BLO15 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-09-18|Before: Mr P, Charlesworth J

The appeal is dismissed.
The appellant is to pay the first respondent's costs of the appeal, fixed in the amount of $5,000.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

CHARLESWORTH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia (FCC) published as BLO15 v Minister for Immigration & Anor [2016] FCCA 423. 2 The primary judge dismissed an application for judicial review of a decision of the then-named Refugee Review Tribunal, which had affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Protection (Class XA) visa under s 65 of the Migration Act 1958 (Cth). 3 For the reasons given bellow, the appeal should be dismissed.

THE APPELLANT'S CLAIMS 10 The appellant is a 23 year old Sri Lankan national. He arrived in Australia by boat on 30 June 2012 and applied for the visa on 21 January 2013. The appellant's claims for protection were multifaceted and were added to over time. It is not necessary to summarise all of the claims in order to determine the appeal. The first of the claims were made in a written statement prepared at the time of the visa application. In an interview with the Minister's delegate conducted in July 2013, the appellant made a number of additional claims. Then, in November 2013, he made further claims, including the incident which forms the subject matter of his submissions on this appeal. That incident is first described in a letter from the appellant's migration agent to the delegate dated 15 November 2013. The letter refers to a person I will refer to as Mr D. It states: The applicant would like to provide the following information: My friend, [Mr D], was murdered on about 27 July 2013. It is suspected by both [Mr D's] family and me, that the murder was committed by the same individuals who had threatened us in about August 2011. In about August 2011, I was staying with my friend [Mr D] in Chilaw for approximately 5 days. [Mr D] invited me to stay with him because of the Munneswaram festival that was happening in the town. One night we were out at the Munneswaram Temple and returned to [Mr D's] home in Chilaw at approximately 10.50pm to 11pm. When we arrived there, we came across a group of approximately 5 men who were drinking quite close to the gate in front of [Mr D's] home. [Mr D] asked what the group was doing there, and the individual who I recognised as the butcher became angry. This individual also saw me, and asked who I was, as he did not recognise me. He then proceeded to slap me in the face. [Mr D] sought to protect me, by hitting the butcher. At that point the other men were angered and hit us both; however we managed to run away to a nearby area of jungle. Whilst we were running, we heard the group threaten that they would kill both of us. I never went back to [Mr D's] home or Chilaw since that incident, as I was afraid that I would be harmed by these men. A couple of days after this incident, [Mr D's] mother had told me that he had moved to Anuradapura due to his fear of being harmed by the men. In July 2013, [Mr D] returned to Chilaw and was murdered as a result of being stabbed in his stomach, neck and chest. [Mr D's] family and friends suspect that it was the group of individuals that killed him. I fear that if I return to Sri Lanka that I will be physically harmed or killed by this group of individuals. 11 I will refer to this incident at the Chilaw incident. The appellant's migration agent gave the following explanation for the appellant's failure to raise the Chilaw incident when he made his application for the protection visa in January 2013: The Applicant did not mention the threats made against him and his friend in about August 2011 as he did not see it as a significant matter to be included in his claims for protection at the time of lodgement of his Protection Visa application and his interview of 31 July 2013. However, since becoming aware of [Mr D's] murder in about August 2013, the Applicant fears that he will also be killed as per the previous threats made in 2011.

THE DELEGATE'S DECISION 12 The delegate found the appellant's claims concerning the Chilaw incident to lack plausibility. She did not accept that the men involved in the incident would have been so angered by it so as to murder Mr D two years later. The delegate said it was "purely speculation" that those responsible for Mr D's murder were the same group of men involved in the Chilaw incident.

