AAI15 v Minister for Immigration
[2016] FCCA 1776
•15 July 2016
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, or “Tamil Tigers”, a militant, military organisation in Sri Lanka). The Applicant also feared that he would be mistreated because he was a person who had left Sri Lanka illegally.
Among other things, after noting (at [16]) that the Tribunal had difficulty accepting the Applicant’s claim of his fear of being harassed and tortured if he returned to Sri Lanka, at [50] of its reasons, the Tribunal said:[1]
The Tribunal accepts that there is a possibility the Applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and in unsanitary conditions. The evidence does not establish that the Applicant will be singled out or treated any differently because he left Sri Lanka illegally and considers that questioning at the airport, being placed in a remand [sic] for a short period and charged is not because he is a Tamil, but because he left Sri Lanka illegally.
[1] The Tribunal’s decision is at Court Book (“CB”) pp.277 – 293. See the Tribunal’s further, similar comments, at [59] – [61].
For the reasons that follow, the Applicant has not established that the Tribunal committed any relevant error that would warrant this Court to make the Orders sought by him. Accordingly, the Amended Application, filed 3rd July 2015, must be dismissed. An Order for costs, in accordance with the relevant Schedule to this Court’s Rules, should also, and will be made.
Grounds of the Application
As set out in the Amended Application, filed 3rd July 2015, the Applicant claimed as follows:
1. The second respondent (RRT) erred by asking
askedthe wrong question.Particulars:
The RRT failed to sufficiently take into account the applicant’s specific circumstances;
Relied too heavily on DFAT country information.
Failed to recognize that the applicant was sufficiently tied to LTTE to make himself a target.2. The second respondent (RRT) erred
by failing to considetaking into account irrelevant considerations.relevant evidence.Particulars:
RRT incorrectly discounted directly relevant information, provided after arrival and which was not inconsistent with the initial interview material, because it was not provided at point of entry.
3. The second respondent (RRT) erred by failing to consider relevant evidence.
Particulars:
When the RRT made its decision on the Applicant’s credibility the RRT assumed that the new claims were concocted because they were raised at first instance.
When the RRT made its decision on the Applicant’s credibility the RRT assumed that the new claims were concocted because they were raised at first instance RRT should have dealt with the matter “de novo”. The client was not precluded from raising new material at the Tribunal.
4. The first respondent (DIBP) erred by considering irrelevant evidence.
Particulars:
DIBP applied an irrelevant backward looking test to whether the Applicant was in likely danger (a forward looking assessment) based on an assumption that because he had survived to this point then he was in no danger of intimidation and harassment.
This assessment was also flawed because there were ample examples in the Applicant’s evidence pointing to the harassment.
At the outset of the hearing, the Court was advised that the Applicant no longer relied upon Grounds 1 and 4 of the Amended Application, and instead relied solely upon Grounds 2 and 3 of the Amended Application. In his primary written submissions (filed 30th July 2015, par.1(a) & (b)), the Applicant stated:
1. The Applicant seeks this relief on the various grounds set out in the Proposed Amended Application. However, those grounds may be conveniently sorted into two categories:
Ground 1, which asserts that the RRT erred by placing too much emphasis on the validity and accuracy of Department of Foreign Affairs (“DFAT”) Country Information Reports (“Country Information”) (a source from within the Government and so not an independent report) at the expense of numerous other contradictory independent reports and the Applicant’s own evidence.
Grounds 2 to 4 which assert that the RRT and DIBP failed to recognize that the Applicant’s claims were generally consistent and he was entitled to provide new evidence to the RRT.
The Tribunal’s Decision
The Tribunal’s decision may be considered under four discrete, but overlapping, aspects:
(a) the inconsistency of the Applicant’s claims (which gave rise to the Tribunal making certain findings in relation to credibility);
(b) the Applicant’s claimed risk of persecution if returned to Sri Lanka;
(c) the Tribunal’s assessment of a “new claim” raised by the Applicant at the end of the hearing regarding a contention that young Tamils will take revenge against the army in Sri Lanka, and that he will be implicated in such action; and
(d) the risk of persecution to the Applicant by treatment from Sri Lankan authorities on account of him being a returnee [to Sri Lanka] or a failed asylum seeker.
Summarily stated, the Tribunal’s reasons were as follows.
At [12] of its reasons, the Tribunal outlined the Applicant’s general claims. Then at [14], the Tribunal set out the Applicant’s particular claims, namely that he will be perceived as having an adverse political opinion because of his perceived links to the LTTE, due to his earlier actual links to the LTTE, and due to him “being a young Tamil male, or a Tamil from a particular area, because of his failure to report or his departure from the country or for a number of other characteristics [specified later in its reasons].”
At [15], the Tribunal noted three particular inconsistencies in the Applicant’s claims set out in his entry interview compared to what was set out in his later protection visa application. These related to him being taken forcibly to a LTTE camp and held there for 8 days; an alleged court investigation into his alleged political activities; and an alleged questioning of the Applicant by the CID in 2010 and 2011.
The Tribunal accepted, at [20] and [21], that the Applicant was forcibly detained by the LTTE for three months, and that he was questioned and possibly tortured during that period about his LTTE links. The Tribunal said that it considered that these events took place prior to 2009. In coming to this conclusion, the Tribunal said that the Applicant’s account was consistent with available country information.
However, at [16], [18], [19], [22], [23] and [38], it considered that, because of a range of inconsistencies identified in the reasons, the Applicant’s claims should not be accepted. For example, at [22], the Tribunal said: “… the Tribunal has formed the view that the Applicant’s description of events that occurred since his release from the camp in 2009 has not been truthful.”
In addition to the paragraphs noted, the Tribunal also recorded, especially at [24] sub-paragraphs a – i, specific areas of the Applicant’s evidence that were either inconsistent with other claims made by him, and or which the Tribunal considered to be implausible. For example, at [24] sub-par.d (CB p.283), the Tribunal said:
The Tribunal does not accept that … the Applicant would choose not to mention significant instances of harm such as frequent harassment from the CID, on a weekly basis, for a number of years.
Then at [24] sub-par.g, the Tribunal said:
The written evidence suggests that the 2012 order to report to the camp was the first time the applicant was required to attend the camp and that it is the reason he was scared. That contradicts the Applicant’s oral evidence that he went to the camp many times and the 2012 incident was no different to the previous ones.
