SZTGJ v Minister for Immigration

[2015] FCCA 2001

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGJ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2001

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal (Tribunal) decision – whether Tribunal’s adverse credibility findings were irrational or unreasonable – application dismissed.

Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZTGJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2130 of 2013

Judgment of: Judge Manousaridis

Hearing date: 1 September 2014

Date of Last Submission: 17 November 2014

Delivered at: Sydney

Delivered on: 24 July 2015

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Rasan T Selliah & Associates

Counsel for the Respondents: Mr J Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the second respondent is changed to Administrative Appeals Tribunal.

2. The application for leave to file a further amended application is dismissed.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2130 of 2013

SZTGJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a national of Sri Lanka, and a Tamil. He applied to the second respondent (Tribunal) for a review of a decision of a delegate of the first respondent (Minister) who refused to grant the applicant a Protection visa. The Tribunal affirmed the delegate’s decision because it did not accept the applicant was a witness of truth.

2. In his application for judicial review, the applicant claims the Tribunal’s conclusion that the applicant was not a witness of truth was unreasonable and capricious, and its decision, therefore, should be set aside.

The applicant’s claims for protection

1. The applicant articulated the grounds on which he claimed protection on four occasions. The first was during his entry interview, the second was in a statutory declaration he submitted in support of his written application for a Protection visa,[1] the third was in an interview by an officer of the Department of Immigration and Border Protection, and the fourth was at the hearing before the Tribunal.

   [1] CB44-45

2. In his statutory declaration, the applicant claimed that in Sri Lanka he lived near the police station. In around March 2010, when the applicant was coming out of his home, the police arrested him and kept him for half an hour, interrogating him about his being involved with the Liberation Tigers of Tamil Eelam (LTTE). In December 2011 the applicant was arrested by the CID (being the Criminal Investigation Division) when he was on his way home. The CID took the applicant to the police station, accused him of being an LTTE member, screamed at the applicant, and demanded 200,000 rupees from him. The applicant told the CID he did not have such a sum of money. The CID released the applicant after half an hour, but said they would get back to him, and he had better have the money. In April 2012 the CID again took the applicant to the police station. The CID demanded money from the applicant. He paid them 5,000 rupees, being the amount the applicant had on him, and he was released. The applicant decided to flee Sri Lanka in May 2012 because he realised “this will never stop”. The applicant claimed he feared that he will be harmed, exploited, persecuted, and killed if he returned to Sri Lanka because he is a Tamil. The applicant made broadly similar claims in his interview with the Departmental officer on 20 September 2012.[2]

   [2] CB273, [25]

3. Before the Tribunal, the applicant said his mother came from a wealthy family which owned large amounts of land, and that that family was known in the local area as being well off.[3] The applicant completed school in 1996 after which he worked on the family farm in Mundel, and on other farms in the area.[4] In 2005 the applicant ceased working on the farms, and went into the business of dealing in scrap metal.[5] The applicant ceased that activity in 2007 and gained employment in a catering company.[6] He worked with that company until two weeks before he left Sri Lanka.[7]

   [3] CB274, [33]

   [4] CB274, [35]

   [5] CB274, [40]

   [6] CB274, [40]

   [7] CB275, [42]

4. The applicant further said to the Tribunal that he left Sri Lanka because of problems he was having with the CID that began in March 2010.[8] The applicant said that two CID officers stopped the applicant when he was riding his bicycle home from work, and an officer walked with the applicant to a nearby police station. The CID officers alleged the applicant was supporting the LTTE, scolded him, and, after about 15 to 20 minutes, demanded money from the applicant. The applicant gave the CID officers the 12,000 rupees the applicant was carrying with him.[9]

   [8] CB275, [43]

   [9] CB275, [43]-[44]

5. The applicant then said that the CID stopped the applicant on the street and detained him in the same manner approximately ten times.[10] This last occurred in April 2012. Before that time, he was last detained in December 2011.[11] On all occasions, except in December 2011, the applicant was detained for about 15 to 20 minutes, the applicant was threatened, and was asked to give money.[12] In December 2011 the applicant was held for about one hour and tortured.[13] In addition to these incidents, the applicant said that police officers came to the applicant’s home and forcefully told him to lend them his motorcycle.[14]

   [10] CB275, [45]

   [11] CB275, [45]

   [12] CB275, [46]

   [13] CB275, [46]

   [14] CB276, [53]

