EEJ17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 604

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EEJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 604

File number(s):	SYG 2902 of 2017
Judgment of:	JUDGE LAING
Date of judgment:	17 July 2023
Catchwords:	MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal – whether the Tribunal misunderstood, misinterpreted or overlooked various aspects of the applicant’s evidence – whether the Tribunal’s reasoning was relevantly open to the Tribunal – interpreter error – materiality – application dismissed
Cases cited:	Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6
Division:	Division 2 General Federal Law
Number of paragraphs:	35
Date of hearing:	3 July 2023
Place:	Sydney
Counsel for the Applicant:	Mr G Foster
Solicitor for the Applicant:	Sentil Solicitors
Solicitor for the Respondents:	Ms S Lloyd of HWL Ebsworth Lawyers

ORDERS

SYG 2902 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EEJ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	17 JULY 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LAING:

1. Before the Court is an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a Sri Lankan citizen who arrived in Australia in 2014 on a student visa.

3. On 24 April 2015, the applicant applied for a protection visa.

4. On 12 February 2016, the Delegate refused the application.

5. The applicant applied to the Tribunal for review of the Delegate’s decision on 12 February 2016. He attended a hearing before the Tribunal on 4 August 2017.

6. On 26 August 2017, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

7. The Tribunal identified a number of concerns regarding the applicant’s evidence at [8]-[30] of its decision. These included the following:

   (a)The Tribunal was troubled by the applicant’s claimed willingness to undertake political activities from 2010, which it found inconsistent with his claims to have been living in hiding in Colombo (at [9]-[15]).

   (b)The Tribunal considered that the applicant’s evidence about a group of United National Party (UNP) supporters coming to his home to harm him in July 2013 because of his support for a person in a leadership contest some 18 months earlier to be “wholly unsatisfactory and unconvincing”. The Tribunal considered that the applicant’s claims that the UNP supporters had not come earlier because they did not think that he was in Colombo, and had only come after seeing photographs of him at a graduation ceremony, did not bear the “ring of truth” (at [16]-[19]).

   (c)The Tribunal considered that the applicant’s evidence about his movements following the claimed attack in July 2013 was “vague and mobile”. The Tribunal considered that the applicant’s evidence regarding his movements from the time that he was discharged from hospital in July 2013 to be inconsistent and not credible (at [20]-[25]).

   (d)The Tribunal was concerned by the applicant’s claimed willingness to undertake political activities after being attacked in July 2013. The Tribunal did not accept that the applicant would have undertaken political activities so soon after people that he feared had come to his home and seriously assaulted him (at [26]-[27]).

   (e)The Tribunal was also concerned by the applicant’s delay in seeking protection (at [28]-[30]).

8. Having regard to the above, the Tribunal concluded that the applicant was “not a witness of truth and the account of events on which his protection claims [were] based [was] false” (at [31]). Accordingly, the Tribunal disbelieved the applicant’s claims about making speech at a youth club in 2009 and the Sri Lankan army coming to his home, questioning him and harming his parents. The Tribunal disbelieved the applicant’s claims that he went to live in Colombo for safety and his claims to have undertaken activities for the UNP. The Tribunal disbelieved the applicant’s claims about being harmed and attacked by supporters of the Sri Lankan Prime Minister and his claims about undertaking political activities for a Tamil party in Kilinochchi (at [33]).

9. Whilst the Tribunal noted that the applicant had provided medical records indicating that he was injured in 2013, those records indicated an accidental fall in the applicant’s home and did not alter the Tribunal’s views regarding the applicant’s credibility (at [34]). The Tribunal considered that there was no credible evidence of the reasons why the applicant left Sri Lanka or regarding anyone seeking to do the applicant harm in Sri Lanka (at [35]). After considering available country information, the Tribunal found that there was not a real chance of the applicant facing relevant harm on return to Sri Lanka as a Tamil or otherwise (at [36]-[45]).

10. Having regard to the above, the Tribunal concluded that the applicant was not a person to whom protection obligations were owed. Accordingly, the Tribunal affirmed the Delegate’s decision (at [46]-[49]).

