FEDERAL COURT OF AUSTRALIA

CJJ16 v Minister for Immigration and Border Protection [2018] FCA 60

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the Minister for Immigration and Citizenship to refuse the appellant a Protection (Class XA) visa.

Background

2    The appellant is a citizen of Sri Lanka. The appellant arrived in Australia on 11 April 2012 as an unauthorised maritime arrival. On 12 June 2012 he applied for a protection visa. In his visa application, the appellant stated that he was married in 2009 and his wife, son and daughter and other family members live in Sri Lanka and that he worked in Saudi Arabia between 2004 and 2008, returning to Sri Lanka on three occasions in that time. He was self-employed as a fisherman and welder from 2002.

3    A delegate of the Minister refused the application for the protection visa on 19 November 2012. On 7 November 2013, the Refugee Review Tribunal (as the Tribunal was then known) affirmed the delegate’s decision after the appellant attended a hearing and his representative filed written submissions. That Tribunal’s decision was quashed by the FCCA on 24 February 2016. On 21 July 2016, the Tribunal (differently constituted) affirmed the delegate’s decision after the appellant attended a further hearing.

Protection claims    

4    In summary, the appellant claimed that he is at risk of harm at the hands of the Sri Lankan government or its agents because of his Tamil ethnicity, Hindu religion, imputed political opinion of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE), his imputed anti-government political opinion as a returned failed asylum seeker and his membership of one or more political social groups, including persons who are returned failed asylum seekers, Tamils implicated in a serious offence and/or Tamils with an existing police file.

5    The appellant’s central claim in a statement to the Department of Immigration and Citizenship dated 11 June 2012 was that the police in his village suspected him of involvement or knowledge of those responsible for shooting and killing a police officer at an illegal checkpoint at a road junction outside his house in July 2010. Before that, he was “without troubles”. He claimed that the checkpoint was used to extort villagers. The incident occurred at night. His family heard gunshots. Members of the Special Task Force and the police (who each had camps within a kilometre of his home) attended his house and interrogated him about the identity of the shooter. He was whipped across his back with the bark of a tree and a loaded gun was pointed at his head. Two days after the shooting, after a morning roundup (which occurred regularly), he and nine other men from his neighbourhood were taken to a “police camp”, detained and beaten for two days. He could not work for three or four days after his release. He and the others were released after his father-in-law went to the administrative officer of the village who pleaded with the police. In an incident which occurred two months before he left for Australia, the police forced him to hand over a catch of fish which he had taken to market and, when he failed to do so, they whipped him with a dried stingray tail such that he could not work for two weeks. The round ups continued. Even though he was not taken in again, the round ups and other disruptions prevented him from working. His sister has told him that since he left Sri Lanka, the police have questioned his family on his whereabouts and they have sexually assaulted his wife who has to move continually to avoid harassment from the police. The police regularly frighten the women of his family.

6    In submissions filed by the appellant’s representative after his interview with the delegate, the representative stated that the appellant being rounded up, tortured and kept in detention for days at a time was not an isolated incident.

7    Following a hearing with the first Tribunal in June 2013, the appellant’s representative filed two submissions. In the submissions dated 18 June 2013, the representative submitted that the appellant’s claims did not turn merely on his profile as a Tamil and failed asylum seeker, but “the more significant reason” for his fear of persecution was his “history of … interaction with the police during and since the 2010 police shooting and their continuing mistrust and suspicion”. The representative also said that his personal circumstances were such as to give rise to a finding that there is a real chance he will suffer persecution on the basis of the gravity of the economic hardship he will suffer as a result of police violence and harassment. In submissions filed on 12 September 2013, the representative reported that, during a conversation with his wife on 10 September 2013, she told him that her father was assaulted by the police earlier in September 2013 when officers came to the house where his father-in-law and wife resided and demanded money. Attached to the first submissions was a letter dated 6 June 2013 from the Grama Niladhari (the village administrative head) stating that the appellant and nine others were taken into custody on 17 July 2010 on suspicion of the shooting of a policeman on 15 July 2010. The letter stated that the parents of those taken came to the Grama Niladhari, he contacted the relevant officer where they were being held, “cleared the matter” by proving their identities through “votes lists” and they were released on 19 July 2010. The Grama Niladhari came to understand that the ten people who had been held were severely attacked and the appellant is one of those “innocents”.

