MZZQF v Minister for Immigration
[2016] FCCA 780
•11 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZQF v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 780 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – alleged Tribunal’s credibility findings reveal error of law – quality of interpretation at Tribunal hearing – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 46A(2), 425, 427(7), 441 Federal Circuit Court Rules 2001, Sch:1 |
| Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 Randhawa v Minster for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR at 451 |
| Applicant: | MZZQF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1232 of 2013 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 5 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 11 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Appudurai |
| Solicitors for the Applicant: | Russell Kennedy Solicitors |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.
The Applicant pay the First Respondent’s costs in the sum of $7,825
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1232 of 2013
| MZZQF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant sought judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 15 July 2013 which affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa (‘protection visa’).
The Applicant relied upon a further amended Application filed on 15 January 2016 together with three affidavits:-
a)an Affidavit of the Applicant sworn on 1 July 2014;
b)an Affidavit of Ms Caitlin Walsh, lawyer, sworn on 8 July 2014; and
c)an Affidavit of Mr Praba Shanka, interpreter, sworn 3 June 2014.
The Applicant further relied upon Submissions filed on 15 January 2016.
The grounds of the further amended application are as follows:-
“…the tribunal’s decision:
1. involved jurisdictional error in that it misconstrued, and misapplied, the applicable law and proceeded upon a misapprehension of the scope of its task in reviewing the decision of the delegate of the Minister;
Particulars
(a) The tribunal purported to determine whether, for the purposes of s 36(2)(a) of the Migration Act 1958, the applicant had a “well-founded fear” of persecution.
(b) Even upon a beneficial construction of the tribunal’s reasons for decision (“Findings and Reasons” – at [66] – [108]), it is evident that the tribunal did not bring an open mind to its consideration of the applicant’s claims, in circumstances in which:
a. it did not deviate from its initial view (at [34]) that it “… was unable to make a favourable decision…”, upon the information then available “on the papers”;
b. its reasons demonstrate a negative view of the credit of the applicant, central to the tribunal’s rejection of the applicant’s claim to protection, which was:
i. adopted very early in the process; and
ii. maintained throughout the tribunal’s consideration of the applicant’s claims and justified by the use of formulaic, repetitive and internally-inconsistent findings; and
c. there was evidence before the tribunal that an order, or warrant, for the arrest of the applicant had then be issued in Sri Lanka and remained current;
2. involved jurisdictional error in that it misconstrued, and misapplied, the applicable law and proceeded upon a misapprehension of the scope of its task in reviewing the decision of the delegate of the Minister;
Particulars
(a) The tribunal purported to determine whether, for the purposes of s 36(2)(aa) of the Act, there was a “real risk” that the applicant will suffer significant harm if removed from Australia to Sri Lanka.
(b) Even upon a beneficial construction of the tribunal’s reasons for decision (“Findings and Reasons” – at [109] – [121]), it is evident that the tribunal did not bring an open mind to its consideration of the applicant’s claims, in circumstances in which:
a. it did not deviate from its initial view (at [34]) that it “…was unable to make a favourable decision…”, upon the information then available “on the papers”;
b. it accepted that “…Sri Lankan authorities [had] been implicated in grave human rights abuses” (at [100]) and did not disagree with the assessment of the country information made by the (differently-constituted) tribunals in RRT case nos. 1215964 (3 April 2013 – at [101]-[102] and 1300131 (29 May 2013 at [103]);
c. its assessment was fundamentally affected by its conclusions reached with respect to the applicant’s primary claim to protection (see ground 1 above);
3. is so unreasonable that no reasonable tribunal, properly informed, could have so determined;
Particulars
The applicant refers to, and repeats, the particulars sub-joined to grounds 1 and 2 above; and
4. involved jurisdictional error in that, by reasons of material errors in translation by the interpreter, the applicant was denied procedural fairness.
