FEDERAL COURT OF AUSTRALIA

SZTKP v Minister for Immigration and Border Protection [2015] FCA 256

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

1    The appellant has appealed the decision of the Federal Circuit Court of Australia (“the FCC”) dismissing his application for review of the decision of the second respondent (“the Tribunal”). The Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellant a Protection (Class XA) visa pursuant to s 65 of the Migration Act 1958 (Cth) (“the Act”).

The applicatioN for a protection (class XA) visa

2    The appellant, who is Sri Lankan, claimed to fear harm in Sri Lanka if returned because of his imputed association with the Liberation Tigers of Tamal Eelam (“LTTE”). In his protection interview, the appellant claimed to have been detained and questioned by the Sri Lankan Army (“SLA”) at an SLA camp in 2006 on suspicion of involvement with the LTTE and also to have been detained by the police in 2007 in Colombo because of his suspected LTTE membership. The delegate refused to grant the appellant a visa as he was not satisfied that the appellant had a well-founded fear of persecution should he return to Sri Lanka, despite having experienced some level of harassment. The delegate noted that the appellant had not experienced any further questions, threats or harassment since 2007, and had been able to leave the country legally without any problems on several occasions between 2007 and 2012. The delegate considered that the appellant’s ability to travel freely indicated that the SLA was satisfied that the appellant had never been involved with the LTTE and was of no interest to them.

the tribunal’s decision

3    The appellant raised several new claims before the Tribunal. He claimed that he had helped a LTTE member friend organise programs and put up flags, that he had done carpentry work for the LTTE and been videotaped saying that he supported the LTTE. He also claimed that he had been sexually assaulted at the SLA camp in 2006 and that in 2011, two “grease men” came into his family home and attacked his sister.

4    The Tribunal concluded that the appellant was not a credible witness and that all his claims were fabricated. The reasons given by the Tribunal for disbelieving the appellant are set out at [46]–[49] as follows:

I have carefully considered the claims and evidence of the applicant. As is apparent from the application, interview with the delegate and hearing before the Tribunal, the applicant’s story has been added to as the applicant progressed. Some of the variations are relatively minor; however others are major and impact significantly on his overall credibility. The most significant is his adding new claims in the agent’s pre-hearing submission and at hearing. I have carefully considered his adding of new claims and in particular note that he had an opportunity in his application and at interview with the delegate to detail his claims. He was also asked specifically by the delegate whether he had any other claims and whether anything happened to him after 2007. I do not accept any of the new claims as true. I consider he has made those claims so as to enhance his claims following from the negative decision from the delegate. I do not accept he was of any adverse interest from [sic] the authorities following on from 2007. I do not accept he was asked to attend the local camp for any reason. I do not accept that anything happened to his sister or he and his family were involved in any altercation with the “grease men” entering their home. I also do not accept he worked in any manner for the LTTE or helped his friend in carpentry work or organising any meetings for the LTTE.

I have carefully considered how these matters impact on the overall credibility of the applicant. If they were minor I would be prepared to give him the benefit of the doubt. In this instance however they indicate his preparedness to fabricate evidence and claims. I have considered this in the context of his obtaining a passport in [sic] 18 May 2005 without any problem and the validity of the passport being extended by the authorities on 3 December 2009. Also his travel in and out of Sri Lanka though [sic] the international airport on nine occasions from 2007 to 2012 and during period when the authorities would have been vigilant for anyone suspect [sic] of being LTTE or involved with them. The fact that he was able to make this travel and pass through the airport security on each and multiple occasions clearly indicates that he was of no adverse interest to the authorities in Sri Lanka. I accept that he may have been asked questions about his travel intentions however do not consider this anything out of the ordinary.

I do not accept any of the applicant’s claims of ever being arrested and detained by Sri Lankan authorities at any time. I find he has fabricated that evidence so as to enhance his clams [sic]. I also do not accept he had a friend in the LTTE and was questioned about him.

Overall, I find that the applicant is not a credible witness. I do not accept any of his claims of being or [sic] adverse interest to the authorities in Sri Lanka as true, I do not accept he has any connection with or association with the LTTE and find he has fabricated those claims so as to enhance his Protection visa claims. I do not accept the Receipt of Arrest as true and find it has been fabricated so as to substantiate his claims.

The fcc decision

5    The appellant sought judicial review in the FCC of the Tribunal’s decision on two grounds. The first ground alleged that the Tribunal had failed to deal with the full integers of the appellant’s claim. The particulars alleged:

The [Tribunal] failed to deal with a claim squarely raised during the hearing that the [Appellant] had been detained in Jaffna in 2007 for two days and sexually assaulted and had avoided disclosing the full details of the matter because he did not feel comfortable talking about these things in front of women.

