SZSVV v Minister for Immigration and Border Protection [2016] FCA 223

FEDERAL COURT OF AUSTRALIA

SZSVV v Minister for Immigration and Border Protection [2016] FCA 223 Appeal from: SZSVV v Minister for Immigration & Anor [2015] FCCA 2516

File number: NSD 1211 of 2015

Judge: DOWSETT J

Date of judgment: 10 March 2016

Catchwords: PRACTICE AND PROCEDURE - leave to amend notice of appeal - administrative law - procedural fairness

Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Date of hearing: 16 February 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 37

Solicitor for the Appellant: Mr Stephen Hodges of Hodges Legal

Solicitor for the First Respondent: Mr J Pinder of Minter Ellison

Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS NSD 1211 of 2015

BETWEEN: SZSVV Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: DOWSETT J DATE OF ORDER: 10 MARCH 2016

THE COURT ORDERS THAT:

1. the application for leave to amend the notice of appeal be refused; and 2. the appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J: 1 This is an appeal from a decision of a Federal Circuit Court Judge, refusing an application for review of a decision of the Refugee Review Tribunal. The appellant is a citizen of Sri Lanka. He arrived at Christmas Island on 20 June 2012 and, on 2 November 2012, lodged an application for a protection visa. He claimed to fear persecution in Sri Lanka because of his ethnicity and his imputed political opinion. The application was refused by a delegate of the Minister and by the Tribunal. The second respondent has filed a submitting appearance. 2 After setting out the law concerning refugee status and complementary protection criteria, the Tribunal summarized the appellant's claim at [19] of its reasons as follows: The [appellant] has claimed to fear harm if returned to Sri Lanka on the basis of his ethnicity/race as a Tamil, due to his imputed or actual political opinion as pro-LTTE and/or against the Sri Lankan Government; and due to his membership of a particular social group, as a failed asylum seeker; and/or a culmination of these reasons. The [appellant] also claims to have a well-founded fear of serious harm due to being of interest to the CID, and an attempted apprehension by the Navy. In addition, the agent has submitted that the [appellant] has a well-founded fear of serious harm or persecution on the basis that people in the community gave the police force information that he belonged to a terrorist organisation; that the [appellant] would be denied access to food, shelter, employment and medical treatment due to his ethnicity to the extent that his ability to subsist or survive would be at risk if he was to return to Sri Lanka; and through the discriminatory application of legislation … . The reference to "LTTE" refers to the Liberation Tigers of Tamil Eelam and the reference to "CID" presumably refers to the Criminal Investigation Department in Sri Lanka. 3 At [20] the Tribunal identified the issues as follows: The issues in this matter include whether the [appellant] has been of interest to any of the Sri Lankan authorities in the past, and if not, whether there is a real chance that he would become of interest to the Sri Lankan authorities in the foreseeable future. The [appellant] has claimed to have contact with the Sri Lankan authorities in 2008, 2009 and 2010; and most recently in April 2012. These claims are explored below. 4 The appellant claimed to have left Sri Lanka illegally in 2006, travelling to India by boat. He re-entered Sri Lanka, via the airport, in 2008, using a travel document issued in India by the United Nations High Commissioner for Refugees ("UNHCR"). He said that the Sri Lankan authorities at the airport checked with the local police, and that he did not have any problems on re-entering in 2008. 5 The appellant claimed that in 2008 or 2009 he was assaulted by people in a white van. He was able to hide and avoid them. In his departmental interview he said that the CID came to his residence in 2010. In 2010 the appellant travelled to India on a religious pilgrimage, using a valid passport. When asked if he had any problems in re-entering Sri Lanka in 2010, he said that the CID had interrogated him "now and again". It seems that this did not occur at the airport but at his home, after he had been there for about a month. 