FEDERAL COURT OF AUSTRALIA

SZWBY v Minister for Immigration and Border Protection [2018] FCA 151

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed pursuant to Rule 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth).

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    This appeal is from a judgment of the Federal Circuit Court of Australia (FCCA) given on 18 August 2017.

2    The appellant arrived in Australia as an “unauthorised maritime arrival” on 20 June 2012. His application for a Protection (Class XA) visa, made on 31 October or 7 November 2012, was refused by a delegate of the first respondent (Minister) on 18 July 2013. The appellant applied to the then Refugee Review Tribunal (Tribunal) for review of the delegate’s decision. On 19 January 2015, the Tribunal affirmed the decision not to grant the appellant a protection visa.

3    So far as presently relevant, the appellant filed a further amended application for judicial review of the Tribunal’s decision in the FCCA on 26 February 2016.

The Tribunal’s findings

4    At [27], the Tribunal disbelieved the appellant’s claims that he was involved in conflict at a garment factory where he worked in Colombo; that certain Sinhalese employees reported him to Sri Lankan authorities on suspected involvement with the Liberation Tigers of Tamil Eelam (LTTE); that the Sri Lankan Criminal Investigation Department (CID) came to the factory, his home and other places to locate him; that the CID issued a warrant for his arrest; and that the Sri Lankan authorities had any adverse interest in him.

5    Because, the Tribunal said at [28], the appellant was not a witness of truth the Tribunal also disbelieved claims he made about having a cousin who was abducted by the CID and the appellant approaching the Sri Lankan authorities to secure his release, including the occasion the appellant related to the Tribunal in April 2012.

6    Also relevant to the appellant’s claims in respect of the cousin were documents produced by the appellant from Sri Lanka. One of these was a letter dated 24 August 2011 from the Red Cross stating that in September 2006 “an Allegation of Arrest was opened” for a particular individual (who the appellant claimed was his cousin) whose whereabouts were unknown. Another was a letter dated 23 December 2014 from a lawyer in Sri Lanka also claiming that the appellant’s cousin was abducted in 2006 and alleging the police were investigating the appellant in relation to an allegation that he was in the LTTE and the police had gone to various places to find him. The Tribunal said, at [31], that it had carefully considered the contents of those documents (amongst others) but they did not outweigh or overcome the concerns the Tribunal held about the appellant’s credibility, which significantly discredited the appellant as a witness. Accordingly, the Tribunal did not give evidentiary weight to those documents.

7    In relation to the appellant’s claims about a brother, at [28] the Tribunal, having restated its conclusions about the appellant’s credibility, said that it accepted that the appellant did have a brother who lived in Australia and was the holder of a protection visa granted to him on 3 April 2012. The Tribunal then said the brother did not appear at the hearing and the only information provided to the Tribunal about him was the appellant’s evidence at the hearing, which was scant. The appellant said that the authorities had a suspicion that his brother was involved with the LTTE, but when asked what his brother had done to create that suspicion, the appellant just said to the Tribunal all he knew was that his brother was with his cousin. The appellant said he did not know what difficulties his brother had with the Sri Lankan authorities.

8    The appellant said the difficulties he had with Sri Lankan authorities and other people commenced in 2011 and were not related to his brother.

9    At [30], the Tribunal said it was not bound by credibility findings made by a delegate in respect of the appellant’s brother. The Tribunal was satisfied that the appellant was not a witness of truth and so disbelieved his claims about his brother.

10    Also at [30], the Tribunal said that, at any rate, the difficulties the appellant claimed he encountered in Sri Lanka and which caused him to leave the country arose in 2011 and the appellant did not claim to fear harm on the ground that his brother left Sri Lanka in 2009.

The proceedings in the FCCA

11    The primary judge considered what are now Grounds 1 and 2 together.

12    In relation to the appellant’s cousin, the primary judge set out, at [37], what the Tribunal had said at [28]-[31]. At [38] the primary judge noted the appellant’s submissions to the effect that the appellant’s claims to fear harm were said to derive, in part, from his having approached the Sri Lankan authorities to secure the release of his cousin who had been “abducted” by the CID. The Tribunal disbelieved this claim because it found the appellant not to be a witness of truth. At [42], the primary judge said that the Tribunal disbelieved the appellant’s claims regarding his cousin and gave no weight to the “corroborating” documents, because of adverse credibility findings it had made about the appellant. The primary judge held, at [135], that it could not be said that the Tribunal ignored or overlooked the appellant’s claim concerning his cousin. It made specific reference to it when setting out its understanding of the appellant’s claims, at [8] and [10] of the Tribunal’s reasons. At [139], the primary judge held that the Tribunal understood the claim made by the appellant concerning his cousin and how he said it created a fear of harm for him. It also noted information that a person with such links would be at risk of harm if they were to return to Sri Lanka. However, the Tribunal had found as a fact that it did not accept the appellant had a cousin who had been abducted by the CID. This was reasonably open to the Tribunal on what was before it, and for the reasons it gave. The primary judge rejected the claims of jurisdictional error on the part of the Tribunal in this respect.

13    In relation to the appellant’s brother, the primary judge again referred to the findings the Tribunal made about the appellant’s credibility. At [67], the primary judge referred to the Tribunal’s reasoning at [28]-[30]. The primary judge referred to a number of elements in the Tribunal’s conclusion that the brother’s situation did not give rise to a well-founded fear of harm for the appellant.

14    The brother did not appear at the Tribunal hearing, nor otherwise provide any statement to support the appellant’s case. The only evidence available to the Tribunal on the issue of how the brother’s circumstances affected the appellant’s claim was the evidence of the appellant himself. The Tribunal described that evidence as “scant”. The appellant did not know what difficulties his brother had had with the Sri Lankan authorities.

