applicant in his oral submissions.
I also have before me as evidence the court book filed on 10 December 2013.
Only the Minister prepared written submissions in accordance with procedural orders made by a registrar on 12 November 2015. I invited oral submissions from the applicant today. His submissions focused primarily on his fear of returning to Sri Lanka. He is adamant that he cannot return there. That is beyond the scope of this proceeding.
The applicant was unable to advance any arguments in support of the grounds in his application. The first ground is merely a statement of future intention. In relation to the asserted interpretation problem, the applicant contends that there was confusion at the Tribunal hearing about what work he was undertaking in Australia. According to the transcript at page 8, the applicant was asked what work he was undertaking in Australia. The transcript records the applicant as saying he was doing some taxi work and that he had earlier worked in a meat factory in Rockhampton, Queensland.
The applicant confirms that he did work at the meat factory in Rockhampton. He says, however, that he has not worked in the taxi industry and what he in fact said was that he was working for tax, meaning that tax was deducted from his wages. It appears that the applicant did not in fact say what job he was doing at the time of the Tribunal hearing. The applicant told me from the bar table that at the relevant time, he was working at a recycling centre. He says that $17,000 was deducted from his wages and that he received a tax refund of $3,000. I have no reason to disbelieve what the applicant told me.
Accepting, therefore, that there was some confusion at the Tribunal hearing about the applicant’s then current occupation, nothing turns on that. There was no issue of the applicant’s work in Australia having any bearing on the Tribunal decision. The Tribunal decision is completely silent on the point. The applicant was not able to point to any other asserted interpretation problem.
The Minister’s submissions otherwise deal adequately with the grounds of review advanced by the applicant. I agree with those submissions.
Ground 2
By Ground 2, the applicant contends that the Tribunal committed jurisdictional error by failing to find that the Sri Lankan authorities intended to inflict harm upon the applicant by exposing him (through the operation of the IE Act) to prison conditions that were sufficiently poor so as to constitute cruel or inhumane treatment.
In the present case, the Tribunal accepted that upon return to Sri Lanka, the applicant may be held in remand at Negombo prison while awaiting a bail hearing before a magistrate[20]. However, the Tribunal did not accept that the treatment that the applicant may face while on remand constituted serious harm so as to constitute persecution[21], nor was the Tribunal satisfied on the information before it that the applicant faced a real risk of being significantly harmed in this process or that “there would be the necessary intention to inflict significant harm on the applicant during any short period of detention he may be subjected to”[22].
[20] CB 189 at [62]
[21] CB 190 at [65]
[22] CB 192-193 at [77]
On current authority, Ground 2 cannot be made out[23]. However, the Minister notes that that the judgment of the Full Court of the Federal Court in SZTAL is the subject of pending appeals in the High Court of Australia[24]. The appeals were heard together on 5 April 2017, and the Court’s judgment is presently reserved. I have proceeded on the basis that the Full Court’s decision in SZTAL is correct and should be followed.
[23] SZTAL v Minister for Immigration [2016] FCAFC 69 at [67]-[68] (SZTAL)
[24] SZTAL v Minister for Immigration and Border Protection & Anor (S272/2016) and SZTGM v Minister for Immigration and Border Protection & Anor (S273/2016)
Ground 3
The applicant contends by Ground 3 that the Tribunal failed to comply with ss.424AA and/or 424A of the Migration Act 1958 (Cth) (Migration Act). The applicant does not particularise the “information” which he contends the Tribunal failed to put to him for comment, nor is any failure by the Tribunal to comply with ss.424AA and/or 424A of the Migration Act apparent on the face of the Tribunal’s decision record.
To the extent that the applicant might be understood to contend that the Tribunal ought to have put to him for comment the inconsistencies in his evidence that led to the Tribunal’s adverse credibility finding, it is well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies is not “information” for the purpose of ss.424AA or 424A of the Migration Act[25]. Nor does “information” include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence[26].
[25] SZBYR v Minister for Immigration (2007) 235 ALR 609
[26] SZBYR v Minister for Immigration (2007) 235 ALR 609
Insofar as the applicant might be understood to contend that the Tribunal ought to have invited his comment or response to the country information before it that did not support the applicant’s claims to fear harm, that country information fell within the bounds of s.424A(3)(a) of the Migration Act and therefore did not need to be disclosed to the applicant. Ground 3 does not establish any error on the part of the Tribunal.
Because the applicant is self-represented and was unable to grapple with the legal issues, I have considered for myself whether there is any indication of jurisdictional error by the Tribunal. I can see none. The Tribunal decision turns on its adverse credibility assessments. The adverse credibility conclusions reached by the Tribunal were open to it on the material before it. Indeed, the applicant conceded from the bar table today that there were inconsistencies in the presentation of his case at various stages of the visa assessment process. The Tribunal complied with its statutory code of procedure and the process followed by the Tribunal was fair.
I conclude that the applicant is unable to demonstrate that the Tribunal decision is affected by any jurisdictional error. I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $5,800. Scale costs in this instance would exceed $7,000. The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a cost order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,800.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 May 2017
2
3