The various matters set out in the paragraphs to which I have referred led the Tribunal to make the following findings, at [25], 27] and [28]:
[25] These discrepancies and the deficiencies in the applicant's evidence cause the Tribunal to form the view that the applicant has not been truthful in his description of events after his release from detention in 2009.
[27] The Tribunal does not accept that the events described by the applicant took place. The Tribunal does not accept that the applicant had been persistently questioned, harassed, mistreated, tortured or harmed by the army or the CID, that he was stopped on the street or that the army and the CID visited his home. The Tribunal does not accept that the applicant was repeatedly forced to attend the camps. The Tribunal does not accept that in June 2012 the applicant was require to report at a camp but failed to do so. The Tribunal does not accept that the applicant spent a month in hiding before his departure from the country or that he had lived in hiding at any other time since 2009 and until his departure from Sri Lanka. The Tribunal does not accept that the applicant was questioned, interrogated, tortured, mistreated or sexually abused. The Tribunal does not accept that the applicant was extorted or forced to buy goods for the officers. The Tribunal also does not accept that since his departure, the CID continued to visit his home and harass his mother. The Tribunal does not accept that the mother was required to pay money to the CID or that she had any problem working on the land. The Tribunal has formed the view that the applicant had been entire1y untruthful in his description of events after 2009. The Tribunal does not accept that the applicant or his family had any adverse dealings with the CID or the army since 2009.
[28] The Tribunal has considered the applicant's claims that he will be banned as a result of being a Tamil, a young Tamil male, his area of residence or his membership of a particular social group, however defined. The Tribunal does not accept that there is a real chance that the applicant will be banned for any of these reasons or a combination of reasons.
At [30] and following, the Tribunal set out what it described as “independent evidence”, essentially being country information, post 2009, in relation to any relevant risk of persecution of persons who have been or who may have been linked to the LTTE. The sources referred to and relied upon by the Tribunal are from the United Kingdom’s Upper Tribunal On Immigration and Asylum, the Department of Foreign Affairs and Trade (“DFAT”) Thematic and Country Reports of October 2014, Human Rights Watch (as broadcast by the BBC in November 2013), an Amnesty International Report in 2014 “Ensuring Justice: Protecting Human Rights for Sri Lanka’s Future,” and 2012 Guidelines from the United Nations High Commission for Refugees (“UNHCR”), which the Tribunal said, at [33], concluded that: “… a merits based assessment on individual circumstances is necessary, it indicated that Tamils as a group are no longer in need of international protection.”
In relation to the country information provided by DFAT, the Tribunal said, at [33] (internal citations omitted):
Despite evidence of continual action against LTTE suspects, DFAT has assessed that, as of October 2014, the LTTE does not exist as an organised force and any former LTTE members within Sri Lanka would have only minimal capacity to exert influence on civilians or those returning from abroad. Since the civil war ended in 2009 there has been considerable change in the security situation. The risk of harm to Sri Lankan citizens on the basis only of their Tamil ethnicity has substantially reduced.
At [35] - [37], the Tribunal considered the Applicant’s specific circumstances and claims in the light of the country information to which I have referred (emphasis added):
[35] The applicant's claim is that he will be perceived as being an LTTE supporter or sympathiser primarily by virtue of having spent nine days in a holding camp, having lived in an LTTE controlled area where other LTTE supporters lived and also because of his characteristics (young, male, Tamil, from a particular area, etc). The Upper Tribunal report indicates that in post conflict Sri Lanka, an individual's past history will be relevant only to the extent that it is perceived by the Sri Lankan authorities as indicating a present risk to the unitary Sri Lankan state or the Sri Lankan government. The Tribunal is not satisfied on the evidence before it that the applicant will be perceived as being such a risk, given his minimal, at best, links with the LTTE and despite his other characteristics.
[36] The UNHCR Guidelines indicate that certain persons have “risk profiles.” Those persons include persons suspected of certain links with the LTTE, including persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of the northern and eastern provinces of Sri Lanka; former LTTE combatants or cadres; former LTTE supporters who may have never undergone military training who were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; LTTE fundraisers and propaganda activists and those with, or perceived as having had links to, the Sri Lankan diaspora that provided funding and other support to the LTTE; persons with family or who are dependent on or otherwise closely related to persons with those profiles. The UNHCR Guidelines also indicate that other persons who may be at risk include certain opposition politicians and political activists; certain journalists and other media professionals; certain human rights activists; certain witnesses of human rights violations; women in certain circumstances; lesbian, gay, bisexual , transgender individuals.
[37] The Department of Foreign Affairs and Trade refers to high risks for high profile former members of the LTTE who may be detained, arrested and prosecuted, and rehabilitated and intensely monitored after their release. Lower risks are associated with former low profile LTTE members or former LTIE members living outside of Sri Lanka whom the Sri Lankan authorities may monitor depending on their risk profile; close relatives of the LTTE who are wanted by the Sri Lankan authorities may be subject to monitoring
Having regard to this country information, and the Applicant’s claims, the Tribunal concluded, at [38] (emphasis added):
The Tribunal has accepted that the applicant lived in an LTTE dominated area, that he had spent up to nine days in a camp although he escaped and did not receive any training; that he had been detained for three months and questioned. However, the Tribunal is not convinced that any of these characteristics, or that a combination of such characteristics, would give rise to an adverse profile. The Tribunal does not consider that the applicant will have the relevant profile as a result of any characteristic he has identified, or that arise on his evidence, that would cause him to be of any interest to the authorities, the CID or any other organisation or entity.
The remaining two matters considered by the Tribunal were (a) the Applicant’s “new claim”, that he would likely be associated with young Tamils who “will wish to take revenge against the army”, and (b) his fear of mis-treatment, if he returns to Sri Lanka, because he is a returning, failed asylum seeker.
In relation to the former, by reference primarily to material from DFAT regarding the lack of influence of the LTTE within Sri Lanka, the Tribunal held, at [39] and [42], that the LTTE did not have any “real chance” of relevant influence on the Applicant, and equally, that the Applicant did not have “any characteristics or profile that would cause him to be implicated in any way” in the activities of the LTTE that would justify him to fear any relevant persecution should he return to Sri Lanka.