Particulars
(a) Central to the applicant’s case for protection was his claim that he had attracted the adverse interest, and feared persecution at the hands, of the Sri Lankan authorities;
(b) the critical matter upon which the tribunal’s decision rested was its finding that the applicant was not a credible witness (see at [79] – [80]).
(c)That view had been based upon the tribunal’s view that there was no evidence that the applicant was a person in whom the Sri Lankan authorities had any interest, including because the tribunal:
a. found that “…the applicant’s evidence does not indicate that… [the applicant] was himself the subject of an arrest warrant or a summons…” (at [70]) and that the applicant’s “…claims that the authorities would take legal action against his father because they could not ‘catch’ the applicant are highly improbable” (at [71]);
b. found “… it difficult to understand why, if the target of the authorities’ interest was the applicant and not his father, the applicant himself was not the subject of the warrant” (at [78], see also at [77]); and
c. did “… not accept that any of the documents assist the applicant in overcoming [its] concerns about the credibility of his claims” (at [78]);
(d) The exchange between the applicant and the tribunal (set out in the extract contained in exhibit “PS1” to the affidavit of Praba Shankar) demonstrates that the interpreter had difficulty in accurately interpreting:
a. the tribunal’s questions such that the applicant had a fair opportunity to answer them; and
b. the applicant’s answers such that the tribunal could both be properly informed of the applicant’s claims and, if so considered, request further information from the applicant;
(e) In particular, the applicant’s statements that a warrant or an order to arrest him had been issued was not translated accurately by the interpreter.
(f) In the event, the poor quality of the interpreter’s communication resulted in the tribunal not being informed of the arrest warrant issued against the applicant (exhibits “SK1” and “SK2” to the applicant’s affidavit) and, accordingly, deprived the tribunal of information which might have caused it to call for production of that document; that failure in communication denied the applicant a fair opportunity to be heard.”
In support of amended ground number four as set out in the further amended grounds of application filed on 15 January 2016, the Court has before it:-
a)a transcript of the further hearing convened by the Tribunal on 4 June 2013, exhibit “CUW l” to the affidavit of Ms Walsh. This transcript records the whole of the English language exchange captured by the audio recording made of the 4 June 2013 hearing convened by the Tribunal; and
b)a “transcript extract” apparently prepared by Ms Walsh and Mr Shankar, exhibit “PS l” to the Affidavit of Mr Shankar. This transcript appears to record all the exchanges where, in Mr Shankar’s opinion, there is a difference between what the Tribunal or Applicant said and the interpretation given by the interpreter.
The First Respondent relied upon a Response to Application filed on 16 August 2013 and Contentions of Fact and Law dated 13 August 2014 and 29 January 2016. The First Respondent seeks dismissal of the application for judicial review together with an order for costs.
The Court has also before it the evidence as contained in the Court Book filed 7 November 2013 and the Supplementary Court Book filed 8 December 2014.
History
The Applicant was born on 29 July 1983 in Uddapu in the North-West of Sri Lanka. He is a citizen of Sri Lanka and a Tamil of Hindu faith. Prior to travelling to Australia, the Applicant lived all his life in Sri Lanka. He left Sri Lanka illegally on 13 April 2012.
On 30 April 2012, the Applicant arrived on Christmas Island as an undocumented irregular maritime arrival. On 18 July 2012, he was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (‘the Department’). On the same day a delegate of the First Respondent gave the Applicant notice of the First Respondent’s decision to exercise his power under sub-s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’), allowing the Applicant to apply for a protection visa. The Applicant was provided with representation by a migration agent from Australian Migration Options Pty Ltd pursuant to the Immigration Advice and Application Assistance Scheme.
On 28 July 2012, the Applicant lodged his application for the protection visa. On 25 September 2012, a delegate of the First Respondent (‘the delegate’) refused to grant the Applicant the protection visa. On 27 September 2012, the Applicant applied to the Tribunal for merits review of the delegate’s decision. The Applicant named Ms Lester of Australian Migration Options as his agent and authorised recipient in the review. At various points in time, different migration agents from the same agency were named on documents sent by the Applicant. Materially, the contact details for the purposes of s.441 of the Act did not change.
