CYH16 v Minister for Immigration
[2020] FCCA 1596
•18 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CYH16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1596 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – matter previously remitted to the Administrative Appeals Tribunal – amended application – adverse credibility findings – illogical – no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 65. Migration Regulations 1994 (Cth), Sch.2 |
| Cases cited: MZZJO v Ministerfor Immigration and Border Protection [2014] FCAFC 80 |
| Applicant: | CYH16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2180 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 March 2020 |
| Date of Last Submission: | 19 March 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 18 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lipinski |
| Solicitors for the Applicant: | Russell Kennedy Solicitors |
| Counsel for the First Respondent: | Mr Goodwin |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2180 of 2016
| CYH16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
On 7 October 2016 the applicant filed an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 26 September 2016. That decision affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa pursuant to s.65 of the Migration Act 1958 (‘the Act’).
The applicant, who is a Tamil citizen of Sri Lanka born in 1994, arrived in Australia as an irregular maritime arrival in July 2012 and applied for a Protection (Class XA) visa in November 2012. This application was refused by a delegate of the Minister on 10 April 2014 on the grounds that the applicant did not satisfy ss.36(2)(a) or 36(2)(aa) of the Act.
A Tribunal reviewed that decision on 24 April 2014 (‘the first Tribunal’) and affirmed the decision on 23 July 2015. On 9 February 2016, this court remitted the first Tribunal decision for redetermination as the Minister had conceded the decision was effected by jurisdictional error due to a failure of the Tribunal to have considered the applicant’s fear of harm by extortion from corrupt state and non-state agents: see CB pp.261 to 267.
The applicant subsequently attended a hearing on 15 June 2016 before a reconstituted Tribunal (‘the second Tribunal’) and was assisted by a Tamil interpreter during this hearing. This Tribunal also affirmed the decision of the delegate not to grant the applicant the visa he sought. The applicant filed for judicial review of this decision on 7 October 2016 and filed an Amended Application on 20 February 2020 which abandoned the first two grounds sought in the original application and set out grounds 3 and 4 which are the subject of this decision.
Grounds for Review
The grounds for review in this matter focus on paragraphs [24], [26] and [28] of the Tribunal’s decision, which are as follows:
24. I have considered carefully the applicant's claims but I do not consider him to be a credible witness. I am of this view for the following reasons:
· The applicant's evidence has been marked by a high level of inconsistency. For example, he told the first Tribunal that his father was abducted on 23 March 2006 during the evening and that he was at home at the time. However, the copy of a police report relating to a missing person, dated 18 May 2012, he has submitted indicates that the event occurred on 6 March 2006 at 10.30am. At the hearing the applicant said he was 11 years old at the time and he had asked his sister and she had told him the date. I have taken into the applicant's age at the time and the passage of time and whilst I do not expect that the applicant would be able to recall the exact date, his inability to recall consistently the approximate time of day (morning compared to evening) detracts from his credibility.
· The applicant told the first Tribunal that the police were informed by his mother twice of the kidnapping, first in 2006 and then probably in 2008 but he could not remember. He then told the first Tribunal that the second entry with the police was made in 2007 after his family had relocated for a period of three months. However, he told this Tribunal that there was no complaint made when his father went missing in 2006 and that they were living in an LTTE controlled area and that it was difficult to make a complaint to the police. The applicant commented that they had not made a complaint to the police but had made it to the Red Cross and UNHCR but he had earlier said this occurred in 2007-09. He later claimed that his mother was mentally disturbed. However, I do not accept that this provides a satisfactory explanation as to why he had first stated that the authorities were told in 2006 and I find this further detracts from his credibility.
· The applicant told the first Tribunal that since he had left Sri Lanka, his family had been questioned twice on 25 July 2014 and on 8 April2015 but his family had not been questioned or enquiries made about him on any other occasion. However, according to his statutory declaration, two CID officers had visited his house on 3 October 2012 and his mother had told them that he had left for Australia and the officers subsequently went away. The applicant commented that he was here in Australia and was always calling his mother and whatever she told him, he provided. He later claimed that his mother was mentally disturbed. I have considered his comments, but I do not accept that they explain this inconsistency and I find this further detracts from his credibility.
