BZAFO v Minister for Immigration

[2015] FCCA 2408

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFO v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2408

Catchwords:
MIGRATION – Protection visa application – credit decisions – weather procedural fairness accorded.

Legislation:

Migration Act 1958 (Cth), ss.65, 354, 420, 422, 424A, 424AA, 474, 476.

Minister for Immigration & Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323
SZQBN v Minister for Immigration and Border Protection [2014] FCCA 686

Applicant: BZAFO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 819 of 2013

Judgment of: Judge Coates

Hearing date: 20 August 2014

Date of Last Submission: 20 August 2014

Delivered at: Brisbane

Delivered on: 3 September 2015

REPRESENTATION

Counsel for the Applicant: Mr S Barataraj

Counsel for the Respondents: Ms A Wheatley

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the name of the second respondent be amended from the Refugee Review Tribunal to the Administrative Appeals Tribunal.

2. The amended application filed 5 December 20114 be dismissed.

3. The application filed 16 September 2013 be dismissed.

4. That the applicant pay the respondents costs fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 819 of 2013

BZAFO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks to overturn a decision of the Refugee Review Tribunal, made 14 August 2013, which affirmed the decision of the Minister for Immigration and Citizenship not to grant him a protection visa.

2. In his application filed 16 September 2013, the applicant sought:

   a)An order that the decision of the tribunal or Minister be quashed.

   b)A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.

   c)An injunction restraining the Minister, by himself or his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.

   d)Costs of this and incidental to this application.

3. There was an amended application filed 5 December 2014 which was not relied on. I will dismiss that application.

4. Pursuant to s.476 of the Migration Act 1958, this court will have jurisdiction unless the decision is a privative clause decision as stated in s.474 of the Act, or there is otherwise jurisdictional error, so as to subject the decision to judicial review.

5. It is not an appeal on its merits.

6. The applicant claims jurisdictional error.

7. A broad understanding of jurisdictional error can be gleaned from the decision in the Minister for Immigration & Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323, where the High Court referred to its earlier decision of Craig v South Australia (1995) 184 CLR 163:

   “When a Tribunal falls into error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.

8. The applicant relied on the following grounds:

   a)Ground 1: The Tribunal Member failed to adequately consider relevant information namely the documents provided by the Applicant in arriving at the decisions that the events did not happen including his letters to various embassies complaining of the events.

   b)Ground 2: The Tribunal failed to question the Applicant on any of the torture procedures the Applicant had be subjected to while in prison that would have given rise to possible impaired memory recall of the Applicant.

   c)Ground 3: The Tribunal failed to call for medical evidence to ensure that the Applicant was in a sound mind and able to answer questions properly considering he was subjected to 24 months of imprisonment and torture and the effects of continued detention while in Australian soil.

   d)Ground 4: The Tribunal failed to ascertain if the Applicant required or was given any medical treatment upon arrival in Australia before proceeding to interview the Applicant.

   e)Ground 5: The Tribunal was not qualified to question the Applicant and make a decision on the credibility of the Applicant on the grounds that he had been subject to torture and credibility should never been a single or only criterion in cases of severely tortured individuals. The Applicant should been given special consideration and the conclusions made by the Tribunal were totally illogical.

   f)Ground 6: The Tribunal erred in failing to consider or rejecting credible and independent Country information provided by the Applicant.

   g)Ground 7: The Tribunal failed to apply ss.354, 420(1), 420(2)(b) and 422(3) of the Migration Act in failing to act in a way that is just and fair or act according to substantial justice and the merits of the case.

9. In oral submissions it was said these grounds go to whether fair and due process (otherwise known as procedural fairness) had been followed.

10. In order to understand the grounds for review the construction of the reasons for decision is relevant.

11. The decision-maker referred to the class of visa being sought, to s.65 of the Migration Act, to the criteria for a protection visa set out in s.36 of the Act and to the Migration Regulations. There is no challenge to the Tribunal’s statement of fact and law in that regard.

12. The decision then sets out under a heading “Claims and Evidence” the applicant’s personal history including birth date, birth place and his ethnicity, as well as his religion.

13. The decision refers to the applicant’s statutory declaration made 4 August 2012 and filed with his protection visa. It summarises the background with reference to: the armed conflict in Sri Lanka wherein the applicant became separated from his family in 1990; that he remained in a UNHCR camp until 1996; that he obtained self-employment in 2006 owning a hardware store and working as a building contractor; that he was arrested by authorities in April 2007 and held in detention for three months, during which time he was mistreated; that he was arrested in 2008 on the allegation that he was a member of the Liberation Tigers of Tamil Eelam (the LTTE) and held in prison at Galle for 12 months and mistreated; that he was released in November 2009 after the case against him could not be established; that the day following his release “people from the Army told the applicant he had to report each fortnight and he had to register any visitors at his home”;  that his movements were then restricted so that he could not see his wife who lived in another village; that he suspected army and navy personnel stealing his goods and equipment and he eventually decided to flee.

