SZWCB v Minister for Immigration

[2018] FCCA 2220

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWCB v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2220

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 424A, 474

SZWCB v Minister for Immigration & Border Protection & Anor [2015] FCCA 528
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZBYR v Minister for Immigration & Citizenship (2007) 96 ALD 1

Applicant: SZWCB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 330 of 2015

Judgment of: Judge Cameron

Hearing dates: 28 June 2018, 25 July 2018

Date of Last Submission: 25 July 2018

Delivered at: Sydney

Delivered on: 25 July 2018

REPRESENTATION  

The Applicant appeared in person

Solicitors for the Respondents: Ms B. Griffin of Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

3. The applicant have leave to amend his application to add grounds 3 and 4 as set out in his written submissions filed on 23 July 2018.

4. The applicant file his amended application within 14 days.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 330 of 2015

SZWCB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 29 May 2012. On 14 September 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity, his imputed political opinion and his membership of two particular social groups. On 19 July 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. These proceedings are the second such proceedings relating to the applicant’s application before this Court.  A previous decision of this Court dated 5 March 2015 (SZWCB v Minister for Immigration & Border Protection & Anor [2015] FCCA 528) dismissing the applicant’s application, was set aside by consent in the Federal Court of Australia on 9 September 2015 and the matter remitted to this Court for determination of the applicant’s application for judicial review.

3. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

4. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. The applicant’s written claims protection were set out in his statement accompanying his application dated 14 September 2012 and in written submissions to the Tribunal dated 19 November 2014 and 10 December 2014. The latter submissions also attached a statutory declaration of the applicant of the same date.

2. The applicant provided oral evidence of his protection claims at a maritime arrival interview on 10 July 2012, a departmental interview whose date is unknown to the Court and a Tribunal hearing on 26 November 2014.

3. As summarised by the Tribunal in its decision record, the applicant made the following claims:

   a)when the Sri Lankan civil war resumed in 2004, he was forced to work for the Liberation Tigers of Tamil Eelam (“LTTE”) as a tailor.  He did this for about two years;

   b)in 2006 his village was attacked and much of it was destroyed;

   c)in about mid-2007 he received a one-month LTTE training course;

   d)in 2008 he and his family were forced to relocate on a number of occasions before finally settling in a camp for internally displaced persons which was controlled by the Sri Lankan Army (“SLA”);

   e)his wife was injured by shrapnel in 2008;

   f)whilst in the SLA camp, he was regularly interrogated by SLA officers about his involvement with the LTTE.  He always denied any involvement for fear of detention and torture;

   g)in November 2011 the Criminal Investigation Department (“CID”) allowed the applicant and his family to resettle into the community.  However, prior to being released the CID told him that they knew he had been lying about his involvement with the LTTE and said that he was being released on condition that he report to them on a monthly basis.  They also told him that they would arrest him “for life” if they were able to prove that he had been involved with the LTTE;

   h)save for the first month after he was released, the applicant reported to the camp on a monthly basis until May 2012 (when he left for Australia); and

   i)he feared imprisonment, torture and death at the hands of Sri Lankan authorities, particularly the CID, if he returned to Sri Lanka.  He would be harmed or mistreated because of his Tamil ethnicity, his imputed political opinion and his membership of a particular social group, namely, a former employee of the LTTE and a failed asylum seeker.

4. As recorded by the Tribunal, during the hearing the applicant also claimed that:

   a)two of his colleagues he had worked with in the factory [making clothes for the LTTE] had been taken away by the authorities shortly before his departure from Sri Lanka;

   b)after he left the SLA camp the authorities visited him repeatedly;

   c)after he left the SLA camp the authorities also interrogated him repeatedly; and

   d)when questioned by the CID while living in the SLA camp, he told them that he had worked in a factory that was under the control of the LTTE.

5. In their post-hearing submissions of 10 December 2014, the applicant’s representatives submitted that the applicant had “embellished” the first three claims because of his fear of returning to Sri Lanka. In his attached statutory declaration the applicant confirmed as much. 

