CFM15 v Minister for Immigration and Anor (No.2)

[2016] FCCA 3229

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFM15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2016] FCCA 3229

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – whether the Tribunal hearing was procedurally fair considered – no jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424

CMF15 v Minister for Immigration & Anor [2016] FCCA 1149
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: CFM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2913 of 2015

Judgment of: Judge Driver

Hearing date: 8 December 2016

Delivered at: Sydney

Delivered on: 8 December 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms N Johnson of Mills Oakley

ORDERS

1. The name of the applicants is not to appear on the transcript of proceedings.

2. The application filed on 27 October 2015 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2913 of 2015

CFM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me for the second time an application to review a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 September 2015.  The Tribunal affirmed a decision of the Minister’s delegate (delegate) not to grant the applicant a protection visa.  I initially dealt with the matter at a show cause hearing on 12 May 2016. 

2. The orders I made at that time were set aside by consent in the Federal Court.  That was because an affidavit and transcript of the Tribunal hearing, together with some submissions, was not considered at the show cause hearing.  The background facts relating to this matter were set out in my earlier judgment but are augmented in the Minister’s outline of legal submissions.  

Background facts

1. The applicant relies on an application for an order to show cause filed on 27 October 2015. That application seeks review of a decision of the Tribunal dated 24 September 2015. The Tribunal affirmed a decision of the delegate dated 29 August 2014 to refuse the applicant a Protection (Class XA) visa.

2. On 12 May 2016, a show cause hearing was conducted in these proceedings and I made interlocutory orders dismissing the application with costs pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).[1] Neither the applicant nor the Minister filed written submissions. I found that the application did not establish any arguable case of jurisdictional error by the Tribunal; neither was an arguable case of error apparent from my own reading of the material.[2]

   [1] CMF15 v Minister for Immigration & Anor [2016] FCCA 1149

   [2] CMF15 v Minister for Immigration & Anor [2016] FCCA 1149 at [14]

3. On 25 May 2016, the applicant filed an application for leave to appeal in the Federal Court of Australia. The application alleged that I erred in “not finding that the appellant was not treated according to procedural fairness” on the basis that the appellant attempted to provide evidence of his claim by faxing a transcript to the registry with submissions in support his claim but that these documents were not taken into account.

4. On 12 July 2016, the Minister’s solicitors was informed by the Federal Court registry that a fax transmission containing the applicant’s submission and transcript was received by the registry on 9 May 2016, however, it was not actioned by the registry. The documents were not accepted for filing or placed on the court file.

5. On 9 August 2016, orders were made by consent allowing the appeal and remitting the matter to this Court for determination of the claims for relief in the application filed on 27 October 2015. This was on the basis that the Minister accepted that I dismissed the proceedings on 12 May 2016 without having regard to the submissions and affidavit of John Sweeney affirmed 6 May 2016 faxed to the Federal Circuit Court Registry on 9 May 2016 but not filed in the matter, amounting to procedural unfairness.

6. The applicant is a citizen of Sri Lanka[3] who arrived in Australia on 2 October 2013[4] on a FA-600 visitor visa. The applicant’s reason for wanting to visit Australia was to participate in the 14^th Australian Master’s Athletic Games 2013[5] and he provided a receipt from the Australian Masters Games with his application for the visitor visa:[6]

   [3] CB 14

   [4] CB 15

   [5] CB 93  

   [6] CB 89

7. On 11 October 2013, the applicant lodged an application for a Protection visa.[7] His written claims were set out in his Protection visa application[8] and in a statutory declaration dated 12 November 2013.[9]

   [7] CB 1-27

   [8] CB 19-22

   [9] CB 43-45

8. The applicant claimed to fear harm as a supporter of the United National Party (UNP). In particular, the applicant feared harm from a politician, MS,[10] a member of the Sri Lanka Freedom Party (SLFP). He claimed that he and his friend, Mr S,[11] were beaten by the gangs of MS and a brother of the President. He and Mr S reported the matter to the police but the threats continued. He told his family and they moved to Anaradhapura for three months, while Mr S left the country. About two days after Mr S’s return, some thugs threatened the applicant and Mr S. On 16 July 2013, a van with five men wearing masks arrived at Mr S’s house and beat them with wooden sticks. The applicant felt his knee was “broken from the inside”. An assailant pulled out a pistol and the applicant fled.  He heard two or three shots ring out. He managed to get to the main street and phoned his aunt who worked with the President’s security detail. His aunt assisted him to apply for a visa for Australia through the Colombo embassy. He later found out Mr S was killed in the incident.