PROCEEDINGS BEFORE THE TRIBUNAL 13 The appellant applied for review of the delegate's decision on 6 January 2014. In October 2014, the Tribunal sent a notice to the appellant under s 425A of the Act inviting him to appear before it at a hearing scheduled for 9 December 2014. In his response to the invitation to appear, the appellant made a statement to the effect that he made no request for the Tribunal to obtain oral evidence from any person. 14 On 8 December 2014, being the day before the Tribunal's hearing, the appellant's migration agent again wrote to the Tribunal advising that the appellant relied on certain claims made by a person I will refer to as Mr K concerning the Chilaw incident. Mr K had since arrived in Australia and, the letter stated, he had given the appellant "permission to include him in his claims". The facts asserted by Mr K are set out in the 8 December letter, but the letter does not otherwise contain any request that Mr K appear to give evidence at the Tribunal's hearing and Mr K did not in fact attend in person at the Tribunal hearing to give oral evidence. 15 During the course of the hearing, the Tribunal member stated that the assertions of fact made in the 8 December 2014 letter were of little probative value. The Tribunal noted that no request had been made by the appellant for the Tribunal to obtain oral evidence from any person. With the agreement of the appellant's migration agent, the Tribunal member nonetheless attempted to contact Mr K by telephone to obtain evidence from him through the use of a Tamil interpreter who was then present at the hearing. Mr K indicated he had some difficulty understanding what was being said through the interpreter. Submissions made on behalf of the appellant at a later time indicate that the appellant himself had stated to the Tribunal member that Mr K's language was Singhalese. The Tribunal member said to Mr K "Oh, you are not Tamil" and terminated the phone call shortly thereafter. At that juncture, the appellant sought an adjournment so as to present oral evidence from Mr K in person in support of his claims. The request for the adjournment was denied. However, the Tribunal did provide an opportunity to the appellant to provide a statutory declaration from Mr K. A statutory declaration was subsequently provided under the cover of a letter from the appellant's migration agent dated 2 February 2015. The letter states: … Should the Tribunal have any concerns about any of the information contained within the statutory declaration, we would kindly ask that [Mr K] be provided the opportunity to present oral evidence in support of his statutory declaration. The Applicant confirms that he is aware that [Mr K] speaks Tamil but was very confused and distressed during his Tribunal hearing, which led him to state that [Mr K] speaks Singhalese. 16 The appellant's migration agent wrote again to the Tribunal member on 17 February 2015. Reference is made in that letter to an email sent by the Tribunal a few days prior in which the Tribunal member had asserted that Mr K was "already provided the opportunity to give oral evidence through a Tamil interpreter". The agent disputed that assertion. The agent contended that the Tribunal had wrongly assumed that Mr K spoke Singhalese without putting that to Mr K before terminating the call. It is clear from this letter that the appellant, through his migration agent, persisted with the request that the Tribunal obtain oral evidence from Mr K. 17 The evidence given by Mr K in his statutory declaration may be summarised as follows: (1) There were four friends involved in the Chilaw incident, namely the appellant, Mr D, Mr K, and another person, here named Mr I. (2) In 2005, Mr K had been threatened by "a group of local criminal thugs". He was badly beaten. Mr D and Mr I were present at that earlier incident and were also attacked. Mr K tried to report the incident to the police but the police would not respond because the criminals were connected to a local politician. (3) Mr K became friends with the appellant in 2009. In August 2011, he suggested that the appellant stay with Mr D in Chilaw and that they attend a festival there together with Mr D and Mr I. (4) When the men arrived back at Mr D's house after attending the festival, Mr K saw a group of people standing there. He recognised two of the people as the same persons who had attacked him in 2005. Mr K fled into a wooded area. From there, he witnessed the appellant and Mr D being assaulted until Mr I arrived on his bike and helped Mr D to escape. (5) In May 2012, Mr I was hit by a lorry and killed. Mr K suspects that Mr I was targeted by the same persons involved in the Chilaw incident. (6) Mr D was stabbed and killed in July 2013. Although nobody has been charged with his murder, Mr K suspects that Mr D was killed by the same people involved in the Chilaw incident. 18 In its reasons for decision, the Tribunal noted that the claim in relation to the Chilaw incident had not been made at the time of the visa application, nor had it been made in the course of an interview with the Minister's delegate some months later, notwithstanding that the appellant was represented by a migration agent over that period. The Tribunal said (at [238]): As the claim had not been made initially I am of the view that it has been added to embellish an otherwise weak claim for asylum. 19 In response to the appellant's submission that there was genuine confusion about the language spoken by Mr K when the Tribunal attempted to obtain evidence by telephone through an Tamil interpreter, the Tribunal said (at [246]): … in any event, the reasons for refusing to accept this claim are not based on [Mr K's] language or his evidence but the manner in which this evidence has been provided by the applicant. Late and inconsistent to the extent that I find that it has been fabricated to further enhance a weak claim. I give this claim little weight. I accept that he may have been involved in a minor incident with a group of belligerent drunk people in front of a house he was staying in in August 2011 but find that the incident had no indicate [sic] or evidence [sic] of a further chance of serious harm now or in the reasonably foreseeable future. 20 The inconsistency to which the Tribunal there refers must be taken to include its earlier observation that the appellant's claims about the Chilaw incident had initially related to just two people: the appellant and Mr D. There had, in the earlier iteration of this aspect of the appellant's claims, been no mention of Mr K as a person who had been present when the altercation occurred. Further, whilst the appellant's original account was to the effect that both he and Mr D had fled on foot to a nearby jungle, the account sought to be advanced through the evidence of Mr K was that Mr D had escaped on a bike ridden by Mr I, who had come to his assistance. 21 The Tribunal did not "dismiss the possibility" that Mr D had been murdered. However, to link the murder with the Chilaw incident (which occurred two years prior) was, according to the Tribunal, "fanciful speculation".

