FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAI15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1776 |
| Catchwords: MIGRATION – Judicial review of Refugee Review Tribunal decision refusing a protection visa – Applicant claimed to fear significant harm if returned to Sri Lanka as a person who left Sri Lanka illegally – risk of arrest and remand in Sri Lankan prison – whether particular social group of “persons who left Sri Lanka illegally” – whether Tribunal properly considered country information provided by or referred to by the Applicant – Tribunal considered country information including more recent country information sourced by the Tribunal. |
| Legislation: Migration Act 1958 (Cth), s.430 |
| Cases cited: Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 |
| Applicant: | AAI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 13 of 2015 |
| Judgment of: | Judge Neville |
| Hearing date: | 22 October 2015 |
| Date of Last Submission: | 25 November 2015 |
| Delivered at: | Canberra |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr O. Harris |
| Solicitors for the Applicant: | Harris Wake, Canberra |
| Solicitor/Advocate for the Respondents: | Mrs A Ryan |
| Solicitors for the Respondents: | Clayton Utz, Canberra |
ORDERS
The Amended Application filed on 3 July 2015 be dismissed.
The Applicant is to pay the First Respondent’s costs as per Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 13 of 2015
| AAI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Application, filed 3rd July 2015, the Applicant sought relief in relation to a decision, dated 20th January 2015, by the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”). That decision upheld a decision of the Delegate of the First Respondent (“the Minister”) to refuse to grant the Applicant a protection visa pursuant to s.65 of the Migration Act 1958 (“the Act”).
The Applicant is a citizen of Sri Lanka. He was born in 1986 and is therefore 30 years of age. In December 2012, he applied for a protection visa; the delegate of the Minister refused this Application on 2nd October 2013.
Summarily stated, the Applicant claims that he fears being tortured if he returns to Sri Lanka, inter alia, because (he says) he has been involved in, or it would be inferred – because of him being a “young Tamil male, or a Tamil from a particular area” (Tribunal reasons at [14]) - that he had been involved with the LTTE (the Liberation Tigers of Tamil Eelam,…
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Details
- Case
- [2016] FCCA 1776
- Decision Date
CaseChat Overview and Summary
This matter came before Judge Neville of the Federal Court of Australia. The applicant, AAI15, sought judicial review of a decision made by the Minister for Immigration. The core of the dispute concerned the applicant's assertion that the Tribunal failed to adequately consider, or failed to consider at all, 19 pages of reports submitted by the applicant, which the applicant contended were relevant to their claims.
The legal issues before the Court included whether the Tribunal's decision demonstrated a failure to consider material relevant to the applicant's claims, and how such a failure should be characterised in the context of judicial review. Specifically, the Court was required to determine if the Tribunal's approach to the applicant's evidence, particularly in relation to findings of credit, constituted an error of law. The Court also considered the distinction between a Tribunal failing to consider a matter entirely and a Tribunal considering a matter but not finding it material.
The Court reasoned that the Tribunal's rejection of the applicant's claims was founded on a finding of untruthfulness, which was based on the Tribunal not considering a specific transcript. This was not a case where the Tribunal took a nuanced approach to credit; rather, it appeared to disbelieve the applicant generally. The Court noted that it was not its role to traverse findings of fact regarding corroborative evidence that the Tribunal had not addressed. The Court referred to the Full Court's decision in MZYTS, which emphasised that the formation of satisfaction regarding a fear of persecution involves a correct understanding of the bases of the fear and how those fears are objectively determined. The Court also drew upon the High Court's decision in Minister for Immigration and Citizenship v SZGUR, which clarified that the obligation under s 430 of the Act focuses on the Tribunal's thought processes regarding material questions of fact, rather than requiring disclosure of every procedural step or decision. The Court distinguished between an absence of reference to findings of fact or evidence, which is covered by s 430(1)(c) and (d), and an absence of reference to a procedural decision, which is not.
The Court found that the applicant's argument was that the Tribunal failed to consider relevant information, specifically the "ignored reports," rather than arguing for a line-by-line refutation of evidence. The Court's ultimate orders or outcome are not detailed in the provided text.
The legal issues before the Court included whether the Tribunal's decision demonstrated a failure to consider material relevant to the applicant's claims, and how such a failure should be characterised in the context of judicial review. Specifically, the Court was required to determine if the Tribunal's approach to the applicant's evidence, particularly in relation to findings of credit, constituted an error of law. The Court also considered the distinction between a Tribunal failing to consider a matter entirely and a Tribunal considering a matter but not finding it material.