    PROCEEDINGS BEFORE THIS COURT

11. The applicant commenced the current proceedings through an application filed on 19 September 2017. He ultimately relied upon an amended application filed on 15 February 2018 in which various general assertions of error were made. At the hearing before the Court, it was confirmed that the manner in which the Tribunal was said to have erred was explained in “particulars” that were set out in the amended application as follows:

    a.The AAT's reasoning and conclusions (Refugee Assessment) are substantially based on foot notes cited below the reason and findings in the AAT's decision.

    b.The AAT:

    a.incorrectly found that the Appellant's evidence was vague and mobile in respect of where he went after he was attacked in July 2013 (para 20-25) when there was no proper basis for so finding and the Appellant's evidence did not waiver;

    b.misunderstood and/or misinterpreted the Appellant's evidence in respect of where he went after he was attacked in July 2013 (para 20-25) in that the AAT incorrectly:

    i.stated the Appellant could not recall when he went to Kilinochchi, when the Appellant at hearing advised the AAT he went in the September;

    ii.stated the Appellant must have gone to Kilinochchi in 'August 2013' when that suggestion was not based on evidence given by the Appellant and was improper and unfair and was as a result of incorrect conclusions drawn by the AAT without a proper basis;

    iii.suggested to the Appellant that the Appellant must have gone to Kilinochchi in 'August 2013 (at the latest)' when the AAT did not so qualify that proposition to the Appellant;

    iv.stated the Appellant told the AAT he went back 'to his home' after he was attacked, when the Appellant did not so do and had told the AAT he went to 'a house' which the AAT assumed incorrectly was his former home;

    v.after the assault, stated the Appellant’s evidence was that he went back to 'the home where he was living at the time of the attack in July 2013', when that was not the Appellant's evidence, and which evidence was different and inconsistent therewith;

    vi.found the Appellant's evidence was 'inconsistent and not credible' when it was consistent and credible,

    vii.found the Appellant's evidence was 'inconsistent and not credible' when the AA T's statement was infected by errors,

    such mistakes and errors being a basis for the AAT finding the Appellant's evidence was 'inconsistent and not credible'

    c.The AAT incorrectly misunderstood and/or misinterpreted the Appellant's evidence and

    a.failed to take into account the Appellant's evidence that he feared harm from being a Tamil as well as because of revenge by [a politician] (para 40).

    b.stated the Appellant 'said he did not fear harm in Sri Lanka on the ground he was Tamil.' (para 40), such statement being incorrect and contrary to the evidence which the Appellant did give;

    c.failed to properly consider if the Appellant had a claim for protection as a refugee and whether the Appellant was entitled to protection under the complementary protection provisions contained in the Migration Act on the basis including that he was a Tamil;

    d.In respect of why the Appellant went to Kilinochchi in September 2013 (paras 26/27), the AAT misunderstood and/or misinterpreted the Appellant's evidence and thereby failed to take into account the Appellant's evidence that he did not expect the same people who harmed him before would be at Kilinochchi, which the AAT should have,

    such failure allowing the AAT to disbelieve the Appellant and not to accept the Appellant 'would have undertaken political activities of any kind, in particular, so soon after he claims the people he fears came to his home and seriously assaulted him.'

12. Particular (a) was not pressed.

    Particular (b)

13. Particular (b), with its subcomponents (a) and (b), took issue with the Tribunal’s reasoning at [20]-[25] of its decision which was as follows (footnotes omitted):

    20.To the Tribunal, the applicant said that in July 2013 after his attackers left his home a neighbour took him to hospital where he remained for two weeks. The Tribunal asked the applicant where he went after that and his evidence became vague and mobile. Initially, he said that from hospital he went to Kilinochchi because provincial elections were going to be held there in September 2013. As he was attacked in July 2013 and had been in hospital for two weeks, the Tribunal suggested to the applicant that, therefore, he must have gone to Kilinochchi in August 2013 (at the latest). In response, the applicant was again vague saying that he could not recall and thought that he went in September.