6 The appellant claimed that on 20 April 2012 he was walking in the street at about 8.30-9.00 pm. He was going to a restaurant which was open until midnight, in order to get food for his parrots. A group of four or five Singhalese people in black uniforms, with their faces covered, called to him, but not by name. He said that there were no distinctive markings on the uniforms which they were wearing. There were five people in total, two men who called him over, and two other men interrogating a Tamil man who was in the back of the van. Two of them assaulted the appellant whilst the others were interrogating the Tamil man. He said that he was "bashed" and fell down. They told him to get into the van but he refused, got up, pushed someone and ran away. He fell into a ditch. The men searched for him, but could not find him. 7 The Tribunal suggested that this aspect of the appellant's evidence was fanciful or unrealistic, in that he could not have escaped from four men. He said that two of the men were interrogating the other Tamil man. A third man had gone to open the back of the van. He escaped from the fourth man. They searched for him for two hours but were unable to find him because it was so dark. 8 The appellant must have said that these people subsequently visited his home. The Tribunal asked how they were able to get his address. He said that they had looked at his ID card and must have memorized it. They came to his home two days after the event. The Tribunal had difficulty in accepting that they had memorized his name and address and had been able to follow him home. The appellant said that he had returned to his home at about 6 am, after eluding the men, and that his parents took him to the hospital. The Tribunal asked why he would go home if he had shown his ID to the men and believed that they had his address. He said that he thought that they would not have been able to memorize his address. 9 At [29] of its reasons, the Tribunal recorded that it had put to the appellant that it had concerns about his evidence, particularly as to the following, apparently contradictory matters: • In his entry interview the [appellant] had said that his father had been assaulted by a Sinhalese man on 18 January 2012 and that he has sustained an injury to his arm, and he could not function properly; however during the hearing the [appellant] said that his father had not sustained an injury in the prior two years, and had been assaulted on 10 November 2012 by people who came to look for the [appellant] after he had left Sri Lanka; • In his entry interview the [appellant] had said that the people who detained him in April 2012 were in black and red uniforms with stars on the side and that these were Navy uniforms, however in the hearing he had said that the people were in plain uniforms and he did not see any markings; • In the [appellant's] entry interview the [appellant] said that he was going to get food for his big sister when he left the house in April 2012, but in the evidence given at hearing the [appellant] said he was going to get food for his parrot. 10 At [30]-[33] of its reasons the Tribunal said: 30 The Tribunal raised at the contradictions in the [appellant's] evidence raised concerns as to the truthfulness of the specific evidence referred to, but also the [appellant's] evidence more generally. The Tribunal also raised concerns as to the [appellant's] credibility. 31 In response to the issues raised the [appellant] said that he was very tense and he didn't know what he was saying, and he has suffered memory loss and cannot remember everything. The [appellant] also mentioned that he had been interviewed at an earlier stage via Skype and maybe he couldn't hear properly. The [appellant] said he was happy and better off in Sri Lanka and he didn't come to Australia to earn money, he came to protect and safeguard his life. 32 The Tribunal also raised that [it] had concerns with the [appellant's] evidence more generally, as according to the [appellant] he was of interest to the Sri Lankan authorities from at least 2008, but he had been issued a passport and legally exited and re-entered Sri Lanka without issue in 2010, and in addition his father had been granted a fishing licence that listed the [appellant's] name. The Tribunal also raised the fact that his family remained in the same house that he was allegedly pursued in and his father assaulted in, and that this suggested that these events did not occur. In response the [appellant] said that his family was now living in a rented house near the auntie's 200 hundred kilometres away. The Tribunal raised that this contradicted the evidence provided by the [appellant] earlier in the hearing, where he confirmed that they were living at the same residential address that he had lived at during his time in Sri Lanka. The [appellant] then said that he must have misunderstood the questions earlier in the hearing. The Tribunal raised that it had difficulty accepting this evidence as it believed the questions were clear when asked and clearly answered. 