The Applicant appeared before the Tribunal to give evidence and present arguments about the issues arising in his case. The Tribunal also received oral evidence from the Applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages on 26 November 2012, 6 December 2012 and 4 June 2013.
The Tribunal notified the Applicant of its decision by letter dated 16 July 2013. On 7 August 2013, the Applicant lodged his application for judicial review of the Tribunal’s decision.
The Applicant’s Claims
The Applicant’s claims as set out in paragraphs 25 to 29 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) are as follows:-
“25. The applicant claims that his problems started after his friend Rajah, who left Udappu to live in Jaffna in 2002, returned to Udappu in 2005 and asked the applicant to assist him to acquire a national identity card. The applicant claims he assisted his friend by introducing him to the village Grama Seveka (GS). In his written statement the applicant said that in his entry interview he said the incident with Rajah occurred in 2008 but he was very nervous at the time this interview occurred and he was now sure the incident with Rajah occurred in 2005. The applicant said Rajah told him he lost his ID card and he had no reason to suspect that Rajah had worked with the LTTE.
26. The applicant claims that in 2008 (between August and October), the Grama Seveka (GS) and the Criminal Investigation Department (CID) visited his home. His father told the authorities that the applicant was not home so the authorities put his father in jail. When his mother visited his father in detention, his father told her that the reason that he was taken was that the applicant had provided assistance to Rajah who was suspected of belonging to the LTTE. The applicant said his father was in jail for a number of months before being released on bail. According to his written claims, the applicant has provided a document to his lawyer that shows his father was charged and jailed at that time. He said the authorities charged his father with forgery, but that is the offence the authorities wanted to charge the applicant with.
27. The applicant claims he was frightened of being picked up by the CID because of his suspected links to the LTTE. He said he went into hiding at his uncle’s place in Trincomalee in the East of Sri Lanka (around 240 kilometers from Uddapu). He claims that when he was living in Trincomalee he kept a low profile – he went fishing and stayed home. The applicant has said that his father’s case is still in progress. He is on bail and he has to go to court again. The applicant has claimed that because the case is not finished, if he was in Sri Lanka he would be called for enquiries and the authorities will harm him or finish him off during this process. He has also said that if he returns to Sri Lanka he will be accused of leaving Sri Lanka illegally.
28. Before the Department the applicant provided the following documentary evidence in support of his claims:
a. A copy of a document in English entitled ‘Detention Attestation’. The document states that the International Committee of the Red Cross attests that [the applicant’s father] was visited in detention by ICRC delegates in Boossa Detention camp and was released according to him on 30 March 2009 from New Magazine Prison in the Colombo District (folio 1, Department file).
b. A document in English that purports to be a detention order issued under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 2005 by the Additional Secretary Defence, Public Secretary considers that there are reasons to suspect [the applicant’s father] has been involved in preparing forged documents to establish the identity of terrorist members and orders that he be detained for ninety days. It is dated Colombo, 7 October 2008 (folio 2, Department file).
29. In an undated submission (folio 79-84 Department file) the applicant’s advisor made submissions that the applicant was claiming persecution for reasons of: his Tamil ethnicity; his imputed political opinion of being opposed to the Sri Lanka government because he is Tamil and suspected of being an LTTE supporter; and his membership of a particular social group of Tamils from an area with a history of an LTTE presence and LTTE recruitment or Tamil failed asylum seeker.”