14. The decision records that he fears going back to Sri Lanka because of the possibility, or I imagine that it is his case the probability, that he would be harmed by authorities; that his wife was questioned after he left Sri Lanka, and that he lodged letters with his application from the Human Rights Commission in Sri Lanka as well as letters from the Norwegian, Dutch and Swiss embassies and other documents, said to be issued by police, which were not translated.

15. The decision records the applicant appearing before the Tribunal on 11 February 2013 and 15 March 2013, as well as documents received on his behalf by the Tribunal on 14 February 2013 and 22 March 2013, which included translations of documents issued by police and submissions on the applicant’s behalf.

16. The decision records that a statutory declaration by the applicant dated 15 March 2013 made claims that his family had been persecuted in 1977; that their house was burned and their possessions destroyed and no compensation was paid; that in 1983 his family had to flee their home because of anti-Tamil riots; that the house was damaged and possessions stolen; that between 1987 and 1990 when the Indian Army occupied Sri Lanka the family was subject to search operations and the applicant’s father and other male relatives were subject to regular roundups; that from 1992 until 2002 the family house was occupied by the Sri Lankan Army, and that the applicant developed a fear of authorities because of these experiences.

17. The decision then goes into oral evidence given by the applicant which referred to his employment and setting up his own business to the extent that the LTTE demanded that he pay tax to them. This began in January 2006 and the applicant would regularly go to a jungle camp once a month to pay the money.

    His evidence was that he continued to pay this money until 2007 and he said that in the second year two of his workers were kidnapped and their whereabouts remain unknown. He said they were possibly kidnapped by members of the Karuna group. He said on 3 April 2007 people from the army and navy and the Karuna group came to his house and demanded money from him which he refused to pay and a few days later while on his motorcycle, he was abducted, taken to a camp and put into a house. He said he was moved every 15 days to a different camp. He was released in July 2007 but that was after his ATM card had been taken and his bank money stolen.

18. His recorded evidence was that he complained to the Red Cross about the treatment after he was released in 2007, which caused the army to come to his home to warn him not to give a statement to anybody about what happened. He said he received medical treatment. He said on 14 November 2007 in the morning people from the navy came to his house and began digging up the ground and searching his house and brought a bag inside which they said it contained bombs that belonged to the applicant. He was then taken to a camp where he was beaten and it was claimed he was supporting the LTTE and he was forced to sign a document to that effect. At 9.00 pm he was handed over to police where he was held for 15 days. He said he was beaten during that time. He was transferred from prison to prison and released in November 2009. In June 2010 he said his family left Trincomalee to live with his parents at Batticaloa, which was the applicant’s home town. The applicant left Sri Lanka in April 2012. He said he had no difficulties flying out of the airport at Colombo because a stamp had been placed in his passport by an agent related to travel in India. He said the army went to his home in Trincomalee after he left and they asked his aunt where he was and she said she did not know.

19. He said his wife complained to the Human Rights Commission about being abducted in 2007.

20. After arriving in Australia, on 19 June 2012 a departmental officer conducted an irregular maritime arrival entry interview where the applicant advanced claims similar to the version of events he maintained, however, with differences.

21. In considering the claims the Tribunal began assessing the applicant’s credibility when it identified inconsistent statements.

22. With regard to credibility, the Tribunal sought explanations as to the applicant’s statement that he did not write to foreign embassies during the period he was detained in Bussa jail, yet on the original dates he gave, according to correspondence from foreign embassies, the Tribunal concluded he would have been in prison at a material time.

23. The applicant told the Tribunal then he was not sure of the timing and the decision clearly points out that he had stated that he had been in prison for eight months and then later changed this to six months.

24. The decision also pointed out that according to his statutory declaration dated 4 August 2012, he said he had been held in jail for 12 months and his explanation was that he had been in prison for a total of two years and did not think he had been held in Bussa jail for 12 months. In a statutory declaration of 15 March 2013 the applicant said he was in Bussa jail for six months only, before being transferred to Magacine prison for eight months, Walikada prison for five months, TRP prison for five months, Trincomalee prison for 20 days, and Anurathapuram prison for five days.

25. The applicant was questioned closely about these claims and the decision notes that the applicant changed his story throughout the various stages of the processes of determining his protection visa application.

26. The applicant also said, because it is recorded, that he had trouble with remembering these matters due to the torture and trauma he suffered, and his fear of authorities including his detention on Christmas Island, can be attributed to such trauma.

27. The Tribunal concluded it was not satisfied that the inconsistencies could be explained or excused on those explanations.

28. The Tribunal noted that the applicant’s evidence began to change when he was confronted with statements about his letters to the various embassies.