    21.When reminded he had earlier said that after he came out of hospital he went to Kilinochchi and when again put to him that this was presumably in August at the latest, he said that he could not recall; he was in hospital for two weeks in July and then in August 2013 he did go to Kilinochchi. When asked if he was therefore in Kilinochchi for one month (if the elections were held in September 2013) the applicant said that he went to Kilinochchi in September 2013. The Tribunal asked the applicant to clarify that evidence given he had earlier said that he was in hospital for two weeks in July 2013. In response, the applicant then said that after he came out of hospital he went back to his home and remained there for one month before then going to Kilinochchi, the doctor telling him he had to rest.

    22.The applicant said that in Kilinochchi he undertook campaign activities for a Tamil party and distributed notices to others to support that party. On one occasion, people from the UNP approached him and began to threaten him, asking him if he was staying there. In fear for his safety, he left Kilinochchi the day after the election believing that if these people found him again they would beat him. He did not undertake any more political activities and resumed his employment in Colombo. The Tribunal asked the applicant if he went back to the home in which he was living before he went to Kilinochchi. The applicant said that was correct.

    23.In late December 2013 his employer sent him to Qatar for training for six weeks. The applicant had no further difficulties with UNP supporters until February 2014 when two of the people who had attacked him in July 2013 approached him on the street to try and apprehend him. The applicant ran away from them but did not go back to his home. Instead, he stayed one night with a friend and flew to [another country] the following day. He did this for his safety but returned to Sri Lanka after six weeks as his [visa] had expired. On return to Sri Lanka, he stayed at the home of a friend until leaving Sri Lanka to come to Australia in July 2014.

    24.The Tribunal put to the applicant that it had difficulty accepting his willingness to remain at his home for one month after coming out of hospital when his attackers had already been there and seriously assaulted him. In response, the applicant said that in fact after he came out of hospital he did not go back to his home for the very reason that his attackers might find out that he had returned. Instead, he stayed with another person before going to Kilinochchi. The Tribunal put to the applicant that this was inconsistent with his previous evidence to that point, as the Tribunal understood it. His previous evidence was that after coming out of hospital he went back to the home where he was living at the time of the attack in July 2013. In his initial evidence, he made no claim to have lived anywhere else in Colombo until after fleeing from UNP supporters in February 2014 when he stayed with a friend for one night before going to [another country] and then staying with a different friend after returning from [that country] and before coming to Australia.

    25.In response, the applicant denied giving that evidence and maintained that after he came out of hospital he stayed with a friend and never again stayed at the home where he was attacked in July 2013. He claimed that he had given this same evidence in his written statement. However, neither of his written statements contain this evidence. In his protection visa application forms the applicant specified one residential address in Colombo for the period from November 2009 until August 2013 and one residential address in Colombo for the period from April 2014 to July 2014.⁴ According to that evidence, the applicant stopped living at the home where he claims he was attacked in August 2013. However, that does not excuse his initial evidence to the Tribunal that he lived at the home where he was attacked after coming out of hospital and after returning from Kilinochchi (in September 2013). Overall, the applicant's evidence about his movements from the time he was discharged from hospital and where he stayed in that period is inconsistent and not credible.

14. Particular (a) of particular (b) complained that there was no proper basis for the Tribunal’s finding at [20] of its decision that the applicant’s evidence about where he went after the July 2013 attack was “vague and mobile”.

15. The Tribunal’s reasoning in this regard is supported by pages 28-31 of the transcript that is in evidence. The applicant initially told the Tribunal that he went to Kilinochchi after spending two weeks in hospital following an attack in July 2013. This indicated that he had travelled there in July or August at the latest. However, the applicant then told the Tribunal that he had gone there for elections in September. When this issue was drawn to his attention by the Tribunal, the applicant varied in his evidence, saying “I think August” and subsequently “I think I would have gone in September”.