· The applicant told the Tribunal that his father was abducted by unidentified men and that he was young at the time and it could have been anyone. However, the submitted copy of the May 2012 report specifically mentions the name of the man who took his father away on a motorcycle as being Priyaranjan, a member of the Kurichchamunai Liberation Tigers Organisation. Furthermore, the applicant submitted a document which he said was a complaint to the Human Rights Commission Presidential Commission of Missing Persons dated 11 February 2014. He said that it stated it was the Sri Lankan army who had caused his father to go missing. The applicant told the Tribunal that he had not made the complaints and that initially he did not know who kidnapped his father and that his mother said in the complaint it was the army but he did not know why and he got the information from his mother. I have taken this into account but it does not explain why these complaints from his mother would list inconsistently refer to the perpetrators as being the army and the Liberation Tigers and why the applicant in 2016 would say that it could have been anyone responsible and I find this further detracts from his credibility.
· The applicant claims that his father was abducted in 2006 but he claims that his mother did not make a complaint to the police until May 2012. He told the first Tribunal that he did not know why this was the case. He told this Tribunal that they were living in a LTTE area and could not go to the other side. However, the LTTE were militarily defeated in May 2009 with the Sri Lankan government in complete territorial control of Sri Lanka [FN omitted] and the applicant could not provide any explanation as to why his mother would wait so long after that before making a complaint to the police.
· As set out in the delegate's decision (a copy of which was submitted to the Tribunal), the applicant claimed in his entry interview that he had not been arrested in the past. However, he later claimed in his statutory declaration that he had been arrested by the police on five occasions. The applicant commented that he had talked about the grease men but he said he had told them about the arrests. I have considered his comments, however the record of entry interview does not indicate that he told them he had been arrested by the police and I find this further detracts from his credibility.
[…]
26. Given these significant concerns about the applicant's credibility, I do not accept that his father was abducted by an unknown militant group, the army or anyone else. I do not accept that in 2011, "greasemen" came to his village but managed to escape after stabbing a few women in the crowd. I do not accept that the applicant was involved in a protest against the greasemen. I do not accept that the following day, the CID came to his village and arrested all of the fit adult men including the applicant. I do not accept that he was detained for one day in the military camp and physically assaulted by the officers and that he was of adverse interest to them because his father had gone missing in a LTTE area. I do not accept that the applicant was released the following day and required to report twice weekly to the camp. I do not accept that he was also required to provide two days' notice if he wanted to leave the camp. I do not accept that two weeks before he departed Sri Lanka, two CID officers came to his house and took him to the nearby camp where he was arrested five times over a period of two weeks. I do not accept that in October 2012, after the applicant's departure from Sri Lanka, two CID officers visited his mother at the family home. I do not accept that his mother told them he had left for Australia and the officers went away. I do not accept that his family has also been questioned twice in July 2014 and April2015 and there have been other visits since concerning his whereabouts. I do not accept that the applicant is or was of adverse interest to the Sri Lankan authorities or anyone else.
[…]
28. The applicant has not claimed that the grease devils have caused any harm since 2011 and the country information from DFAT set out above indicates that there have been no reports of sightings since 2011. The Tribunal has not identified any reports that the grease men have re-emerged [FN omitted]. At the hearing, the applicant said that he was not claiming to fear the greasemen but it was because of his protests against them. I have already rejected that the applicant is or were of adverse interest to the authorities arising from these protests. Given the country information and his individual circumstances, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any reason (including a Convention reason) on this basis.
Ground Three
Ground 3 alleges that the credibility findings of the Tribunal were illogical, and is expressed as follows:
3. The Tribunal erred by reason that its findings as to the applicant's credibility and rejection of the Applicant's claims for protection based on those findings were illogical in the sense described by the High Court in MIAC v SZMDS (2010) 240 CLR 611.
Particulars
1. The adverse credibility findings at [24] of the Tribunal decision were based on minor inconsistencies and trivial errors.
2. There was no logical connection between the Tribunal's adverse credibility findings at [24] and its rejection of the factual matters underlying: the Applicant's protection claims at [26] and [28].
The applicant argues that it was legally unreasonable for the Tribunal to rely upon the inconsistency of the applicant’s version of his father’s abduction, as set out in the Decision: see paragraph [24], dot point 1, (set out above). The applicant points to the fact that the Tribunal member refers to the dates of an incident that occurred when the applicant was only eleven years old. This interpretation is an unfair reading of the Tribunal’s reasons. Read as a whole it is clear that the important difference in the version presented by the applicant to the Tribunal was based upon the time at which the applicant said his father was abducted, that is, mid-morning contrasted with an earlier claim it was in the evening. Whilst one would not ordinarily expect an 11 year old to recall dates or times precisely, the difference between mid-morning and evening is noteworthy. It is not legally unreasonable for the Tribunal to place weight upon this significant difference in the evidence of the applicant and the police report, even if the applicant were only eleven years old at the time.