In support of his claims the Applicant did the following, as set out in the First Respondent’s contentions of fact and law and which are referred to in various parts of the Tribunal decision:-
a)the Applicant provided documents and submissions with his visa application in support of his claims;
b)on 8 November 2012, after filing his application for merits review, the Applicant lodged further submissions and a statement. By these materials, the Applicant maintained his claims for protection and answered the delegate’s concerns regarding his credibility;
c)on 3 December 2012, following the November 2012 hearing and just before the hearing was scheduled to resume, the Applicant lodged further submissions and materials in support of his claims. The submissions addressed the Applicant’s claim that his father was the subject of an ongoing court case, and set out the Applicant’s instructions that his father appeared in court on 7 September 2012 and would attend a further hearing on 1 February 2013. The Applicant also provided a statement from his father (in the form of a letter certified by the village elder). On the basis of these materials, the Applicant urged a positive assessment of the credibility of his claims;
d)on 18 December 2012, after the resumed hearing, the Applicant filed further material with the Tribunal. He provided a copy of a warrant, concerning the applicant’s father, dated 21 January 2011 and a “diagnosis ticket” recording the Applicant’s father had a toe amputation performed;
e)on 5 June 2013, after the June 2013 hearing convened by the Tribunal, the Applicant filed further submissions and material in support of his claims. The submissions addressed the matter raised by the Tribunal at the June 2013 hearing, namely, whether the Applicant was entitled to protection as a person liable to be prosecuted and punished in Sri Lanka for having departed in breach of the Immigrants and Emigrants Act.
During the November 2012 hearing, the Tribunal told the Applicant it had difficulty accepting the Applicant’s “vague” claim that his father was involved in an ongoing court proceeding without further particulars as to what this case was about. The Applicant told the Tribunal it would have to ask his father, because he (the Applicant) did not concern himself with these things because he was suffering from stress. The Court notes that the Tribunal took evidence from the Applicant’s brother at the November 2012 hearing and in part his evidence was, as set out in paragraph 48 of the Decision Record:-
“With respect to the involvement of the applicant’s father in ongoing Court proceedings the witness gave evidence that his father was involved in an ongoing Court case but he did not know the details…”
The Tribunal adjourned the hearing to allow an opportunity for submissions about the court proceeding of the Applicant’s father to be filed and indicated it was a matter for the Applicant whether he wished to request the Tribunal take evidence from the Applicant’s father.
At the resumed hearing, the Applicant’s agent indicated there were several documents relating to the court proceeding against the Applicant’s father, but it was uncertain when these documents would be provided, because of the Applicant’s father poor health. The Tribunal recorded asking the Applicant “a series of questions” about the court proceeding against his father. The Applicant was unable to provide substantive answers. The Tribunal again informed the Applicant it had difficulty accepting the case against his father remained ongoing and took further evidence and argument from the Applicant and the agent on this topic.
At the June 2013 hearing, the Applicant gave evidence about his father’s last appearance in court. The Tribunal recorded the Applicant as referring to instructions being made to arrest the Applicant immediately and that the case would not proceed until the Applicant had been arrested. The Court notes that the Tribunal referred to this in paragraph 65 of the Decision Record. That paragraph, set out below, makes clear that the Tribunal well understood that the Applicant was saying there was, in effect, an arrest warrant issued in respect of him – that is, the Applicant, at that time:-
“The applicant was also provided with an opportunity to tell me about any new developments in his case and asked what happened when his father attended court in February 2013. The applicant said his father attended court. In response to questions about whether he would need to attend court again, the applicant referred to instructions being made to arrest the applicant immediately; he indicated that only when the applicant was arrested would they be able to proceed with the case.”
The Court finds paragraph 65 is not inconsistent with paragraphs 69 and 70 of the Decision Record, which refer to an earlier point in time. The Applicant’s submission that the Tribunal did not understand the Applicant’s claim that he was to be arrested, is rejected.
The grounds relied upon by the Applicant, save as to ground four, go to the Tribunal’s credibility findings. The Tribunal commenced its consideration as follows:-
“In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This involved assessing the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I acknowledge that the applicant is a young man of limited education and I accept it would be unfair to place undue weight on relatively minor inconsistencies in his evidence over the course of the protection visa application or to expect him to have detailed knowledge of the court process in which he claims his father is involved. I therefore have not placed any adverse weight on what I consider to be relatively minor inconsistencies in the applicant’s evidence. Nevertheless, for all the reasons that follow, I consider that there are fundamental problems with the credibility of the applicant’s claims that he is wanted by the CID on suspicion of supporting and assisting the LTTE cadre and that his father has been involved in ongoing court proceedings because of the applicant’s adverse political profile with the Sri Lankan authorities.”[1]
[1] Refugee Review Tribunal Decision Record dated 15 July 2013 at [68].