16. I consider that it was open to the Tribunal, by reference to the above, to have found the applicant’s evidence to have been “vague and mobile” in this regard. I do not accept, as was suggested by the applicant, that he was “made” to give inconsistent evidence through confusing questions asked by the Tribunal suggesting that he had gone to Kilinochchi in August. The Tribunal’s questioning fairly put to the applicant, as a matter of procedural fairness, an inconsistency that already existed in his evidence. That inconsistency was also reflected in the transcript, wherein the applicant varied from saying (a) that although he couldn’t “exactly remember”, he had gone to Kilinochchi a few days after leaving hospital in July i.e. in August at the latest, to saying (b) that he stayed home for one month after leaving hospital before travelling to Kilinochchi for elections in September.

17. I therefore do not accept that this particular demonstrates relevant error.

18. Sub-particular (b) of particular (b) contended that the Tribunal misunderstood the applicant’s evidence at [24] of its decision when it considered that the applicant had initially given evidence that “after coming out of hospital he went back to the home where he was living at the time of the attack in July 2013”. This, the Tribunal considered, was inconsistent with his later evidence to have stayed with another person before going to Kilinochchi.

19. The Tribunal’s understanding of this evidence is consistent with page 31 of the transcript, where the applicant said that he “went home” from the hospital in July 2013. Page 41 of the transcript further confirms that subsequent inconsistent evidence was given in this regard by the applicant.

20. As the Tribunal noted at [25] of its decision, its understanding of the applicant’s initial evidence that “he went back to the home where he was living at the time of the attack in July 2013” was also consistent with the applicant’s protection visa application at page 50 of the Court Book (CB), which indicated that the applicant resided at one residential address in Colombo from November 2009 to August 2013. After leaving Kilinochchi in September 2013, the applicant initially stated at the Tribunal hearing that he went back to the “house where [he] lived in before” i.e. where he claimed to have been living before leaving for Kilinochchi (page 32 of the transcript). This was inconsistent with his subsequent evidence at page 42 of the transcript, where he claimed to have stayed at another friend’s place.

21. I accept, as the applicant’s Counsel submitted, that the applicant omitted in his protection visa application the detail of his residential addresses between September 2013 and December 2013. However, this was after the period at issue when the applicant stated that he “went home” from the hospital in July 2013 before leaving for Kilinochchi. The applicant’s (initial) evidence at the Tribunal hearing was that he returned to this house after returning from Kilinochchi in September 2013 (page 32 of the transcript).  This evidence was consistent with the Tribunal’s reasoning at [24]-[25]. The Tribunal’s recitation of various periods for which addresses were stated in the protection visa application (at CB 50) also indicates some level of consciousness on the Tribunal’s part as to periods for which addresses were available in this document (and correspondingly, the gaps).

22. For the above reasons, I do not accept that the Tribunal relevantly erred in considering this evidence, nor that an inference ought to be drawn that the evidence at CB 50 was overlooked. 

    Particular (c)

23. Particular (c) contended that the Tribunal failed to consider at [40] of its decision the applicant’s evidence that he feared harm as a Tamil in addition to his other claims. The Tribunal considered at [40] that the applicant had told the Tribunal that “he did not fear harm in Sri Lanka on the ground that he was a Tamil”. This followed from what was interpreted at the Tribunal hearing, which was: “I do not have problem not because I am Tamil”. However the applicant had actually stated: “I have problem not just because I am a Tamil”. This was in response to the Tribunal putting to him country information indicating that the risk of harm to him as a Tamil was remote (page 45 of the transcript).

1. I accept that the interpretation of this particular part of the evidence was inaccurate. However, I also accept the Minister’s submission that the inaccurate interpretation was not of such significance within the context of the Tribunal’s decision as to have been capable of resulting in jurisdictional error in the sense considered in cases such as Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6 (per Kenny J) (Perera).