33 In light of the evidence outlined above and the concerns raised by the Tribunal, the Tribunal has concluded that the [appellant] has fabricated his evidence regarding being pursued by members of the CID in 2008, 2009 and 2010; and in addition that he has fabricated his evidence in relation to the attempted apprehension in April 2012; and he has fabricated his evidence that people had pursued him after he travelled to Australia and this led to his father being injured. This is based on the [appellant] being granted a passport after 2008 and exiting and re-entering Sri Lanka through formal channels using a genuine passport in 2010 without encountering any problems at the airport; and the lack of credibility regarding the [appellant's] evidence as demonstrated by major contradictions, including who the people were who attempted to detain him, when and how his father was injured and what he had been going to buy when he left home in April 2012. The Tribunal notes of the last point may be seen as relatively minor, that makes the point that if the [appellant] was recalling a truthful account of events it could be expected that minor details would remain the same. In making these findings the Tribunal has taken into account the medical certificate dated 11 November 2012 supplied by the agent in submission stated 26 March 2013, allegedly related to the father's injury, however in light of the other evidence provided it has given the certificate very little weight. The Tribunal has also take into account the letter (untranslated and allegedly from the local Justice of the Peace purporting that the [appellant's] father's injuries were due to the [appellant's] departure for Australia), however again in light of the other evidence it has given its very limited weight. 11 The Tribunal then considered certain other matters in light of the country information available from UNHCR. 12 The Tribunal concluded that the appellant did not have a well-founded fear of serious harm or persecution for a Convention reason, and that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm. 13 The appellant applied to the Federal Circuit Court for review of the Tribunal's decision, identifying quite detailed grounds. In his amended application, the grounds were varied slightly. At the Circuit Court hearing, the appellant pressed only two grounds. The first ground appears to have related to the description of a social group as a member of which the appellant claimed to fear persecution. He seems to have argued that the Tribunal had too narrowly defined that group. At [17] his Honour said: It can be seen that the matters on which the [appellant] now seeks to rely were not the ones he raised with the Tribunal. Because he was represented before it, the Tribunal was entitled to infer that an informed decision had been made to not pursue any claims which might have been available but which were not expressly pressed. The Tribunal was not required to consider claims which the represented [appellant] did not make … . 14 The other ground was that the Tribunal had applied the "balance of probabilities test" rather than the "real chance test". At [20]-[24] the Circuit Court Judge concluded that the Tribunal had not so erred. 15 In his notice of appeal to this Court the appellant initially alleged only one ground, namely: That the Federal Circuit Court Judge erred in dismissing the proceedings and that to do so was procedurally unfair. 16 However, in his outline of submission he sought to address two grounds, neither of which had previously been raised. The first arose out of the Tribunal's finding that he had fabricated evidence, particularly in the three areas of alleged contradiction identified above. The appellant's submissions concerning those contradictions appear at paras 28-30 of his written outline as follows: 28 The bases of the alleged major contradictions are only partly correct. Because the findings are of fact though, it is the process which is the subject of this appeal, not the findings. 28.1 The [appellant] did not say in the entry interview that his father suffered an injury to his arm as a result of an assault by a Sinhalese man on 18 January 2012. The correct version is set out in paragraph 8.4 above; 28.2 It is conceded that there is an inconsistency in the descriptions of the alleged abductors in April 2012. That inconsistency is between "navy ... they were in red and black and they had a star on the side ..." (entry interview) and black civilian clothes with no markings at the tribunal hearing and in the appellant's statement (paragraph 9 above). 28.3 The inconsistency in relation to the purpose of the visit to the store in April 2012 is between these three statements: (a) On his way to buy food for his sister (entry interview); (b) I was at a fast food store called Parrot, between 8.00 pm and 9.30 pm, buying food for my family (the [appellant's] statement) and (c) (apparently, there being no transcript available) He was on his way to buy food for his parrot (during the tribunal hearing). 29 It is submitted that the tribunal fell into error by not according the appellant procedural fairness. The tribunal did not invite the appellant to give evidence about or explain those major contradictions. 30 The major contradictions were central to the tribunal's decision that the appellant had fabricated evidence. 17 The second ground on which the appellant sought to rely was that he feared being arrested as a returnee from Tamil Nadu who had been suspected of LTTE affiliation. 