FEDERAL COURT OF AUSTRALIA

BHI16 v Minister for Immigration and Border Protection [2018] FCA 1441

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a Sri Lankan citizen who arrived in Australia in October 2013 on a Visitor (Subclass 600) Visa. On 17 October 2013, she applied for a Protection (Class XA) Visa. The appellant claims, broadly, that she came to Australia to participate in a sporting event that relatives of high ranking police officers and politicians also wished to attend. She claims that she had been told that she should withdraw from the event and had been threatened with consequences to her if she ignored this instruction. She claims that her decision to attend the sporting event resulted in death threats and warnings that she should not return to Sri Lanka. She also claims that since arriving in Australia, her mother has informed her that people had come to her home asking about her, and that her parents had been threatened.

2    A delegate of the Minister for Immigration and Border Protection (Minister) considered the appellant’s visa application but was not satisfied that she is a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) and clause 866.221 of Schedule 2 of the Migration Regulations 1994 (Cth). Accordingly, the visa application was refused.

3    The appellant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the decision of the delegate and on 5 May 2016 the Tribunal affirmed the decision. The appellant then applied to the Federal Circuit Court of Australia (FCCA) for a judicial review of the decision of the Tribunal. The matter came before a judge on 11 December 2017, who dismissed the application on the same day; BHI16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 3380.

4    On 19 December 2017, the appellant appealed to this Court for a judicial review of the decision of the FCCA. The ground relied upon is as follows:

The decision of the Federal Circuit Court is affected by jurisdictional error.

Particulars

The Court has not properly considered the chance of serious harm or real risk of significant harm the applicant would face as a single woman, especially in the light of her past occupation and the ramifications that will have in seeking the protection of the authorities and also in the light of the threats and harassment suffered by her parents in the interim.

5    The proceedings were listed for hearing on 20 August 2018. On that date, the appellant attended and represented herself with the assistance of an interpreter in the Sinhalese and English languages. She did not file written submissions in advance of the hearing. The Minister was represented by Mr J Grant of counsel, and had earlier filed written submissions. The Tribunal filed a submitting notice, save as to costs.

2.    THE DECISION OF THE TRIBUNAL

6    The appellant attended the hearing before the Tribunal and was represented by a registered migration agent.

7    During the hearing before the Tribunal the appellant gave oral evidence. The content of the oral evidence, together with various written materials provided to the Tribunal in advance of the hearing, caused the Tribunal to form the view that the version of events as told by the appellant was not credible.

8    The Tribunal records in broad form the claims made by the appellant as follows; that in October 2013 she came to Australia to participate in a sporting event. She said that she was told that she should withdraw from her position in the Games so as to allow relatives of high-ranking police officers and politicians to attend the event. The appellant said she received threats, including death-threats, and warnings not to return to Sri Lanka because she did not withdraw. The appellant said that after coming to Australia, her mother told her that people had come looking for her in Sri Lanka and that her parents were threatened and harmed. At [54] of its reasons, the Tribunal records that the appellant added a further claim that she has a fear of being abducted because she is a single woman and that police do not look into such complaints.

9    The Tribunal found that overall, the appellant’s claims were vague, inconsistent and implausible and that her oral testimony featured a lack of detail and prevaricating responses to the Tribunal’s enquiries. It found that her claim that certain corrupt officials who oversaw the selection process for the sporting event did not want her to participate, was not credible in the face of the likelihood that, if this were so, she would have not been selected to participate in the first place. It rejected claims that there was media interest in the sporting event, or that it was of national interest in Sri Lanka. It also rejected the contention that a place in the team was coveted, and rejected as implausible the claim that she had been targeted and threatened as a result of participating, especially given that travel to Australia at the time was not unaffordable or restricted to citizens of that country outside of those affected by claims to have supported the Tamil Tigers.