In relation to the latter, the Tribunal, at [43] – [53], rejected the Applicant’s claims of fear of persecution if he returns to Sri Lanka as a failed asylum seeker. For example, at [49] and [50], the Tribunal said:
[49] The Tribunal accepts that the applicant will be questioned at the airport, but does not accept that any of the characteristics to which the applicant referred ·in his application will result in the applicant ·being questioned more thoroughly at the airport. As noted elsewhere, the law in relation to illegal departure, which will result in questioning at the airport and a subsequent fine, is a law of general application that applies equally to every person. The Tribunal finds that it does not involve systematic and discriminatory conduct. The Tribunal finds that the processes to which the applicant will be subjected upon return, as a result of illegal departure, will not be applied due to any Convention reason. The Tribunal is also not satisfied that the fact of his being questioned at the airport, even for extended periods, could reasonably be characterised as harm at any level, or that he would be subjected to any other form of mistreatment there. The Tribunal also does not consider that being fined, for a relatively small amount (and the applicant does not claim he will be unable to pay such an amount) constitutes serious harm.
[50] The Tribunal accepts that there is a possibility the applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and in unsanitary conditions. The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illega11y and considers that questioning at the airport, being placed in a remand for a short period and charged is not because he is a Tamil, but because he left Sri Lanka illegally. The Tribunal is not satisfied that the applicant will be imputed with a political opinion because he has left illegally or singled out or treated differently because he is a member of a particular social group, however defined, including a particular social group of failed asylum seekers or any other particular social group. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population. The Tribunal is also not satisfied, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(l )(c).
Finally, at [54] and following, the Tribunal considered whether the Applicant was owed protection obligations under the “complementary protection” criteria.
After noting, at [56] that the Applicant had departed Sri Lanka illegally, and had thereby committed an offence under relevant Sri Lankan migration legislation, it said that the most likely penalty for such a breach was a fine, “unless the person is considered to be an organiser or irregular migration of people from Sri Lanka.” The Applicant did not fit such a profile, nor did he make such a claim.
At [58] – [61], the Tribunal relevantly found as follows in relation to this aspect of the Applicant’s claim (internal citations omitted):
[58] Contrary to the applicant's submission that he will be tortured during detention, the Tribunal notes that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of such persons suffering torture, arbitrary deprivation of life, or intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A). The Department of Foreign Affairs and Trade has also advised that allegations of mistreatment of returnees have not been substantiated and it has said that it is not aware of allegations of mistreatment of returnees while on remand…
[59] The Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable. However, the Tribunal does not accept that spending up to a fortnight in such conditions amounts to 'significant harm' as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia.
[60] The Tribunal does not accept that there is a real risk that the applicant will be subjected to 'torture' as defined while he is on remand for a relatively short period. The definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act requires that pain or suffering be 'intentionally inflicted' on a person and the definition of 'degrading treatment or punishment' requires that the relevant act or omission be 'intended to cause' extreme humiliation.
[61] Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is 'intentionally inflicted' on prisoners as required by the definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are 'intended to cause' extreme humiliation as required by the definition of 'degrading treatment or punishment'.
The Applicant’s Submissions
For ease of reference, and subject to what is said later in these reasons, in noting relevant parts of the submissions, I make certain limited comments ‘along the way’, as it were. The Applicant’s submissions were couched in somewhat over-lapping terms, and with a certain imprecision.
For example, the first heading of the submissions reads: “Ground 1: Asking the wrong question – Country Information” However, the gravamen of this part of the submissions was not really about the Tribunal allegedly asking itself the wrong question but rather the use made by it of certain country information. And further, not only was there no reference to relevant case law on such matters, such as Minister for Immigration and Border Protection v MZYTS (which was raised, not by any of the parties, but by the Court for the parties’ consideration – on which more later in these reasons)[2], but also there was a further factor raised under this heading, namely the contention (at par.4 of the Applicant’s submissions) that the Tribunal:
… failed to assess the severity of the specific circumstances of the Applicant by devaluing the Applicant’s ethnicity and links to pro-Tamil/separatist groups despite finding his evidence to be substantially true.
[2]Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
Then the submissions, still under the heading of “Ground 1: Asking the wrong question – Country Information”, cited the High Court discussion in Applicant S v Minister for Immigration and Multicultural Affairs (“Applicant S”) regarding the definition of a particular social group.[3]
[3]Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387.
The Applicant contended that the Tribunal failed to have regard to the principles from Applicant S, which led, it was submitted, to the Tribunal erring in not finding the Applicant to have a well-founded fear of persecution because of his ethnicity and being perceived as a supporter of the LTTE, and also being a member of the group of “failed asylum seekers.” How this related to the heading in the submissions, and the issues of “asking the wrong question – country information”, is not immediately clear.
Still under this ground and heading, the Applicant’s submissions next dealt with a general contention (in my words) that the Tribunal did not relevantly take into account certain country information that was otherwise available to it. This material, it was submitted, put into different perspective, and more favourably so to the Applicant, certain country information. The country information that was said not have been considered by the Tribunal was the following (some comment is made, as noted, in relation to some of this material):
a)Department of Foreign Affairs and Trade – Reports and Guidelines – 2014 to 2015. The Applicant said that these Guidelines are silent on “post-war accountability” and human rights abuses of which Sri Lanka has been accused (emphasis added). The Applicant then referred to a UN Human Rights Council resolution in March 2014 which requested the UN Human Rights Commissioner for Human Rights to undertake a comprehensive investigation into alleged serious violations and abuses of human rights and related crimes by both parties in Sri Lanka. Further, the submissions said that the Tribunal relied “so heavily” on this document that it erred in doing so and by not referring to other “[unspecified] reports, information and documentation provided by the Applicant.”
b)Comment: it is unclear how the Tribunal can or should act upon (i) accusations directed generally at Sri Lanka, and/or (ii) a UN Human Rights Council resolution. Further, as noted later in these reasons, the Tribunal did have regard, not only to country information provided by DFAT, but also to reports and information from a significant number of other sources, including Amnesty International, the UNHCR Eligibility Guidelines, Sri Lanka (2012), and Human Rights Watch (2014);
c)The Applicant referred generally to the UK Home Office Operation Guidance Note for Sri Lanka, July 2013. However, no other details were given (other than a citation to a particular case that was not otherwise discussed or any relevant details given);
d)The Applicant also referred to a Human Rights Watch – World Report 2013, in which there is a statement (quoted in the submissions at par.19) that refers to the treatment of Tamils who have returned to Sri Lanka, who have links to LTTE, and who have reportedly been tortured.
e)Comment: At [32] of the Tribunal’s reasons, there is specific reference to a later Human Rights Watch – World Report, in 2014. In my view, it is untenable to criticise the Tribunal’s decision by reference to a report from a particular organisation in circumstances where the Tribunal has had specific regard to a report from the same organisation and which is more recent to that relied upon by the Applicant.