18 The appellant's lawyer eventually accepted that he had to seek leave to amend his notice of appeal and sought to substitute the following grounds for the existing ground: Ground 1 The decision of the Tribunal was procedurally unfair because it failed to adequately allow the appellant the opportunity to respond to the major contradictions in the evidence. Ground 2 The Tribunal failed to deal with a ground raised in the evidence that being that the appellant was in 2012 a returnee from Tamil Nadu in India and thus at risk of arrest by the government. Consideration of the application to amend involves consideration of the prospects of success enjoyed by each proposed ground. 19 Concerning the first submission the appellant sought to rely upon the decision of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. The appellant accepted the proposition (which appears at [25] in SZBEL) that procedural fairness requires a fair hearing and not a fair outcome. In SZBEL, the High Court was concerned with a case in which, in the departmental consideration of the application, the delegate had accepted certain assertions made by the applicant, which assertions were rejected by the Tribunal. The High Court said, at [43]: The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review. 20 The appellant relied upon a passage which appears at [44] in SZBEL. The Court said: The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review. This passage records the Court's ultimate conclusion on the facts. It is not a statement of principle. 21 It is a little difficult to understand the appellant's complaint concerning the way in which the Tribunal dealt with these matters. The reference to s 424AA in para 29 is of no significance. I do not understand it to be submitted that the Tribunal was, in the present case, obliged to proceed in accordance with that provision. Inconsistencies in an applicant's evidence are not generally to be taken as comprising information in the sense in which that term is used in ss 424A and 424AA. See SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]-[18]. 22 The appellant submitted that the Tribunal should have done more to facilitate his response to the Tribunal's concerns. In particular, it submitted that to state its concerns, in the form in which they appear at [29] of its reasons, was likely to confuse him and not to lead to an appropriate response. The outline at [29] does not necessarily reflect the way in which the points were raised. The material does not demonstrate how the Tribunal actually put these concerns to the appellant. Had it been any part of the appellant's case that he was denied procedural fairness by virtue of the way in which the Tribunal explained its concerns, he should have said so by way of affidavit. 23 The appellant made discrete criticisms of the first and third dot-points. As to the first, the appellant appears to have described two distinct incidents in which his father was assaulted and injured. In his entry interview on 14 September 2012 he gave various reasons for leaving Sri Lanka. He was then asked if he had any other reasons for having done so, or whether he wished to add anything. He said: We go to the sea because even if I go and fish right into the ocean seeing these people will beat me; they will steal fish - they will steal fish and they will hit us and chuck us into the water; tell us to - tell us to swim all the way back. Q: Has this happened to you? A: Yes. Me and my dad. They went to hit my dad's hand and he can't function properly now. Q: And when did this happen? A: This happened January the18th. Q: This - what year? A: This year 2012. Q: This year. And so was it that - who were the Sinhalese people that stopped you? A: What happens is that we go and we fish everyday and if we don't give them the fish that we caught they will hit us. And so what happened is we usually end up giving them most of the fish income. Q: Who are they though? A: Sinhalese people. 24 In the course of the Tribunal hearing, he referred to an incident which occurred on 10 November 2012. The Tribunal summarized his evidence as follows: The Tribunal also asked the [appellant] about his father and whether or not he was working. The [appellant] said his father cannot work because he was assaulted by people looking for the [appellant] 10 November 2012. The Tribunal asked the [appellant] if his father had been able to work before this time, to which he answered yes. The Tribunal asked the [appellant] if the father had had any injuries in the two years prior to the injury sustained in November 2012. The [appellant] said no, his father had never had any injuries before this time. Asked about his local area, the [appellant] said that his area was held by the LTTE when he was small, but his is not sure when they lost control. The [appellant] said Tamils, Sinhalese and Muslim people live in his local area and no group is dominant. 