ADY15 v Minister for Immigration
[2017] FCCA 560
•29 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADY15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 560 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – protection visa applicant – citizen of Sri Lanka – whether jurisdictional error – whether failure to afford procedural fairness – whether bias – whether on judicial review reliance can be placed on documents post-dating decision of Tribunal – whether inappropriate reliance placed on particular country information. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 Re The Minister for Immigration &Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 WZATI v Minister for Immigration & Border Protection [2015] FCA 923 |
| Applicant: | ADY15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 92 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 March 2017 |
| Date of Last Submission: | 20 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 29 March 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be changed to “Administrative Appeals Tribunal”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 92 of 2015
| ADY15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). A copy of the Tribunal Decision is at Court Book (“CB”) 272-298.
Background
The background is as follows:
a)the applicant, born on 3 September 1989 in Sri Lanka, arrived at Christmas Island on 15 July 2012 as an irregular maritime arrival: CB 28-39;
b)on 6 November 2012 the applicant lodged the Protection Visa application. In a statutory declaration in support of the Protection Visa application, the applicant claimed:
i)that if he were to return to Sri Lanka his life would be in danger from the Sri Lankan Navy (“SLN”) in relation to fishing, and from the Sri Lankan Police who would know he had been “missing” and would question and torture him;
ii)that he was a fisherman and was required to apply for a pass from the SLN every time he fished. He claimed that if Tamils applied for a pass and spoke the Tamil language a pass would mostly be refused however if the Tamil person spoke Sinhalese a pass would most likely be granted. The applicant claimed that if he was unable to fish then he was also unable to eat; and
iii)that on two occasions, whilst waiting for a pass he was beaten by SLN officers. On other occasions the SLN boarded his boat and took fish without paying for them. The applicant claimed that his friends went fishing one night without a pass and as a result they were caught by the SLN, beaten and taken to a SLN camp;
c)on 7 August 2013 the Delegate’s Decision was to refuse to grant the applicant the Protection Visa: CB 99-125;
d)on 12 August 2013 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal: CB 126-135;
e)in submissions provided to the Tribunal on 12 February 2014: CB 139, the applicant’s claims were further clarified. It was submitted that there was a real chance the applicant would suffer harm in Sri Lanka because of:
i)his Tamil race;
ii)his imputed political opinion of support for the Liberation Tigers of Tamil Eelam (“LTTE”) and opposition to the government of Sri Lanka; and
iii)his membership of a particular social group (failed asylum seekers returning to Sri Lanka);
f)on 21 October 2014 the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments: CB 209-210;
g)on 2 December 2014 further submissions were provided to the Tribunal on behalf of the applicant: CB 215-244;
h)on 11 December 2014 the applicant attended a hearing before the Tribunal (“Tribunal Hearing”) to give evidence and present arguments, and was represented by his registered migration agent and assisted by an interpreter: CB 245;
i)on 15 December 2014 the Tribunal sent the applicant a letter pursuant to s.424A of the Migration Act inviting him to comment on or respond to information by 29 December 2014 that the Tribunal considered, subject to his comment or response, may be the reason or part of the reason for the Tribunal affirming the Delegate’s Decision: CB 249-251 (“Tribunal’s s.424A Letter”);
j)on 16 December 2014 the applicant’s representative sought an extension of time until 6 January 2015 to respond to the Tribunal’s letters, to which the Tribunal agreed: CB 252-254;
k)on 6 January 2015 a further extension was requested on behalf of the applicant until 13 January 2015: CB 256;
l)on 8 January 2015 a further extension was requested on behalf of the applicant until 4 February 2015: CB 258;
m)on 13 January 2015 the Tribunal advised that the response period was statutory and that 4 February 2015 would exceed that time. However, it agreed to accept any submissions if received by 5 February 2015 or before the Tribunal Decision was finalised: CB 259;
n)on 19 January 2015 the Tribunal received a further submission from the applicant including supporting documentation: CB 261-268; and
o)on 10 February 2015 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant the Protection Visa: CB 298 at [255].