8    When the appellant appeared before the second Tribunal on 22 June 2016, he provided an English translation of a document which had been previously provided. The original letter was signed by a number of people and states that they are the appellant’s neighbours. The letter states that on 15 July 2010, a policeman was shot dead near the appellant’s home and the following day the appellant and other villagers were rounded up and taken to an armed forces camp. It says that they were released with wounds with the help of the Grama Niladhari on 19 July 2010. The letter states that the appellant was released on the strict condition that he could not leave Sri Lanka and should report to the authorities every month. It also states that the appellant’s wife could not live peacefully and that is the reason she left home with her children.

Second Tribunal decision

9    Relevantly to the grounds of this appeal, the Tribunal found that the appellant’s claims in relation to the shooting incident in July 2010 lacked credibility. This was because:

    He did not know the name of the police officer who was said to have been shot. That was not credible in light of his evidence that the incident was reported on television and he was questioned and interrogated about it. The Tribunal concluded that his evidence that he had been questioned and interrogated following the death of a policeman was fabricated: DR at [26], [28].

    There was inconsistency in the number of days he claimed the police detained him subsequent to the shooting. His evidence previously given was that he was detained for two days, but at the Tribunal hearing, he claimed that he was detained for four days. While the Tribunal accepted that the process of applying for asylum in Australia was stressful and the appellant was undoubtedly anxious and stressed as a result of his separation from his family, it did not accept that he would be unable to recall accurately the number of days he was held for questioning and interrogation. That raised further concerns regarding the truthfulness of his evidence: DR at [27], [29].

    It was problematic that the appellant had told the delegate that only he and his wife had been present when the police came to question him following the shooting incident. When asked about his children, he said that they had not been born at the time. However, at the Tribunal hearing, he confirmed that his son was born in 2009 and said that his wife and son were at home when the police came. He explained the difference as being because he was a “bit” confused and nervous. The Tribunal did not accept that explanation on the basis that the presence of a young baby in the house at such a time would be significant and something that the appellant would be able to recall accurately: DR at [30], [31].

    The Tribunal had serious concerns that, although at some point a police officer may have been shot in the appellant’s village, this did not occur in 2010 as claimed. The appellant claimed that there was “heavy fighting” between the army and the LTTE at the time and it was “war time” when the incident occurred. The appellant said that, although the war ended in 2009, there were still problems because they were Tamils. While the Tribunal accepted that arrests of persons suspected of involvement in the LTTE continued in 2009, it did not accept that the war was continuing. The Tribunal found that the appellant’s evidence was indicative that an incident of the kind described may have occurred during the civil war but he was not suspected of any involvement in it and he was not questioned or interrogated in relation to it. It found that the inconsistencies and problematic nature of the evidence indicates that the claims relating to the incident were manufactured: DR at [31], [32].

    Having considered the letters provided by the Grama Niladhari and villagers, the statements made in them did not overcome the Tribunal’s concerns regarding the appellant’s evidence and the Tribunal did not accept that the statements were truthful: DR at [33].

    The Tribunal did not accept that the appellant’s father [sic: father-in-law] was beaten on the face, that the appellant’s wife was sexually assaulted or that police officers came to his home and demanded money. It did not accept that his wife was moving from place to place to avoid harm, that the appellant was subject to reporting requirements in Sri Lanka at the time he departed or that he breached any conditions requiring him to remain in the country. The Tribunal considered that this aspect of the appellant’s claims were problematic because they indicated a shift in the focus of his claims from generalised harm as a result of his suspected involvement in the shooting incident and difficulties earning a living to his fear that he will be harmed if he returned to Sri Lanka because he violated his reporting requirements: DR at [33].

