Acd15 v Minister for Immigration

[2015] FCCA 2441

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACD15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2441

Catchwords:
MIGRATION – Application to set aside decision of Refugee Review Tribunal – no jurisdictional error revealed – application dismissed – costs awarded.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.36 & 65

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 266 ALR 367
SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1; [2012] FCAFC 58

Applicant: ACD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 70 of 2015

Judgment of: Judge Simpson

Hearing date: 27 August 2015

Date of Last Submission: 27 August 2015

Delivered at: Adelaide

Delivered on: 10 September 2015

REPRESENTATION

Counsel for the Applicant: Dr K Karunadasa

Solicitors for the Applicant: TAI Lawyers

Solicitors for the Respondents: Ms V Greenslade for the Australian Government Solicitors

ORDERS

1. The Application filed 3 March 2015 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,825.00 (SIX THOUSAND EIGHT HUNDRED AND TWENTY FIVE DOLLARS).

3. The name of the Second Respondent be amended to read The Administrative Appeals Tribunal 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 70 of 2015

ACD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an Application for Judicial Review of a decision of the Refugee Review Tribunal (“the Tribunal”) (as it then was) made on 30 January 2015.  The Application contained numerous errors.

2. Page two of the Application states, incorrectly, that the decision under review is a decision made by “the Minister or another person” under the Migration Act 1958 (Cth) (“the Act”), that the decision-maker was a Delegate of the Minister and that the decision was made on 26 February 2015. On page three of the Application the Grounds of Application are incorrectly directed to the First Respondent (the Minister) instead of the Second Respondent (the Tribunal).

3. With the Court’s imprimatur, the parties agreed that the matter should proceed on the basis that the Application is an application for review of a decision of the Tribunal made on 30 January 2015, and that the grounds were directed to the Tribunal and not the Minister.  The hearing therefore proceeded on the basis that the grounds were amended to read as follows:

   “1.The Tribunal did not take into proper consideration the Applicant’s well-founded fear of persecution for reasons of being a member of a political opinion (sic).

   2.The Tribunal did not take into proper consideration the Applicant’s well-founded fear of persecution for being a failed asylum seeker from a Western Country, as a consequence of his illegal departure from Sri Lanka.

   3.The Tribunal over placed too much (sic) consideration into country information material before them in making a decision to deny the Applicant a Protection (Class XA) visa.

   4.The Tribunal erred in law by taking the relevant information regarding fuel price rises in Sri Lanka into consideration in making a decision to deny the Applicant a Protection (Class XA) visa.”

4. The Applicant was represented at the hearing by a solicitor.  The solicitor provided the Court with a document titled, ‘Grounds of Appeal’, which contained written submissions.  A written submission was also provided by counsel for the Minister (“the Respondent”).

Background

1. The Applicant is a citizen of Sri Lanka.  He arrived in Australia on 15 July 2012 as an unauthorised maritime arrival and was detained thereafter. 

2. On 13 November 2012, the Applicant lodged an application for a Protection Visa claiming to be at risk of serious harm from various people due to his involvement with two political parties: the United National Party (UNP) and the People’s Alliance (PA).  He claimed that he was beaten by members of each of these parties.  He also claimed to fear harm from the Sri Lankan authorities as they would identify him as a failed asylum seeker. 

3. On 26 February 2014, the Delegate of the Minister refused the applicant’s application for a Protection Visa under s.65 of the Migration Act.

4. On 5 March 2014, the Applicant applied for review by the Tribunal.  The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhalese and English languages.  The Applicant was represented in relation to the Review by his Registered Migration Agent. 

5. On 30 January 2015, the Tribunal affirmed the decision of the Delegate not to grant the Applicant a Protection Visa.  The Applicant then filed his Application in this Court on 3 March 2015.