Tribunal Decision
In the Tribunal Decision the Tribunal found:
a)apart from a report provided by the applicant referring to problems with the LTTE for the period up to January 2011 there was no supporting evidence that the SLN confiscated fish or that the applicant had to apply for a permit to fish every time he went out to sea: CB 288 at [146]. In that regard the Tribunal accepted that at, and just after, the end of the conflict in 2009, the SLN did monitor fishermen and did exploit them, however, the Tribunal gave weight to, and accepted independent country information advising that fishermen in the applicant’s fishing locale are no longer required to seek passes from the SLN to fish and that the SLN does not systematically take fishermen’s catches from them: CB 289 at [149];
b)that, due to the inconsistencies in the applicant’s evidence provided prior to, and at, the Tribunal Hearing, the applicant did not begin fishing until 2009 or later and that he therefore did not suffer the claimed harm between 2005 and 2008: CB 290 at [158], and that the claims for the period between 2005 and 2008 were “false and contrived” and the Tribunal gave them no weight: CB 290 at [163];
c)that, in relation to the claim that the applicant was stopped and beaten by the SLN on a third occasion when out one night, even if the applicant was stopped it was for the purpose of enforcing a general curfew, and not for a discriminatory reason, and that if he was beaten the claim was “not of such gravitas” to amount to serious harm under s.91R(2) of the Migration Act: CB 290 at [164]-[166];
d)that, given the applicant’s demonstrated pattern of providing misleading and false evidence, and having regard to independent country information in relation to the lack of involvement from the SLN, it gave the claim in relation to his being detained by the SLN two days prior to leaving Sri Lanka no weight: CB 291 at [170];
e)that, given the applicant’s lack of credibility, and having regard to independent country information in relation to claimed attacks by the SLN, the applicant’s claims in relation to being harmed by the SLN after 2009 were false, and were dismissed as not credible. In reaching that finding the Tribunal referred to, and preferred independent country information that did not support the applicant’s claims, and which said that fishing passes and permits were given by a different body and not the SLN: CB 291 at [171] and CB 292 at [184];
f)the inconsistencies in relation to the applicant’s evidence provided to the Delegate, at the Tribunal Hearing, and in response to the Tribunal’s s.424A Letter about why his father had been unable to work were “so different” that they “cannot be resolved”, and that the extra material provided after the Tribunal Hearing did not support the claim that his father was taken away and beaten, but rather demonstrated only that the applicant’s father was an “ill man”: CB 291-292 at [172]-[177];
g)that, given that applicant is not a credible witness, it gave no weight to the applicant’s belated claim in relation to his father’s failed attempt to seek asylum in Australia, and his father’s subsequent treatment on return to Sri Lanka. In fact, the Tribunal found this claim was a “vain attempt to provide false evidence to give weight to a claim that failed asylum seekers are harmed on return to Sri Lanka”: CB 292 at [178]-[182];
h)the applicant had concocted his claim to have faced harm by the SLN due to his ethnicity: CB 292 at [185] and had provided no credible claims of any serious harm for reasons of his Tamil ethnicity: CB 293 at [189], and that although Tamils with links or suspected links to the LTTE had been “brutally treated”, Sri Lankan citizens of Tamil ethnicity did not suffer serious harm for that reason alone: CB 293 at [194];
i)that given the applicant was from an area outside the Sri Lankan civil war conflict areas, and had stated himself at the Tribunal Hearing that being suspected of supporting the LTTE was not a concern for him, any speculation that the applicant would be suspected of LTTE support or links was “baseless or fanciful speculation”: CB 293-294 at [199]-[200];
j)the applicant did not face a real chance of serious harm for reasons of a political opinion imputed to him either then, or in the reasonably foreseeable future: CB 294 at [204];
k)that the applicant was a member of a particular social group of failed Sri Lankan asylum seekers: CB 294 at [205]-[208], but found that independent country information in relation to detention and torture of failed asylum seekers on return to Sri Lanka was not analogous to the applicant’s circumstances as that information was in reference to people detained, not for reasons of illegal departure but as a consequence of involvement or suspected involvement in separatist movements or terrorism: CB 294 at [209]. It further found that the applicant did not have any profile of concern, other than his illegal departure, and as such did not match the risk criteria reported in the independent country information required for him to face detention and mistreatment by Sri Lankan authorities: CB 294 at [210]-[212];