6. In response to the Tribunal’s question why the CID began to harass the applicant in March 2010, the applicant said that his difficulties began after the conflict with the LTTE ceased, and the CID had nothing to do; and because his mother had passed assets to him, and he was handling the family money. The CID officers thought he was wealthy and because of his wealth suspected he had links with the LTTE.[15]

   [15] CB276, [54]

7. In addition, the applicant said that after he arrived in Australia, his father informed him that, when walking on the street, CID questioned the applicant’s father about the applicant.[16]

   [16] CB276, [56]

The Tribunal’s reasons

1. The Tribunal found the applicant was not a witness of truth, and his account of the events on which his claims for protection are based is false.[17] The Tribunal based these findings on a number of matters. First, the applicant gave to the Tribunal as a reason for his being harassed by the CID his family’s wealth, whereas the applicant did not in his statutory declaration refer to this as a reason for his being harassed.[18] Nor did he give wealth as a reason when asked during his entry interview, and by the Departmental officer, why the applicant thought the CID officers were harassing him.[19] Second, the Tribunal found the applicant gave changing evidence about when his mother died, initially stating it was in 1999, and then stating it was in 2009.[20] Third, the Tribunal found the applicant gave confusing and conflicting evidence about the land he owned.[21] Before the Tribunal the applicant initially said that before his mother died in 1999, she left him six acres of land, which he leased to a telecommunications company to allow the erection of a tower. The applicant later said that in 2009, on his mother’s passing, he was given six acres of land which he still owns and in 2005 his sister transferred five acres of land, and the tower was erected on that land. At another stage, the applicant said he owned eleven acres of land.[22] Fourth, the applicant provided a letter from his former employer that stated the applicant had left his employment in mid-March 2012, which was earlier than the date the applicant told the Tribunal he had left his employment.[23]

   [17] CB289, [130]

   [18] CB284, [90]-[92]

   [19] CB284-285, [95]-[96]

   [20] CB286, [110]-[116]

   [21] CB287, [117]-[120]

   [22] CB287 [119]

   [23] CB288, [121]-[127]

2. Although the Tribunal found the applicant was not a witness of truth, it considered whether the applicant faced a risk of harm if he returned to Sri Lanka. The Tribunal accepted that country information indicated human rights abuses. The Tribunal found, however, that those abuses were directed to persons who are perceived by the authorities and related agencies as opponents; and the applicant would not be so perceived.[24] The Tribunal also considered whether the applicant would suffer serious harm because, if returned, he would be considered a failed asylum seeker. The Tribunal found there was insufficient information about returnees that would enable the Tribunal to determine whether they would be harmed because they were Tamils who had sought asylum in Australia.[25]

   [24] CB290, [143]-[144]; CB291 [149]

   [25] CB292-293 [164]

3. The Tribunal also considered whether there was a real chance the applicant would suffer harm on his return to Sri Lanka because he would be held in remand because he had departed Sri Lanka illegally. The Tribunal found the risk of serious harm to the applicant is remote.[26] The Tribunal relied on a report from the Department of Foreign Affairs and Trade that was to the effect that when returnees arrive at the airport, enquiries are made of them as quickly as possible; depending on the day they return, the returnees may be held briefly on remand before being brought before a magistrate as quickly as possible; and in practice, persons who leave Sri Lanka illegally are not given custodial sentences but instead are fined.[27]

   [26] CB293, [168]

   [27] CB293, [167]

First ground of review

1. The amended application contains three grounds of review, only two of which the applicant presses. The first is as follows:

   The Tribunal’s deliberations and conclusions on the applicant’s credibility were unreasonable in that the Tribunal took into account an irrelevant consideration in the sense spoken of by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 when the Tribunal assumed the applicant should know why the police regarded him as a supporter of the LTTE: see CB244, [66], [67]. Because the Tribunal held this assumption the applicant’s later claim that the police regarded him as a supporter of the LTTE because he was wealthy appeared to the Tribunal to be suspicious and the adverse inference which the Tribunal drew against the applicant’s credibility upon this suspicion was unreasonable as a result.

2. In his written submissions the applicant submitted that the Tribunal’s adverse credibility finding was based on “a false syllogism”, namely that the applicant “should know (and by inference have articulated at an earlier stage in the proceedings) the reasons why the police regarded him as a supporter of the LTTE”.

3. There is nothing in the Tribunal’s reasons that suggests the Tribunal assumed the applicant should have known why the police regarded him as a supporter of the LTTE, or that the Tribunal relied on any such assumption in finding the applicant was not a witness of truth. What the Tribunal considered to be relevant to the applicant’s credibility was his having given evidence to the Tribunal that he believed that a reason for his having been harassed by the CID may have been his wealth in circumstances where the applicant did not give evidence of that belief on any one of the three previous occasions he had given evidence of his claims for protection.

