DZAAB v Minister for Immigration and Citizenship

[2012] FCA 999

FEDERAL COURT OF AUSTRALIA

DZAAB v Minister for Immigration and Citizenship [2012] FCA 999

Citation:		DZAAB v Minister for Immigration and Citizenship [2012] FCA 999
Appeal from:		DZAAB v Minister for Immigration & Anor [2012] FMCA 295
Parties:		DZAAB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
File number:		NTD 20 of 2012
Judge:		MANSFIELD J
Date of judgment:		13 September 2012
Date of hearing:	28 August 2012
Place:	Darwin
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	29
Counsel for the Appellant:	N Karapanagiotidis
Solicitor for the Appellant:	Northern Territory Legal Aid Commission
Counsel for the First Respondent:	T Anderson
Solicitor for the First Respondent:	Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 20 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DZAAB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	MANSFIELD J
DATE OF ORDER:	13 SEPTEMBER 2012
WHERE MADE:	DARWIN

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay to the first respondent costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION	NTD 20 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

DZAAB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
Second Respondent

JUDGE:	MANSFIELD J
DATE:	13 SEPTEMBER 2012
PLACE:	DARWIN

REASONS FOR JUDGMENT

INTRODUCTION

1. The appellant is a young woman from Sri Lanka.  In April 2010, she arrived at an “off-shore place” namely Christmas Island.  She had a Sri Lankan passport, and it is accepted that she is a person of Tamil ethnicity born in Babuniya, Sri Lanka.  She is fluent in the Tamil language.

2. From the time of her initial interview, she asserted that she could not return to Sri Lanka because her life was in danger.  In essence, she claimed to fear persecution by reason of her Tamil ethnicity, and her perceived political association with the Liberation Tigers of Tamil Elam (LTTE).  She subsequently gave a detailed history of her experiences in Sri Lanka which, she claimed, gave rise to a well-founded fear of persecution.  That claim was rejected by an officer of the Department of Immigration and Citizenship, in a Refugee Status Assessment Record dated 2 September 2010, on the basis that she did not have a well-founded fear of harm and that there was no real chance of her being persecuted by reason of her expressed fears on returning to Sri Lanka.

3. An Independent Merits Review of her claims was undertaken at her request. On 21 January 2011, the reviewer found that she did not meet the criteria for a protection visa set out in s 36(2) of the Migration Act 1958 (Cth) (the Act). He recommended that she not be recognised as a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150, as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1976, 606 UNTS 267 (together, the Convention).

4. The independent reviewer accepted that, despite the end of armed conflict, the Sri Lankan Government nevertheless detains any Tamils it considers are active supporters of the LTTE.  Consequently, the reviewer addressed whether there is a real chance that the Sri Lankan Government might consider that the appellant, should she return to Sri Lanka, would be an LTTE supporter.

5. The independent reviewer concluded that there was no such risk.  In essence, he said that there were such serious inconsistencies in her claims that he could not accept her to be a credible witness.  He addressed a series of claims and explained why he found significant inconsistencies in them.  He found that her claims of her past experiences in relation to asserted activities which attracted the interest of the Sri Lankan authorities to be fabricated.  He also noted that she had passed through immigration control in Sri Lanka without trouble three times in the last few years prior to her departure from Sri Lanka, as evidencing a lack of interest on the part of the authorities in her prior to her final departure from Sri Lanka.

6. It is that conclusion which was the subject of particular attention on this appeal.

7. I note that the independent reviewer, in addition, considered and accepted that the appellant, upon her return to Sri Lanka, may be interrogated by the Sri Lankan authorities to determine whether she is considered as a security threat.  That would occur because she was returning from Australia as a person who had applied for a protection visa.  However, that of itself was not found to involve any real risk of her being persecuted.  That aspect of the reviewer’s decision was not subsequently challenged.

8. As to the primary conclusion, the appellant sought judicial review of that conclusion by a Federal Magistrate.  On 13 April 2012, a Federal Magistrate dismissed her application for judicial review of her claim: DZAAB v Minister for Immigration and Citizenship [2012] FMCA 295.