The Tribunal then set out its main factual findings, including an assessment of the Applicant’s credit in the following taken from the Decision Record:-
“71. I consider the applicant's claims that the authorities would take legal action against his father because they could not 'catch' the applicant are highly improbable, lack internal logic and are not otherwise supported by relevant or persuasive detail. After claiming that the court proceedings against his father had been ongoing since he was released from detention in around 2009 when the applicant was asked, at the hearing on 4 June 2013, what happened on the most recent occasion his father attended and whether he had been asked to attend court again, the applicant indicated it was only when he was arrested that they would be able to proceed with the case. It strains credulity to accept that the Sri Lankan authorities would arrest the applicant's father because they could not locate the applicant and detain him for six months at a location that was unknown to the applicant and then, upon his release, require him to attend court over a five year period (during which time the applicant has not claimed to be the subject of summons or a warrant) and then, in February 2013, place an indefinite pause on proceedings because the applicant, who is said to be the real target of the court action, was not available.
72. My concerns are compounded by the fact that the applicant's evidence about his father's detention and subsequent involvement in ongoing court proceedings was vague, unconvincing and lacking in internal consistency. For example, at the first hearing, the applicant gave evidence only his mother knew where his father was detained for six months. He was asked whether his father had had any difficulties since he was released from detention and he said no. He was then asked whether any of his family members had any difficulties since his father was released [from] detention he said no. He subsequently qualified this evidence by stating his father had been continually harassed after he was released from detention and he indicated that the reason he told the Tribunal he did not have difficulties after he was released from detention was because he had not been tortured or physically mistreated. However, when asked whether legal action had been taken against his family or any of his family members, he said in his absence inquiries had been made about him and his father and brother had gone through a bit of torture. Asked what he meant by 'a bit of torture' he said I would have to ask his brother because his brother said the CID actually tortured him. When asked when his father used to (sic) court he said he didn't know but he used to have to go every month.
73. I consider the applicant's lack of knowledge about the court proceedings that he claimed his father was involved in cast doubt upon whether he had a genuine fear of persecution for the reasons c1aimed. For example, I find it difficult to accept that the applicant would not have asked his father about when he last went to court or what happened on this occasion. I have considered the applicant's evidence that he hadn't asked his father about what court he went to because of the stress and problems he had in his head but I reject this explanation as unconvincing and contrived; the applicant has indicated he remains in contact with his father, he has claimed (in his written statement) to have had conversations with his father about the problems his father has faced, and there is no evidence (medical or otherwise) before me that support the applicant's explanation. While I do not expect the applicant to have a detailed knowledge of the court proceedings in which he claims his father was involved, the applicant's failure to take steps to inform himself about his father 's detention (for example, where his father was detained) and subsequent involvement in ongoing court proceedings (for example, when his father last attended court) that is central to his claims for protection strains credulity.
74. The applicant's oral testimony was less detailed than the documentation he provided in support of his claims and his advisor's submissions. At the hearing I discussed with the applicant my concerns that while his advisor's submissions indicated his father 's last court date was in September 2012, the applicant's evidence to the Tribunal was he didn't know when his father attended court. The applicant and his advisor sought to explain the applicant's lack of knowledge about when his father last attended court by arguing that the applicant could not read, the documents in question had been provided by the applicant's brother, rather than the applicant, and that the advisor had been taking instructions from the applicant's brother (who spoke English), rather than the applicant himself. These explanations do not resolve my concerns about the fact that the applicant's oral testimony about his father's court proceedings was extremely vague and, while I accept he has limited knowledge of legal proceedings, I find it strains credulity that the applicant would be in contact with his father and yet know so little about his involvement in court proceedings.