29. The decision says at paragraph 84:

    “There is a marked difference between claiming to have been held in a particular jail for 12 months and then subsequently claiming to have been there for only six months. His inconsistency reflected poorly on his credibility.”

30. The decision goes on and identifies other inconsistencies. It states the applicant said he had no trouble with the army in Batticola, but had to return to Trincomalee each month to report to the army, while his statutory declaration of 4 August 2012 refers to reporting to the army, after being released from prison in 2009, each fortnight and that he had to register visitors and that his travel in and out of his village was severely restricted. The decision points out that he said his wife lived 300 kilometres from his village, which was put to the applicant as an inconsistent statement with other statements made about her location.

31. The Tribunal particularly sought an explanation based on a statutory declaration that he indicated that he remained in his village before leaving Sri Lanka, and did not as he claimed to the Tribunal, go and live with his parents in Batticoloa in June 2010.

32. I am not referring to all of the inconsistencies which the Tribunal referred to, but it referred to evidence which was inconsistent as to major facts, the cause of its finding that the applicant lacked credibility.

33. The Tribunal accepted as credible the claims that the applicant’s family home had been damaged at times in anti-Tamil riots; that the family was subject at times to regular search operations by the Indian Army;  that in 1990 the applicant and the family became separated during fighting in the area; that the applicant remained in a UNHCR camp until 1996, as well as some other facts which he alleged. However, the Tribunal found that the roundups by the army which affected him ended in January 2007 and that the applicant was able to leave Sri Lanka legally, using his own passport.

34. Because of the inconsistent evidence on what it considered to be important alleged incidents, the Tribunal did not believe that the applicant was truthful about being harmed by Sri Lankan authorities and that his departure from Sri Lanka was in some way assisted by an agent or a person that he had met in prison.

35. The structure of the decision goes on to assess the risk for the applicant, as the Tribunal must do, in accordance with the legislation.

36. The Tribunal found that there was not a real risk that he would suffer harm based on a Convention ground and that he did not have a well-founded fear of persecution based on a Convention ground. Further, the Tribunal stated that there were no specific submissions or claims made with respect to the complimentary protection criteria.

37. The Tribunal clearly identified its consideration of the applicant’s credibility and found that there was not a real chance that the applicant would suffer serious harm if he returned to Sri Lanka, based on a consideration of the complimentary protection criteria.

38. I should also state that the Tribunal decision referred to what it called the current political context and risk profiles for Tamils and referred to various outside sources, including country information from recognised sources.

39. As I have stated above the applicant confirmed through his counsel that the crux of the review was centred on the question as to whether fair and due process had been accorded to the applicant.

40. Ground one is an attack on the consideration or lack thereof, of documents provided by the applicant to various embassies and others concerned with human rights issues.

41. The applicant puts this submission in the sense that it was because of torture and trauma that he could not remember dates and it is his argument that he has not been afforded fair and due process.

42. In my view that is recognition that the Tribunal did consider the documents as referred to at paragraphs 77 and 140 to 147 of the decision. The Tribunal decision names the entities and organisations that the applicant had correspondence with, knowing those entities and organisations to be associated with people claiming refugee status.

43. As I have pointed out the Tribunal made findings about the applicant’s credibility because of inconsistency with regard to issues material to being covered by a Convention ground, which included findings on the inconsistencies of the dates which the applicant claimed he was imprisoned, which conflicted with his evidence of correspondence to various entities and organisations.

44. Credibility findings are findings of fact, as pointed out by the first respondent, and the manner in which this submission by the applicant progressed could be classified as nothing more than being a complaint that the Tribunal did not accept the applicant’s claims in documents.

45. It may be the case that a person allegedly suffering after the torture which the applicant claimed, may have issues going to their memory, but when examined, a loss of memory is not actually being presented by the applicant, it is a confusion of dates and times, which is what the Tribunal decision recognised, and then considered whether the inconsistencies were of such a nature as to support the applicant’s claims. There was no memory loss about being imprisoned, but there were inconsistent statements of such a nature that the Tribunal chose to rely on them as factors which went to the applicant credibility –  and by way of example, whether he spent six months or 12 months in a  particular prison. This is a major inconsistency accepted by the Tribunal as going to credibility.

46. The Tribunal did not fail to put the inconsistencies to the applicant for further explanation. On then giving his answers the Tribunal came to a factual finding. There is no error in the Tribunal’s decision which could be classified as a denial of fair and due process on this ground.

47. As to the ground two claims, that the Tribunal failed to question the applicant on any of the torture procedures that would have given rise to possible impaired memory recall, such claim places the onus on the Tribunal of proving the applicant’s case and that is not what the legislation contemplates.