9. This is an appeal from the decision of the Federal Magistrate. 

   THE APPELLANT’S CLAIMS

10. The appellant relevantly claimed that there was an air force base close to her home, and that one night some men from the air force base came to her home and wanted to question her on suspicion that she had some involvement with the LTTE.  She was taken to the base but escaped.  She believed that those men intended to rape her.  She claimed that she and her brother had left for India after that experience, but when their visas for that country expired she had returned to Sri Lanka and hidden in Colombo whilst her father made arrangements for them to go to Malaysia, and from there to Australia.  She also claimed that she had been abducted by men in a white van in Colombo before she had departed Sri Lanka for the final time.  The men had blindfolded her, and taken her with a view to abducting her.

11. She also claimed to the IMR on interview that she was a very close friend to a woman known as D who had been killed by the authorities in Sri Lanka on suspicion on involvement with the LTTE.  The relevant passage from the reasons for decision of the IMR is as follows:

    The reviewer notes that there had been no mention of her association with a person called [D] until the review interview despite the fact that it has now become a central aspect of her evidence.  In the light of this, the reviewer finds that this claim has been fabricated in order to strengthen her claims.  The reviewer is further strengthened in the finding that her relationship to a person called [D] is a fabrication because of her claim that she was already under suspicion about her relationship with [D] for some two years before [D] was killed and that she had been taken in for questioning because of this.  However, she had never mentioned this in previous interviews or statements.   The Reviewer finds her explanation that she had not mentioned this because her brother had not yet arrived in Christmas Island not to make sense and notes that she in fact failed to mention it at her RSA interview subsequent to her brother’s arrival on Christmas Island.  The reviewer also finds her explanation, that she was awaiting “evidence”.  The reviewer accepts that the death certificate tendered may well be genuine but does not accept that the claimant had been friends with a Tamil sympathiser, [D], who was killed in 2008.

    The reviewer notes that she has at different times claimed to have been taken by herself only once to the air force base, that she was taken there with a neighbour hood girl, and at on [sic] another occasion has claimed to have been taken there twice.  The reviewer finds these inconsistencies demonstrate that she was fabricating these claims and had in the process confused herself and finds that she was never detailed as claimed.

    The reviewer notes that her claim about the white van and abduction in Colombo was not made initially, was then advanced at the RSA interview, was at the review interview initially denied and subsequently again claimed with alleged ransom perpetrators being linked to the CID.  The Reviewer finds that the inconsistencies are of such a great nature as not to be explicable by the claimant having suffered trauma or being under stress at the time of the interviews and finds that the inconsistencies of her evidence are sufficiently significant and clear cut that they cannot be explained away by trauma and/or stress.  In the light of these inconsistencies, the reviewer further finds that her parents have not received extortion threats nor that they are in hiding, and finds further that the claimant is not a member of a particular social group being a member of a family which has received extortion threats.

12. Both before the Federal Magistrate and on this appeal, the appellant asserts through counsel that the IMR denied her procedural fairness by proposing of its own motion to call her brother as a witness, when he was present in the vicinity of the hearing and may have corroborated her claims.  It was contended on her behalf that the failure to call the brother in the circumstances involved a failure to complete the review process.  Reliance was placed in particular on the decision of the High Court in applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 (NAFF).

13. The contention before the Federal Magistrate failed, because his Honour did not consider that the factual circumstance in this matter were analogous to those which existed in the NAFF matter.  His Honour said in his decision DZAAB v Minister for Immigration and Citizenship [2012] FMCA 295 at [14]:

    In the instant case no promises were made, no representations were given, all that occurred was that the Tribunal, thinking aloud, thought that it might be useful to have evidence from the brother.  I would not go so far as to say, as the applicant has, that the Tribunal formed a view as to the usefulness of the brother’s evidence.  I do not believe that anything that the Tribunal said or anything that occurred at the hearing could have amounted to a representation that the brother’s evidence was intended to be taken into account.  I think that the respondent is right in saying that the process had been completed.  There was an attempt made to have the brother brought but it did not succeed.  At no time did the applicant or her representative ask for the hearing to be adjourned so that the brother could be brought on for a further hearing date to be scheduled at which the brother might be present; neither the applicant nor her advisers made any submissions to the Tribunal as to what the brother’s evidence might be; no statement was obtained from him and sent to the Tribunal …The clear evidence from this IMR hearing that the brother’s involvement was not going to be a continuing one avoided any suggestion of jurisdictional error on the part of the reviewer.

14. The appellant’s brother had also arrived at Christmas Island some three months after the appellant and like the appellant, was subsequently detained in immigration detention in Darwin, although not apparently at the same facility.