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)given the admissions made by the applicant in his statutory declaration of 10 December 2014, the Tribunal found that the applicant had been prepared to give, and in fact did give, untrue evidence to the Tribunal.  It noted that the applicant did not just “embroider” his evidence but had admitted to making up matters to assist his claim for protection;

   b)the Tribunal noted that there were various inconsistencies in the applicant’s evidence, including:

   i)the applicant told the Tribunal that when questioned by the CID in the camp, he told them that he had stitched clothes in a factory controlled by the LTTE.  However, in his original statement the applicant claimed that he had always denied being involved with the LTTE;

   ii)at the Tribunal hearing the applicant claimed that when the SLA attacked his village in 2006, the factory where he worked was spared.  In contrast, in his original statement the applicant stated that the factory was destroyed;

   iii)he gave two different towns as the location where his wife had been injured when she was hit by shrapnel;

   iv)the applicant told the Tribunal that he had to report to the army head office in an identified town, whereas in his original statement he said that he had had to report to the SLA camp which was in a different location;

   v)the applicant told the Tribunal that he did not report to the authorities for the first one or two months because there were bombs.  However, in his original statement he claimed that he had been too afraid to return to the SLA camp so did not report to them; and

   vi)during his maritime arrival interview he stated that he had received training from the LTTE for one day, whereas in his original statement he stated that the training had lasted one month;

   c)having regard to those inconsistencies, and the applicant’s unpersuasive explanations for them, together with the applicant’s admissions that he had intentionally misled the Tribunal in his evidence and had invented untrue evidence to corroborate his application, the Tribunal considered it difficult, if not impossible, to be satisfied of the veracity of the applicant’s claims.  In light of this conclusion, the Tribunal found that the applicant had invented much of his account to improve his chances of being granted protection;

   d)in those circumstances, the Tribunal did not accept that the applicant had ever worked for or been involved in the LTTE. Although it accepted that he had been regularly interrogated by the SLA while living in their camp, the Tribunal found that the applicant never told them about any involvement with the LTTE.  Further, given that he was released from the camp in 2010, the Tribunal did not accept that the authorities had an interest in him;        

   e)the Tribunal did not accept that the country information supported a conclusion that the applicant would be harmed in Sri Lanka simply on account of his Tamil ethnicity, that he would be imputed with a pro-LTTE political opinion because of it, or because he was a young Tamil man from the north;

   f)as the Tribunal had rejected the applicant’s claim that he was a former employee of the LTTE, it did not accept that he was a member of that claimed particular social group; and

   g)the Tribunal accepted that the applicant would be detained for questioning upon his return to Sri Lanka, would undergo security and character checks, would be remanded for a brief period, would be charged with an offence under Sri Lanka’s Immigrants and Emigrants Act (“I&E Act”) and would suffer a penalty.  However, it found that these processes would be consequences of the non-discriminatory enforcement of a law of general application. 

PROCEEDINGS IN THIS COURT

1. In the application commencing these proceedings the applicant alleged:

   1.The Tribunal failed to comply with s.424A or 424AA of the Migration Act 1958 (“the Act”) in respect of information that it considered would be there [sic] reason or part of the reason for affirming the decision under review.

   Particulars

   The Tribunal took into account information that had been given by the Applicant orally to the Minister’s department at a “maritime arrival interview” in determining whether the Applicant was a truthful witness. That information was not put to the Applicant in accordance with s.424A or 424AA of the Act.

   2.The Tribunal relied on a direction purportedly made by the Minister under s.499 of the Act which was not a valid direction under that section.

   Particulars

   Direction 56, purportedly made by the Minister under s.499, directs decision makers including the Tribunal to “take into account” certain “country information assessments” prepared by the Department of Foreign Affairs and Trade. In so far as those assessments contain factual information or inferences drawn from factual information the necessary inference to be drawn from the Minister’s direction is that the information is to be given a special status or special weight compared with any other information that the Tribunal might have access to.  As such the direction is a fetter on the free exercise of the Tribunal’s power to independently assess the claims of the Applicant, and is therefore in excess of the power to make directions in s.499.

2. At the hearing of this application, the applicant was granted leave to rely on the following additional grounds:

   3.The AAT failed to provide adequate procedural fairness to the applicant.