6    The background to ground 1 is that during the course of evidence at the Tribunal hearing, the appellant told the Court that he had been sexually assaulted at the SLA camp when detained for questioning in 2006. When asked by the Tribunal why he had not mentioned the assault before, the appellant told the Tribunal that he “was really shy to talk in front of ladies, now I’m in a situation where I have no other optional choice, so I’m saying everything today”. The FCC rejected ground 1 on the basis that the claim of sexual assault was not a stand-alone claim that needed to be the subject of specific consideration by the Tribunal. At [29], the FCC stated:

The claim of sexual assault is not a stand-alone claim which needed to be the subject of specific consideration by the Tribunal. The claim was that the applicant was suspected of being involved with or supportive of the LTTE and had been detained because of that and that, in the course of that detention, he had been mistreated, including being sexually assaulted. The applicant was not claiming that for some other reason independent of his claim of being of interest to the authorities and fear of being detained for that reason that either he was sexually assaulted or feared being sexually assaulted on his return. In my opinion, the Tribunal properly dealt with the claims advanced before it.

7    The FCC also reasoned that it is implicit in the Tribunal’s reasons that it did not accept the reason advanced by the appellant was to why the claim of sexual assault had not been raised before and that the Tribunal rejected the claim as true.

8    The second ground alleged that the Tribunal had denied the appellant procedural fairness. The particulars were that:

The [Tribunal] failed to put the [Appellant] on notice that it did not accept the Receipt of Arrest as true and that it had been fabricated so as to substantiate his claims, denying the [Appellant] an opportunity to lead further evidence and/or make submissions regarding the [provenance] of the document.

9    The background to ground 2 is that during the course of evidence at the Tribunal hearing, the Tribunal asked the appellant about an arrest receipt that was part of the documentation that the appellant had provided in support of his claim that he had been arrested by the police in 2007 and questioned on suspicion of LTTE association. The arrest receipt was in Sinhalese and had not been translated. At the conclusion of the hearing the appellant’s agent asked the Tribunal member if he wanted a translation and the Tribunal member said that he was interested in what the document stated was the reason for arrest. A translation was subsequently provided to the Tribunal but the Tribunal gave no weight to that document, finding that the document had been fabricated. The FCC rejected ground 2 on the basis that the Tribunal was not required to put the appellant on notice that it may reject the Receipt of Arrest as a genuine document. The FCC reasoned at [48]-[50], [52]:

I accept the Minister’s submission that it was not incumbent upon the Tribunal to reconvene for a further hearing to enable the Tribunal to put its concerns about the genuineness of the document. Certainly, there is no provision in the Migration Act which required that procedure to be followed. There is no requirement, whether under the Migration Act or under general law principles of procedural fairness, for a Tribunal to indicate that an adverse decision may be made prior to making such a finding.

The applicant apparently contends that the Tribunal commenced a new procedure which it then did not complete by asking for a translation of the document which was already contained (in untranslated form) on the Departmental file. I accept that there is nothing in the exchange between the Tribunal member and the applicant’s representative which created an “undertaking that a procedure would be followed”. All the Tribunal did was ask for an English translation of a document in its possession and advise that it was interested in knowing what was said as being the reason for arrest. There is nothing in the transcript which supports a submission that the applicant had a legitimate expectation that the contents of the document would be accepted by the Tribunal.

…

I accept that the findings of the Tribunal regarding the document were open to it, having reached its conclusion regarding the credibility of the applicant.

[Citations omitted.]

10    The appellant was granted leave to raise a third ground that the Tribunal’s adverse credit finding was so unreasonable that no reasonable person would have made it. It was argued that the appellant’s failure to raise the claim of sexual assault when the visa application was made was central to the Tribunal’s adverse credit finding against the appellant, but that the finding was made by the Tribunal without regard for the procedural protections afforded to vulnerable persons under the Tribunal’s Guidance on Vulnerable Persons. The FCC rejected the contention that there was legal unreasonableness. At [88]-[90], the FCC concluded that:

Contrary to the applicant’s submission the issue of the applicant raising the allegation of sexual assault late was not a “central issue determinative of the case.” Rather it was one of a number of instances where his claims had developed over time, leading the Tribunal to consider that he was not a credible witness.

Understood in this way, there was no obligation for the Tribunal to consider invoking any of the procedures suggested in the Guidelines on Vulnerable Persons. This was not a case where the only issue upon which an assessment of credibility rested was the developing nature of a claim of sexual assault. Considering the evidence as a whole, the Tribunal was concerned about numerous aspects of the applicant’s claims advanced at the hearing.

These concerns ultimately led to a finding that the applicant was not a credible witness. This is not a case where there was one aspect of the applicant’s evidence, concerning claims of sexual assault, which raised concerns in the Tribunal’s mind. Neither was it a case where such considerations as to whether the applicant was a vulnerable person, and that this may be impacting upon his ability to properly engage with the hearing process, may have been engaged.

appeal grounds

11    On appeal, the appellant advanced four appeal grounds:

(a)    the FCC erred in failing to find that the Tribunal failed to deal with the full integers of the appellant’s claims;

(b)    the FCC erred in creating its own false factual premise about who was the appellant’s representative, who was his migration agent and who he had interviews with;

(c)    (by leave) the FCC erred by finding that the decision of the Tribunal was not illogical or irrational;

(d)    (by leave) the FCC erred by failing to find that the Tribunal denied procedural fairness or committed jurisdictional error having regard to and/or rejecting the Receipt of Arrest document.