4. It was reasonably open to the Tribunal to consider that that circumstance reflected poorly on the applicant’s credibility. Why? If the applicant believed, as he told the Tribunal he believed, that his wealth was a possible reason for his being harassed by the CID, it is reasonable to have expected the applicant to have given evidence of that belief on one or more of the three previous occasions the applicant gave evidence of his claims before he appeared before the Tribunal. That is particularly so when the applicant gave evidence at his entry interview, where the applicant was asked why he was stopped by the police and had money taken from him, and when the applicant gave evidence before the Departmental officer, where he was asked why the police would demand 200,000 rupees from the applicant when he was only paid 12,000 rupees a month. That the applicant did not on those occasions state that he believed the CID acted in the way they did because he was wealthy could reasonably have given rise to the inference that the applicant did not in fact hold that belief at the time he gave evidence on the previous occasions and that, therefore, he did not hold the belief when he expressed it to the Tribunal at the hearing. That, in turn, could reasonably have given rise to the inference that the applicant was not a witness of truth.

5. In his written submissions the applicant submits he put before the Tribunal cogent reasons why the applicant did not mention before he attended the Tribunal hearing his belief that wealth may have been a reason for his being harassed. Those reasons were stated in a letter dated 28 April 2013[28] the applicant’s representative wrote in response to the Tribunal’s letter dated 15 April 2013.[29] The applicant’s representative said the applicant had never denied he was wealthy or denied he owned land; the applicant had not been asked about his financial status; the applicant believed that details of his personal circumstances would be assumed from the information he had previously provided, and that applicants for protection are advised only to answer questions they are asked.[30] The representative further stated that the “fact that [the applicant] had not previously speculated on this additional reason . . . does not itself support that such a reason does not exist or should not be a factor to take into consideration as contributing to his risk of harm for the future”.[31]

   [28] CB240-256

   [29] CB228-239

   [30] CB243

   [31] CB245

6. The Tribunal referred in its reasons to the applicant’s representative’s response, and rejected each of the matters raised by the applicant’s representative. First, the Tribunal said it was not to the point that the applicant never denied he was wealthy.[32] The concern, the Tribunal said, was that the applicant told the Tribunal that the authorities were harassing him because he was wealthy and that it was on that basis they suspected the applicant was supporting the LTTE.[33] Second, the Tribunal was of the view the applicant had three opportunities to claim that he was targeted because he was wealthy.[34] Third, the Tribunal rejected the submission that the applicant’s omission was the failure to mention before the Tribunal hearing “speculation on his part as to the reason why he was targeted and that it was because of his wealth”.[35] The Tribunal said:[36]

   The omission in question is the failure by the applicant to put forward at any stage prior to the Tribunal hearing his evidence that the reason he was targeted by the authorities was because of his wealth which made them suspect that he was involved with the LTTE.

   [32] CB285, [98]

   [33] CB285, [98]

   [34] CB285, [101]

   [35] CB285, [103]

   [36] CB285-286, [103]

7. In other words, the significance of the omission lay in the applicant’s failing to state on three previous occasions when he had the opportunity to do so that he held the belief which he informed the Tribunal he held.

8. It was reasonably open to the Tribunal, for the reasons it gave, not to accept the applicant’s representative’s explanations why the applicant did not give evidence on any one or more of the previous occasions on which he gave evidence of his claims for protection of his belief that he may have been harassed by the CID because of his wealth.

9. Ground 1, therefore, fails.

Second ground of review

1. The second ground of review is as follows:

   The Tribunal’s deliberations and conclusions on the applicant’s credibility were unreasonable because they were based on the Tribunal’s disbelief that the applicant was genuinely mistaken when he said his mother had died in 1999 rather than in 2009, and this disbelief was arbitrary and capricious, there being no evidence or material relied upon nor reasons given to justify the disbelief: Buck v Bavone (1976) 135 CLR 110 at 118

2. This ground assumes that the Tribunal is required to base any disbelief it may have of an applicant’s evidence on some evidence or material. That assumption is incorrect. The relevant principle was stated by Driver FM (as his Honour then was) in a passage approved by the Full Federal Court in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs:[37]

   Provided that the presiding member approached the consideration of the applicant’s evidence in a rational and logical manner . . . the applicant cannot found a judicial review application on a no evidence ground . . . .