The Court reasoned that the Tribunal's rejection of the applicant's claims was founded on a finding of untruthfulness, which was based on the Tribunal not considering a specific transcript. This was not a case where the Tribunal took a nuanced approach to credit; rather, it appeared to disbelieve the applicant generally. The Court noted that it was not its role to traverse findings of fact regarding corroborative evidence that the Tribunal had not addressed. The Court referred to the Full Court's decision in MZYTS, which emphasised that the formation of satisfaction regarding a fear of persecution involves a correct understanding of the bases of the fear and how those fears are objectively determined. The Court also drew upon the High Court's decision in Minister for Immigration and Citizenship v SZGUR, which clarified that the obligation under s 430 of the Act focuses on the Tribunal's thought processes regarding material questions of fact, rather than requiring disclosure of every procedural step or decision. The Court distinguished between an absence of reference to findings of fact or evidence, which is covered by s 430(1)(c) and (d), and an absence of reference to a procedural decision, which is not.
The Court found that the applicant's argument was that the Tribunal failed to consider relevant information, specifically the "ignored reports," rather than arguing for a line-by-line refutation of evidence. The Court's ultimate orders or outcome are not detailed in the provided text.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Finally, at [119] – [120], Robertson J said (emphasis added):[119] The key features of the present case therefore are, first, that the Tribunal did not consider the Punjab University transcript and, second, the matter to which that transcript went founded the Tribunal’s rejection of the applicant’s claims, on the basis that he had been untruthful. This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally: rather, the Tribunal’s approach was to disbelieve the applicant generally. In the former case it may more readily be seen that such a finding on credit goes only to a matter of fact and thus is quintessentially the province of the Tribunal.[120] The Court is not involved in traversing findings of fact about the corroborative evidence because the Tribunal did not deal with it. The unexplored possibilities include that the transcript was false, that the applicant had studied the Persian language but was a bad student or had a bad memory, and that there was an ambiguity in what studying Persian meant, whether it was language or culture and history. It is for the Tribunal to deal with the material before it and to resolve any conflicts in it. In MZYTS, the Full Court noted the following, in part approving much of what Robertson J said in SZRKT. Firstly, at [33] and [34], the Full Court said:[9][33] The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past…[34] Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.[9] See also the Full Court’s discussion, at [35], how a court is required to determine, on an objective basis, a person’s fear of persecution if returned to their country of origin. At [46], in relation to a description that was used extensively in the current matter before this Court, namely the contention that the Tribunal “failed to consider” certain country information, the Full Court said (emphasis added):[10]Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s.36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 (Kirk) (at [64]) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider”, may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.[10] See their Honours’ earlier, similar comments, at [31].
Decision
Reasons for decision
Finally, the Full Court considered, at [51], the import of comments by the High Court in Minister for Immigration and Citizenship v SZGUR.[11] The Court said (emphasis added by the Full Court) (some internal citations omitted):None of this is to trespass on existing authorities about the nature of the obligation in s 430 of the Act and the process of drawing inferences from statements of reasons by the Tribunal. We accept that the judgment of French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [31] (Heydon and Crennan JJ agreeing) draws a distinction between the omission of a matter from the Tribunal’s reasons as indicating the Tribunal did not consider the matter material, and that omission indicating the Tribunal did not consider the matter at all. Gummow J makes a similar point in his judgment (Heydon and Crennan JJ agreeing). For present purposes, the important point from SZGUR appears in Gummow J’s judgment (241 CLR 594 at [69]) about the effect of the passages in Yusuf (206 CLR 323 at [10], [34] and [68]), to which we have already referred and will return to shortly. SZGUR concerned an alleged failure by the Tribunal to deal with a request by a visa applicant that the Tribunal arrange for an independent assessment of his client’s mental health, on the basis that the visa applicant’s mental health affected his memory and his appearance of credibility. At [69] Gummow J stated:Contrary to the reasoning in the Federal Court, para (b) of s.430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s.430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former. The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on a review”. There may be situations where a procedural decision forms part of the Tribunal’s “reasons for the decision” under para (b), but that is not so here.[11] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594. As earlier noted, the principal argument of the Applicant in the present matter, as set out at par.5 of the Further Submissions, filed 25th November 2016, was as follows:Contrary to the First Respondent’s recent submissions, not once has the Applicant submitted that the Tribunal should ‘give a line by line refutation of the evidence’, nor did the Applicant contend that the Tribunal needed to ‘address specifically every instance of apparently pertinent but contradictory country evidence’. The Applicant’s argument can be simply put: There were 19 pages of reports provided by the Applicant (CB212 to CB230) which were not considered adequately or not considered at all (i.e. the Tribunal failed to consider relevant information – Ground 3 of the original and amended applications) (“the ignored reports”).
Ratio Decidendi
Legal Principle Established
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