CVW16 v MINSITER for Immigration

[2019] FCCA 3478

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVW16 v MINSITER FOR IMMIGRATION & ANOR [2019] FCCA 3478

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal failed to appreciate the particular nature of the task or to perform it reasonably and fairly – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Applicant: CVW16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2690 of 2016

Judgment of: Judge Street

Hearing date: 2 December 2019

Date of Last Submission: 2 December 2019

Delivered at: Sydney

Delivered on: 2 December 2019

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Direct access

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: HWL Ebsworth

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The Court grants leave to the applicant to rely upon the amended application annexed to the applicant’s submissions filed on 17 November 2019 and the Court dispenses with the need for the filing of an electronic copy of the same.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 2 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2690 of 2016

CVW16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 September 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection (Class XA) visa (“Protection visa”).

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be of Tamil ethnicity and of the Hindu religion. The applicant was found to be from a particular village in the Northern Province of Sri Lanka.

3. The applicant allegedly had been in an Internally Displaced Person (“IDP”) camp from 2009 until January 2010. The applicant alleged that, while in the IDP camp, he was questioned about links that he might have had to the Liberation Tigers of Tamil Elam (“LTTE”) and about his older brother who was in the LTTE. When the applicant was released from the IDP camp, he was released without any reporting conditions or other requirements and was able to return to a normal life. The applicant was not detained or sent to a rehabilitation camp. The applicant identified that, about a month after returning to his village, his family travelled to India for about a year in February 2010. The applicant then returned to Sri Lanka.

4. On 29 July 2012, the applicant departed Sri Lanka illegally by boat. On 16 August 2012, the applicant arrived on Christmas Island as an irregular maritime arrival.

5. On 16 January 2013, the applicant applied for a Protection visa. The applicant claimed to fear harm by reason of his Tamil ethnicity and place of origin, imputed or actual links to the LTTE, including through is brother, and by reason of his illegal departure from Sri Lanka and seeking protection in Australia.

6. On 13 February 2014, the Delegate found that the applicant failed to meet the criteria for the grant of a Protection visa.

7. On 3 March 2014, the applicant applied to the Tribunal for review of the Delegate’s decision. By letter dated 23 December 2015, the Tribunal invited the applicant to attend a hearing on 17 February 2016. The applicant appeared at the hearing on that date to give evidence and present arguments.

8. Following the hearing, by letter dated 24 March 2016, the Tribunal invited the applicant to comment on information. The applicant responded to that letter on 27 April 2016. The applicant also provided a further response on 12 May 2016. Each response is referred to in the Tribunal’s reasons.

9. The Tribunal in its reasons identified the background to the application for review of the Delegate’s decision. The Tribunal identified the relevant law. The Tribunal summarised the applicant’s claims.

10. The Tribunal accepted the applicant’s claim in relation to the IDP camp. The Tribunal did not accept the applicant’s claims that, after release from the camp, the applicant continued to be harassed until his departure from Sri Lanka. The Tribunal also did not accept that the applicant went into hiding prior to his departure from Sri Lanka.

11. The Tribunal did not accept that the Sri Lankan authorities or anyone else detained or threatened the applicant, that the applicant was accused or suspected of involvement in the LTTE between the time he returned to Sri Lanka from India in May 2011 and his departure for Australia on 29 July 2012 or that he was in hiding at any time prior to his departure.

12. The Tribunal accepted that the applicant’s brother was an LTTE member and that he was released from a rehabilitation camp in 2011. The Tribunal, however, did not accept that the applicant provided an entirely accurate or honest account of his brother’s experiences between his release from detention and his departure from Sri Lanka.

13. The Tribunal identified contradictions in the applicant’s assertions in relation to his brother’s documents being taken. The Tribunal found that the applicant had not provided honest or accurate evidence in respect of the alleged confiscation of his brother’s documents.

14. The Tribunal did not accept the applicant’s claim that his brother was repeatedly harassed and questioned about the applicant after he left Sri Lanka.  The Tribunal, in light of the credibility findings, also rejected the applicant’s claim that his father, brother-in-law and sister were questioned in 2014 and that his brother-in-law was beaten or detained following his brother’s departure from Sri Lanka because of their association with the applicant.

15. The Tribunal accepted that the applicant departed Sri Lanka illegally.

16. The Tribunal did not accept that the applicant faces a real chance of being persecuted for any of the reasons advanced if he returns to Sri Lanka within the reasonably foreseeable future.

17. The Tribunal did not that accept there is a real chance the applicant will be suspected or accused of being involved in the LTTE because his father was abducted by the group sometime between 2006 and 2009. The Tribunal did not accept there was a real change the applicant would be imputed with pro-LTTE or anti-government or any other political opinions because of his association with his father.

18. The Tribunal did not accept that the applicant faces a real chance of serious harm in the reasonably foreseeable future if he returns to Sri Lanka because he was already suspected of holding pro-LTTE views or because of involvement in any other anti-government views or activities or any other reasons because he has resided in Australia for several years and applied for protection during that time.  

19. The Tribunal referred to the applicant’s illegal departure. The Tribunal did not accept that the imposition of a fine for that offence constitutes serious harm or that the applicant faces a real chance of suffering any other serious harm in Sri Lanka because of his illegal departure.

20. The Tribunal did not accept that the applicant faces a real chance of persecution on return to Sri Lanka because he worked as a fisherman in the past or because he might work as a fisherman in the future.

21. Considering the applicant’s claims cumulatively, the Tribunal was not satisfied that there was a real chance the applicant would suffer serious harm amounting to persecution in the reasonably foreseeable future for a 1951 Refugee Convention reason if he returns to Sri Lanka. The Tribunal did not accept that the applicant has a well-founded fear of persecution for a 1951 Refugee Convention reason. Accordingly, the Tribunal found that the applicant did not satisfy the criteria in s 36(2)(a) of the Act.

22. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. Accordingly, the Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act.

23. Accordingly, the Tribunal affirmed the decision under review.

Ground in the Amended Application

1. The ground in the amended application as follows:

   1. The applicant claimed, and the Administrative Appeals Tribunal (“the Tribunal”) accepted, that the applicant “spent about a month in his village before travelling to India in February 2010”: CB 234 [18]. The applicant claimed that he was questioned by the authorities in this period. The Tribunal found at [22] that “the applicant gave inconsistent evidence regarding these events because his claims are not true.” The Tribunal fell into jurisdictional error in making this finding. Specifically, the Tribunal, in moving from the finding of “inconsistent evidence” to the conclusion of “his claims are not true”, failed “to appreciate the particular nature of the task, or to perform it reasonably and fairly” as explained in AVQ15 v Minister [2018] FCAFC 133 at [28]. The Tribunal’s error was material.

2. Mr Zipser of counsel on behalf of the applicant referred the Court to the applicant’s statement at page 78 of the Court Book where, at paragraph 11, the applicant said:

   In 2010, my family and I returned to our village. The civil authorities came to my home two or three times and asked me about my brother. They did not believe me when I said that I did not know where he was. Young boys in situations like mine went missing during this time. I started hiding.

3. Mr Zipser also took the Court to the Tribunal’s invitation to the applicant to comment and the applicant’s response, relevantly at page 207 of the Court Book, where the applicant referred to his statutory declaration and said that it should be read as if the reference to questioning on each occasion of attendance by the authorities was not intended and that, if it had intended to say that the applicant was questioned on all visits, it would have said that the authorities came on two or three occasions and asked the applicant about his brother on each visit.

4. The significance of the difference was obviously seeking to ensure consistency in respect to the applicant’s claim that he went into hiding.

5. Mr Zipser drew attention to the setting out of what occurred at the interview before the Delegate and, in particular, the applicant’s response to the question about how life was for the applicant and his family when they returned to their village in 2010. Mr Zipser also referred to the Delegate’s reasons and, in particular, at page 108 of the Court Book where there is a reference to that question being asked at the interview, a reference to the applicant being asked why he was questioned and the applicant’s claim that the authorities came to ask him about his brother’s whereabouts and involvement in the LTTE. The Delegate then referred to a question about how the authorities would know about his brother’s involvement in the LTTE.

6. The Tribunal in its reasons expressly referred to the submissions advanced by the applicant in relation to the invitation to comment letter and, in particular, the passage about the authorities visiting the home. The Tribunal accepted that the submissions correctly pointed out that, contrary to the letter to comment, the applicant had not repeated the claim that he was questioned by officials in early 2010. The Tribunal expressly referred to having listened to the recording in identifying that the invitation to comment letter, in that regard, was not correct.

7. The Tribunal referred to it not being uncommon for honest applicants to give different accounts of past events and acknowledged the applicant’s youth and background and the stressful situation in respect to the confusion in his evidence. The Tribunal did not, however, accept that the applicant would have been confused about whether he, himself, had been questioned by officials about his brother or his father had been questioned about him. The Tribunal then found that the applicant had given inconsistent evidence regarding these events because his claims in that regard were not true.

8. Mr Zipser contended that there was no inconsistency between the applicant’s evidence to the Tribunal that the authorities questioned the applicant’s father about the applicant and the fact that the applicant did not refer to this in his statement. Mr Zipser contended that there was no inconsistency between the applicant’s end position that the authorities questioned both the applicant’s father about the applicant and the applicant about his brother. Mr Zipser submitted that the questioning by the authorities did not support an inconsistency and that this was a material finding in the Tribunal’s adverse determination in respect to the applicant’s credit and that, accordingly, the Tribunal had fallen into jurisdictional error in its conclusion that the applicant’s claims were not true or in its evaluation of the applicant’s credibility in relation to his claims.

9. The difficulty with the submissions advanced by Mr Zipser is that it is apparent, as acknowledged in paragraph 20 of Mr Zipser’s submissions, that the applicant gave evidence to the Tribunal referred to in paragraph 20 of the Tribunal’s reasons that the authorities had questioned his father about the applicant and denied that the authorities had questioned the applicant about his brother.

10. Mr Zipser accepted that, in those circumstances, there were inconsistencies but contended that there was no inconsistency in respect to the application’s end position. That is, in substance, an invitation to this Court to engage in merits review.

11. The adverse finding by the Tribunal at paragraph 22 of its reasons as to the applicant having given inconsistent evidence about the questioning by officials about his brother or his father being questioned about him was open to the Tribunal, for the reasons given by the Tribunal, and does not reflect any illogicality, misunderstanding or unreasonableness.

12. There is nothing on the face of the Tribunal’s reasons to suggest that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits. There is no basis to find that the Tribunal did not perform its task reasonably and fairly. The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification.

13. The Court accepts the first respondent’s submissions that, when the Tribunal’s reasons are read as a whole, it cannot be said that there was any material evidence that was overlooked or not considered by the Tribunal and the inconsistencies found by the Tribunal were not insignificant and trivial matters.

14. The Tribunal identified in its reasoning the nature of the applicant’s claims in respect of the questioning by authorities. The Tribunal also took into account the implausibility of the applicant’s claims and the country information before the Tribunal. The Tribunal took into account the difficulty faced by the applicant understanding questions and the difficulty giving evidence. The Tribunal’s reasons reflect comprehensive assessment of the applicant’s credibility and an appropriately nuanced assessment in that regard. The assessment was not reached unreasonably or without consideration of critical evidence.

15. No jurisdictional error as alleged in the amended application is made out.

16. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 2 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  26 February 2020