The Tribunal’s decision

1. The Tribunal’s reasons were detailed and comprehensive.  It found that the Applicant was a citizen of Sri Lanka and was employed as a fisherman and sometime labourer.  The Tribunal accepted that the Applicant assisted with the handing out of leaflets for the two political candidates, on two occasions, in 2010 and 2011.  The Tribunal said:

   “His role was that, of many others at this level.  By his own account he did not have any political preferences and … his motivation for assisting as he did was to come to the attention of the candidates such that they would perhaps, assist him with work”.[114]

2. The Tribunal accepted that the Applicant handed out leaflets and the like and then said:

   “He claimed to have suffered harm at the hands of supporters of both the UNP and the PA for providing assistance to the party opposed to the other.  He claimed that this was the case in 2010 and he claimed that both parties became aware of his actions at that time.  However, he claimed that he was approached by both again in 2011.” [116-118]

3. The Tribunal, clearly having some concern about the Applicant’s credibility, then said:

   “I accept that he was approached to carry out the two tasks that he claimed he provided.  The first being to paste posters advertising the candidates and the second to distribute material for them.  Both tasks were purely functional tasks and nothing more.  I do not, however, accept that he would have been approached by both parties if they were concerned that he was not loyal to the particular party they represented.  Neither do I accept that he worked as constantly as he has claimed he did.  He has claimed in writing that the normal pattern was from about 7.00pm to 2.00am.  At the hearing, when asked and checked, he claimed that it was from 8.00am in the morning to 7.30pm at night.  I am prepared to accept that the hours would vary and fluctuate.  However, when the question was an open one and the applicant was able to provide full details, I have formed a view that his failure to mention that the situation had sometimes been from night to early morning was a consequence of the details of the regularity and the extent of the involvement being significantly embellished.” [119-123]

4. The Tribunal had other concerns about the Applicant’s credibility.  It said:

   “… the most concerning inconsistency was that, in writing in his statutory declaration the applicant declared that there had only been one significant attack and that had occurred shortly after the 2010 elections and, the statutory declaration continues in sequence from that time to his claimed involvement in 2011 with no reference to any other incident.  However, at the Tribunal hearing he said that from 2010 to 2011 he only faced threats and the nature of those threats was that the people making them would hit him.  He was asked if that had ever occurred and he said that it had on one occasion and when asked when that was he replied that it was shortly after the 2011 elections.  I accept that people’s minds become hazy over a period of time and minor details can be overlooked or, in some cases completely forgotten.  In this case, however, according to his account this happened only once, in a situation where he only assisted candidates twice.  This was the prime focus of his claimed fear and he had the services of a professional migration agent to assist him to prepare the claims and, at the Tribunal hearing these details were closely checked and rechecked to be sure that the evidence he was providing was what he wished to provide.  I do not accept that this inconsistency was the consequence of a hazy mind or a minor issue which could be forgotten.  I find that this situation did not occur and it has been concocted to give weight to an otherwise weak claim.” [124–129]

5. The Tribunal found that the Applicant distributed election material for two different parties but, given he did it on a second occasion when he had no political alliance, found that there was no serious consequence or a real chance of him coming to harm.  The Tribunal said:

   “He claimed his only motivation for undertaking the work was to put him in a position of being owed a favour such that he could gain better employment.  However, he claimed that both parties knew what he was doing and that he had no loyalty to either.  If this was the case then the hope that he would be viewed favourably by either party was unrealistic and illogical.  To claim that he chose to undertake the tasks at the level of intensity he claims and to have come to the adverse attention of both groups when his aim was to gain favour renders the account implausible.” [131-132]

6. In summary the Tribunal said:

   “I accept that he undertook menial tasks for two political parties which were opposed to each other.  I do not accept that he came to the adverse attention of the parties or that he was threatened with serious harm by either of them.” [133]

7. The Tribunal later dealt with the question of the consequences of the Applicant returning to Sri Lanka in circumstances where he left the country illegally.  The Tribunal had this to say:

   “Having considered all the information before me, the applicant’s statements, his adviser’s submissions and the independent material I find that the applicant will face checks on arrival in Sri Lanka and these may take several hours.  While I accept that UNHCR will not be present during the screening I am satisfied, on advise of UNHCR, which is consistent with that of DFAT that, without more, a failed asylum seeker who left the country illegally will not face anything more serious than a careful and close check of his details.  This does not constitute serious harm.  As discussed above I find that the applicant has a profile of no significance and is not of concern for reasons of his political opinion.  I find that the questioning and subsequent actions are not for reasons of membership of any particular social group but for what he has done rather than for who he is.  I accept that there is a possibility that it will be assumed that he did make a claim for asylum and that claim failed.  The entire process of determination is strictly confidential and, as discussed above I find that the applicant is not a person of political concern or indeed any other concern other than he left the country illegally, in breach of Sri Lankan law.  On the evidence before me I am not satisfied that his return to Sri Lanka, having failed in his asylum bid leads to a finding that there is a real chance of serious harm.  On the evidence before me, I find that the applicant faces no real chance of serious harm as a consequence of his status as a failed asylum seeker from a western country either now or in the reasonably foreseeable future.” [152-158]

Grounds of appeal

1. The submissions of the parties detailed below are based on the written and oral submissions of the parties.

Ground one – The Tribunal did not take into proper consideration the Applicant’s well-founded fear of persecution for reasons of being a member of a political party

Applicant’s submissions

1. The Applicant submits that the Tribunal considered irrelevant matters as to whether the Applicant was a refugee for the purpose of meeting the criteria for eligibility for a protection visa as prescribed by s.36(2) of the Act.