2. The Tribunal’s decision did not turn on whether or not the applicant had a subjective fear of harm in Sri Lanka as a Tamil. It turned, in this regard, upon whether the applicant was objectively at risk of relevant harm as a Tamil. The Tribunal considered the claims and evidence before it that gave any content to any claimed risk of harm to the applicant based upon his ethnicity. This included the applicant’s claims to face harm on account of his political involvement. The Tribunal also considered the submissions that were made on the applicant’s behalf regarding the risk of harm to Tamils in Sri Lanka. Having considered that material as well as other country information that was before it, the Tribunal concluded that the applicant did not face a real chance of relevant harm in Sri Lanka on the basis of his ethnicity (at [41]-[45]). 

3. For these reasons, I find that the interpretation error relied upon by the applicant was immaterial within the context of the Tribunal’s overall decision and incapable of demonstrating the species of error considered in cases such as Perera. Particular (c) is therefore unable to succeed.

   Particular (d)

4. Particular (d) contended that the Tribunal misunderstood or misinterpreted the applicant’s evidence at [26]-[27] of its decision by failing to take into account that the applicant did not expect the same people who harmed him to be at Kilinochchi. In written submissions, the applicant relied upon his evidence in the transcript of the hearing before the Tribunal (at page 42), in which he had stated “When I went to Kilinochchi, I didn’t know that this same people will come there”.  

5. The Tribunal reasoned as follows at [26]-[27] of its decision:

   26.The Tribunal asked the applicant why, after being attacked in July 2013, he was willing to go to Kilinochchi and undertake political activities in relation to elections in which the party he was supporting was running against the UNP. In response, the applicant said that those elections were to be held in September 2013 and he thought that it would be safe, by that time, to get involved campaigning for a Tamil party. The Tribunal put to the applicant that it had difficulty accepting his willingness to undertake these activities when he told the Tribunal that he had ceased political activities from late 2011 following the victory of [a person] in the UNP leadership contest and he had been attacked in July 2013 because of those activities.

   27.In response, the applicant initially said that he did not know that UNP people would be there but then said that he was aware that party was contesting those elections. The Tribunal again put to him that in his claimed circumstances it was difficult to accept that he would be willing to undertake activities and do so for a party running against the UNP. In response, the applicant said that he did not work as a main person and just handed out leaflets. In his claimed circumstances, the Tribunal does not accept that the applicant would have undertaken political activities of any kind, in particular, so soon after he claims the people he fears came to his home and seriously assaulted him.

6. I am not persuaded that the Tribunal misunderstood the applicant’s evidence in the manner contended. The applicant had claimed that he had been attacked in July 2013 by “UNP supporters” on account of political activities that he had undertaken in 2011 (CB 89, 135). He did not specifically identify the people he claimed had attacked him, other than by reference to their relationship with the UNP and support for a UNP leader.

7. The Tribunal considered that the applicant had initially said that he “did not know that UNP people would be there”, which was potentially consistent with his evidence that he “didn’t know that this same people will come there”. The “UNP people” with which both the applicant and the Tribunal appear to have been concerned were those from whom the applicant claimed that he may face relevant harm. 

8. The Tribunal put to the applicant, at page 42 of the transcript, its observation that the UNP had been participating in the elections in Kilinochchi (with which the applicant agreed). The Tribunal then put to the applicant that he “surely” would have been too scared in these circumstances to have gone to Kilinochchi and campaigned against the UNP. The applicant responded by giving evidence as to the limited nature of his claimed role in distributing flyers. 

9. The Tribunal’s concern at [26]-[27] of its decision was that the applicant would be willing to participate in political activities against UNP supporters so soon after being attacked by UNP supporters on account of political activities that he had undertaken in 2011. This was in circumstances where the UNP were participating in elections in Kilinochchi, with the attendant likelihood that UNP supporters would be present there (who may or may not include the UNP supporters who attacked him).

10. I am not persuaded that this reasoning was closed to the Tribunal, or that it was materially impacted by any misunderstanding or misinterpretation of the applicant’s evidence. It follows that particular (d) is unable to succeed.

    CONCLUSION

11. For the above reasons, the application before this Court must be dismissed.

12. I will hear from the parties in relation to costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.

Associate:

Dated: 17 July 2023