The applicant also argues that his differing evidence about what complaints were made (as set out in paragraph [24] dot point 2, above) is in a similar category. Whilst the applicant may not have had a precise recollection of the events concerning complaints about his father’s abduction, this would not explain why his version changed between hearings when he was recounting his childhood memories. This is a change in versions that would not be legally unreasonable for a Tribunal to take into account.
The applicant submits that in the fourth dot point to paragraph [24] of the decision, the finding of the Tribunal in relation to inconsistency in his mother’s conduct in reporting the alleged abduction of the applicant’s father, supported a finding on credibility and that this was irrational. The applicant’s mother initially said it was named persons from a Liberation Organisation involved in the father’s abduction, then when making a report to a Human Rights Commission said that it was the army. These differences significantly undermine the applicant’s mother’s credibility. The applicant argues that this evidence was relied upon (at least in part) to find that the applicant’s credibility should be rejected. Importantly, the applicant relied upon these reports as supporting his claim. It is not irrational to find that when supporting evidence led by an applicant is rejected this impacts negatively on the applicant’s credibility: just as supporting evidence which is accepted, is liable to bolster credibility.
I am not persuaded that considering this evidence in the context of all of the other evidence referred to in order to assess the applicant’s credibility is an error. If I am wrong in this regard, it is none the less such a minor error of fact in the context of the decision as a whole that it would not result in a finding of relief.
In the final dot point in paragraph [24] the Tribunal considered and relied upon the inconsistency in evidence given by the applicant in relation to whether he had ever been arrested. The applicant’s version changed between his entry interview and a later statutory declaration. The applicant points to the reasoning by North, Bromberg and Mortimer JJ in MZZJO v Ministerfor Immigration and Border Protection [2014] FCAFC 80 (‘MZZJO’), as follows:.
56. […] some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
The reliance upon MZZJO is not apt in this matter. The aforementioned case concerned an omission of a matter from an entry interview, rather than a direct contradiction upon a fact that would ordinarily be central to a protection claim, that is, whether the applicant had previously been arrested. The fact that an entry interview is a summary form of a claim means it must be treated with care, as things may be omitted. The circumstances of such an interview do not explain inconsistencies.
The applicant also argues that the adverse credibility findings did not provide a sound basis for rejecting the applicant’s claims in paragraphs [26] and [28] of the decision. The applicant framed the argument on the basis that there needed to be a direct connection between the matters leading to the adverse credibility finding and all of the claims that were rejected. This argument must be rejected. If an applicant or a witness is found to be without credibility it is open to a decision maker to reject all or part of their evidence. The Tribunal listed a large number of matters to show why it rejected the applicant’s credibility. All of those matters went to the overarching issue of his credibility. Once the Tribunal formed the view that the applicant was not credible then there was nothing illogical about rejecting all of his evidence.
As a result I am not persuaded that there is any judicially reviewable error in the Tribunal’s findings as to the credibility of the applicant.
Ground Four
Ground 4 is expressed as:
4. The Tribunal erred by reason that it failed to consider the Applicant’s claims to fear harm from local authorities by reason that in 2011 the Applicant and other persons from his village protested against “Grease Yakas”.
Particulars
1. The Applicant made those claims in Submissions dated 15 July 2013 (Court Book 81), and in oral evidence at hearing before the delegate (Court Book 121 and 123).
2. The Tribunal did not consider those claims, and rejected those claims based solely on unrelated credibility findings ([24], [26] and [28]).
3. The claims would or could have been dispositive of the review in the manner described by the Full Court in NABE v MIMIA (2004) 144 FCR 1 at [63].
The argument under this ground appears to be a more specific form of the argument in Ground 3: that it was not open to the Tribunal to reject the applicant’s evidence where he claimed to have protested against ‘Grease Men’, as the specific matter that undermined his credibility, were related to other parts of his evidence. This ground must be rejected for the same reasons. That the Tribunal also considered whether there were even ongoing reports of ‘Grease Men’ does not show an error. It was appropriate for the Tribunal to consider this matter, as it arose out of the claim. Unfortunately for the applicant the country information provided no support for any ongoing concerns about ‘Grease Men’. Had the country information been different it may have provided some support for the applicant’s version or shown some ongoing risk.
I am not persuaded that the applicant has made out this ground.
Conclusion
In this matter the applicant has not made out a ground and therefore the application must be dismissed.
The parties agreed that costs should follow the event and I therefore order that the applicant pay the respondents costs at the agreed sum of $5,500, which is less than the scale fee.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 18 June 2020
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