BZAIW v Minister for Immigration

[2015] FCCA 1318

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAIW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1318

Catchwords:
MIGRATION – Protection (Class XA) visa – where tribunal’s findings based upon credit assessment of applicant – where tribunal concluded that the applicant’s claims not credible – no jurisdictional error established – application dismissed.

Legislation:

Migration Act1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(1)(c), 424A, 474

SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39
WZAPN v Minister for Immigration & Border Protection (2014) FCA 947

Applicant: BZAIW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 99 of 2015

Judgment of: Judge Jarrett

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Brisbane

Delivered on: 20 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Tattersall

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The application filed 11 May, 2015 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 99 of 2015

BZAIW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the second respondent made on 16 January, 2015 whereby the tribunal affirmed a decision of a delegate of the first respondent to refuse to grant a Protection (Class XA) visa to the applicant.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. Despite a direction that permitted the applicant to file an amended application more fully particularising his grounds of review and a direction requiring him to file and serve written submissions in support of his application, he has done neither.

4. The first respondent has filed written submissions to which I have had regard.

Background

1. The applicant is a national of Sri Lanka.  He arrived at Christmas Island in August, 2012.  He lodged an application for a protection visa on 27 November, 2012. In a statutory declaration accompanying the application, the applicant claimed to fear being killed, physically abused or otherwise significantly harmed should he return to Sri Lanka because:

   a)he is Tamil;

   b)a political opinion of support for the Liberation Tigers of Tamil Eelam and opposition to the Sri Lanka government would be imputed to him; and

   c)he was a member of a particular social group, namely failed asylum seekers returning to Sri Lanka.

2. He claimed that he would be perceived to be opposed to the government of Sri Lanka and to support the LTTE because:

   a)he is a Tamil;

   b)his uncle, with whom he was close, was killed by the Sri Lankan Army, due to real or perceived connections to the LTTE; and

   c)he has applied for protection in Australia.

3. The applicant claimed that his parents were displaced from their home in 1983 and lived in a refugee camp in Sri Lanka until 1990 when they fled to India, living in a refugee camp there until 1994 when the family returned to Sri Lanka.

4. The applicant claimed that after a bomb blast in 2006 that killed approximately 40 Sri Lankan Army soldiers, there was a “targeted attack” on a group of five Tamil fishermen including his uncle. The applicant further claimed that after the death of his uncle the “CID” started searching for people connected with him and as a result started questioning the applicant, looked for him at various residences and interrogated his father and cousin about his whereabouts.  As a result, the applicant fled Sri Lanka.

5. On 29 July, 2013 a delegate of the first respondent refused the grant to the applicant a protection visa.  The applicant applied for a review of that decision by a refugee review tribunal.

6. Because the tribunal could not make a decision favourable to the applicant on the materials then before the tribunal on 21 October, 2014 the applicant was invited to appear before the tribunal on 11 December, 2014 to give evidence and present arguments. The applicant, through his representative, was also invited to provide any written submission and witness statements by 4 December, 2014.

7. On 4 December, 2014 the applicant’s representative provided written submissions.  On 11 December, 2014 a hearing took place.  The applicant attended, as did his representative (by telephone) and an interpreter. 

8. On 15 December, 2014 the tribunal wrote to the applicant inviting the applicant to comment or respond to information that the tribunal thought would be the reason or part of the reason for affirming the decision under review.  On 2 January, 2015 the applicant, through his representative, provided a response to that invitation.