2. The Applicant submits that his involvement in putting up posters, canvassing for the candidates, and distributing how to vote cards for both political parties, placed him in a “significant position of fear”, as members of both parties made threats to harm him on the grounds that he continued supporting the others party.  They say that therefore, “… this fear is grounds for reasonable cause for the Applicant to genuinely have a well-founded fear of persecution and potential death”.

3. The Applicant further submits that the Tribunal doubted the credibility of the Applicant without supporting evidence.

Respondent’s submissions

1. The Minister submits that ground one focuses attention on a said failure to give “proper consideration’ to the two limbs of the Applicant’s claim.  To fear harm as, ‘a member of a political opinion’ (which the Respondent correctly characterises as a non-sensical expression) and his so-called membership of a particular social group.

2. The Respondent submits that this ground, as revealed by the Applicant’s Outline of Submissions, devolves into quibbling with the Tribunal’s factual findings.  The arguments are not developed to any specific degree, other than broad assertions.  The Respondent submits that the Applicant has not pointed to an error of law, let alone a jurisdictional error.  The Applicant seeks merits review under the guise of challenging legal matters.

3. The Respondent referred to a passage in a High Court decision of Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164:5:

   “General principles governing the limited role of the courts in reviewing administrative error have long been identified.  As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd ‘mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions’ is not a sufficient reason for overturning a judicial decision upon a review.”

4. The Respondent submits that the Tribunal’s findings were open to it.  Contrary to the Applicant’s assertion, they were not unreasonable, irrational or illogical.  They say that, other than broad-brush attacks on the Tribunal’s credibility findings, (for example, by asserting that there was no supporting evidence), the Applicant’s arguments rise no higher than a general disagreement with the outcome.  Therefore they submit that ground one must fail.

Conclusion

1. For the reasons put by the Respondent, I agree that ground one fails.  The Tribunal clearly gave consideration to the Applicant’s fear of harm and made a finding adverse to the Applicant.  This finding was clearly open to the Tribunal to make.  The applicant has not revealed a jurisdictional error.

Ground two – The Tribunal did not take into proper consideration the Applicant’s well-founded fear being a failed asylum seeker from a Western country as a consequence of his illegal departure from Sri Lanka

Applicant’s submissions

1. The Applicant says that the Tribunal formed an adverse view of the Applicant’s credibility as the country information did not mention that any lower level political supporters were being at a risk of persecution.

2. The Applicant submits that the country information does not specifically mention that there is no harm to lower level profiled political supporters, so therefore it cannot be discarded that these levels of persecution do exist.

3. The Applicant says that in Sri Lanka people of higher and lower political status are tortured and potentially killed as reprisals committed by Sri Lankan government’s forces and government linked para-military forces.

Respondent’s submissions

1. The Respondent relies on the same submissions in relation to ground two as were provided earlier for ground one (paragraphs 21 to 24 above).

Conclusion

1. The Applicant makes no real attempt to identify a jurisdictional error.  The Tribunal properly considered the country information and gave it as much weight as it considered appropriate.  It was up to the Tribunal to decide what risk there was to the Applicant as a consequence of him being an illegal departer from Sri Lanka.  No jurisdictional error is revealed and, as a result, ground two is without merit.

Ground three – The Tribunal placed too much weight on country information in making a decision to deny the Applicant a Protection (Class XA) visa

Applicant’s submissions

1. The Applicant submits that the country information used by the Tribunal does not highlight the majority of low level violence and persecution cases committed against persons who have low profiles, but rather focuses on persons of high profiled status, as an example, they say that the documented evidence such as the UNHCR report provides evidence of the Sri Lankan government not complying with or respecting the human rights of its citizens.

2. The Applicant says that Sri Lanka is still an unsafe country for refugees and asylum seekers from being forcibly returned.

