CVB16 v Minister for Immigration

[2019] FCCA 823

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVB16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 823

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – whether the Tribunal’s decision was unreasonable or made without a logical or probative basis – whether there was a contradiction between the applicant’s claims about where he was at certain times and his claim that he was on the Merak boat – whether the Tribunal failed to have regard to the meaning of question 33 in the protection visa application form.

Legislation:
Federal Circuit Court Rules 2001, r.12.02

Applicant: CVB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2104 of 2016

Judgment of: Judge Riley

Hearing date: 8 March 2019

Date of last submission: 8 March 2019

Delivered at: Melbourne

Delivered on: 8 March 2019

REPRESENTATION

Counsel for the applicant: Anthony Krohn appearing pro bono

Solicitors for the applicant: None

Advocate for the first respondent: Melanie Montalban

Counsel for the second respondent: No appearance

Solicitors for the respondents: DLA Piper

ORDERS

1. Pursuant to r.12.02 of the Federal Circuit Court Rules 2001, the matter be referred to the Deputy Principal Registrar of the Federal Circuit Court of Australia to issue a referral certificate for the appointment of Anthony Krohn as pro bono counsel for the applicant to represent him at the hearing of this matter today.

2. The applicant have leave to amend the application filed on 29 September 2016 to delete the existing grounds and add the following grounds:

   1.The Tribunal fell into jurisdictional error in that it was unreasonable or made findings without logically probative evidence.

   Particulars

   The Tribunal had no logically probative evidence from which it could have concluded that there was a contradiction between information given by the applicant about where he was and his claim that he was on the Merak boat.

   2.The Tribunal fell into jurisdictional error in that it failed to have regard to relevant considerations or information.

   Particulars

   The Tribunal failed to have regard to the meaning of question 33 of the application form for the visa and the applicant’s answer to that question.

3. The application filed on 29 September 2016 and amended on 8 March 2019 be dismissed.

4. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $4,608.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2104 of 2016

CVB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)[1]

Introduction

[1]     Reasons for judgment were given orally on 8 March 2019. The applicant filed a notice of appeal on 25 March 2019.  The registry advised chambers on 28 March 2019 that the applicant had filed a notice of appeal. Chambers ordered a transcript of the reasons for judgment on Friday, 29 March 2019.  Auscript provided the transcript of the reasons for judgment on Monday, 1 April 2019. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on 1 April 2019.

1. This is an application to review a decision of the Administrative Appeals Tribunal.  The applicant filed an application in this court, apparently without the benefit of legal assistance.  However, when the matter was called on for hearing today, Mr Krohn of Counsel announced his appearance and indicated that he had been engaged by the applicant previously to consider this matter and had given certain advice.  The applicant did not proceed to file an amended application or engage a solicitor, notwithstanding Mr Krohn’s advice. 

2. Mr Krohn indicated to the court today that he was concerned about the matter and sought to be able to make submissions.  The applicant told the court that he was content for Mr Krohn to be appointed as pro bono counsel on his behalf.  The Minister did not oppose that and Mr Krohn was appointed. 

3. Mr Krohn then sought leave to amend the application.  The Minister did not oppose that leave being granted.  The court made orders as follows:

   The applicant have leave to amend the application filed on 29 September 2016 to delete the existing grounds and add the following grounds:

   1.The Tribunal fell into jurisdictional error in that it was unreasonable or made findings without logically probative evidence.

   Particulars

   The Tribunal had no logically probative evidence from which it could have concluded that there was a contradiction between information given by the applicant about where he was and his claim that he was on the Merak boat.

   2.The Tribunal fell into jurisdictional error in that it failed to have regard to relevant considerations or information.

   Particulars

   The Tribunal failed to have regard to the meaning of question 33 of the application form for the visa and the applicant’s answer to that question.

4. The parties indicated to the court that they were able to make their submissions about the case today. 

5. The background to the matter is that the applicant is a citizen of Sri Lanka.  He is of Tamil ethnicity and was born on 6 April 1987.  He departed Sri Lanka legally on 10 May 2007 and travelled to Malaysia.  He was assessed by the United Nations High Commissioner for Refugees as a genuine refugee.  He arrived in Australia by boat on 9 August 2012.  He applied for a protection visa on 16 January 2013. 