   [37] [2004] FCAFC 139 at [13]

3. The question is whether the Tribunal relied on rational grounds for disbelieving the applicant’s explanation for having given two different years for the death of his mother, one being 1999, and the other 2009. The applicant said his mother died in 1999 during his entry interview and during one part of the hearing before the Tribunal; and the applicant said his mother died in 2009 in his interview with the Departmental officer and in a later part of the hearing before the Tribunal, when he corrected the earlier evidence he had given that his mother died in 1999. The principal ground on which the Tribunal relied for disbelieving the applicant’s explanation was its view that the applicant could reasonably be expected consistently to say what year his mother actually died, particularly if, as the applicant’s representative had submitted, the applicant had provided the representative with documents that stated the actual year of the applicant’s mother’s death.[38] Further, the Tribunal said that although it could allow for the conditions under which the applicant gave evidence at the entry interview, the Tribunal “remains concerned that the applicant would put forward the incorrect year for a significant event in his life such as his mother’s death”, and that was the case “regardless of whether he had documents that supported his claim that she died in a particular year”.[39]

   [38] CB287, [112]

   [39] CB287, [116]

4. At the conclusion of the hearing, I gave the applicant leave to file additional written submissions in relation to pages 31-45 of the transcript of the hearing before the Tribunal.[40] I gave that leave because counsel for the applicant was unsure whether he had read that portion of the transcript. In the event, the applicant filed further submissions, but these went beyond the leave I gave. Counsel for the Minister submitted that I should ignore the applicant’s additional submissions. I will not ignore the applicant’s further submissions.

   [40] Being the transcript annexed to the affidavit of F L Milne affirmed 25 August 2014

5. The further submissions refer to a number of passages from the transcript of the hearing before the Tribunal.[41] The further submissions then refer to a passage where the Tribunal member informed the applicant that if the member finds the applicant is not telling the truth, the member will not give weight to documents the applicant provided to the Tribunal which describe how wealthy the applicant is.[42] The applicant submits it does not follow logically that a finding regarding the year of the applicant’s mother’s death would therefore mean no weight could be given to financial documents provided by the applicant.[43] That may or may not be true; but it is not what the Tribunal member said. The Tribunal member said that the member would not give weight to the documents if the Tribunal finds the applicant is not telling the truth. A finding that a witness is not telling the truth is a reasonable ground for giving no weight to documents produced by that witness whose authenticity is not otherwise corroborated.

   [41] Submissions on Behalf of the Applicant – Further Submissions [7]-[11]

   [42] Submissions on Behalf of the Applicant – Further Submissions [11]

   [43] Submissions on Behalf of the Applicant – Further Submissions [12]

1. After referring to further sections of the transcript, the further submissions then submit that it did not follow that because the applicant provided erroneous information about the year on which his mother died that he had done so intentionally in a manner that would entitle the Tribunal to give no weight to the financial documents provided by the applicant.[44] Again, that may or may not be true; but it is not what the Tribunal found. The Tribunal did not find the applicant intentionally gave inconsistent evidence about the year of his mother’s death. Further, the Tribunal’s giving no weight to the financial documents the applicant produced to the Tribunal was based on the Tribunal’s concerns about the applicant’s credibility. Those concerns were not based only on the applicant’s having given inconsistent evidence about the years on which his mother died; they were also based on the applicant having given evidence to the Tribunal that he believed he was harassed because of his wealth in circumstances where the applicant did not give such evidence on the three previous occasions in which he had the opportunity to give evidence of that belief, on his giving confused evidence about the land he owned, and the employer’s letter stating the applicant had left his employment on a date earlier than that claimed by the applicant.

   [44] Submissions on Behalf of the Applicant – Further Submissions [15a.]

2. In my opinion, it was reasonably open to the Tribunal, for the reasons it gave, not to accept the applicant’s explanation for his giving two different years for his mother’s death. It was also reasonably open to regard the applicant’s inconsistent evidence as to the year of his mother’s death as being relevant to the assessment of the applicant’s credibility. Ground 2, therefore, also fails.

Other matters

1. After the hearing, with the consent of the Minister, the applicant applied for leave to file a further amended application which included a ground which relies on the reasoning of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. The High Court has upheld an appeal from his Honour’s orders in which the High Court disapproved of his Honour’s reasoning.[45] Accordingly, I propose not to grant the applicant leave to file a further amended application because it would be futile.

   [45] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22

Conclusion and disposition

1. The applicant has not established the grounds on which he has sought to set aside the Tribunal’s decision. I propose, therefore, to dismiss the application, and order that the applicant pay the Minister’s costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 24 July 2015