The Applicant’s submissions then move to what are described as “Grounds 2 & 3 – Applicant Credibility and “new claims”. The submissions provided under this heading relate essentially to the Tribunal’s adverse findings in relation to the Applicant’s credibility, primarily (it was asserted) because of the disparity between various accounts given by the Applicant at an earlier interview and later in evidence before the Delegate and the Tribunal.
Among other things, the Applicant submitted that there was no deliberate “inconsistency” but rather an understandable inability by the Applicant to recall accurately dates and events due to the trauma he had suffered. The submissions stated (at new par.5):[4]
… We submit, on the basis that the Applicant was assumed to introduce new claims the Applicant has been denied procedural fairness. The Tribunal acknowledged the new claims but dismissed them in the same statement without sufficient regard or forethought to their content.
[4] Unfortunately, the submissions are not only unpaginated but also, at this juncture, strangely and inconsistently numbered. The submissions change from par.28 to par.3 and following. Such lack of attention to basic detail hinders the proper and easy reference to submissions.
The Applicant contended that, on the basis of proper process, he was entitled, indeed had a “legitimate expectation” to have his claims properly determined. It was submitted, without reference to any particular part of the Tribunal’s decision, that the Tribunal “did not take into account the Applicant’s claims, especially his detainment and torture after March 2012 or his claims about possible future harm if he’s [sic] returned to Sri Lanka as a failed asylum seeker.”
Respectfully, and subject to what is said later in these reasons, this is exactly what the Tribunal did. Among other things (at [25] – [28] & [49] – [53]) the Tribunal considered but ultimately did not accept the Applicant’s evidence in relation to events post 2009. And at [39] – [42], it relevantly considered the Applicant’s so-called “new claims.”
Ground 3 of the Applicant’s submissions relate to what are described as “the RRT [the Tribunal] should have dealt with the claims “de novo.” Our client was not precluded from raising new material at the RRT.”
The Applicant asserted, at par.14, that there was “no modification to the [Applicant’s] original claim rather an expansion of claims that further supports the original claims.” Then at par.18, the Applicant submitted more generally:
We submit that administrative procedural fairness dictates the RRT [sic] should have dealt with all the claims “de novo” not just a select few. The RRT does state that it “considered the application in its totality both singularly and cumulatively” but the actions of the RRT does not support this consideration. We submit that this was simply an exercise of boilerplate cut and pasting in an effort to circumvent any claims that the decision was not thorough. We submit that merely saying that they have considered everything does not vitiate a claim to the contrary.
Ground 4 of the primary submissions contend that “the First Respondent erred by taking into account an irrelevant consideration.” This ground is by reference to the decision of the Delegate and not to the decision of the Tribunal. Formally, the decision of the Delegate in relation to the Applicant is not before the Court. Accordingly, I do not propose to consider this part of the Applicant’s submissions. In this regard, I accept the Minister’s submissions (noted further below).
The Applicant’s Supplementary Submissions
The Applicant’s “Further Submissions” were filed on 25th November 2015. They were directed to address the Full Federal Court decision in MZYTS, in accordance with the discussion initiated by the Court at the hearing. These submissions were as follows. Because of their relative brevity, it is as well to set them out in full, thus (emphasis in original) (internal citations omitted):
Credibility
1) Contrary to what the First Respondent has tried to purport, the Applicant actually agrees that the Tribunal is entitled to make a credibility assessment. Rather, it is the Applicant’s contention that the Tribunal’s assessment was based on an invalid process. The Applicant concedes that the legislation has since been amended to mandate the process which the Tribunal undertook. However, the Applicant contends that he is entitled to be judged and measured by the legislation of the day, not by the process introduced in the new section 423A of the Migration Act 1958 (Cth). The Applicant submits that no adverse inference against the Applicant can be drawn from his failure to comprehensively articulate his claims at an early stage in the process. The Applicant did not need to ‘explain’ or ‘justify’ his failure to make a claim or raise evidence at an earlier stage of the process. The Tribunal was obliged to consider all claims and evidence ultimately advanced to it. The Tribunal’s approach placed an impermissible burden on the Applicant. An order in the Applicant’s favour would have enormous utility to his case, even if not to others post section 423A.
MZYTS
2) Contrary to the First Respondent’s submissions, the Applicant did not amend Ground 3 of his original application, nor did he introduce any new ground. The Applicant provided further and better particulars to Ground 3 at the hearing which the Applicant was well entitled to do. The Applicant is not aware of 1) any requirement that all potential arguments and all particulars be fully expressed in their final form at the outline stage, 2) any restrictions on providing new particulars, or 3) any requirement that arguments initially posited must be stood by at the hearing. If this were the case there would have little need for oral advocacy.
3) In any case, when given the opportunity to do so at the beginning of the hearing, the First Respondent consented without reservation to the amended application. It was only after the Applicant presented his case that the First Respondent ‘reserved the Minister’s right to object’, despite that the amended application had been with the First Respondent for more than 80 days. Nevertheless, His Honour ultimately directed the First Respondent to make further submissions.
4) The First Respondent’s objection is essentially related to the Applicant’s submissions regarding MZYTS. The Applicant contended that the Tribunal erred in failing to disclose in its decision ‘a process of weighing evidence and preferring some over the other’. Kennedy [sic: Kenny], Griffiths and Mortimer JJ said at [50]: ‘The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference’ (emphasis added). The arguments and case-law presented by the First Respondent are a well-trodden path but not one that the Applicant is travelling on. In addition, the Full Bench decision in MZYTS has precedence over most of the case-law cited by the First Respondent. It should be assumed that the Full Bench was well aware of the state of case law when they made their decision in MZYTS.
5) 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”).
6) The case law provided by the First Respondent can also be used to support the Applicant’s position. For example, at [2.7] of the First Respondent’s submissions in the case of SZRKT, his Honour Robertson J stated that ‘the nature of the document’ is relevant in determining the Tribunal’s obligation to consider a document. It is hard to see how 19 pages of country information could be seen to be anything other than relevant in the present case. At [2.8] of the First Respondent’s submissions, Gleeson J’s commentary (a quadruple negative) in SZSQL strongly confirms the Applicant’s position – the failure to specifically address ‘apparently pertinent but contradictory country evidence’ contradicts ‘the Minister’s submissions that the Court could not infer that the Tribunal had ignored the relevant material’.