Ground 1

12    The first ground has no merit as the FCC was correct to hold for the reasons given that the sexual assault claim was not an integer of the appellant’s claim to fear persecution, and no error of law is demonstrated. The Tribunal was not required to treat the evidence about the assault as a claim for protection merely because the evidence about the sexual assault was given. The basis upon which the appellant claimed to fear persecution was his imputed involvement with the LTTE, and his fear of persecution was claimed to stem from his detention and questioning by the SLA in 2006 and then by the police in 2007. The issue is whether the appellant’s evidence about the sexual assault should have been understood or construed by the Tribunal as another basis upon which the applicant feared persecution: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1; SZSWB v Minister for Immigration and Border Protection [2014] FCAFC 106. In the present case, no such claim was either made expressly or clearly arises on the material that was before the Tribunal. Rather, the transcript of the Tribunal hearing discloses that the claim of sexual assault was raised by the appellant in the course of describing his mistreatment by the SLA at the time of his detention and questioning in 2006. Nothing has been pointed to in the materials or evidence before the Tribunal to indicate that the appellant, by that evidence, was articulating a claim for persecution based upon the matter of the assault beyond his claim to fear persecution for his imputed involvement with the LTTE. No finding needed to be made by the Tribunal on whether the appellant had been sexually assaulted as he claimed.

Ground 2

13    Ground 2 is a challenge to the factual correctness of a statement at footnote 55 to the FCC’s judgment that the appellant’s migration agent was a Mr McCruddin. It was submitted for the appellant that this was an assumption made based on Mr McCruddin’s signature appearing on the appellant’s protection visa application when it would appear on the materials that, actually, the appellant’s advisor was a woman and that Mr McCruddin had signed the appellant’s application as the Senior Associate at Craddock Murray Neumann Lawyers who supervised the Immigration Advice and Application Assistance Scheme. Even if it be factually wrong, that error, of itself, does not impugn the decision of the FCC that the Tribunal did not fall into jurisdictional error in its adverse credit findings.

Ground 3

14    The argument, as best I could make out, appeared to be that the Tribunal’s adverse credibility findings were irrational and illogical because the Tribunal had considered the appellant’s evidence about the sexual assault in an unreasonable manner by failing to have regard to the appellant’s status as a vulnerable person and affording to the appellant the procedural protections under the Tribunal’s Guidance on Vulnerable Persons. Reliance was placed on SZRHL v Minister of Immigration and Border Protection [2013] FCA 1093. In that case, the Tribunal concluded that the factual basis upon which the appellant had advanced his protection visa application was not credible. The Tribunal’s reasoning was expressly influenced by its finding that the appellant had not made mention in his visa application of a “false case” that had been brought against the appellant by the Awami League in Bangladesh about arms and bombings. However, in fact, the appellant had made a reference to the false case in response to a question on the application form so that the premise upon which the adverse credit finding was made was shown to be wrong. The Court held that in that circumstance, where the error made by the Tribunal was not peripheral to the credit finding, the Tribunal’s reasoning as to the appellant’s absence of credibility, based as it was upon a wrong premise, was illogical or irrational and the Tribunal had committed jurisdictional error. In the present case, in contradistinction, the Tribunal’s assessment of credibility did not rest upon the appellant’s claim about the sexual assault and the rejection of the appellant’s explanation as to why he had not raised the matter of the sexual assault previously did not form part of the reasoning of the Tribunal as to why the appellant should not be accepted as a witness of truth. The claim of sexual assault was not central to the process of reasoning that led to the adverse credibility finding and no illogicality or unreasonableness in the process of reasoning arises by virtue of an asserted obligation to treat the appellant as a vulnerable person in relation to the claim of sexual assault.

Ground 4

15    In the appellant’s written submissions, it was submitted that the FCC, in rejecting this ground, had put the appellant’s case too high when it stated that “there is nothing in the transcript which supports a submission that the [appellant] had a legitimate expectation that the contents of the document would be accepted by the Tribunal”. Rather, the submission went, the expectation was that there would be a consideration of the arrest receipt, and that it was a denial of procedural fairness for the Tribunal to disregard any consideration of the document in making an assessment of the appellant’s credibility. In the course of submissions, the Court was taken to material which, it was submitted, showed that the document supported the appellant’s case and gainsaid the finding that the document was fabricated.

16    I do not accept that there was any denial of procedural fairness or jurisdictional error committed by the Tribunal in rejecting the arrest receipt as a genuine document. The appellant’s credit was very much in issue in the proceedings before the Tribunal in respect of which the appellant had been put on notice by the Tribunal. Whilst the Tribunal was bound to give consideration to the document in making its credit finding, as the document was relied on by the appellant in corroboration of his claim that he was arrested in 2007 on suspicion of involvement with the LTTE, the Tribunal was not bound to accept that the document was genuine or to give consideration to it on that basis. Having formed the view that the appellant was not a witness of truth, it was open to the Tribunal to find that the document had been fabricated and, in those circumstances, not to give any weight to the document in assessing the appellant’s credit: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; WZANC v Minister for Immigration and Citizenship (2010) 210 FCR 585.

conclusion

17     The appeal should be dismissed.

Associate:

Dated:    23 March 2015