   Particulars

   The AAT advert that that the applicant would be face fine under the Immigration and Emigration Act, however, failed to engage to assess whether the applicant has the means to pay fine, in particular it failed to consider and failed to invite the applicant to provide his response to the following:

   a.Whether the applicant has any means to provide bail money?

   b.Whether applicant has any relatives who would travel to Colombo to provide guarantee any bail surety.

   c.Whether the applicant has any relatives who would be able to provide or guarantee any bail surety.

   d.What would happen if the applicant does not have the means or does not have any relatives who would be able to provide financial surety and whether he would face longer imprisonment and if there is longer imprisonment whether he would face significant harm.

   The above issues the AAT either did not consider or did not give an opportunity to the applicant to respond.

   4.The AAT failed to engage in realistic consideration of applicant’s claims under the complementary protection ground.

   Particulars

   The AAT failed to consider whether the applicants would face significant harm by the prolonged detention if the applicant would not be able to pay the fine or payment under the Complementary Protection ground.  The IAA discussed about illegal departure and issues but failed to assess whether the applicant has the capacity pay the fine and if he has no means to pay whether he would face prolonged detention which would amount to degrading and cruel treatment.

Ground 1

1. The passage of the Tribunal’s decision to which the first ground of the application relates is para.36 where the Tribunal said:

   I find all these explanations to be unconvincing.  I also note that in his maritime arrival interview he said that he received training from the LTTE for one day.   In his statement he said that training was one month long.

   The first sentence of that paragraph indicates the Tribunal’s rejection of various aspects of the applicant’s factual claims which it found to be unpersuasive and inconsistent.  These have been set out earlier in these reasons at [7] and [8].

2. It is apparent, therefore, that the second sentence of para.36 of the Tribunal’s reasons is not decisive in any way for the Tribunal’s decision.  It is, as it says, merely a note.  But, in any event, the information provided by the applicant at his maritime arrival interview to the effect that he had received LTTE training for only one day was not information which would be said to have been adverse to the applicant’s case and, further, the Tribunal did not have regard to it as adverse information, merely as information advanced by the applicant which was inconsistent with other information he had advanced.  What the applicant is complaining of in the first ground of the application is the Tribunal’s analysis of his differing claims, which SZBYR v Minister for Immigration & Citizenship (2007) 96 ALD 1 indicates is not something which attracts the operation of s.424A of the Act.

Ground 2

1. The relevant part of Ministerial Direction No.56 is clause 3 which states:

   Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision.  The decision maker is not precluded from considering other relevant information about the country.

2. It is plain from the wording of that clause that the Minister does not direct the Tribunal to place any particular weight on Department of Foreign Affairs and Trade (“DFAT”) country information assessments, merely to take them into account.  What weight is to be accorded to those assessments remains a matter for the Tribunal entirely and its discretion in that connection is entirely unfettered by Direction No.56.  For that reason, this allegation is not made out.

Ground 3

1. Amongst other duties, the Tribunal must permit applicants to articulate their claims and then to adduce evidence and make submissions in relation to those claims.

2. The answer to the applicant’s third allegation lies in the fact that he never suggested to the Tribunal that he would be unable to satisfy such bail requirements or pay such fine as might be imposed on him for being charged with and/or found guilty of breaching Sri Lanka’s I&E Act.  This is notwithstanding that the applicant claimed to fear harm as a failed asylum seeker and the fact that the delegate’s decision expressly referred to the likely bail situation and probable ultimate imposition of a fine for breaching the I&E Act.

3. The applicant’s own advisers addressed the same issues in their written submissions to the Tribunal on 19 November 2014.  The Tribunal gave them the opportunity to address fresh DFAT information but in their further written submissions of 10 December 2014 they did not take up that opportunity, at least in relation to the matter raised by the applicant’s third allegation in these proceedings.  Nor did the applicant in his statutory declaration of 10 December 2014.

4. In circumstances where the applicant never made the claim now sought to be relied upon, and where he was given more than one opportunity to do so, the allegation of denial of procedural fairness made in the applicant’s third allegation is not made out.

Ground 4

1. As already noted, the applicant never claimed to be unable to pay such fine as might be imposed upon him in Sri Lanka for a breach of the I&E Act.  Consequently, this allegation lacks necessary factual underpinning.

CONCLUSION

1. Jurisdictional review on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 23 August 2018