3. The Applicant submits that according to the UNHCR reports on the protection of refugees, the Sri Lankan government:

   a)Does not implement the law effectively;

   b)Has officials in all three branches of government who frequently engage in corrupt practices with impunity;

   c)Fails to report torture cases;

   d)Even if they do report torture cases, the concerned authorities fail to help the victims;

   e)Does not have a system to provide protection to the refugees; and

   f)In June 2014, they began detaining hundreds of opposition political members and supporters.

Respondent’s submissions

1. In the Respondent’s submissions, they say that the Applicant asserts that the Tribunal placed, “too much consideration on country information material before them in making a decision”.  The Tribunal referred to the country information considered by the Delegate at [95] and additional country information at [142]-[147] in relation to failed asylum seekers.  They say it was entirely appropriate for the Tribunal to have regard to country information, as is ordinarily the case in protection visa claims.

2. That being said, the Respondent submits that this ground goes nowhere.  They say that it is extremely well established that the weight (or pitch) to be given to material was a matter for the decision-maker.  It is also established that a finding of fact upon which the decision depended, in circumstances where there was ‘no evidence’ to support the finding, amounts to an error of law.  They say however, that that is not the case here.

3. The Respondent submits that there was at least some evidence for the Tribunal to base its conclusions.  Reasonable minds might differ about the weight to be given to it, but where the conclusions are otherwise open, it does not amount to a jurisdictional error and therefore, without more, this ground must fail.

Conclusion

1. As mentioned earlier in these reasons, it was for the Tribunal to determine the weight to be given to the country information.  The third ground is without merit.

Ground four – The Tribunal erred in law by taking irrelevant information regarding fuel price rises in Sri Lanka into consideration in making a decision to deny the Applicant a Protection (Class XA) visa

Applicant’s submissions

1. The Applicant submits that the Tribunal’s focus on the fuel price as the reason for the Applicant leaving Sri Lanka was not relevant to the Applicant’s decision to leave Sri Lanka.  The relevant fact of the Applicant’s reason for seeking protection in Australia is his well-founded fear of persecution and possible death as a result of being a member of a ‘political opinion’ (sic).

2. The Applicant refers to the High Court decision of Minister for Immigration and Citizenship v SZMDS & Anor (2010) 266 ALR 367 in which they say establishes that illogicality or irrationality in the reasoning of an administrative decision-maker may constitute a basis for judicial review.

1. The Applicant further submits that in SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 [7][1], it was observed that:

   “The approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have done so on the evidence, the decision is not one that will be set aside.  It is only if no decision-maker could have followed that path, and despite the reasons given by the actual decision-maker, that the decision will be found to have been made by reason of a jurisdictional error.”

   [1] [2012] FCAFC 58 [15] per Rares J.

2. Solicitor for the Applicant submits that this authority supports the conclusion that there has been jurisdictional error.

Respondent’s submissions

1. The Respondent submits that the simple answer to this complaint is that the Tribunal did not consider fuel price rises in Sri Lanka as part of its findings and reasons.  The only reference to this in the decision record is at [38] in summarising an aspect of the Delegate’s decision.  It noted that the Delegate “found that the Applicant had come to Australia because of difficulties that fishermen were facing as a consequence of fuel price rises”.  Accordingly, the Tribunal did not expressly consider fuel price rises in making its decision.

2. Leaving that aside, the Respondent asserts that nothing turns on the reference to fuel prices in the Delegate’s decision. As the Tribunal had, under s.414 of the Act, a duty to ‘review’ the Delegate’s decision, it could not have been said to be an irrelevant consideration which the Tribunal was forbidden from considering. The Respondent submits that ground four is misconceived and should be rejected.

Conclusion

1. I agree with the Respondent’s submission that the Tribunal’s decision to dismiss the Applicant’s application was not influenced by the Delegate’s finding that the Applicant came to Australia because of difficulties that fishermen had as a result of fuel price rises in Sri Lanka.  The Tribunal made its decision without reference to the topic of fuel prices.  A plain reading of the Tribunal’s reasons makes this clear.  This is no question of whether the Tribunal acted illogically or irrationally.

2. As ground four of the Applicant’s reasons fail to disclose a jurisdictional error, ground four should be dismissed.

3. For the reasons given by the Respondent, I agree that the Applicant’s submissions are misconceived.

Conclusion and orders

1. The Application should be dismissed with costs.

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 10 September 2015