6. The applicant set out his claims in a statutory declaration and attended an interview with the delegate where he elaborated on his claims.  The applicant, relevantly for the grounds that were eventually argued, claimed to have been on the boat known as the Merak boat. 

7. The delegate refused the applicant’s application on 21 August 2014.  The applicant then applied to the Tribunal within time for review of the delegate’s decision. 

8. The applicant was represented at that point.  His representative provided written submissions to the Tribunal.  The applicant gave oral evidence to the Tribunal on 9 June 2016.  Further submissions were provided to the Tribunal following the hearing. 

9. The Tribunal considered, relevantly, that the applicant was not on the Merak boat due to certain inconsistencies in his evidence about that issue.  The Tribunal dealt with the other aspects of the applicant’s claims but, as they have not been raised in the grounds of review, I do not dwell upon them.  The Tribunal affirmed the delegate’s decision. 

10. The argument put today to the court focuses on questions 33, 34 and 35 in the applicant’s protection visa application and the answers to those questions: CB17.  The questions and answers are as follows:

    33Details of countries of former habitual residence or transit before arrival in Australia

County	Arrival date	Departure date	Status (use codes below)	If status was ‘other’ give details
	DAY MONTH YEAR	DAY MONTH YEAR
Sri Lanka	06-Apr-1987	10-May-2007	C
Malaysia	10-May-2007	24-Jul-2012	v & R
Indonesia	27-Jul-2012	07-Aug-2012	O	unlawful

‘Status’ codes
C  = Citizen    T = Temporary resident    V = Visitor    O = Other
P = Permanent resident    S = Student    R = Refugee

34Did you ever travel outside your home country or country of residence before your current journey to Australia?

No ☐

Yes ☑►Give details

Country travelled to	Arrival date	Departure date	Reason for travel
	DAY MONTH YEAR	DAY MONTH YEAR
Malaysia	10-May-2007	24-Jul-2012	seeking refuge

Previous addresses

35Give details of all addresses OUTSIDE AUSTRALIA where you have lived for 6 months or more in the last 10 years

Country travelled to	Dates lived there	Address (specify city/town/village/refugee camp/country)
	MONTH YEAR
From To	PLEASE SEE ATTACHED

1. The relevant attachment (CB51) to the protection visa application form stated:

   PREVIOUS ADDRESSES - FORM 866: Q35; FORM 80: Q45

Date lived there		Country	Address
From	To
22/11/2012	Current	Australia	7 Roma Court, EUMEMMERRING Vic
9/8/2012	22/11/2012	Australia	Various detention centres
2010	26/06/2012	Malaysia	Seramban, 2 Chembaka Flats,
10/2008	2010	Malaysia	Selanthan, Seramban
05/2007	10/2008	Malaysia	Rantau Seramban
04/2007	05/2007	Sri Lanka	Vivekanantha St., Colombo
2006	04/2007	Sri Lanka	Green Road, Trincomalee
03/1987	End 2006	Sri Lanka	Barathi St., ACHIVELLI, Jaffna
1995	2006	Sri Lanka	Numerous short periods of displacement to the following camps: Avarangal; Chavachchery; Manthivil

1. The Tribunal considered the claim that the applicant was on the Merak boat at paragraphs 26 and 27 of its reasons for decision.  Those paragraphs are as follows:

   26.The Tribunal has considered the applicant’s claim that he was on-board the “Merak” boat and that the Sri Lankan government announced that those on board were LTTE and therefore he has a fear as a result of this incident too. The Tribunal asked the applicant when he boarded the boat in Malaysia and he stated it was “somewhere” in August 2009, although he also indicated that he had forgotten the month. The applicant claimed he was on the boat for a period of around two months. He also claimed that he just walked off the boat, the normal way, and went and stayed in a different place. In response to the Tribunal’s question as to whether there were navy people around the boat at the time, the applicant stated at that time you could get off, walk, play - anything you could do. When the Tribunal queried whether he could just walk off the boat, play and get back on the boat, the applicant stated yes, that they were able to go freely in the harbour and come back on to the boat.