THE PROCEEDINGS IN THE fcc 22 The FCC is conferred with original jurisdiction to review a decision of the Tribunal, which jurisdiction is the equivalent to that conferred on the High Court by s 75(v) of the Constitution; s 476(1) of the Act. To succeed in his application for judicial review the appellant had to show that the Tribunal committed jurisdictional error: s 474 of the Act; see also Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (per Gaudron, McHugh, Gummow, Kirby and Hayne JJ); Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at 433 (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 23 The appellant appeared self-represented before the primary judge. His grounds of review were lacking in particulars. The grounds were expressed as follows: 1. The Applicant was denied procedural fairness by the Refugee Review Tribunal member's failure to address part of the Applicant's claim and/or the failure to take into account a relevant consideration. 2. More details will be provided later. 24 Although broadly stated, the appellant made oral submissions before the primary judge, giving some limited content to his complaint. These submissions are conveniently summarised by the primary judge at [33] of His Honour's reasons as follows: With respect to ground one of the application, he stated that the Tribunal hearing was unfair and directed the Court's attention to the difficulty that arose with the Sri Lankan interpreter. At the time, an attempt was made to receive telephone evidence from [Mr K]. His submission to this Court was to the effect that there was no interpreter for the Sri Lankan language, and that for this reason, [Mr K] was not allowed to talk to the Tribunal. He submitted that the Tribunal was required to take into account the evidence of [Mr K]. It was this aspect of the Tribunal hearing, and the refusal of the Tribunal to later call [Mr K] to give oral evidence, that formed the basis of his claim that he had been denied procedural fairness, and that the Tribunal had failed to properly consider a part of his claim and take into account a relevant consideration. 25 The primary judge held that the Tribunal had comprehensively dealt with all of the appellant's claims and that its findings were open to it on the evidence presented. There was, his Honour held, nothing illogical, irrational or unreasonable about the Tribunal's conclusions. In respect of the Chilaw incident, the primary judge held that the Tribunal was under no general obligation to call witnesses and the appellant's migration agent had not suggested any important or obvious question the Tribunal should put to Mr K in order to properly consider the evidence he had given by way of the statutory declaration. The primary judge concluded (at [49]): As I have indicated above, I am satisfied that the failure of the Tribunal to reconvene to allow [Mr K] to give oral evidence, did not cause procedural unfairness, or give rise to jurisdictional error. The applicant was allowed to adduce evidence from the witness albeit by way of a statutory declaration. The Tribunal concluded that the evidence of [Mr K] was inconsistent with the applicant's version and found it to be fabricated in order to enhance the applicant's weak claim, and that for that reason gave it little weight. Significantly, as I have noted above, it was still prepared to accept the possibility that [Mr D] had in fact been murdered.

GROUNDS OF APPEAL 26 The appellant appeared self-represented on the appeal. There is a single ground of appeal, expressed as follows: His Honour erred in law in failing to find that the Appellant is a refugee pursuant to s 36 of the Migration Act. Particulars The learned judge failed to consider important aspects of Appellant's claims. 27 The appellant's oral submissions did not illuminate the particular appealable error relied upon. Rather, the appellant indicated that he was confused about the process he should now follow on the appeal and enquired as to whether he might now call Mr K as a witness in this Court. In light of the limited grounds for review relied upon before the primary judge and the limited submissions made by the appellant on the appeal, it is appropriate to proceed on the basis that the appellant contends that there is appealable error affecting the conclusions of the primary judge that the Tribunal did not commit jurisdictional error by: (1) not obtaining oral evidence from Mr K; (2) not affording the appellant an opportunity to present a case which included oral evidence from Mr K; and (3) making a finding that the Chilaw incident had been fabricated without first obtaining and considering oral evidence from Mr K. 28 These questions interrelate and may be considered together.