25 In the first dot-point at [29], the Tribunal was drawing the appellant's attention to the apparent inconsistency between the earlier assertion, that his father had been injured on 18 January 2012, and the later assertion, that he had not been injured in the two year period prior to 10 November 2012. The appellant pointed out that in stating the inconsistency, the Tribunal had referred to an injury to his father's arm whereas, in his entry interview, he had said that the relevant persons "went to hit my dad's hand". The location of the resulting injury was not identified. The words "went to hit" might suggest that the assailant tried to, but failed to hit his hand, so that any subsequent injury may have been elsewhere. Alternatively, any injury may have been to the father's hand. In either case, I do not see how the Tribunal's reference to an arm injury could have confused the appellant, if he were honestly describing incidents which he witnessed or of which he had been told. 26 If anything the appellant's complaint highlights the inconsistencies between the two statements. They cannot be explained upon the basis that they were differing accounts of the one assault. Quite clearly, an injury inflicted in the appellant's presence, in connection with the fishing catch, cannot be the same incident as that which occurred after the appellant's departure for Australia, and in connection with persons searching for him. The most favourable view of the appellant's evidence is that he was describing two separate incidents, at one of which he was present. However, on that view, his evidence that his father had not been injured in the two years prior to 10 November 2012 was inconsistent with the statement made in his entry interview. Clearly, these incidents were significant parts of his claim to fear persecution. No doubt some allowance must be made for the difficulties he would have had in responding to the Tribunal's questions through an interpreter. It is also possible that the Tribunal or the interpreter misunderstood something that he said, and that any perception of inconsistency can be explained on that basis. All that the Tribunal could do was to put the matter to him for comment, as it did. If the appellant was confused, or was concerned that the Tribunal had misunderstood him, he could have said so. Whilst it is always possible to identify better ways in which an interview could have been conducted, I do not see any justifiable basis for the appellant's criticism of the way in which the Tribunal proceeded. 27 As to the third dot-point the appellant said, at his entry interview, that on 28 April 2012, between 8.00-9.00 at night, he went to buy food for his big sister, and that he was assaulted by people in a white van. The event occurred "right next to the restaurant". This was the incident referred to in the second dot-point. In a statutory declaration attached to his application for a protection visa he said, at para 12, that in April 2002: I was at a fast food store called Parrot, between 8 pm and 9:30 pm buying food for my family, when I was called over by some men dressed in civilian black clothes who were standing outside of a white van. From where I was standing I could see one of them in the van beating a young boy. 28 The Tribunal recorded his statement concerning this matter as follows: On 20 April 2012 he was walking on the street at about 8:30 to 9pm. He was going to get food for his pet parrot, and was; going to a restaurant that was open until midnight. The [appellant] said there was a group of four or five Sinhalese people in black uniforms with their faces covered, and they called the [appellant] over (they called to the [appellant] generally, not by name). 29 Whilst the obvious discrepancies might, in some circumstances, be dismissed as misunderstandings, the incident was of considerable importance to the appellant's claim. It explained why, when and where he was at a particular point in time when a significant assault occurred. There was undoubtedly room for error, but the process of clarification adopted by the Tribunal was calculated to identify and resolve any such error. The appellant must have appreciated the need to ensure that the Tribunal understood his case. Again, it is difficult to imagine what more the Tribunal could have done to draw to the appellant's attention the areas in which his evidence required clarification. I see no substance in the first ground. 30 The second ground appears at paras 33-37 of the appellant's outline as follows: 33 The appellant gave evidence of events in April 2012 in Trincomalee that gave rise to fears such that he went into hiding for a short time and then fled to Australia. Due to the findings as to the appellant's credibility (fabrication of evidence) his version of those events was not accepted. It seemed to follow that the appellant had no reason, to fear persecution and certainly no well founded fear. 34 However, the evidence includes a basis of fear that has not been considered. The delegate accepted that the authorities suspected and accused the appellant of LTTE affiliation at least in 2008. The delegate appeared to accept that the appellant went [to] India and returned with the assistance of UNHCR. The Tribunal did not cover this matter and made no findings. 