7) The First Respondent claims at [2.9] that the Applicant did not specifically identify the country materials the Tribunal was to have regard to. This is clearly incorrect. The Applicant stated with particularity which pages of the Court Book were ignored (being CB 212 to CB 230), and highlighted the absence of any reference by the Tribunal to those materials (CB 285 at [31]).
8) What the Tribunal did was to simply include a half sentence throw away comment in the Decision Record to substitute for ‘taken into account’. Jurisdictional error occurs when relevant information is not taken into account. Does a half sentence throw-away line substitute for “taken into account”? MZYTS says no. The role of the Tribunal is to review ALL the materials put before it and to enter into a weighing exercise. That weighing exercise is flawed if not all the material is considered, or if no weighing exercise in relation to the ignored reports provided by the Applicant can be gleaned from the Tribunal’s Decision Record.
9) In addition, the First Respondent erred in its submission at [2.12], alleging that some of the Applicant’s country material was accepted by the Tribunal in its decision at [32] (CB 285). None of the country material referred to by the Tribunal at [32] (CB 285) was provided by the Applicant. This omission supports the Applicant’s position that the Tribunal engaged in ‘no process of weighing evidence and preferring’ some of its own material over the ignored reports.
10) The First Respondent implies that the Applicant’s claim of ignored reports is a general argument with no link to a cause of action. On the contrary, the Applicant’s claim is very specific. There are 19 pages of material which were highly relevant to the case but not considered (emphasis added by Court) – this does not meet the test in MZYTS. The specific harm to the Applicant is self-evident and unitary – the Tribunal drew a negative conclusion based on flawed processes resulting in the refusal of the Applicant’s protection claim, which would, unchallenged, require the Applicant to return to the country he fled from – there are no subtle nuances here – the outcome is grave and evident.
Conclusion and Orders Sought
11) The Applicant submits that the Tribunal erred in its decision for the reasons outlined above. The Applicant submits that the appropriate order in this case is for the decision of the First Respondent to be quashed, and a writ of mandamus be directed to the First Respondent, requiring them to determine the applicant’s application according to law, and that costs be awarded in the Applicant’s favour.
The Minister’s Submissions
Because of their detail and systematic response to the Applicant’s submissions – primary and supplementary – I set out the Ministers’ two sets of submissions almost in their entirety.
The primary submissions, filed 5th August 2015, limited to the Grounds of Review set out in the Applicant’s material, were as follows (beginning at par.26):
26) By Ground 1 the Applicant argues that the Tribunal relied too heavily on DFAT country information and in doing so failed to take account of the Applicant's circumstances such that it asked the wrong question.
27) The Minister contends that this submission is asking the Tribunal to engage in impermissible merits review which is outside the scope of judicial review. The choice and assessment of country information is a matter solely for the Tribunal. In this context the Minister notes the decision of the Full Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 where, having regard to the Tribunal's consideration of country information, Gray, Tamberlin and Lander JJ found that “the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function” (at [11]).
28) The Minister contends that the decision record reflects a well-reasoned decision which correctly set out the law regarding ss.36(2)(a) and 36(2)(aa) of the Act at [7] to [11], which considers the applicant's claims (at [12]) and which correctly applies the legal test to those claims (at [13] - [63]) and plainly takes account of the Applicant’s individual circumstances, as well as relying on relevant country information. It is notable that, at [31] of its decision during its discussion of country information, the Tribunal expressly states that it has had regard to the information referred to by the Applicant’s representatives (CB 285). In those circumstances the Minister contends that there is no basis for the Court to intrude on the Tribunal's administrative decision in this case. The Minister therefore contends that this ground of review should be dismissed.
29) For completeness the Minister notes that, while not a matter raised by the Applicant's first ground of review, the Applicant submits (at paragraph 7 of its submissions) that the Tribunal failed to apply the principles in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 (Applicant S), and therefore erred in failing to find that the Applicant had a well-founded fear of persecution, or that he attracts complementary protection under Australia's protection obligations.
30) The Minister acknowledges that Applicant S is a leading authority discussing the issue of membership of a 'particular social group'. However, the Minister contends that the Tribunal considered each of the Applicant's claims that he fell within the following social groups in accordance with the relevant authority:
a) Young Tamil Male, which was considered by the Tribunal at paragraphs 14 - 42 of its decision;
b) Supporter of LTTE, which was considered by the Tribunal at paragraphs 14 - 42 of its decision;
c) Failed asylum seeker, which was considered by the Tribunal at paragraphs 43 - 53 of its decision,
and came to a conclusion which was open to it on the evidence in respect of each claim.
31) The Minister therefore contends that this Ground should be dismissed.
GROUNDS 2 & 3 - APPLICANT CREDIBILITY AND "NEW CLAIMS"
32) By Grounds 2 and 3 the Applicant argues that the Tribunal took into account irrelevant considerations, namely the Applicant's credibility, when making its decision on the Applicant's claims.
33) The Minister contends that this ground appears to be asking the Court to engage in impermissible merits review. In that context the Minister notes that the Tribunal was not bound to accept, uncritically, any and all of the claims advanced by the Applicant: Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596 per Kirby J; Prasad v MIEA (1985) 6 FCR 155 at 169-70 per Wilcox J. The Minister contends that it is open for the Tribunal to make determinations on the credit of the Applicant and to determine the weight of the evidence before it on that basis: Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407, 423 [67].
34) It is notable that, at [26] of its decision, the Tribunal acknowledges the submissions of the Applicant’s representatives regarding the assessment of credibility, noting that asylum seekers may be affected by a variety of factors when giving evidence (CB 284). The Tribunal concludes, however, that the deficiencies in the Applicant’s evidence were not caused by such factors. Rather, as it finds in paragraph [25] of its decision, the Tribunal considered that the deficiencies were caused by a lack of truthfulness (CB 284).
35) The Minister contends that the Tribunal considered all of the Applicant’s claims and evidence and made findings and conclusions, which were open to it on the evidence and material before it, for the reasons it gave, including its adverse credibility findings. In particular, the Tribunal did consider the Applicant’s ‘new claims’ at paragraphs [39] and [40] of its decision record. The Tribunal makes findings in relation to each of the ‘new claims’ which were open to it on the material before it, and for the reasons it gave. Contrary to the Applicant’s contention in Ground 3, the Tribunal did not dismiss the ‘new claims’ because of the Tribunal’s adverse credibility findings. Rather, in [39] of its decision, the Tribunal found that the Applicant’s claim was based on “mere speculation” and that the Applicant did not have a profile to indicate that he would be implicated in the way he suggested. Further, in paragraph [40] of its decision, the Applicant stated that any refusal by him to help the CID put up election posters would not be taken seriously, that he had experienced no problems in the past for refusing to help and that he did not believe he would experience any further problems in the future (CB 287).