FCCA

10    The appellant made an application to the FCCA for judicial review of the Tribunal’s decision: CJJ16 v Minister for Immigration [2017] FCCA 1015. The grounds of the application were set out at J[21]:

1.    The Administrative Appeals Tribunal erred in not attaching the necessary weight in considering the documents issued by a Public Officer confirming the arrest of the Applicant in relation to shooting a police officer

Particulars

a.    The Applicant submitted a letter issued by the Village Officer, a public officer confirming the arrest of the Applicant.

b.    The AAT rejected the letter without attaching the due weight to the letter

2.    The AAT erred in not considering the full integers of the application

3.    The AAT erred in not complying with section 499 of the Migration Act and the PAM3 rules made thereunder

11    The primary judge held that “it was a matter for the Tribunal to determine what weight to give the documents adduced in evidence before it. The Tribunal took into account the document purportedly corroborating the applicant’s claims in respect of the shooting incident of the police officer in 2010”. Therefore, ground 1 raised no jurisdictional error: J[25].

12    The primary judge held that ground 2 also raised no jurisdictional error, holding that “[o]n the face of the Tribunal’s reasons, the Tribunal addressed the full integers of the claims advanced by the applicant and made adverse findings open to [it]”: J[26].

13    As to ground 3, the primary judge held that the Tribunal had express regard to the PAM3 guidelines and therefore there was no basis to infer that it failed to comply with s 499 of the Migration Act 1958 (Cth). In the result, the primary judge held that ground 3 has no proper foundation and made out no jurisdictional error: J[27].

Appeal

14    On 7 June 2017, the appellant filed a notice of appeal to this Court against the judgment of the primary judge. The appellant relied on six grounds of appeal which were (as written):

1.    The Respondent’s failed to consider the fact that the Appellant is still searched by the Sri Lankan authorities in relation to the murder of the police officer and unfairly dismissed the above claim stating that it is not believable. As this is the main issue of the case, the respondents made a jurisdictional error in ignoring the relevant fact.

2.    The Tribunal disregarded the fact that the Appellant is a fisherman, uneducated and there is a high possibility of making mistakes in relation to the period of detention. The mere fact that the Appellant made a mistake doesn’t rule out the fact that he would be arrested, detained, tortured and sentenced to prison on his return. The Tribunal used excessive authority in finding a fault on the part of the Appellant with the intention of rejecting his main claims. At this point, the Tribunal could have given the benefit of the doubt to the Appellant.

3.    The Respondent’s found that the Appellant’s claims are problematic only because the Appellant failed to remember that there was a newborn baby inside the house when the authorities entered to interrogate him. The Appellant’s profile including his mental strain that he had during the incident coupled with the continuous fear of interrogation by the Respondent’s during the interview, made him forget the above facts. The Respondent should have given weight to the Appellant’s state of mind during the interview and should not have rejected the fundamental claims of being persecuted on his return back to the country because of the authorities suspicion of the Appellant as a murderer.

4.    The Respondent’s failed to understand the political situation and the excessive authority used by the army, CID and STF towards the minority Tamils especially in this case, towards the Appellant, suspecting him to be an LTTE involved in the shooting and killing of a police officer.

5.    The Respondent’s failed to note the main fact which is that even though this incident happened during the civil war, the Appellant would still face persecution and imprisonment for his alleged involvement in the shooting of the police officer. It is unfair to suggest that the Appellant had manufactured his claims in order to reject his main claim and thus made a jurisdictional error.

6.    The Tribunal during it’s final hearing completely rejected the evidence provided by the Appellant from the Grama Niladhari and the person from his village on the grounds that the Appellant’s previous evidence was questionable and as such used that as a basis to reject his claim. This is an error of law and the Respondent’s made a jurisdictional error by ignoring this evidence.

15    The appellant did not file any written submissions. He appeared and made oral submissions at the hearing. The hearing was conducted with the assistance of an interpreter.

16    In his written submissions, the Minister stated that none of the appellant’s grounds of appeal relate to the grounds argued in the FCCA and that they merely express disagreement with findings made by the Tribunal. The Minister submitted that the grounds seek merits review contrary to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; HCA 6 at 272 and that the appeal should be dismissed with costs. I agree, although it would appear that ground 6 has some relationship to the first ground of appeal argued in the FCCA. Having said that, none of the grounds engage at all with the decision of the primary judge. In BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 at [9]-[12], Flick J discussed the difficulties faced by litigants in person and the Court in such cases and I will adopt his approach.

