FEDERAL COURT OF AUSTRALIA

WZARF v Minister for Immigration & Citizenship [2013] FCA 114

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

Background

1    At the conclusion of the hearing of this appeal on 19 February 2013, I dismissed the appeal with costs and gave short oral reasons. I indicated then that I would provide detailed written reasons in due course. These are those reasons.

2    The appellant is a citizen of Sri Lanka and is a Tamil Muslim. He first arrived in Australia as a holder of a Subclass 573 Student visa (Student Visa) on 25 October 2005. He was granted further student visas on 14 November 2005 and 27 March 2009.    

3    In June 2007, February 2008 and January 2009 he departed Australia, and on each occasion returned after absences of between 3 and 5 weeks.     His Student Visa was cancelled on 22 July 2010, and he applied for a Protection (Class XA) visa on 14 July 2011 (Protection Visa).    

4    Thereafter, the appellant was granted a number of bridging visas while his application for review of the cancellation of his student visa and his application for a Protection Visa were considered.    

5    In the written statement accompanying his Protection Visa application, the appellant claimed that after returning to Sri Lanka on 29 January 2009, he had remained there until 11 February 2009, when his father requested him to travel to India on business. He further claimed that when he returned to Sri Lanka from Bangalore, India, he was detained by the airport authorities for investigation by the police.     

6    The appellant further claimed that he was taken to the Criminal Investigations Department (CID) headquarters for interrogation, was identified by someone as a Liberation Tigers of Tamil Eelam (LTTE) collaborator, and was assaulted severely by police officers. He and others were then transferred to Boosa Camp for further interrogation, and was subsequently released through the intervention of his father upon the payment of a bribe.     

7    In subsequent evidence to the second respondent (the Tribunal), the appellant claimed that he had been detained at Boosa Camp for 10 days during which he was beaten and questioned about his involvement with the LTTE. He claimed that he would be beaten, left for a few days and then beaten again a few days later.    

8    The appellant's passport records show that he returned to Sri Lanka from India on 17 February 2009, and that he subsequently departed Sri Lanka 9 days later on 26 February 2009 for Singapore and flew from there to Australia on 28 February 2009.    

9    The appellant was interviewed by an officer of the Department of Immigration and Citizenship (the Department) in relation to his Protection Visa application on 21 September 2011. On 30 September 2011, a delegate of the first respondent (the Delegate) made a decision refusing to grant him a Protection Visa. On 4 November 2011, the appellant made an application to the Tribunal for review of this decision.

10    During the course of a resumed hearing on 9 May 2012, the Tribunal put information to the appellant pursuant to s 424AA of the Migration Act 1958 (Cth) (the Migration Act) concerning reasons he had given for his unsatisfactory academic performance in relation to the cancellation of his Student Visa, and that the appellant did not mention anything about having fears of returning to Sri Lanka. The Tribunal indicated to the appellant that if the information was relied upon by the Tribunal it would be the reason or part of the reason for affirming the decision to refuse him a Protection Visa.

11    On 24 May 2012 the Tribunal affirmed the decision of the Delegate not to grant a Protection Visa to the appellant.     

12    On 28 June 2012, the appellant filed an application with the Federal Magistrates Court seeking review of the Tribunal’s decision dated 24 May 2012, which affirmed the decision not to grant him a Protection Visa.

13    The grounds of the application were:

1.    The second respondent fell into jurisdictional error by:

    (i)    Making a finding for which there was no evidence; and/or

    (ii)    By coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.

2.    The second respondent fell into jurisdictional error by failing to have regard to all relevant material.

3.    The second respondent fell into jurisdictional error by failing to consider one of the [appellant’s] claims.

4.    The second respondent fell into jurisdictional error by failing to have regard to all relevant material.

5.    The second respondent denied the [appellant] procedural fairness and thereby fell into jurisdictional error.

14    On 5 November 2012, Lindsay FM refused the appellant’s application for judicial review.

15    By notice of appeal dated 26 November 2012, the appellant appeals from the whole of the judgment of the Federal Magistrate given on 5 November 2012 (mistakenly referred to as given on 16 November 2012).

16    The grounds of appeal are:

1.    The Tribunal exceeding its jurisdiction by failing to deal with "core factual finding" in relation to the fear of persecution of the [appellant's] return back to his country of origin but dealt with "core factual finding" in relation to the refusal of his student visa and thereby conducted an erroneous fact finding leading to a jurisdictional error under the procedural fairness.