36) To the extent that second particular of Ground 3 appears to be claiming that the Tribunal did not exercise its function by making its decision de novo, the Minister contends that there is nothing in the decision to indicate that the Tribunal's decision was not made de novo or without regard to all of the information put before the Tribunal. For the reasons outlined above, the Tribunal was entitled, and did, consider all the evidence before it, including that acquired at the various stages throughout the Applicant's visa application process, and make its decision having regard to that evidence.
37) The Minister therefore contends that Grounds 2 and 3 of review should be dismissed.
NEW GROUND 4 - THE FIRST RESPONDENT ERRED BY TAKING INTO ACCOUNT AN IRRELEVANT CONSIDERATION
38) This ground (as elucidated upon by the Applicant’s submissions) seeks to impugn the first instance decision of the Minister for Immigration and Border Protection. The Minister contends that this decision is not the decision that is the subject of these review proceedings and, this Court's function does not involve a review of that decision.
The Minister filed Further Submissions on 11th November 2015 in relation to the two specific issues raised during the hearing, namely:
a) the use of evidence prior to the hearing - that is, whether the Tribunal erred in coming to the conclusion it did about the Applicant's credibility, having regard to what the Applicant said in earlier interviews with the Department; and
b) the relevance of the decision in MZYTS - that is, whether the Tribunal erred by failing to consider the Applicant's claim.
The Minister’s submissions in relation to these issues were as follows:
MZYTS
2.1 By this ground the applicant claims that the Tribunal failed to consider reports and country information that was submitted by the Applicant, and in doing so ignored or overlooked recent and significant material which is centrally relevant to the decision. Specifically the Applicant claims that the Tribunal erred by not having regard to the submissions and internally referenced country information provided by the Applicant to the Tribunal. In support of this claim, the Applicant made a general submission that this error was apparent because the Applicant's submissions and the supporting country information supplied in those submissions were not expressly dealt with in the Tribunal's Decision. No specific claims with respect to that information were identified.
2.2 The Applicant relies on the decision in MZYTS in support of this putative error. In that case, the Full Court stated that, when determining an applicant's claim, the formation of the requisite state of satisfaction “could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant”.
2.3 As a preliminary matter, the First Respondent notes that this claim was not raised by the Applicant in his application, or written submissions to the Court. In those circumstances the First Respondent opposes any request to amend his application at this very late stage of the proceedings to include such a ground.
2.4 In any event, the First Respondent contends that the Applicant has not demonstrated an error in the Tribunal's decision by this new ground of review. The First Respondent acknowledges that the Tribunal was required to undertake a conscious consideration of the submissions, evidence and material advanced by the Applicant (MZYTS at [48] - [50]).
2.5 However, the First Respondent notes that this requirement does not require the Tribunal to have referred to every piece of evidence and every contention made by an applicant in its decision (because the evidence may be irrelevant or the contention misconceived): see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 (WAEE). Further, the Minister notes in Re the Minister for Immigration and Multicultural Affairs of the Commonwealth of Australia; ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [65], McHugh J said:
“It is not necessary for the Tribunal to give a line by line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to the findings of material fact made by the Tribunal”
2.6 As noted by the Full Court in Minister for Border Protection v SZSRS (2014) 309 ALR 67 at 79, the critical enquiry is whether any alleged failure can properly be characterised as resulting in a tribunal failing to fulfil its statutory task. In this context, the First Respondent notes that the Federal Court Decision of Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57] (Rezaei), Where Allsop J said that Yusuf:
“ … does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. ‘Relevant’ for this purpose means that the decision-maker is bound by the statute or by law to take this into account: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 29 at 39-42"
2.7 The First Respondent also notes the remarks of Robertson J in SZRKT v Minister for Immigration and Citizenship [2013] FCA 317; (2013) 212 FCR 99 (SZRKT) at [112], where his Honour said that in considering whether a failure to deal with evidence amounted to jurisdictional error:
“As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [[2005] FCAFC 117] at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims.”
2.8 When considering the principles outlined at paragraphs [49] - [50] of MZYTS, Gleeson J determined in SZSQL v Minister for Immigration and Border Protection (No 2) [2015] FCA 1118 that:
“In MZYTS, the Full Court was not saying that a decision maker is required to address specifically every instance of apparently pertinent but contradictory country evidence. Rather, it was saying that, in the circumstances of that case, the failure to do so contradicted the Minister's submission that the Court could not infer that the Tribunal had ignored the relevant material."
2.9 The Applicant's submission at the hearing was based on a general assertion that by MZYTS the Tribunal was required, and failed, to consider the various country materials referred to by the Applicant in its submissions to the Tribunal. However, the Applicant did not specifically identify which country materials the Tribunal was required to have regard to, with reference to the Applicant's claims, nor did the Applicant demonstrate that the Tribunal in fact failed in doing so.
2.10 In light of the relevant authorities, the First Respondent contends that the present case is distinguishable from MZYTS. To the extent that the Applicant claims that the Tribunal did not generally have regard to the country materials referred to in its submission, the First Respondent notes that the Tribunal was under no obligation to consider and refute every material provided by the Applicant: see WAEE, Rezaei and SZRKT referred to above.
2.11 Without demonstrating the cogency of the material that the Applicant claims the Tribunal ought to have had regard to, and the aspect of the Applicant's claims that were not considered in this regard, the First Respondent contends that this ground of review does not disclose a jurisdictional error (see SZRKT).
2.12 In any event, unlike in MZYTS, it is apparent from the Decision Record that the Tribunal clearly addressed the very issue that it was required to address, namely whether the Applicant is a person in respect of whom Australia has protection obligations for the reasons claimed by the Applicant. In that context the First Respondent notes that the Tribunal considered all the Applicant's various claims for protection (and the evidence provided in support of those claims) in considerable detail (see paragraphs [12] - [23] of the Respondent's submissions to this Court dated 5 August 2015, which set out the Tribunal's analysis of each of the Applicant's claims in the Decision Record and which has not be contested by the Applicant). In doing so the Tribunal accepted some of the Applicant's claims made on the basis of the country materials that he provided (see paragraph [32] at CB 285), but also rejected some of the Applicant's claims on the basis of those materials (see paragraph [33] of the Decision Record which refers to the materials provided by the Applicant at footnote 1 of the Applicant's submissions dated 21 July 2014 (CB 211)).