75. At the hearing on 26 November 2012, the applicant and his representative suggested I contact his father by phone and take evidence from him. The hearing was adjourned to enable the applicant to provide further information about the court proceedings he claimed his father was involved in and before the resumed hearing on 6 December 2012, the Tribunal was provided with a written letter that was said to be from the applicant's father (para 51) . As I put to the applicant I found it rather strange that the letter was typed in English when he said his father only spoke Tamil, and it was in any event - a copy- not an official court document and it could have been written by anyone. Moreover, while the letter contains a greater level of detail about the detention of his father than the applicant revealed in oral testimony, this only reinforces my concerns about the vague nature of the applicant's own testimony and his claim that he didn't know where his father was detained. In this context, I consider the letter lacks probative value and I do not accept that it assists the applicant.
76. The applicant did not pursue his request to have the Tribunal take oral evidence from his father in Sri Lanka at the hearing on 6 December 2012 or 4 June 2013. Such evidence would, in my assessment have been of limited probative value given the difficulties in verifying the identity of the witness and nor do I accept that, to the extent that the applicant's father might have provided oral evidence that corroborated and expanded upon his son's claims that he was involved in court proceedings, that this would assist in overcoming my concerns about the credibility and plausibility of the applicant's claims.
77. While I acknowledge that applicants for refugee status may sometimes be unable to provide documentation to support their claims, the applicant indicated to the Tribunal that he could provide, and then provided, various documents that were said to support his claims that his father was arrested, detained and then involved in ongoing court proceedings (see list of documents at para 35 above). These documents were provided in addition to the detention order and detention attestation that were provided to the department (see para 28 above). As I have set out above, I have difficulty accepting that if the applicant was of interest to the authorities for the reasons claimed, that detention order and arrest warrant he has provided refer to the applicant's father, but not the applicant. Moreover, as I put to the applicant the documents he has provided are copies and the country information indicates that fraudulent documentation is readily available in Sri Lanka.
78. I note that following the hearing on 6 December 2012, the Tribunal was provided with a document that, according to the unaccredited translation that accompanied it, was an arrest warrant for the applicant's father. However, I find it difficult to understand why, if the target of the authorities' interest was the applicant and not his father, the applicant himself was not subject of the warrant. I consider it to be highly improbable that the applicant's father has been required to attend court since 2009 (around once a month according to the applicant's oral testimony) over the course of four years but the proceedings have not yet reached a conclusion. Having had regard to all the evidence before me, I do not accept that any of the documents assist the applicant in overcoming my concerns about the credibility of his claims.
79. For all the reasons set out above, I find that the applicant is not a credible witness and he has fabricated his claims that he and his family members were of adverse interest to the Sri Lankan authorities in the hope of securing a protection visa. I do not accept that the applicant assisted a suspected LTTE member to obtain identity documents in 2005 or at any other time. I do not accept that the authorities sought to arrest the applicant and, when they were unable to find him, arrested and detained his father in his stead. I find the applicant's claims that his father is still involved in ongoing court proceedings to lack credibility. Ido not accept that the applicant's father ever was or sti11 is of any interest to the Sri Lankan authorities for the reasons claimed. While I accept that Tamils from Sri Lanka who are perceived to be supporters of the LTTE may be at risk from the Sri Lankan authorities, I do not accept that the applicant faces such a risk. The applicant has not made any claims that he has or had any actual involvement with the LTTE and I do not accept that the applicant or any of his family members or friends were perceived to be so. As I do not accept that the applicant or his friends were ever involved in the LTTE and nor do I accept the applicant or any of his family members are suspected of having supported the LTTE, I do not accept the applicant's claim that he is of interest to the Sri Lankan authorities for the reasons claimed or that any members of his family have been targeted because of their association with the applicant.