2.    The Federal Magistrates Court failed to accept the failure of the Tribunal to assess the [appellant's] original statement of claims and the reasons stated therein as to his travel back and forth to Sri Lanka and Australia till his final arrest at the airport during the last visit. The Federal Magistrates Court ignored the erroneous fact finding method of the Tribunal in relation to the student visa cancellation and the failure of the Tribunal to consider the fear of persecution of the [appellant] on his return to his country of origin.

3.    The Federal Magistrates Court and the Tribunal had an erroneous finding of the fact which is irrelevant to the claims made by the [appellant] and fell into jurisdictional error by dealing with the [appellant's] student visa cancellation in Australia which has no relevance to his fear of persecution back in his country. The Tribunal misused its authority to discredit the [appellant] on the fact the [appellant] failed to mention the fear of LTTE or the Sri Lankan authorities when answering to the question put by the Tribunal as to his incapacity to concentrate with his studies.

4.    The Nature of matters of which the Tribunal has to consider in good faith is absent during its "core factual finding". The Tribunal with full knowledge of the [appellant's] arrest at the airport on his return, dealt with issues which are absent and irrelevant to his claims of persecution and thereby made a jurisdictional error.

(Original emphasis.)

Ground 1

17    The substance of Ground 1 complains that the Tribunal did not deal with the appellant's claim to fear persecution if he was returned to Sri Lanka, and instead made findings in relation to "the refusal of his student visa". This, it is contended, amounted to "an erroneous fact finding leading to a jurisdictional error [by reason of a failure to accord] … procedural fairness".

18    I am satisfied that the Tribunal did not fail to deal with the appellant's claim that he feared persecution if returned to Sri Lanka, and did not fail to deal with any integer of such a claim.

19    The Tribunal, in its Statement of Decision and Reasons, set out the appellant's written statement in support of his Protection Visa application, and set out the further claims that he made at the two Tribunal hearings on 11 April and 9 May 2012.

20    The Tribunal then considered all of the appellant's claims as shown by its reasoning under the heading "Findings and Reasons". The Tribunal concluded that it had assessed the appellant's claims against the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (collectively the Convention), both individually and cumulatively, and found that the chance of the appellant being seriously harmed for reasons of his imputed political opinion as an LTTE collaborator or any other Convention reason, if he were to return to Sri Lanka now or in the reasonably foreseeable future, was remote, and accordingly, not a real chance. Prior to arriving at this conclusion, the Tribunal had made a number of findings:

(i)    In relation to the appellant's detention and questioning by police during his school days, given that it had been approximately 10 years since he had left school, the Tribunal found that the appellant would not face a real chance of serious harm from the authorities if he were to return to Sri Lanka now or in the foreseeable future.

(ii)    In relation to police visits to his home, after he had completed his studies, to question him about whether he had any dealings with the LTTE in Colombo, the Tribunal found that the appellant's departure from Sri Lanka in 2005 and his return trips in 2007, 2008 and 2009 were not consistent with him being imputed with any LTTE profile by the Sri Lankan authorities, and found that the appellant would not face a real chance of serious harm from the authorities if he returned to Sri Lanka now or in the foreseeable future.

(iii)    In relation to claims that LTTE cadres visited his father's business premises, the Tribunal did not accept that claim, and as a consequence, rejected his claims to have been taken to the police station for questioning.

(iv)    In relation to claims that in August 2005 the LTTE visited his home and pressured him to join the LTTE, the Tribunal noted that in his Student Visa file the appellant's problems with the LTTE were not mentioned, and that when asked what the consequences would be for him if his Student Visa was not restored, he did not mention anything about having fears of returning to Sri Lanka. The Tribunal, on the basis of this evidence, did not accept that the appellant was being pressured by the LTTE to join them.

(v)    On the basis of evidence given by the appellant to the Tribunal, and evidence in his Student Visa file, the Tribunal did not accept that the appellant was identified at the airport in February 2009 as an LTTE collaborator, apprehended and detained at Boosa Camp by the authorities as he had claimed.

