BZAIZ v Minister for Immigration

[2016] FCCA 85

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAIZ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 85

Catchwords:
MIGRATION – Protection (Class XA) visa – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 362(a), 362(aa), 425

Applicant: BZAIZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUNAL)

File Number: BRG 149 of 2015

Judgment of: Judge Jarrett

Hearing date: 31 July 2015

Date of Last Submission: 31 July 2015

Delivered at: Brisbane

Delivered on: 19 January 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr Richardson

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance.

ORDERS

1. The application filed on 17 February, 2015 be dismissed;

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 149 of 2015

BZAIZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (FORMERLY KNOWN AS THE REFUGEE REVIEW TRIBUNAL)

Second Respondent

REASONS FOR JUDGMENT

1. By this application, the applicant seeks judicial review of a decision of a refugee review tribunal made on 20 January, 2015 that affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa.  The applicant seeks that the application for review be remitted to a refugee review tribunal to be determined according to law.

2. The first respondent opposes the application and seeks that it be dismissed with costs.  The second respondent enters a submitting appearance.

3. Despite directions permitting the applicant to file an amended application and written submissions in support of his case, he has not done so.  I have written submissions from the first respondent to which I have had regard.

Background

1. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 2 June, 2012.

2. On 13 November, 2012 he applied for a Protection (class XA) visa.  On 31 July, 2013 a delegate of the first respondent refused to grant the applicant the visa.

3. The applicant sought review of that decision by a refugee review tribunal by lodging an application for review on 8 August, 2013.

4. The tribunal invited the applicant to appear before it to give evidence and present arguments in support of his claims.  That hearing took place on 8 January, 2015.  The applicant, his representative and an interpreter all attended the hearing.

5. The basis of the applicant’s claims were, in broad terms that as a person of Tamil ethnicity, he had been and would be considered a member or supporter of the Liberation Tigers of Tamil Eelam and for that reason would suffer serious harm amounting to persecution or significant harm at the hands of the Sri Lankan Government and its authorities.

6. The applicant gave evidence to support his claims, including evidence of specific instances when he was detained and mistreated.

7. The tribunal also considered whether the applicant was at risk of harm on the basis of his membership of particular social groups.

8. The tribunal considered the applicant’s claims and relevant country information and concluded that the applicant did not face a real chance of persecution on account of his Tamil race, membership of particular social groups, his actual or imputed political opinion or due to his illegal departure from Sri Lanka.

9. The tribunal undertook a detailed consideration of the claims put forward by the applicant, specifically in relation to the specific incidents of detention and harassment that allegedly occurred on account of his involvement with a friend who the applicant said was a suspected LTTE member.

10. The tribunal found that the applicant’s evidence was “repetitive, hesitant, lacking in spontaneity and lacked details”.  The tribunal considered that the applicant gave piecemeal accounts of his alleged detention in 2008, the 2009 questioning by police, and the circumstances of his friend’s bail and subsequent questioning from police.  The tribunal found that the applicant’s claim that he had not discussed with anyone the fact that he was assisting this friend with his bail to be implausible and noted that the applicant changed his story when confronted with credibility concerns.  The tribunal found that a document provided by the applicant after the hearing and alleged by him to be an extract from the information book of the police station, was not genuine.

11. The tribunal concluded that the applicant was not a witness of truth and did not accept the factual basis of his claims.  The tribunal concluded that the applicant was not someone to whom Australia owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) because he did not have a well-founded fear of persecution, nor was there a real risk that the applicant would suffer significant harm.

Grounds of Review

1. The applicant’s application for review provides the following six grounds of review:

   The Tribunal’s decision discloses jurisdictional error because the Tribunal:

   l. Did not consider all of my claims.


   2. Did not comply with s 425 of the Migration Act.


   3. Did not correctly apply the ‘real chance’ test.

   4. Misunderstood and misapplied s 91R of the Migration Act.

   5. The Tribunal did not afford me procedural fairness.

   6. The Tribunal applied the wrong legal test

2. It will be appreciated that these grounds are in the nature of “pro-forma” grounds.  There are no particulars that expand upon the grounds or give them content.  The applicant was unable to give the grounds any content in his oral submissions before me.  His submissions sought to cavil with the tribunal’s determination that his claims were not credible.

3. As to the first ground, it is clear that the tribunal went to some lengths to properly identify and articulate the applicant’s claims.  So much appears from the summary of those claims set out in paragraph 3 of the tribunal’s reasons and the elaboration of each individual claim found in paragraphs 7 – 48 of the tribunal’s reasons.  The tribunal dealt specifically with each integer of the applicant’s claims.  It dealt specifically with the applicant’s claim:

   a)to have been detained in 2008 (paragraphs 8 – 15 of the tribunal’s reasons);

   b)to have had travel restrictions placed upon him requiring him to report to the police (paragraphs 16 – 20 of the tribunal’s reasons);

   c)about his detention in 2009 (paragraphs 21 and 22 of the tribunal’s reasons);

   d)to be suspected of having links to the LTTE (paragraphs 23 - 45 of the tribunal’s reasons);

   e)that the authorities were looking for him in 2014 (paragraphs 46 - 48 of the tribunal’s reasons);

   f)that by reason of his Tamil ethnicity he would be at risk of harm should he return to Sri Lanka (paragraphs 58 - 67 of the tribunal’s reasons);

   g)that by reason of being a failed asylum seeker he would be at risk of harm should he return to Sri Lanka (paragraphs 78 - 85 of the tribunal’s reasons); and

   h)that by reason of his illegal departure from Sri Lanka he would be at risk of harm should he return to Sri Lanka (paragraphs 86 - 98 of the tribunal’s reasons).