CONSIDERATION 29 The starting point is that the Tribunal was, in the performance of its review function, obliged to afford the appellant the opportunity to give evidence and present arguments: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]; Gjonej v Minister for Immigration and Border Protection [2015] FCA 159 at [17] (Allsop CJ). 30 In Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin (2005) 88 ALD 304, Kenny and Lander JJ said that whether there has been a breach of the rules of procedural fairness ordinarily depends in large part on the terms of the governing statute. Their Honours continued: (at [31], Spender J agreeing at [1]): Where there is an obligation to accord procedural fairness, what is practically required to discharge the obligation depends on the relevant statutory provisions, the nature of the inquiry, and the subject-matter and circumstances of the case: see Kioa v West (1985) 159 CLR 550 at 584-5; 62 ALR 321 at 346-7 per Mason J, CLR 614; ALR 369 per Brennan J and CLR 633; ALR 383 per Deane J; also Aala at [59] per Gaudron and Gummow JJ and Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 652-3; 93 ALR 51 at 52; 19 ALD 577 at 578 per Deane J. 31 As I have mentioned, the Tribunal gave a notice to the appellant of an invitation to appear before it. The notice was issued pursuant to s 425A of the Act. Section 426 of the Act relevantly provides: (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice. 32 It is well established that where a review applicant makes a request pursuant to s 426(2) (or an equivalent provision in s 361(2)), the Tribunal must have genuine regard to the request: Maltsin at [38]. But it is not, merely by virtue of the request having been made, obliged to comply with it: Maltsin at [37] (approved by Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [15]). In determining whether to obtain oral evidence in accordance with such a request, the Tribunal must take into account such matters as the potential importance of the evidence to the outcome of the review, the sufficiency of any written evidence already given by the witness and the length of time necessary to afford an applicant a fair opportunity to present his or her case: Maltsin at [38]. 33 Here, the appellant made no request in accordance with s 426(2) of the Act. Two requests were made at later times, the first during the course of the Tribunal's hearing, and the second in correspondence from the appellant's migration agent of 17 February 2015. 34 It is not suggested by the Minister that the Tribunal was not obliged to give those late requests genuine consideration, just as it would have been obliged to do had the requests been notified in advance as required by the Act. The late requests could not be ignored merely because they were made other than in accordance with s 426(2) of the Act. However, the lateness of the request was a relevant factor to which the Tribunal was entitled to give considerable weight, particularly in circumstances where an adjournment was subsequently sought to facilitate the taking of oral evidence from Mr K. 35 The Tribunal did, the Minister submits, give the appellant's late requests genuine consideration and its decision to deny the requests was one that was open to it in all of the circumstances. That submission should be accepted. 36 In Chen, a review applicant requested, at the commencement of a Tribunal hearing, that a number of witnesses give oral evidence before a Tribunal. The witnesses had already provided evidence in writing concerning the existence of the review applicant's asserted spousal relationship. As is the case here, the review applicant had not given prior written notice of any such request in accordance with s 361(2) of the Act (being the Pt 5 counterpart to s 426(2) in Pt 7). The Full Court said: 24 It cannot be said, as the appellant submits, that the appellant did not have a real opportunity to give evidence and present argument (cf Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [33]). The Tribunal accepted the evidence. It was in no doubt about it. It was not obliged to ask the witnesses to expand on the evidence (cf Minister for Immigration and Multicultural and Indigenous Affairs v SZBEL (2006) 228 CLR 152 at [47]). 25 The appellant accepts that the Tribunal is not obliged to accede to a request that witnesses who are present and have provided written statements be called to give further evidence but submits that the Tribunal failed to give genuine consideration to whether or not to call these witnesses. A reading of the transcript set out in the FM decision at [46] makes it clear that the Tribunal did give this real and genuine consideration. The migration agent's response to the Tribunal question about the nature of their proposed evidence was that it would merely repeat what was in their statements. It is a fair reading of the transcript that this was the primary reason why the Tribunal did not call them. … 27 The appellant was unable to point to questions that the Tribunal should have asked the witnesses, whose evidence went to their own perceptions of the relationship between the Visa Applicant and the appellant. If, at the time of the hearing, the Tribunal had not formed its own conclusions as to that relationship, it is hard to know what should have been put to the witnesses. It was not obliged to put its reasoning process. 