(vi)    The Tribunal stated that it followed from its previous finding that the Tribunal did not accept any of the appellant's claims that flowed from that alleged apprehension and detention, namely that in May 2011 the paramilitary officers who he claimed had helped him to get out of the camp, demanded more money from his father, threatened that they would not allow him to return to Sri Lanka and ran down his brother in a road accident.

21    There was no jurisdictional error made by the Tribunal in arriving at any of these findings. They were based on the evidence before the Tribunal and its rejection of various claims made by the appellant. The findings were reasonably open to the Tribunal upon the evidence before it and its views as to the appellant's evidence in relation to a number of his claims, and its rejection of those claims.

22    The Tribunal was entitled to have regard to responses that the appellant had given in questioning regarding the cancellation of his Student Visa. The Tribunal at the hearing had specifically drawn the appellant's attention to his responses as required by s 424AA of the Migration Act, and the appellant responded to this information. Accordingly, the appellant was accorded procedural fairness in relation to the Tribunal's consideration of the appellant's responses in relation to the questioning in relation to the cancellation of his Student Visa. There was no jurisdictional error by the Tribunal by reason of it having taken the appellant's responses into account in considering his claims to have a well-founded fear of persecution for a Convention reason.

23    Ground 1 of the notice of appeal is not made out.

Ground 2

24    Ground 2 is in substance the same as Ground 1, although expressed in terms of the Federal Magistrates Court having failed to accept that the Tribunal had not assessed the appellant's claims, and having ignored the Tribunal's erroneous fact finding in relation to his Student Visa cancellation.

25    I find that, for the same reasons referrable to Ground 1, there was no appellable error by the court below in failing to find any jurisdictional error by the Tribunal in the ways contended for by the appellant. Ground 2 is not made out.

Ground 3

26    Ground 3 again raises the Tribunal's consideration of responses that the appellant gave during questioning in relation to the cancellation of his Student Visa. It asserts that the Tribunal's finding regarding the appellant's responses in relation to his Student Visa cancellation are irrelevant to his fear of persecution, and that the Tribunal "misused its authority" to discredit the appellant because of his failure to mention his fear of the LTTE or the Sri Lankan authorities when questioned in relation to his Student Visa cancellation.

27    The Tribunal did not have regard to an irrelevant matter or irrelevant material in considering the appellant's responses during questioning in relation to his Student Visa cancellation.

28    As the first respondent correctly submits, a decision-maker or tribunal may properly take into account the failure by an applicant to mention during earlier interviews or written statements something that an applicant raises at a later time, in assessing that applicant's credibility. That the Tribunal had regard to earlier written or oral statements made by an applicant in assessing the credibility of his later claims does not involve taking into account irrelevant material or an irrelevant consideration. It does not involve jurisdictional error.

29    The Tribunal specifically drew the appellant's attention to statements that he had made during questioning about his Student Visa cancellation pursuant to s 424AA of the Migration Act, and gave him the opportunity to respond to that information. The Tribunal was entitled to take the appellant's responses into account in assessing his credibility, and in considering and rejecting his claims to fear persecution from the LTTE and/or the Sri Lankan authorities, based in his claims that he had, in 2009, been arrested at the airport on his return from India, detained at CID headquarters, and then transferred to Boosa camp where he was detained and beaten for 10 days.

30    This ground of appeal fails.

Ground 4

31    Ground 4 of the notice of appeal is in substance the same as Grounds 1 to 3.

32    The Tribunal was fully aware of, and considered, the appellant's claims that he was arrested at the airport when he returned to Sri Lanka from India in early 2009, detained at CID headquarters, and then transferred to Boosa camp where he claimed to have been detained for 10 days, beaten and questioned about his involvement with the LTTE.

33    However, the Tribunal did not accept that the appellant was identified at the airport as an LTTE collaborator, apprehended and detained at Boosa camp as he had claimed. This ground is yet again an impermissible attack on the merits of the Tribunal's decision. The Tribunal clearly did consider the appellant's claims, but did not believe them. The appellant is, in effect, re-arguing what he submitted below, that the Tribunal should not have taken into account his responses to earlier questioning about his Student Visa cancellation, and should have believed and accepted his claims regarding his arrest, detention and ill treatment. This he cannot do.

34    This ground fails.

Orders

35    For the reasons set out above there will be orders that the appeal be dismissed, and that the appellant pay the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    22 February 2013