4. The tribunal also identified another possible claim in the applicant’s material and dealt with it:

   68.    While the applicant did not raise this as a specific claim, the applicant claimed his family owned a tailor business in which the applicant and his brother worked, while his father stayed at home as the silent owner. The applicant said his uncle was now running the business but his father was still the silent owner.

   69.    The tribunal accepts country information that some wealthy or businessmen have been targeted for extortion or kidnapping, particularly in Eastern area.  However, the applicant made no claims in this regard, other than that police did not pay for services from time to time. He claimed some police came to the shop and sometimes did not pay for the tailoring services and given the country information of corruption and police impunity, the tribunal accepts this. However, the tribunal does not accept that this amounts to serious harm as the business has continued and in fact expanded. It employs 10 people.

5. The tribunal did not accept that the applicant was harassed and detained as he had claimed.  The findings regarding the applicant’s evidence were open to the tribunal based on its rational assessment of the matters which were logically probative of the issue of the applicant’s credibility.  The tribunal was concerned by what the tribunal considered was implausible or vague evidence for the applicant.  As the first respondent submits, the tribunal set out the findings that formed the basis of its assessment of the applicant’s credibility in “direct and explicit terms” in its decision.  For example:

   a)as to the applicant’s claims that his movement was restricted:

   45.    The tribunal finds the applicant has fabricated his claims regarding his 2008 police detention, restrictions on his movement and having to sign before he travelled, his friend’s illegal passport, bail, failure to appear and the applicant’s signing for bail, breach of bail agreement, police requiring the applicant to appear and police profile, or suspected LTTE connections or adverse profile .

   b)as to his claims that the authorities were looking for him in 2014:

   47.    Late in the hearing when the tribunal noted his brother had returned from Malaysia, was working in Colombo and appeared to have no problems, the applicant said police were looking for him, but they met his brother and investigated. When asked for more details he said they checked ID cards. The tribunal does not accept the police were looking for him and found his brother because his brother was in Colombo and the applicant lived in Negombo. Further, the applicant raised this late in the hearing and had not mentioned it before, even when the tribunal had discussed other matters in relation to his brother earlier in the hearing(eg. emails he sent him, his return from Malaysia). The tribunal considers the applicant was adding new claims at the end of the hearing to convince the tribunal authorities were looking for him. The tribunal finds the applicant fabricated this claim.

   48.    Having considered the applicant’s evidence, the tribunal finds he is not a witness of truth and fabricated his evidence. The tribunal does not accept he was detained or questioned by police in 2008, that there were restrictions on his movement and he had to sign with police before he travelled. The tribunal does not accept his friend was caught leaving on an false passport or that the applicant attended the police station to post bail for him. It follows the tribunal does not accept his friend failed to appear in court, or that the applicant breach of bail agreement,  or that the police required the applicant to appear, summoned him to court or the police  station or were looking for him. The tribunal does not accept authorities were looking for   him in 2014 or now. The tribunal does not accept the applicant has a police profile, is known to authorities or that he is suspected LTTE connections or of any adverse profile.

   c)And then again at

   64.    As discussed above, the tribunal has found the applicant is not a credible witness and does not accept that he posted bail for his friend and therefore does not accept that he will be in breach of any bail agreement. It follows the tribunal does not accept he will be treated differently because of breach of bail. The tribunal does not accept he has any outstanding court orders or arrest warrants. The tribunal has not accepted that he was detained in 2008 or that he was imputed with LTTE links or of any adverse interest to authorities. Further, the tribunal does not accept that his claims that his friend was caught leaving the country illegally. While the tribunal accepts there are still some disappearances, the tribunal does not accept that his friend has disappeared. The tribunal does not accept the applicant will come to the adverse attention of police or authorities upon return because of this. The tribunal has found the applicant fabricated his evidence about his detention, friend and adverse police profile.

   65.    Having considered the applicant’s circumstances and country information the tribunal does not accept the applicant faces a real chance of assault, kidnap, or being killed or other serious harm upon return.

6. I can discern nothing in the tribunal’s reasons that would suggest that the tribunal did not consider all of the claims made by the applicant.  In my view, the tribunal considered all of the claims made by the applicant or which appeared open on the material before it.

7. The tribunal’s reasons make it clear that the tribunal carried out its review function in an unremarkable way.  The applicant was invited to a hearing before the tribunal.  He attended with a representative.  An interpreter was present.  He was given an appropriate opportunity to present his case and any supporting evidence upon which he wished to rely.  The tribunal put to the applicant the matters that troubled the tribunal for the applicant’s comment.  No criticism can be made, in my view, of the way in which the tribunal conducted the review sought by the applicant.

8. Moreover, there is nothing to suggest that the tribunal denied the applicant procedural fairness.  The tribunal’s reasons demonstrate that the tribunal approached the review application in a procedurally fair manner.  The applicant was given opportunities to put his case, state his evidence and to deal with matters that the tribunal thought were of concern. 

9. In my view, there is nothing in the applicant’s assertion that the tribunal did not comply with s.425 of the Act or afford the applicant procedural fairness.

10. Finally, it is clear from the tribunal’s reasons that the tribunal correctly instructed itself as to the law to be applied and to the tests that the Migration Act 1958 (Cth) required the tribunal to apply. There is nothing in the tribunal’s reasons to suggest that the tribunal member did not understand the “real chance” test or the way in which s.91R of the Act should be interpreted and applied.

11. I accept the first respondent’s submissions that properly characterised, the applicant simply disagrees with the tribunal’s findings of fact and seeks to have this Court undertake an impermissible review of the merits of the applicant’s claims and the tribunal’s decision.

Conclusion

1. The tribunal’s decision is not attended by jurisdictional error.  The decision is not reviewable in this Court.

2. The application must be dismissed with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate:  

Date:  19 January 2016