9. On 16 January, 2015 the tribunal decided to affirm the decision not to grant the applicant a protection visa.

10. In arriving at that decision, the tribunal found that the applicant was not a witness of truth, that his evidence at the hearing was inconsistent and vague, that his story lacked credibility in a number of respects and that details in his protection application were inconsistent with his evidence at the tribunal hearing.  Of the applicant’s credibility, the tribunal said:

    18.    The tribunal has had regard to guidance on assessment of credibility and considered his evidence in light of those principles. The tribunal has taken into account, nervousness, stress and that memory fades over time and that the applicant may not have detailed knowledge or recall of second hand events. As discussed below the tribunal was not concerned with minor inconsistencies or specific dates or times or specific recall. The tribunal was not concerned with specific detail of second hand events but asked him about what he was told or discussed. Some of these events were not minor events but ones that were at the core of his claim (eg. what his aunt told him about visits by the authorities). Further, the tribunal was concerned that the inconsistencies were not just in oral evidence but in written statements, which were checked again with him in his language. Further, as discussed below the tribunal considers the applicant had a reasonable grasp of English as he referred and pointed to relevant parts in his English statements or documents and communicated in English at the hearing. The tribunal accepts that not all events may be recalled and further information may be added or recalled later. However, key claims such as his father being beaten were not mentioned in his 2012 written statement or at interview. The tribunal has considered his claims that he was emotionally unstable during the department interview. There is no medical evidence about this, but in any event the tribunal has considered his evidence in light of being emotionally unstable. Even considering that, it does not explain the applicant’s inconsistent evidence in major events or in his written claims or at hearing. Further, the tribunal does not just rely on the inconsistencies in making its findings about credibility. The tribunal has also considered the credibility of his claim, together with the country information that he could continue to live and work for six years, travelling around the North and not be found or questioned by authorities as implausible. As discussed below, the tribunal does not accept his explanation in this regard. The tribunal has also considered the authenticity of the death certificate which was partly in English.

    19.   The tribunal has considered the applicant’s evidence at hearing, his written statements, s424A response, the agent submissions. However, the tribunal finds the applicant is a not a witness of truth. The applicant’s evidence at hearing was inconsistent and vague. His written statements were inconsistent with each other and with his evidence at hearing in number of respects. Details in his protection visa application were inconsistent with his evidence at hearing. The applicant’s story lacked credibility in a number of respects. In particular that he could continue to live, work and travel as an insurance salesman for a number of years and avoid detection lacks credibility. Further the tribunal does not accept the uncle’s death certificate, provided by the applicant is genuine for a number of reasons discussed below. Other supporting documents provided also were inconsistent with his claims.

11. The tribunal considered each of the matters raised by the applicant in support of his claim of a well-founded fear of persecution.  The tribunal, for methodical and thorough reasons, rejected the claims by the applicant.

12. The tribunal accepted that, until at least 2012, returning Sri Lankan Tamils had reportedly suffered torture and abuse from the authorities.  However, those cases “overwhelmingly” involved returnees who had some reasonably substantial form of connection with the LTTE or who were suspected of such linkages or who had criminal convictions.  The tribunal did not accept that all asylum seekers are imputed with an anti-government or pro LTTE political opinion.

13. Information indicated that all Sri Lankan nationals are treated in the same manner with regard to entry procedures and that failed asylum seekers, or illegal departees who are Tamils, are not specifically targeted for adverse attention from Sri Lankan authorities at the time of entry and are not mistreated.

14. In relation to the applicant’s illegal departure, the tribunal found that the applicant would be charged under the Immigrants and Emigrants Act for illegal departure, arrested at the airport and brought before a Court to apply for bail. The tribunal did not accept that being questioned to establish identity and bail amounted to serious harm and further considered that although he may be held in remand for a limited period if he arrived on the weekend or a holiday it considered that such factors applied generally and not specifically to Tamils and accordingly, the relevant procedures and penalty for the applicant’s illegal departure would not amount to systematic and discriminatory conduct as required by s.91R(l)(c) of the Migration Act1958.

15. Accordingly, the tribunal found that the applicant did not satisfy either ss.36(2)(a) or (aa) of the Act.

The grounds of review

1. The applicant relies on the following grounds:

   1. The Tribunal denied me procedural fairness because they didn’t give me a fair hearing.

   2. The Tribunal failed to properly consider all of my claims.

2. I accept the first respondent’s submissions that the above grounds constitute no more than a pro forma application for judicial review.  No further particularity is given to the grounds, either in the application itself, or in the submission made by the applicant in support of his case.