48. The first respondent addressed the issue by submitting that the claim was possibly an attempt to argue non-compliance with s.424A of the Act. That section imposes a duty on the Tribunal to give the applicant particulars of any information which it considers would be the reason or part of the reason for affirming the decision under review, in a manner that the applicant would understand and invite him to comment.

49. However, there is no such obligation to give particulars of information, nor invite comment or a response if clear particulars of any information are relied on under s.424AA. That section allows the Tribunal to orally give the applicant particulars and information which the Tribunal considers would be the reason or part of the reason to affirm the decision under review, in a manner in which the applicant would understand. In my view, the applicant is really calling on the Tribunal to second guess what his case is. The applicant clearly stated that he had memory recall issues because of torture. As difficult as it is, he still had to produce evidence to convince the Tribunal of such occurrences affecting him, not losing sight of the separate fact that the Tribunal found that he would not be a person at risk if returned to Sri Lanka. The applicant made his claims, he was questioned by the Tribunal and his evidence was considered. At paragraph 82, following the reference to the claims of torture and trauma which he suffered in Sri Lanka, the Tribunal states:

    “… Notwithstanding his claims about his mental state and his memory, he can reasonably be expected to give a consistent account of how long he was actually held there [in prison].”

1. The claim in ground two that the Tribunal failed to question the applicant on any torture procedures which may have given rise to impaired memory is closely connected to the claims in grounds three and four, where the applicant challenges the Tribunal’s fairness because it failed to call medical evidence to ensure he was of “sound mind”, and where the Tribunal failed to ascertain whether he had been given medical treatment when he arrived in Australia. As I say, the applicant has an onus with regard to his claims and he did not produce medical evidence for the Tribunal hearing to support his claims as to his capacity due allegedly to torture. Again this is trying to place the onus on the Tribunal to merely guess or confirm the applicant’s case. At his first interview and at subsequent interviews, when claims about his capacity were raised, between arriving in Australia and appearing at the Tribunal, the applicant needed to ensure that he had evidence of his claims to put before the Tribunal.

2. The first respondent says there is no requirement for the Tribunal to obtain a medical report and there is no legislative direction to the Tribunal or authority which would require such.

3. I was referred to the decision in SZQBN v Minister for Immigration and Border Protection [2014] FCCA 686 at 45 where it was said “[c]areful consideration needs to be given, however, to the degree of incapacity needed to be demonstrated before such a conclusion is reached”. At paragraphs 125 and 126 the Tribunal addressed whether it had given the applicant a meaningful opportunity to present evidence and argument in relation to his capacity and then came to a factual decision in paragraph 126 that “… [t]he Tribunal is not satisfied that the applicant’s feelings have been caused by events he claims occurred in Sri Lanka or that his mental state at any time explained or excuses the concerns the Tribunal holds about his credibility”. The Tribunal went on and said it considered discrepancies in the applicant’s evidence which simply cannot be explained as genuine errors on the applicant’s part, mentioning things which had not been previously referred to by the applicant. In other words, the Tribunal was concerned that claims kept arising at different times and was mindful of genuine errors in his narrative.

4. There is no jurisdictional error on these grounds.

5. Ground five is another way of restating that the Tribunal did not afford the applicant procedural fairness. The claim is that the Tribunal was not qualified to question the applicant and make a decision that he had been subject to torture. There is no special qualification required to consider the claims by the applicant. The Tribunal listened to the applicant and put to him questions regarding his claims and then came to a factual decision that he was not telling the truth because of the discrepancies, with a number of discrepancies in relation to his major claims. These are all factual decisions. They are not open to review in the manner in which the Tribunal arrived at these factual decisions.

6. As to ground six, that the Tribunal failed to consider properly or reject credible and independent country information provided by the applicant, appears to question factual findings.

7. The Tribunal identified the applicant as a Tamil, that the area he came from was formally controlled or had associated LTTE activity and concluded that he was not a person to whom Australia owed obligations under the Convention. The Tribunal did consider country information supplied by the applicant’s representative at the Tribunal hearing and, considering country information available to the Tribunal, came to a decision that this particular applicant was not in a position of risk as he claimed. There is an analysis of the country information from paragraphs 154 to 181. When reading those paragraphs it is clear that the Tribunal did consider not only what the applicant claimed but also the information he provided or relied on. It then compared that with country information available and formed a decision upon it. The claim was that the Tribunal rejected the country information he supplied and relied on, but such could not be described as a mere rejection – it was a comparative analysis which the Tribunal undertook and then came to a conclusion as to the facts. There is no jurisdictional error here.

8. Ground 7 was not pursued, but in any case I accept the submissions on behalf of the first respondent that the Tribunal properly considered the complementary provisions and noted there were no specific submissions.

9. As procedural fairness was extended at all times in this matter by the Tribunal, no jurisdictional error has been demonstrated and I dismiss the application.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Coates

Associate: 

Date: 3 September 2015