10    In [67] of its reasons, the Tribunal set out in detail aspects of the claims that it particularly rejected:

Of particular concern to the Tribunal was her inability to present consistent evidence between the applicant's written claims and her vague oral evidence at the scheduled hearing regarding her alleged persecutors and past threats. On the one hand, the applicant claimed in her written claims that among those seeking to harm her were 'higher rank police officers and politicians' 'top government bodies and some of the underworld figures in Sri Lanka'; at the hearing on the other hand, the applicant claimed it was figures from the underworld and retired army personnel. The applicant had to be pressed to remind her that she feared people in politics and high ranking police officials by the Tribunal reading to her the contents of her January 2015 statutory declaration. The Tribunal notes the applicant made no claim to suffer forgetfulness or any mental symptom that might affect her memory. Had the applicant a genuine fear of politicians and high ranking police officers, the applicant should have been able to recount her fears to the Tribunal in a consistent manner. Similarly, it was also of particular concern to the Tribunal the applicant was unable to identify any political figure, senior police figure or organised crime figure by name or position or with any descriptors despite being given the opportunity to do so. The Tribunal notes the applicant was unable to nominate the Sports Minister at the time of her departure at the hearing despite raising his corrupt behaviour in her written claims. It is also of concern to the Tribunal that the applicant changed her testimony during the hearing when she originally stated the position the applicant refused to concede to someone else prior to her departure had been for those connected to rich and powerful people and that later in the hearing the applicant claimed the positions were for less educated people in politics [sic]. When the applicant was challenged by this inconsistency at the hearing, the applicant was unable to provide a direct response. The Tribunal finds the applicant fabricated this specific claim and does not accept the applicant had been targeted by anyone in Sri Lankan parliament, a political party or the government more generally. The Tribunal notes that as a former police woman … the applicant was well placed to be able to identify or nominate senior police officials who had allegedly threatened her but was unable to do so, despite working in the same organisation. Based on the applicant's vague and inconsistent testimony, the Tribunal does not accept the applicant was ever targeted or threatened by anyone in the police force in Sri Lanka for any reason. The specific claim the applicant was targeted by figures in the underworld or organised crime (or centralised criminal syndicates) was undermined by her testimony at the hearing when the applicant said she had specifically feared petty or violent criminals who operated randomly and opportunistically. In this regard the Tribunal does not accept she was specifically targeted by any one in organised crime or any specific underworld figure in Sri Lanka as claimed in her written claims… Based on the applicant's lack of consistency outlined above and in the context of the Tribunal's considerable credibility concerns, the Tribunal does not accept the applicant was targeted or threatened by anyone in authority in Sri Lanka in the past, including officials in the sporting committees, the police force, the army, organised crime or in parliament, political parties or in government in general.

11    The Tribunal went on to express other reservations about the appellant’s version of events. It concluded that it did not accept that the appellant will face any serious or significant harm of any kind as a result of her refusal to withdraw from the sporting event.

12    The Tribunal then specifically considered the appellant’s claims that as a single woman in Sri Lanka she faces a real chance of serious harm or real risk of significant harm if she returns to Sri Lanka. It found at [78]:

The applicant makes no claim to be a widow, a war widow or a woman who is the head of a household. There is no suggestion the applicant will reside in either the Northern or Eastern Provinces as a single woman. The applicant however claims she will be vulnerable as a single woman in Sri Lanka and she has a fear of crime rates in Sri Lanka in these circumstances. As discussed at the hearing, the applicant has the support of her family and male members of her family as well as her sisters who are readily available to accompany her in public places, if required. It was further noted the applicant had spent considerable time in Sri Lanka as a single woman and has not been harmed and that she had been trained to defend herself as a policewoman. The applicant expressed concern that she would not return to Sri Lanka in the police force and would be considerably vulnerable. The Tribunal does not accept the applicant faces a real chance or a real risk to serious crimes in Sri Lanka as a single woman. The applicant has the ongoing support of her family and has spent considerable time as a professional single woman in Sri Lanka, traveling to and from her workplace, without being harmed. Based on country information, the Tribunal is also not satisfied the crime rate is substantially rising as claimed. It is also not satisfied that at its current rate the risk to the applicant would amount to a real chance or real risk of harm to her or any similar Sri Lankan citizens, including single Sinhalese women. Based on the applicant's individual circumstances and the available country information, the Tribunal finds that the applicant will not face a real chance of serious harm or a real risk of significant harm of any kind, if she were to return to Sri Lanka arising as a single woman or because of criminal activity or because of a combination of these factors, now and into the foreseeable future.