37 In the present case it is apparent that the Tribunal had genuine regard to the request that it obtain oral evidence from Mr K. As the request was made for the first time in the course of the Tribunal's hearing and as the appellant himself had not secured Mr K's attendance on that day, an attempt was made to contact Mr K by telephone to obtain evidence from him by that means. Although the submissions of the migration agent suggest that the Tribunal acted unreasonably in terminating the call without first confirming Mr K's preferred language with him, that submission was not advanced by the appellant on the appeal and it does not appear to have been advanced in the proceedings before the primary judge. The transcript of the proceedings before the Tribunal was not in evidence before the primary judge nor was it before this Court on the appeal. It is in any event apparent from the correspondence that the appellant himself contributed to confusion about Mr K's preferred language by wrongly stating that Mr K spoke Singhalese. 38 After the unsuccessful telephone call, the Tribunal did not act unreasonably in refusing to adjourn its oral hearing. The appellant had been given an opportunity to present his case. He simply did not avail himself of the opportunity by identifying at an earlier time that it might assist him to have Mr K give oral evidence at the hearing. The Tribunal nonetheless provided the appellant an opportunity to provide evidence in writing, which was done nearly two months later. The reference by the migration agent to email correspondence from the Tribunal indicates that the Tribunal again considered obtaining oral evidence from Mr K but determined that it would not do so and notified its determination in that respect to the migration agent. In so deciding, the Tribunal had regard to the evidence given in Mr K's statutory declaration. It determined that the appellant had previously made no mention of the involvement of Mr K in the Chilaw incident. It is apparent that the Tribunal did not consider the evidence of Mr K to be corroborative in that important respect. 39 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, Gleeson CJ considered a complaint that a Tribunal had erroneously disbelieved the evidence of a review applicant without taking into account the corroborative evidence of another witness. The Tribunal had, it was submitted, erred by failing to consider the evidence as a whole and erroneously rejecting the corroborating evidence for reasons that had nothing to do with its quality. Gleeson CJ said (at [12]): I do not accept that this is a fair criticism of the tribunal's reasons. In my view, all that the member was saying was that, for reasons already given at length, she found the applicant's/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering … It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness. 40 Similar considerations arise on this appeal. The Tribunal rejected the appellant's claims about the Chilaw incident because the claim had been made late, because the facts asserted by the appellant were inherently implausible and because the appellant had made no mention of the involvement of Mr K in the incident until the day before the Tribunal's hearing. The conclusion that this aspect of the appellant's claims had been "fabricated" was open on the material before the Tribunal and there is no complaint that the finding was not adequately foreshadowed to the appellant both at the hearing and subsequently in correspondence passing between the Tribunal member and the appellant's migration agent. It was open to the Tribunal to consider that there was nothing Mr K might add orally to that which he had already said in his statutory declaration. The statutory declaration was premised entirely on Mr K having been a participant in the Chilaw incident, a fact inconsistent in a crucial respect with the appellant's own account. 41 In the course of submissions on the appeal, the appellant himself did not identify anything Mr K could or would have said in addition to that already said in his statutory declaration, had he been given the opportunity to give oral evidence before the Tribunal. 42 The Tribunal's decision is not affected by jurisdictional error of the kind alleged in the single ground of appeal.

Failed asylum seeker 43 The appellant did not make submissions on this appeal identifying jurisdictional error on the part of the Tribunal or appealable error on the part of the primary judge in respect of his claim to fear persecution or to be at risk of suffering significant harm by reason of being a failed asylum seeker. It should be noted, however, that the Tribunal's rejection of the appellant's claim was founded in part upon a finding that any hardship that might be suffered by the appellant upon his return to Sri Lanka would not, relevantly, be "as a result of intent". Having regard to the appellant's status as a self-represented litigant, judgment in this matter was deferred by reason of there being, at the time that judgment was reserved, a matter pending in the High Court that might bear on the question of whether the Tribunal committed jurisdictional error in that discrete aspect of its decision. 44 On 6 September 2017, the High Court delivered judgment in the pending matter: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. In accordance with that judgment there is no jurisdictional error affecting the Tribunal's finding there was no risk that the appellant would suffer significant harm "as a result of intent" if returned to Sri Lanka as a failed asylum seeker. 45 This appeal should, accordingly, be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.

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