   27.The Tribunal does not accept the applicant was on the Merak boat as it does not find his evidence to be consistent with the independent information regarding the situation on the boat, including the information cited by the applicant’s adviser in their submission received following the hearing, which refers to the somewhat dire situation on the boat. As the Tribunal put to the applicant, the independent information does not suggest that people were free to get on and off the boat as they like, as he suggested. Further, the Tribunal notes according to the applicant’s protection visa application the applicant claimed that he was in Indonesia from 27 July 2012 to 7 August 2012. The Tribunal notes, according to the adviser’s submission, consistent with independent information, the boat intercepted by [the] Indonesian navy after departing from Malaysia was moored in the Indonesian port of Merak for some six months between October 2009 and April 2010.  The Tribunal finds the applicant’s evidence in his protection visa application regarding his period of stay in Indonesia, conflicts with his evidence that he was on board the Merak boat for a period of around two months from what would have been October 2009 when it was first moored in Merak. For these reasons, the Tribunal does not accept that the applicant was on the Merak boat and instead finds that he has embellished this aspect of his claims in an effort to bolster his case. As the Tribunal does not accept that the applicant was on this boat, it does not accept that the applicant’s name was taken when he was allegedly on this boat and the Sri Lankan government would know that he was on the boat, as submitted by his adviser, or that he will be well-known to the Sri Lankan authorities due to the publicity which surrounded the incidents in Merak, as the applicant claimed in his statutory declaration attached to his protection visa application. The Tribunal therefore does not accept that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future for reasons of his membership of a particular social group of Tamils on the “Merak boat” or an imputed political opinion based on his alleged presence on the Merak boat.

2. The applicant’s argument today was, essentially, that question 33 in the protection visa application form was directed to the status of the applicant’s position in the various countries that had been his countries of habitual residence prior to coming to Australia and that the other questions associated with that asked for different things, such as question 34, which asked about travel, and question 35, which asked about addresses where the applicant had lived for more than six months in the previous 10 years. 

3. The submissions of the applicant did not acknowledge that question 33 does not only ask about countries of former habitual residence, but also asks about countries in which the applicant was in transit before his arrival in Australia.  The actual question is Details of countries of former habitual residence or transit before arrival in Australia (emphasis added).  It is true that one of the columns in the form provided for the answer to that question does ask about the status of the applicant in each of those countries of his former habitual residence or in which he transited.  However, it does not seem to me that the fact that that column is in the form alters the essence of the question, which was directed to the applicant divulging both any country in which he was a habitual resident and any country in which he was in transit before his arrival in Australia. 

4. Consequently, I do not accept that the Tribunal made the error alleged in both of the applicant’s grounds.  The Tribunal noted that the applicant had declared that he was only in Indonesia from 27 July 2012 to 7 August 2012 (CB17).  It is a matter of record that the Merak boat was in Indonesia between October 2009 and April 2010.  It was, therefore, open to the Tribunal and not irrational for the Tribunal to consider that the applicant had given information in his protection visa application that was not consistent with the independent information about when the boat was in Indonesia. 

5. The Minister argued that the Tribunal had a separate and distinct ground for disbelieving the applicant’s claims about the Merak boat.  That was that the applicant claimed that, while in the port of Merak on the boat, he was free to come and go, when the independent information indicated that that was not the case.  In addition, the applicant said that he was on the boat for two months, when the independent information was that people were on the boat for six months. 

6. Whether these were truly separate reasons for the Tribunal’s ultimate conclusion that the applicant was not on the boat and had fabricated that claim and, indeed, other claims, to some extent is irrelevant because I do not accept the challenge to the point arising from question 33 in the protection visa application form. 

7. However, in my view, the reasons were separate.  That is because the first two sentences of paragraph 27 deal with one reason and the Tribunal says specifically that it does not accept that the applicant was on the Merak boat for that reason.  The Tribunal then goes to another reason, beginning with the word “further”.  In itself, what follows is a separate reason that, by itself, would have been a sufficient reason for the Tribunal to reach the conclusions that it did. 

8. The Tribunal did not say, as the Tribunal sometimes does, that, taking into account two, three, four or five different matters, the Tribunal did not accept the claim.  The structure of the Tribunal’s reasons seems to me to indicate that it regarded each of the reasons by themselves as separate and sufficient. 

9. All in all, I am not persuaded that the grounds relied upon by the applicant have any substance.  Consequently, the application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  1 April 2019