Ground 1

17    The appellant submitted that the authorities are still looking for him in Sri Lanka.

18    Having regard to the matters set out in paragraph [9] above, it is apparent that the Tribunal closely considered the appellant’s claims and it did not accept that he was suspected of involvement in a police shooting, that he was subject to ongoing reporting requirements or prohibited from leaving the country, that his wife was harassed or assaulted by police officers coming to their home to demand money or moving around to avoid harm or that his father-in-law was beaten since the appellant left Sri Lanka. It concluded that the appellant was of no interest to the authorities when he left Sri Lanka. That view was open to the Tribunal for the reasons that it gave.

Ground 2

19    The appellant submitted that the Tribunal should have given him the benefit of the doubt in relation to his error concerning the period of detention following the incident in July 2010. He says his statements were truthful.

20    The Tribunal was entitled to consider discrepancies in the appellant’s evidence in forming a view as to whether the appellant’s claims were credible. It was not obliged to give the appellant the “benefit of the doubt”, particularly where, as here, the Tribunal found the appellant’s evidence not to be credible on a range of issues (see [9] above). There was evident justification for the credit findings which the Tribunal made.

Ground 3

21    In his oral submissions, the appellant stated he was fearful when the army came to question him and the newborn baby was with his sister at that time.

22    The Tribunal did not consider the appellant’s claims problematic only because of the inconsistency in his evidence concerning whether his baby was in the house at the time of the incident in July 2010. It was one of a number of inconsistencies identified by the Tribunal. Further, the submission that the baby was with the appellant’s sister is inconsistent with the evidence given to the Department and the Tribunal. The Tribunal accepted that the appellant felt under pressure during the hearing, but there is no evidence that the appellant was not in a position to give evidence or make submissions at that time.

Grounds 4 and 5

23    The appellant submitted that he “reasserted the facts” in grounds 4 and 5 and said that even though the incident occurred during the civil war, he will face harm if he is returned to Sri Lanka.

24    I accept the Minister’s submission that the Tribunal considered the situation for Tamils in Sri Lanka, including returning Tamils who are failed asylum seekers, based on country information for the period during the civil war and after. It did not accept that the appellant had been involved in a shooting incident in July 2010 or that he was suspected of that involvement and it did not accept that he was subject to conditions of release from detention which would have prohibited him from leaving the country. The appellant has been consistent in his claim that the incident occurred in July 2010, a time more than a year after May 2009, when the Tribunal said that the civil war ended based on country information. The grounds are therefore premised on a factual situation which was not accepted by the Tribunal. The Tribunal was within its jurisdiction in rejecting the claims for the reasons that it gave. These grounds disclose no error by the Tribunal.

Ground 6

25    The appellant submitted that he had obtained evidence by way of a letter from an official source – the Grama Niladhari, the administrative officer for his village – yet it was disbelieved.

26    Where a Tribunal rejects claims made by an applicant on credibility grounds, it is open to it to reject documentary evidence submitted by the applicant which would, if accepted, have corroborated the applicant’s account: see the Full Court’s decision in Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485; FCAFC 50 at [23]-[40] per North and Lander JJ and [50] per Katzmann J. In this case, the Tribunal considered the contents of the letters from the Grama Niladhari and his village neighbours submitted by the appellant: DR at [20], [22], [33]. Having rejected the appellant’s claims as not credible on grounds which were open to it, it was open to the Tribunal to find the statements set out in the letters (which in essence restated the appellant’s factual claims) did not overcome its concerns about the appellant’s evidence, that the information in the letters was not truthful and to reject that evidence. The primary judge did not err in rejecting ground 1 of the application to the FCCA.

Conclusion

27    Having considered the reasons of the Tribunal and the primary judge, I can discern no jurisdictional error by the Tribunal or appellable error by the primary judge. I am satisfied that grounds 1 to 5 seek impermissible merits review of the Tribunal’s decision and ground 6 is not made out for the reasons set out above. The appeal should be dismissed with costs.

Associate:

Dated:    8 February 2018