   [10] The name has been anonymised

   [11] The name  has been anonymised

9. The applicant provided with his Protection visa application, a copy of his passport and untranslated copy of an identity card.[12] Subsequent to lodging his Protection visa application, the applicant also provided copies of various online articles,[13] photographs[14] and a medical certificate from Aiya Medical Centre dated 17 June 2014.[15]

   [12] CB 28-37

   [13] CB 46-56

   [14] CB 57-58

   [15] CB 59

10. By a letter dated 22 July 2014,[16] the applicant was invited to attend an interview before the delegate on 28 August 2014 which he attended.[17]

    [16] CB 60-62

    [17] CB 72, [8]

11. On 1 August 2014, the applicant provided an undated medical certificate from Concord Repatriation General Hospital and an operation report dated 13 March 2014.[18]

    [18] CB 63-65

12. In a decision dated 29 August 2014,[19] the delegate refused to grant the applicant a Protection visa on the basis that the applicant was found not to be a credible witness and the delegate did not “accept the veracity of the applicant’s claims”.[20] The delegate was not satisfied that the applicant faced a real chance of persecution for a Convention reason,[21] and was also not satisfied that he faced a real risk of significant harm if he was removed to Sri Lanka.[22]

    [19] CB 70-80

    [20] CB 73

    [21] CB 77

    [22] CB 79

The Tribunal

1. On 15 September 2014, the applicant lodged an application for review with the Tribunal,[23] which included a copy of the delegate’s decision.[24]

   [23] CB 81-86

   [24] CB 86

2. By a letter dated 16 July 2015,[25] the Tribunal wrote to the applicant informing him that it had considered all the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to attend a hearing scheduled on 16 September 2015 which he attended.[26] At the hearing, the applicant provided the Tribunal with an identity document and a copy of his passport.[27]

   [25] CB 102-103

   [26] CB 108-109

   [27] CB 111-120

The Tribunal’s decision

1. In its decision of 24 September 2015, the Tribunal considered the applicant’s claims to fear harm in Sri Lanka.[28] The Tribunal did not accept that the applicant was a reliable or credible witness and it rejected most aspects of his claims on the basis of the concerns it identified with the credibility of his evidence. The Tribunal found for a number of reasons that the applicant had “fabricated his claims” as to his involvement with the UNP, his leg being broken, his friend being killed and of fearing harm from anyone in Sri Lanka.[29] It relied on the fact that the applicant had applied for a tourist visa for Australia on 30 May 2013, six weeks prior to the claimed 16 July 2013 incident.[30] It did not accept that he had no intention of leaving Sri Lanka prior to the incident.[31] It considered the applicant’s explanations for the dates “unconvincing” and found he had “fabricated a claim”.[32]

   [28] CB 123-131

   [29] CB 130, [49]

   [30] CB 130, [49]

   [31] CB 130, [49]

   [32] CB 130, [49], transcript lines 70-75

2. The Tribunal also found that the applicant would not have been granted a visa to travel to compete in a sporting event if he was “unable to walk” with a broken leg and had to be assisted “dragging his leg”.[33] Nor did it accept the applicant would have placed first in a long jump contest, for which he presented a certificate with his application for a tourist visa in August 2013 with a broken leg.[34] For these reasons, the Tribunal found that the applicant fabricated his claim.

   [33] CB 130, [49]

   [34] CB 130, [49]

3. The Tribunal also did not accept that the applicant was a UNP supporter as his explanations of his involvement in the party were “superficial, lacking knowledge and detail”.[35] It found he had “manufactured his claims” based on newspaper reporting of a known political figure.[36]

   [35] CB 130, [49]

   [36] CB 130, [49]

4. The Tribunal did not accept that the applicant’s newspaper cuttings had provided evidence of his friend being killed on 16 July 2013 or that anyone was killed on that date.[37] The Tribunal considered that if a person was killed as claimed, it would have been reported on and the applicant would be able to provide such evidence.[38] As the applicant could not provide such evidence it did not accept that incident took place.[39]

   [37] CB 130, [49]

   [38] CB 131, [49]

   [39] CB 131, [49]

5. Accordingly, the Tribunal did not accept any of his claims to fear harm in Sri Lanka. The Tribunal found that the applicant was not a credible witness and came to Australia for a sporting event and “remained here opportunistically”.[40]

   [40] CB 131, [50]

Present proceedings

1. The applicant continues to rely upon his application, filed on 27 October 2015.  There is one ground in that application:

   1.The Tribunal denied me procedural fairness by not putting the adverse finding to me for comment in relation to the newspaper cutting I provided about the murder of my friend.

   Particulars

   a. At 49.4 of the Tribunal Decision, the Tribunal made the adverse finding but did not raise this issue with me.

2. The application is supported by a short affidavit filed with it, which I received. 

3. I also received as evidence the Court book, filed on 25 January 2016. 

4. The documents which were unconsidered at the earlier show cause hearing comprise written submissions made on behalf of the applicant on 6 May 2016, and an affidavit made by John Sweeney on 6 May 2016 which introduces a transcript of the hearing conducted by the Tribunal. At no stage were those documents included in this Court’s electronic file relating to this matter.  It was ultimately necessary for my chambers staff to obtain them from the Federal Court appeal file.

5. In addition to those documents, I received from the Federal Court file the affidavit of Mr Sweeney, made on 16 June 2016, explaining the circumstances in which the relevant documents were not dealt with by the registry.