80. In reaching the conclusion that the applicant was not a reliable witness, I carefully considered whether my concerns about his credibility could be overcome by the evidence his brother provided to the Tribunal. The applicant's brother gave oral testimony his father was involved in court proceedings but that he didn’t know the details of these proceedings (other than his father had been targeted by the authorities because of the actions of his brother). I acknowledge the submissions of the representative that the evidence of the applicant was consistent with that of his brother, however, it was also, in my assessment vague and the applicant's brother was unable to provide relevant or persuasive detail about the court proceedings he claimed their father was involved in. Therefore, to the extent that the evidence of the applicant's brother corroborates that of the applicant, it does not overcome my concerns (set out above) about the credibility and plausibility of [the] applicant's claims.
81. The applicant has said his brother left Sri Lanka because the CID was coming to their house and they told the applicant's family they would take his brother instead of him. When asked on 4 June 2013 whether he would face any problems because of his brother's problems he said because of his problems his brother also had problems. Now their family would be in trouble. To the extent that the applicant has sought to suggest that his brother has faced problems because of the applicant's problems, I do not accept that the applicant has ever had a profile of interest to the Sri Lankan authorities and, having found that the applicant was not ever of any interest to the Sri Lankan authorities, I reject his claims that his family members were targeted by the authorities because of their association with the applicant.
82. For the reasons set out above, I do not accept that the applicant's father is involved in a protracted court process because of (sic) the applicant is suspected of helping an LTTE member or that the applicant was ever of interest to the Sri Lankan authorities for the reasons claimed or for any other reason.”[2]
[2] [2] Refugee Review Tribunal Decision Record dated 15 July 2013 at [71] – [82].
The Tribunal went on to consider whether the Applicant had a well-founded fear of persecution now or in the reasonably foreseeable future on the basis of his general claims. The Tribunal also considered the Applicant’s claims for complementary protection. Ultimately, the Tribunal was not persuaded the Applicant was a person to whom Australia had protection obligations under sub-ss.36(2)(a) or (aa) of the Act.
Consideration
Grounds 1 to 3
The amended grounds seek to establish jurisdictional error on the part of the Tribunal by arguing that the Tribunal’s credibility findings reveal an error of law or illogicality in the decision so as to render it attended by jurisdictional error. The Court finds no basis for a finding of jurisdictional error as asserted by the Applicant.
The Tribunal set out very detailed reasons for its adverse credibility findings, credibility being a matter for the Tribunal.[3]
[3] Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405 at 417 per McHugh J; NADR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 167.
The Tribunal is required to make findings available on the evidence before it. It is also, as submitted by the First Respondent not required to accept uncritically any or all claims made by an applicant: Randhawa v Minster for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR at 451 per Beaumont J; and not required to have rebutting evidence available to it before it can find a particular factual assertion is not made out. Nor is it obliged to accept claims that are inconsistent with independent country information: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per North J.
The Tribunal’s findings were open to it on the evidence before it. They were carefully reasoned and logical, contrary to the Applicant’s assertions of illogicality. The Tribunal’s reference to the absence of a warrant or summons in the Applicant’s name is expressly limited to the ‘2008 or 2012’ time period. The Tribunal otherwise dealt with the Applicant’s claims as described elsewhere in these reasons including that in February 2013, a court sought to have him arrested immediately and understood that to be his claim.
The Applicant claims in his affidavit evidence, which does not relate to his amended grounds, that he had a copy of an arrest warrant in his name but that he did not have same until after the Tribunal had notified him of its decision. He did not refer to the existence of this document when before the Tribunal. The Tribunal gave the Applicant many opportunities to address matters of concern to the Tribunal, including credibility issues, and many opportunities to provide evidence including documentary evidence. The Applicant made no mention of the arrest warrant in his name, nor did he seek further time to place same before the Tribunal. The Applicant’s failure to put the document before the Tribunal is not the Tribunal’s failure to afford him procedural fairness. Further, as submitted by Counsel for the First Respondent:-
“… the document is mere evidence and not a claim the Tribunal was “bound” to consider, even if it had been placed before the Tribunal: compare Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. The Tribunal expressly considered the claim the document related to.”[4]
[4] First Respondent’s Contentions of Fact and Law filed on 13 August 2014 at [47].