35 The delegate cited country information that in Trincomalee the government arrested a significant number of ex-LTTE members and returnees from Tamil Nadu in April 2012. 36 Thus the appellant has a claim that he has a fear of being arrested as a returnee from Tamil Nadu who had been suspected of LTTE affiliation. That claim was not enunciated in those terms due to the fact that the appellant added additional detail which was found to be fabricated. 37 The Tribunal and the FCC committed reviewable error by failing to deal with a claim that was raised on the evidence before it and on the findings of the delegate. 31 There is a discrepancy between the appellant's submission, as set out above and the proposed ground which is that he was at risk of arrest as a "returnee from Tamil Nadu in India". In the proposed ground, there is no reference to any suspicion of LTTE affiliation. 32 The Tribunal's findings, properly understood, leave virtually no area in which this new claim (in either form) can possibly operate. The Tribunal: rejected his evidence of pursuit by the CID in 2008, 2009 and 2010 and concluded that he had fabricated evidence in relation to his attempted apprehension in April 2012; rejected the claim that people had been looking for him after he travelled to Australia, leading to his father being injured; found that he had been granted a passport after returning from Tamil Nadu in 2008 and, in 2010, left and re-entered Sri Lanka through formal channels, using a genuine passport, and without encountering any problems at the airport; did not accept that members of the Sri Lankan Navy attempted to abduct him in April 2012; did not accept that there was a real chance that he would face serious harm or persecution due to his ethnicity, race or imputed or actual political opinion; as to his claim to fear persecution by virtue of his being a failed asylum seeker and his illegal departure from Sri Lanka, found that all returnees to Sri Lanka are treated alike: they are interviewed by the Sri Lankan authorities, people who departed illegally being held on remand until they can appear before a court; found that the country information suggested that periods on remand might vary up to a few days; and found that the appellant had previously exited Sri Lanka illegally, going to Tamil Nadu and then re-entered that country on a temporary travel document issued by the UNHCR. 33 As a result of all of this evidence the Tribunal concluded that prior to his coming to Australia, the appellant was not of interest to the Sri Lankan authorities and that: This combined with the country of origin information concerning the treatment of returnees to Sri Lanka has led the Tribunal to conclude that there is not a real chance that the [appellant] would face a serious harm or persecution if returned to Sri Lanka due to his status as a failed asylum seeker and/or due to his illegal departure. 34 The appellant may have been encouraged by a passage in the delegate's decision, relating to an incident in April 2012. At p 9 of the reasons the delegate said: Whilst I acknowledge that white van abductions were common during the conflict I have been unable to find any recent country information that indicates that "white van abductions" were occurring in large numbers in Trincomalee in 2012. I acknowledge that in a Tamil media article, reported one white van abduction in January 2012, however the victim was a Sinhala to Tamil parliamentary translator and it appears that he may have been targeted due to the nature of his employment … . Furthermore this single incident is not evidence of other abductions. I have also considered country information regarding the arrest of 10 Tamils in Trincomalee in April 2012 … . I accept that the government arrested significant numbers of ex- LTTE members and returnees from Tamil Nadu in April 2012, but I do not accept that white van abductions were occurring in Trincomalee in early 2012. 35 Whether the number of Tamils so arrested was 10 or "a significant number", nothing is known about the reasons for their arrest, or the length of time during which they were detained. In the absence of such information, there is no basis for assessing the likelihood or otherwise of future similar arrests. Further, the Tribunal expressly found that prior to his departure for Australia, the appellant was of no interest to the authorities. This conclusion was based on the appellant's own experiences, as found by the Tribunal. That finding disposed of any claim to fear persecution or serious harm in Sri Lanka. 36 In the circumstances I refuse leave to amend the notice of appeal. 37 As no other grounds of appeal were prosecuted the appeal must be dismissed. I will hear submissions as to costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.