15. The evidence was that his claim for recognition as a refugee under the Convention had also, by the time of the IMR hearing, been rejected.  He was nevertheless still in Darwin.

    CONSIDERATION

16. The only ground of appeal concerns the failure of the Federal Magistrate to conclude that, in the circumstances, the Independent Merits Reviewer (IMR) had failed to accord procedural fairness to the applicant.  The first respondent does not dispute that the IMR was obliged to give procedural fairness to the appellant.  He contends that the IMR did not fail to do so, and that the Federal Magistrate properly rejected that claim by the appellant.

17. The appellant’s contention at first instance, and on this appeal, is that IMR, having proposed to call as a witness the brother of the appellant because he was readily available and could give potentially probative evidence in support of her claim, simply did not do so.

18. The transcript of the hearing conducted by the IMR discloses the following:

19. The interview took place in Darwin with the appellant having the assistance of an interpreter, and in the presence of her migration agent.  She had been assisted too then by her solicitors, and her representative at the hearing was apparently from that firm.

20. During the interview, it emerged that the appellant’s brother had also arrived at Christmas Island from Sri Lanka, about three months after the appellant.  He had also made a claim for a protection visa, which was declined and he was also awaiting an Independent Merits Review.  Her brother was also in Darwin, but at a different detention centre from that of the appellant, about 15 to 20 minutes away.

21. The IMR, having explored the appellant’s claims and discerned some reason to doubt them, asked whether her brother could be available to give evidence.  He offered to break for half an hour to enable that to take place.  The appellant said her brother knew about her claims.  It appears that both the IMR and the appellant’s representative agreed that steps should be taken to bring the brother to the hearing, and steps were taken to arrange that.  The IMR said:

    So we might arrange for your brother to come, but I might also be talking with you while he’s coming, if that’s all right …

    After a brief discussion about how to contact the brother, the appellant’s representative offered to “walk down there”.  [I infer, to arrange his attendance.]  The IMR adjourned the hearing.

22. After a break (for a period which is not specified), the hearing resumed.  The IMR said:

    It seems it is not possible to talk to your brother.  Is there anything else you want to tell me before I talk to you any more?

23. The hearing then continued.

24. In the course of the further hearing, the appellant suggested she might commit suicide rather than return to Sri Lanka.  It is agreed that, about that time, the appellant’s representative was contacted with a message to contact the principal of the firm of solicitors representing the appellant.  There was a further break in the hearing.  The transcript then records the IMR saying:

    So we’re resuming after a phone call.  Anything I need to know or …

    And the representative responded:

    No.  He [the principal of the firm of solicitors] has just been made aware that the brother (indistinct) …

    The IMR asked if he [presumably the principal] is happy with that, and was given an affirmative response.

25. Nothing further was said about possible evidence from the brother.  At the end of the hearing, the appellant through her representative was given permission to provide further information in writing.

26. There was no request by the appellant through her representative to have other arrangements made to take evidence from her brother.  There was no further submission after the hearing which adverted to that possibility or which included any statement from the brother.

27. That material, in my view, does not support the appellant’s contention.  The IMR raised the possibility of hearing the brother’s evidence as potentially relevant.  However, he did not himself indicate that he proposed to call the brother to give evidence.  The appellant had the opportunity to request him to do so, but did not make that request.  The appellant’s representative did not, either at the hearing or subsequently, request that his evidence be taken or provide a written statement from him.

28. In my view, it cannot be said that the appellant was “shut out” from presenting her case in the circumstances as they evolved.  It follows that I agree with the view of the Federal Magistrate that the circumstances as they emerged are significantly different from those which arose in NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1. In that case, the member of the Refugee Review Tribunal clearly indicated an intention to pursue certain enquiries through the visa application, but then made a decision without pursuing those enquiries. Procedural fairness therefore required some further steps to be taken before the Tribunal member was able to complete the review. In this matter, I do not consider that the IMR indicated an intention, either explicitly or implicitly, to do anything further in relation to the potential evidence from the appellant’s brother. Indeed, at the completion of the hearing, it is clear that subject to the appellant through her representative having the opportunity to present further submissions and further evidence within a limited time, the IMR would proceed to complete the review and provide his recommendation.

29. That being the only ground of error asserted, as I have found it is not made out, the appeal must be dismissed.  I order the appellant to pay to the first respondent costs of the appeal.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:       13 September 2012