13    The Tribunal stated that it had considered the appellant’s claims individually and cumulatively, and it considered that her claims made in support of her application were lacking any substantive or reliable written, documentary or oral evidence. Based on its extensive credibility concerns, the Tribunal did not accept that the applicant faces a real chance of serious harm or a real risk of significant harm, now or into the foreseeable future. Accordingly, it affirmed the decision of the Delegate.

3.    THE FCCA DECISION

14    In her application to the FCCA, the appellant relied on the following ground:

1.    The decision of the Administrative Appeals Tribunal is affected by jurisdictional error

        Particulars

The Tribunal did not consider properly the risk chance of serious harm or real risk of significant harm as a single woman, especially in the light of her past occupation and the ramifications that will have in seeking the protection of the authorities and also in light of the threats and harassment suffered by her parents in the interim.

15    The primary judge observed that the Tribunal had considered and rejected the appellant’s claims that she was at real risk of harm on account of being a single woman; about being at risk as a policewoman; and of fear of harm to her family. In relation to the first of these, the FCCA found that the Tribunal rejected the appellant’s claims of fear of harm by considering her particular circumstances and the circumstances of single women who may be at risk in Sri Lanka such as widows, women who are heads of households or women who live in particular regions, as set out in [78] of the Tribunal’s reasons (quoted above).

16    The FCCA concluded that the submissions of the appellant were effectively a request that the FCCA make a different decision, on the merits, to that made by the Tribunal. In those circumstances, the learned primary judge concluded that the appellant was unable to point to any error of law, that the appellant had been given a reasonable opportunity to be heard and that the appellant had not been able to identify any single piece of evidence that was not considered by the Tribunal. Nor were the Tribunal’s findings illogical or unreasonable based on the evidence before the Tribunal. As a result, the application was dismissed.

4.    THE GROUND OF APPEAL

17    The ground of appeal relied upon by the appellant is relevantly the same as the ground set out in her application for judicial review. It is clear enough that the contention advanced by the appellant is that the primary judge erred by failing to find that the Tribunal erred by not properly considering the chance of serious harm or a real risk of significant harm that the appellant would face as a single woman, given her past occupation as a policewoman and the ramifications that that would have in seeking the protection of the authorities and also in light of the threats and harassment suffered by her parents since she left Sri Lanka. In oral submissions at the hearing the appellant submitted that when she was working in Sri Lanka as a policewoman, she had protection against being a single woman. If she has to return, she will no longer have the benefit of that protection. She submitted that without the benefit of the protection of a husband or a family, she will be exposed to harm.

18    In this context I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant the visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).

19    It is apparent from the decision of the Tribunal that all of the matters raised in the present ground of appeal were considered by the Tribunal. It accepted that the appellant was a former policewoman, considered her claims of harm to her family and, having regard to country information that was available to it, concluded that she did not face a real chance of serious harm on account of being a single woman or because of criminal activity, or because of a combination of those factors. Furthermore, because of the significant adverse credibility findings that it had made, the Tribunal placed no weight on the content of various documents that were submitted from the appellant’s family members to support her claims. The FCCA considered each of these matters in reaching its conclusion that there was no jurisdictional error exposed in the reasons of the Tribunal.

20    Having considered these matters in the context of the available evidence and the reasoning of the Tribunal and the primary judge, I consider that the appellant has demonstrated no error on the part of the primary judge in reaching his conclusions.

21    Accordingly, in my view the appeal should be dismissed. The appellant should pay the first respondent’s costs of the appeal.

Associate:

Dated:    21 September 2018