2.13 The First Respondent further contends that it is clear from the Decision Record that the Tribunal had regard to the Applicant's submissions regarding the apparent inconsistencies in his evidence at the various stages of the application process (see in particular paragraphs [16], [17], [18], [26] and [31] of the Decision Record).
2.14 In our submission it is clear that the Tribunal had regard to the Applicant's various claims, evidence and country materials which were relevant to the Tribunal's decision. It is also clear that the Tribunal weighed the various evidence before it including that provided by the Applicant in his submissions, and came to a conclusion which we submit was open to it for the reasons it gave. Having regard to the authorities outlined above, and in circumstances where the Applicant has neither demonstrated the cogency of the material that the Applicant claims the Tribunal ought to have had regard to nor identified the specific claims that it says the Tribunal was required to have regard to, and subsequently failed in doing so, the First Respondent contends that the Applicant has not (by simply suggesting that certain country materials were generally not taken into account) demonstrated this ground of review.
2.15 For these reasons the First Respondent contends that this new ground of review should be dismissed.
Credibility
3.1 The Applicant's submissions in this regard is that the Tribunal erred by reaching an adverse conclusion about the Applicant's credibility, by having regard to the inconsistent statements made by the Applicant at the entry interview stage of his application as compared to what was said in the Tribunal hearing.
3.2 By section 424 of the Migration Act 1958 the Tribunal is entitled to obtain any information that it considers relevant to its decision. In our submission, this provision includes information relating to the Applicant's prior evidence and statements made to the Department of Immigration and Border Protection (or to the department under any of its previous names) (the Department) in earlier stages of the visa application assessment process.
3.3 The First Respondent further contends that it is well established that the Tribunal is entitled to make assessments of credibility of the Applicant when making findings on the Applicant's claims for protection, and is not required to accept, uncritically, any and all of the claims advanced by the Applicant: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. There is no error demonstrated by the Tribunal, in making such findings as to credibility, having regard to discrepancies or inconsistencies in claims or evidence: SZIYS v Minister for Immigration and Citizenship and Another (2008) 102 ALD 110 at [25]–[26].
3.4 Findings as to credibility are findings of fact, and are a matter for the Tribunal par excellence (Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at paragraphs 64 to 67), the review of which is not within the jurisdiction of the Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 at paragraphs 272 and 291; and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [10]).
3.5 In our submission it is clear from the Decision Record that the Tribunal provided the Applicant with an opportunity to make submissions about the discrepancies in his evidence (CB 255), and it is also clear that the Tribunal took those submissions into account when making its decision (see in particular at paragraph [17] and [18] of the Decision Record).
3.6 There is no obligation on the Tribunal to dismiss previous evidence provided by an Applicant to the Department, and in fact the Tribunal's function is to weigh the evidence that is before it and come to a conclusion on that evidence. In this context we note that the weight to be assigned to evidence, including country information, is a matter for the Tribunal to assess (see Wu Shan Liang, at [281] - [282]; NAHI at [11]; and Chand v Minister for Immigration and Ethnic Affairs (unreported, Full Court of the Federal Court of Australia, 7 November 1997) at page 12).
3.7 In our submission it is clear that the Tribunal weighed the evidence and the Applicant's claims regarding the basis for the discrepancies in his evidence.
3.8 It is also clear from the Decision Record that the Tribunal provided reasons for its findings as to the Applicant's credibility, and came to a conclusion which was open to it on the evidence for the reasons it gave (namely the inconsistencies in the Applicant's evidence). The First Respondent contends that this is a finding that was open to the Tribunal on the facts before it, and its process of reaching this conclusion does not disclosure a jurisdictional error.
3.9 For these reasons the First Respondent contends that this new ground of review should be dismissed.
Consideration & Disposition
In my view, there are three jurisprudential touchstones that are crucial to the determination of the current Application: Minister for Immigration and Multicultural Affairs v Yusuf (“Yusuf”), the decision of Robertson J, sitting on appeal from a decision of this Court, in Minister for Immigration and Citizenship v SZRKT (“SZRKT”), and the Full Court (Kenny, Griffiths and Mortimer JJ) decision in Minister for Immigration and Border Protection v MZYTS (“MZYTS”).[5]
[5] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
The significance of the decision in Yusuf for current purposes relates to the High Court’s comments concerning the obligations imposed on the Tribunal by s.430 of the Migration Act 1958 (Cth). Although, in terms, this section of the Act is not directly relevant to the current application, the foundational discussion regarding the Tribunal’s process in arriving at a decision and the articulation of it remains apposite.
At [67] - [69] in the joint judgment of McHugh, Gummow and Hayne JJ, their Honours said (internal citations omitted) (emphasis in original):[6]
[6] At [10], in addition to agreeing (at [1]) with the reasons and orders in the joint judgment to which I have referred, Gleeson CJ commented in similar terms on the operation and requirements of s.430 of the Act.
[67] Section 430(1) of the Act obliged the Tribunal to prepare a written statement that does four things:
“(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based.”
As was rightly observed in the joint judgment in Singh [28], this section calls for a recording of matters that are matters of fact. In particular, s.430(1)(c) requires the Tribunal to set out the findings of fact which it made. But does it require more? Does it oblige the Tribunal to make findings on any and every matter of fact objectively material to the decision which it was required to make?
[68]Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word “material” in s.430(1)(c). It was said that “material” in the expression “material questions of fact” must mean “objective material.” Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s.430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.
[69] It is not necessary to read s.430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s.430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s.430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s.75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s.476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
Then, at [82] – [84], after a brief discussion of Craig v South Australia, their Honours said (internal citations omitted):[7]
[82] … “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
[83] No doubt full weight must be given to s.476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s.476(1.) Equally, however, it is important to recognise that these limitations, unlike those prescribed by s.476(2), are limitations on only one of the grounds specified in s.476(1). All this being so, there is no reason to give either par (b) or par (c) of s.476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it “exceeds its authority or powers.” If that is so, the person who purported to make the decision “did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised” by the Act.
[84] Moreover, in such a case, the decision may well, within the meaning of par (e) of s.476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s.476(1)(d), read in light of s.476(3) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s.476(1)(e) is made out.
[7] Craig v South Australia (1995) 184 CLR 163 at 179.
In SZRKT, respectfully, in a typically thorough, helpful and detailed examination of both fact and principle, Robertson J noted the following. First, at [76] – [78], his Honour relevantly said (emphasis added):
[76] I turn then to ground 3, the legal consequences of the finding that the Tribunal had given no consideration to the Punjab University transcript when it made its adverse findings.