15    The Tribunal found that the difficulties the appellant had with the Sri Lankan authorities “were not related to his brother”. This was reasonably open. It was also reasonably open to the Tribunal to find that the appellant did not claim to fear harm because his brother left Sri Lanka in 2009. It was not irrational for the Tribunal to say that it was not bound to follow the findings of a Ministerial delegate who assessed the brother’s claims and found them to be credible. As with the claims of jurisdictional error in respect of the appellant’s cousin, the primary judge rejected the claims in this respect.

16    In relation to what is now Ground 3, the primary judge said, at [107], that in the current case the Tribunal made an assessment of the appellant’s credit, and then assessed the value of the corroborative evidence and the effect of the contents of the documents, on the view it had otherwise formed of the appellant’s credit. No jurisdictional error was revealed in the circumstances: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; 184 FCR 485 at [33]-[36].

The appeal to this Court

17    The grounds of appeal to this Court are as follows:

1.    The Federal Circuit Court erred in failing to find that the Tribunal fell into jurisdictional error in making findings that were unreasonable resulting in the Tribunal not genuinely giving consideration to my evidence relating to my cousin being abducted in Sri Lanka and my brother being wanted by Sri Lankan authorities and as a result being found to be a refugee in Australia.

2.    The Federal Circuit Court erred in failing to find that the Tribunal had a legal obligation to consider all of my claims relating to my cousin being abducted and my brother being found to be a refugee in Australia and the Tribunal failed to respond to a substantial clearly articulated argument such that it [failed] to exercise jurisdiction.

3.    The Federal Circuit Court erred in failing to find that the Tribunal did not give proper, genuine and realistic consideration to the documentary evidence before [it] which support[s] my claims, thereby failing to properly consider all of my claims and thereby failing to exercise jurisdiction.

Submissions

18    The appellant filed no written submissions. The appellant was absent when the appeal was called on for hearing.

19    The Minister filed written submissions dated 15 February 2018.

20    With respect to the appellant’s brother, the Minister submitted, the primary judge noted that the Tribunal had accepted the appellant’s claim that his brother had been granted a protection visa, but found that the only evidence before the Tribunal as to the circumstances of the grant of the protection visa was the appellant’s own evidence. The Minister submitted it was not unreasonable for the Tribunal to reject the appellant’s evidence in that regard, having made comprehensive adverse credibility findings in respect of the appellant, which findings the appellant did not seek to impugn before the primary judge.

21    With respect to the appellant’s cousin, the Minister submitted, the appellant had claimed in a written submission to the Tribunal that the abduction of his cousin by the CID for reason of his suspected involvement with the LTTE resulted in the appellant acquiring the profile of having familial links to the LTTE. As noted by the primary judge, the Tribunal understood the claim made by the appellant. However and crucially, the Minister submitted, the Tribunal did not accept on the evidence and material before it that the appellant’s cousin had been abducted by the CID. The Minister submitted that there was no error in the primary judge holding that these findings were open to the Tribunal or that the effect of these findings was that, having rejected the factual premise on which the appellant’s claim was based, it was not required to further consider that claim.

22    As to Ground 3, the Minister submitted that this contention related to the Red Cross letter and the letter from the lawyer in Sri Lanka dated 23 December 2014. The primary judge held that the Tribunal had considered the Red Cross letter and the lawyer’s letter. The Tribunal “carefully considered” the documentary evidence provided by the appellant. However, having already made extensive adverse credibility findings, the Tribunal found that the documents were insufficient to overcome the Tribunal’s concerns about the appellant’s credibility. The Minister submitted that approach was open to the Tribunal and there was no error in the primary judge so holding.

Consideration

23    No error in the reasons of the primary judge was pointed to by the appellant.

24    As to Ground 1, it is clear that the Tribunal did not make findings that were unreasonable in the legal sense and that it did give consideration to the appellant’s evidence relating to his cousin and to his brother. The Tribunal set out the appellant’s evidence about his cousin at [8] and [10] of its reasons, in particular. The Tribunal considered the appellant’s claims about his brother at [28]-[29] in particular. The appellant’s evidence about his brother was indeed scant: the appellant said he did not know what difficulties his brother had with Sri Lankan authorities and the appellant said the difficulties he himself had with Sri Lankan authorities and other people commenced in 2011 and were not related to his brother. As found by the primary judge, it was not legally unreasonable for the Tribunal to disbelieve the appellant’s claims concerning his brother or his cousin given the state of the material before the Tribunal and the fact that the Tribunal disbelieved the appellant on another issue, being what had occurred at the garment factory.

25    As to Ground 2, no basis appears for thinking that the Tribunal did not consider all of the appellant’s claims relating to his cousin and to his brother. As explained by the primary judge, the claims failed to a very large extent because the Tribunal disbelieved the appellant. As noted by the primary judge at [22], none of the appellant’s grounds sought to impugn the Tribunal’s various findings as to the appellant’s credibility.

26    As to Ground 3, the primary judge did not err in finding that there was no jurisdictional error in the way in which the Tribunal considered the documentary evidence. The Tribunal evaluated that material, in particular at [31] of its reasons: see Minister for Immigration and Citizenship v SZNSP at [33]. The Red Cross document refers to the appellant’s cousin but is in the most general terms. The lawyer’s letter is largely about the appellant but refers in passing to the appellant’s cousin. No basis is stated in the letter or otherwise for thinking that the lawyer was doing any more than setting out what he had been told.

27    In my opinion, each of the three grounds of appeal fails and no error on the part of the primary judge has been made out.

Conclusion

28    The appeal is dismissed, with costs.

Associate:

Dated:    22 February 2018