6. The applicant sought to tender in Court today further documents.  These were medical records from the Concord General and Repatriation Hospital. Those documents establish that the applicant is continuing to receive medical treatment at the hospital.  I did not receive the documents into evidence because there is no dispute about the applicant continuing to receive that treatment.

7. The applicant also sought to tender copies of a number of newspaper articles from Sri Lanka in the Sinhalese language. The articles bear dates indicating that they were produced some time in 2013 but the applicant only obtained them in late October this year.  They were, therefore, unavailable to the Tribunal at the time of its decision.

8. The applicant told me that the articles deal with the murder of his friend and his own injury.  With the assistance of the interpreter, I had the applicant read to me two passages from the articles that refer to him in association with his murdered friend.  In essence, the articles report that the applicant and his friend were attacked by political thugs while having tea together.  The applicant was seriously injured and his friend was killed.  There seems little doubt that the articles support the applicant’s protection claims.  However, I declined to receive them as evidence as they do not assist me to resolve the challenge to the decision of the Tribunal. 

Consideration

1. The applicant asserts that the Tribunal fell into error in not putting to him an adverse finding in relation to newspaper cuttings he provided to the Tribunal. In my opinion, there is no substance to this assertion. The applicant appears to assert that the Tribunal breached s.424A of Migration Act 1958 (Cth) (the Migration Act) in failing to disclose and invite comment on the Tribunal’s adverse conclusions about the newspaper cuttings.

2. The applicant’s submissions note that the issue of the cuttings was referred to in the transcript at about lines 90 to 99 but the cuttings were not referred to later when the Tribunal went through a process of disclosure pursuant to s.424AA of the Migration Act in relation to other information.[41]

   [41] transcript, lines 288 to 356

3. There are several answers to this assertion. The first is that s.424A did not apply because the applicant himself gave the newspaper cuttings to the Tribunal. Secondly, the newspaper cuttings, on their face, were not adverse to the applicant’s claims. Thirdly, the Tribunal’s thought processes in relation to the cuttings were not “information” requiring disclosure pursuant to s.424A.

4. To the extent that the applicant might call in aid s.425 of the Migration Act, that section does not assist him. The obligation under that section is to ensure that an applicant understands the essential and significant issues on which the review would turn, to the extent that an applicant may be taken to be unaware of those issues. The obligation relates to issues, but not to every item of evidence connected to an issue. The issue in the review here was the applicant’s credibility. The newspaper cut outs were simply an item of evidence bearing upon his credibility. It is clear from the transcript, that the Tribunal put the applicant on notice about its credibility concerns regarding his claims.

5. In my opinion, no specific reference to the newspaper cuttings in relation to that credibility concern was necessary. In any event, it is plain from the transcript at about line 97 that the Tribunal made clear that it did not find the newspaper cuttings at all helpful. 

6. I otherwise agree with the Minister’s submissions concerning the ground of review.

7. In his written submissions, the applicant states that the transcript of the interview shows that the matter of the newspaper cuttings was raised twice,[42] and that the only other time it was discussed was at the very end of the interview where the Tribunal requested that it be photocopied for the Tribunal’s records. It is further stated that the Tribunal “formally puts information” to the applicant about the possible adverse consequence of information that the Tribunal may rely upon,[43] but nowhere in that section is the issue of the newspaper cuttings raised. 

   [42] lines 92-98

   [43] lines 288-356

8. Contrary to what is alleged, the applicant was on notice from the Tribunal hearing that the Tribunal had searched for reports of murders on 16 July 2013 in Sri Lanka and “could find no reporting of anything”.[44] The applicant told the Tribunal that the incident was only reported in local papers and suggested the Tribunal could phone the police station.[45] The Tribunal put to the applicant that it was up to him to provide evidence of what he was claiming and not up to the Tribunal.[46] The Tribunal found that none of the three newspaper cuttings provided by the applicant indicated the name of a person or of any newspaper or date.[47] The applicant was on notice from this exchange at the Tribunal hearing of the Tribunal’s concerns about the lack of evidence to support this claim. Accordingly, no breach of s.425 can be established in this regard.

   [44] CB 127, [27], transcript lines 83-100

   [45] CB 127, [27]

   [46] CB 127, [27]

   [47] CB 127, [28]

9. In addition, I accept the Minister’s contention that the “absence of information” was not “information” for the purposes of s.424A. Even if the absence of evidence constituted information because it was relied on by the Tribunal in an implicitly positive way to undermine the applicant's claims, in this case, the Tribunal searched for reports of murders in Sri Lanka on 16 July 2013 and could find no reports of such an event. The lack of results was not information “specifically about the applicant”, as the internet search was about murders in Sri Lanka on 16 July 2013 and not about the applicant. Accordingly, any such information fell within the exception in s.424A(3)(a).

10. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by jurisdictional error.

11. I will order that the application filed 27 October 2015 is dismissed.

12. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $5,200.  The applicant did not wish to be heard on costs.

13. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 December 2016