There is no jurisdictional error on this basis.
Ground 4
Where a visa applicant is not proficient in English, the Tribunal may direct that communication with it proceed through an interpreter as provided by s.427(7) of the Act.
Courts have construed the combined effect of ss.425 and 427(7) of the Act as obliging the Tribunal to provide a competent interpreter where the visa applicant is not proficient in English.[5]
[5] Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [17] and [20] per Kenny J.
Where error is alleged, the question for the Court is whether the quality of interpretation was such that the visa applicant was unable to give evidence and present his or her case adequately.[6] Accordingly, not every error in interpretation will result in a finding of breach of s.425 of the Act.[7]
[6] Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759 at [31] per Goldberg J.
[7] see further e.g., P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] per Mansfield and Selway JJ; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511 at [ 66] - [ 69] per Lee, Hill and Carr JJ and Perera at [29]-[3 l]; SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 per Jacobson J; SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212.
At paragraph 23 of his affidavit, Mr Shankar gives evidence that 8 minutes and 46 seconds into the 4 June 2013 Tribunal hearing, the Applicant stated in Tamil: “My dad went to the Court and I was not present at the court hearing, so they have asked the [inaudible] to make an order to arrest me and catch me”. Mr Shankar’s evidence is that the Applicant’s evidence was interpreted directly into English. This is borne out by exhibit “CUWl” to the Affidavit of Ms Walsh on page 2 in the final row: “since I was not there, they informed to arrest me, catch me somehow” [emphasis added]. The Tribunal, I am satisfied, understood what it was the Applicant wished to convey. Indeed, the Tribunal records the substance of this claim in paragraph 56 of its Decision Record:-
“Asked about why his father still had to go to court the applicant gave evidence he was not available to catch but his father was”.
Thereafter the Tribunal sets this out again in paragraph 65 of the Decision Record as earlier referred to.
To the extent the Applicant argues that the existence of a warrant for his arrest was not interpreted adequately, or at all, this argument cannot succeed. Whilst the word ‘warrant’ may not have been interpreted as such, the concept that word conveys was, and clearly so.
The Court determines that the Applicant has not proven any jurisdictional error on this basis. The concept of arrest was adequately conveyed in the translation and the translation was one of translating the Applicant’s evidence into English directly.
To the extent the Applicant argues that procedural explanations and information provided by the Tribunal was not conveyed, or conveyed adequately to the Applicant by the interpreter, the First Respondent submits the evidence is inadequate to show any meaningful loss of opportunity to participate in the hearing. The Court accepts this. Whilst there was not a direct translation of language word for word in every instance, the transcript extract before the Court is evidence of relevant concepts being adequately conveyed. Furthermore, an audio recording of the hearing was obtained by the Applicant’s agent, who subsequently made further written submissions. The Tribunal’s procedure did ensure a meaningful opportunity was afforded to the Applicant to participate in the hearing and that the Tribunal complied with its statutory obligations of natural justice.
These proceedings were adjourned at the first final hearing date, after a discussion between the bench and Counsel and although the First Respondent seeks the costs of the adjournment and filing of further submissions, it seems that it was not a situation of the Applicant seeking such adjournment. I accept however further costs have been expended in respect of this proceeding and by both parties. I propose to make an allowance in part to the First Respondent, as clearly the costs provided for in the Sch.1 scale of costs as set out in the Federal Circuit Court Rules 2001 do not provide for the necessary party-party costs incurred in this proceeding. The quantum I shall allow is a discounted figure, in the exercise of my discretion, to acknowledge the circumstances of the parties effectively agreeing to adjourn the proceedings in circumstances where the First Respondent was ready to proceed on the hearing date, and the adjournment brought forth a further ground of review.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 11 April 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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