3. As the submission of the first respondent highlights, prior to the tribunal deciding to affirm the decision under review:

   a)on 21 October, 2014 the applicant was invited to appear before the tribunal on 11 December, 2014 to give evidence and present arguments;

   b)the applicant, through his representative, was also invited to provide any written submissions and witness statements by 4 December, 2014;

   c)on 4 December, 2014 the applicant’s representative provided written submissions and associated documents;

   d)on 11 December, 2014 a hearing took place and the applicant attended.  He was assisted by an interpreter and his representative;

   e)on 15 December, 2014 the tribunal wrote to the applicant inviting the applicant to comment or respond to information pursuant to s.424A of the Act; and

   f)on 2 January, 2015 the applicant, through his representative, provided a response to that invitation.

4. The tribunal has complied with the obligations cast upon it by the Act that are relevant to the conduct of the review.  The tribunal’s decision record reveals that the applicant was provided with a careful and fair hearing.  Matters of concern for the tribunal were raised with him so that he could address those issues.  He was given that opportunity both during the course of the tribunal’s hearing and afterwards.

5. Ground one of the application reveals no jurisdictional error.

6. Nor does ground two reveal jurisdictional error.  The tribunal’s reasons are a lengthy decision recitation of the claims and evidence placed before the tribunal by the applicant.  It is clear from the tribunal’s reasons that it considered each of the applicant’s claims as well as the evidence upon which he relied in support of his claims. 

7. The findings made by the tribunal were open to it on the evidence before it.  In particular, the tribunal’s finding that the applicant’s claims were generally not credible was a finding of fact clearly open on the evidence and other material before the Court.

8. Although not formally raised by the applicant, the first respondent brings to my attention the decision in WZAPN v Minister for Immigration & Border Protection (2014) FCA 947. That is relevant because the tribunal made a specific finding that the applicant would be detained on return to Sri Lanka. The tribunal engaged in a qualitative assessment of the harm that might befall the applicant should he be detained upon his return to Sri Lanka. However, after considering country information that indicated that all Sri Lankan nationals are treated in the same manner with regard to entry procedures into Sri Lanka, and failed asylum seekers or illegal deportees who are Tamils are not specifically targeted for adverse attention from the Sri Lankan authorities at the time of re-entry, the tribunal found that the questioning, arrest, conditions in remand and the application of a penalty for illegal departure did not amount to systemic and discriminatory conduct as required by s.91R(l)(c) of the Act but rather would be the result of a non-discriminatory general application of a Sri Lankan law.

9. In any event, in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, the Full Court held that:

   45.    As this appeal was argued, the appellant’s submission was that any threat to his liberty involves serious harm to him within s 91R(1)(b). Thus, the appellant submitted, the Tribunal’s finding at [35] and [37] that the possibility of the appellant being held briefly on remand in poor conditions before being brought before a magistrate sufficed to establish that serious harm for the purposes of s 91R(1)(b). As we have said above, the appellant expressly accepted he then needed to satisfy the remainder of s 91R(1), especially s 91R(1)(c). In the appellant’s submission, any detention or imprisonment for any period of time constituted serious harm and, if done for a Convention reason, would give rise to persecution unless the detention or imprisonment was authorised by a law of general application which was not applied discriminatorily. As particularised, the jurisdictional error was said to be “undergoing a qualitative assessment of the nature and degree of the harm experienced by the appellant when being questioned and investigations by the authorities at the airport and detention on remand for illegal departure”.

   46.    Those submissions should be rejected. In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of “serious harm” so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.

   …

   60.    With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397:

   ... the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

10. I accept that no error is revealed by the tribunal’s finding that the applicant would not suffer serious harm if he was detained and questioned upon his return to Sri Lanka in the circumstances described by the tribunal.

Conclusion

1. I accept the first respondent’s submissions that no jurisdictional error is revealed by the tribunal’s reasons. The decision is a privative clause decision within the meaning of s.474 of the Act and cannot be challenged in this Court.

2. The application must be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 May, 2015.

Associate: 

Date:         20 May 2015