[77] In my opinion, recent High Court authority shows that this is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas, to the effect that a decision within a category or formula is always or is never affected by jurisdictional error… Useful for analysis though categories or formulas are, they should be seen as servants rather than masters. To proceed otherwise in the area of jurisdictional error is to look for more precision than the nature of the subject admits. In each case what the decision-maker has decided must be analysed in detail in order to arrive at the correct description of conclusion, “jurisdictional error”….
[78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
Then, at [95], following a discussion from Yusuf, Robertson J said:
Nevertheless, their Honours [in Yusuf], although at times using shorthand expressions, were not, in my opinion, saying that ignoring material relevant only to fact-finding of itself constitutes jurisdictional error….
At [97], again by reference to the High Court’s comments (noted earlier in these reasons) in Yusuf, his Honour said (emphasis added):[8]
Thus merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.
[8] See also his Honour’s continuing discussion at [98].
In an exhaustive consideration of Full Court decisions from the previous 10 years, his Honour noted, at [111] and [112] (emphasis added):
[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[112] As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.
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].
At [50], the Full Court also said:
… The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
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”).
In my view, a proper and fair consideration of the Tribunal’s reasons does not support the Applicant’s contention in this regard, or at all. For example, among the so-called “ignored reports” referred to in the submissions and set out at pp.212 – 230 of the Court Book, are the following:
(a)The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (CB p.212) are referred to in the Tribunal’s reasons at [33];
(b)The Human Rights Watch World Report 2013 Sri Lanka (CB p.213) is not referred to by the Tribunal in its reasons. However, at [32] of its reasons, the Tribunal discussed the later, 2014, Human Rights Watch World Report;[12]
(c)At CB p.224, there is reference to the United Kingdom, Home Office Operational Guidance Note: Sri Lanka April 2012. True it is that the Tribunal does not refer to this material, but it does refer, at [30] – [31], to the later material from the UK Upper Tribunal (Immigration and Asylum Chamber, 2013.
[12] In this regard I note that in MZYTS, at [73], the Full Court referred specifically to current information: “… attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction.”
Earlier in these reasons I noted that the Tribunal referred to and clearly considered country information from DFAT, Amnesty International, the UNHCR Eligibility Guidelines, Sri Lanka (2012), and from Human Rights Watch (2014). In addition to this range of materials considered by the Tribunal, at [45] of the reasons, it also discussed, at length, material from the Immigration and Refugee Board of Canada, January 2013.
In my view, the Tribunal’s consideration of the range of country information referred to by it properly exhibited the “weighing” exercise of the evidence referred to by the Full Court in MZYTS at [50]. In my view, it reasonably considered a wide-range of country information, some of it more recent than that provided by the Applicant. It was not a case of “omission and ignoring.” Rather, it was a case of “weighing and preference.”
Accordingly, having regard to the scope of material canvassed by the Tribunal, in my view, the Applicant’s claim, in which he contended that the Tribunal did not consider at all, or did not consider adequately, relevant country information, is unsustainable.
Further, having regard to:
(a)the distinction made by the High Court in SZGUR, regarding material not mentioned in the reasons of the Tribunal because it was [obviously] considered not to be material relevant to its inquiry, as opposed to it not being considered at all;
(b)the importance, recorded by Robertson J in SZRKT, and by the Full Court in MZYTS, of the Tribunal to consider, as its statutory task, relevant material, including the latest country information; here, this is precisely what the Tribunal did, and it looked at material that was later in time to that referred to by the Applicant;
(c)the comments by Robertson J in SZRKT regarding the need to be “case specific” in determining what material was relevant to a decision by the Tribunal, and whether any material that was not, or may not have been, considered, was of such critical importance to the individual case that it should have been considered as part of statutory task.
in my view, no jurisdictional error has been shown to have been committed by the Tribunal.
Further, having regard to the further comments by Robertson J in SZRKT (at [119] – [120]) regarding whether the Tribunal took a “nuanced approach to questions of credit”, in my view, this is precisely what the Tribunal did. It accepted some evidence of the Applicant, such as his account of events prior to 2009, but rejected other parts of the Applicant’s evidence, primarily in relation to his evidence in relation to events post 2009. In my view, for the reasons that it gave, the Tribunal was entitled to form such view that it did in relation to the Applicant’s evidence.
I have earlier observed that the Tribunal, in my view, properly considered the status of the Applicant as a person who had left Sri Lanka and was returning to his country as someone who had left illegally. The Tribunal considered the Applicant’s plight in the light of relevant country information in relation to the treatment of such persons.
In this regard, it is apposite here to note the recent decision of the Full Court in SZTAL v Minister for Immigration and Border Protection (Kenny, Buchanan and Nicholas JJ), not least because it concerned a claim of risk of significant harm if the Applicant in that case returned to Sri Lanka, being a person who had left that country illegally.[13]
[13] SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.
Relevantly, at [71] Kenny and Nicholas JJ held that “a social group cannot be defined by reference to a fear of persecution based on the non-discriminatory enforcement of a State’s generally applicable domestic legislation.” And at [75], their Honours’ said:
The appellants’ attempt to distinguish between fear of the penalty and fear of related processes does not remove the difficulties identified by Dawson and McHugh JJ in Applicant A 190 CLR 225. The Tribunal’s finding (at [73]) that the Sri Lankan legislation “is being applied to all persons who have departed Sri Lanka illegally ... regardless of ethnicity” meant that the group of “persons who left Sri Lanka illegally” whose fear arose only from processes related to the enforcement of that legislation was not capable of constituting a particular social group. The Tribunal did not find that the supposed social group had any existence independent of the fear of harm, and nothing in [85] and [86] of the Tribunal’s reasons provides any support for the appellants’ contention. If the appellants feared the processes related to enforcement of the law, they did so because of the non-discriminatory enforcement of generally applicable legislation; and this fear of persecution did not arise from a common characteristic having an existence independent of the enforcement of the law.
In conclusion, and otherwise in addition to the reasons I have given, I should also be taken to accept, essentially in their entirety, the submissions made on behalf of the Minister.
For these reasons, the Amended Application, filed 3rd July 2015, to review the Tribunal’s decision must fail. It will be dismissed, with an Order for costs in the Minister’s favour, in accordance with the Scale in Schedule 1, Part 3, Division 1 of this Court’s Rules.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 15 July 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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