l)in referring to a wide range of independent country information: CB 295 at [213]-[215], that the applicant would be interviewed by authorities: CB 295 at [216], face charges related to his illegal departure and be required to appear before a magistrate: CB 295 at [217], and fined: CB 295 at [219], and found that the law applied did not differentiate or discriminate and was a law of general application that applied to all illegal departures: CB 295 at [218]-[223]. The Tribunal therefore found that the consequences of the illegal departure apply to failed Sri Lankan Tamil asylum seekers for reasons of their illegal departure and not their status as failed asylum seekers: CB 296 at [226];
m)when considering the complementary protection criterion, in relation to the consequences of illegal departure, and referring to independent country information, that while the applicant would be charged in accordance with the law and may be detained in crowded and unsanitary conditions for up to two weeks, any period of hardship the applicant would experience would be brief, unintentional, and as he is an “able bodied male with no physical handicaps” any harm he may face as a consequence would not be of such gravitas as to constitute significant harm: CB 296-298 at [232]-[250]. As such, considering the applicant’s circumstances in Sri Lanka, it found no real risk of the applicant suffering significant harm as a consequence of being returned to Sri Lanka: CB 298 at [251]; and
n)found that the applicant did not satisfy either s.36(2)(a) or (aa) of the Migration Act and affirmed the Delegate’s Decision to refuse the applicant the Protection Visa: CB 298 at [253]-[255].
The Judicial Review Application
The application filed on 10 March 2015 identified the following grounds:
1. Jurisdictional error
2. Did not follow the rules of natural justice.
3. Bias
Orders made by a Registrar of the Court on 10 June 2015 (“10 June 2015 Orders”) permitted the applicant to file and serve any amended Judicial Review Application by 22 July 2015 and submissions 21 days before the hearing.
The applicant filed no amended Judicial Review Application or submissions in accordance with the 10 June 2015 Orders.
On 5 November 2015 the matter came before a Judge of the Court on a directions hearing where further orders were made to the effect that:
a)the applicant was to file and serve any amended Judicial Review Application within a further seven days; and
b)the applicant was to have leave to file in Court a letter dated 5 November 2015 and an affidavit dated 1 November 2015 (“5 November 2015 Letter” and “Applicant’s First November 2015 Affidavit” respectively).
The applicant subsequently filed a further affidavit affirmed 22 November 2015 (“Applicant’s Second November 2015 Affidavit”), but no amended Judicial Review Application was filed.
At hearing the applicant tendered a document, which was marked as Exhibit 1, comprising:
a)a letter addressed to the Court dated 20 March 2017, which contained a summary of the documents attached thereto;
b)an affidavit affirmed 19 March 2017 by the applicant (“Applicant’s March 2017 Affidavit”) which did no more than attach “submissions marked I” (“Applicant’s Submissions”); and
c)the Applicant’s Submissions, which in turn sought to submit documents marked I, II and III.
The additional material in the Applicant’s 5 November 2015 Letter, the Applicant’s First November 2015 Affidavit, the Applicant’s Second November 2015 Affidavit, and the various materials comprising Exhibit 1, will be set out and dealt with in more detail below.
Consideration of grounds of Judicial Review Application
The requirement for jurisdictional error
The Tribunal Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will generally only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The grounds generally
The grounds of the Judicial Review Application are pro-forma or formulaic and are not sufficiently particularised to make them meaningful. They do not identify the jurisdictional error alleged on the part of the Tribunal. As such, the Judicial Review Application seemingly constitutes no more than a request for the Court to engage in merits review based on the applicant’s dissatisfaction with the Tribunal Decision, which is a task that the Court cannot undertake: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”).
Ground 1
Ground 1 is an unparticularised assertion of error by the Tribunal, the failure to particularise the ground of review being sufficient basis for the ground of review to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 at [26] per Judge Lucev.
Ground 1 cannot therefore succeed, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 2
Ground 2 asserts a denial of natural justice, or procedural fairness as it is more commonly known, by the Tribunal.
The Tribunal invited the applicant to appear at the Tribunal Hearing: CB 207. The applicant appeared at the Tribunal Hearing with his migration agent representative, and was assisted by an interpreter: CB 245. The applicant was on notice of the issues to be dealt with, and in particular that his credibility was at issue, by reason of:
a)the Delegate’s Decision;
b)the Tribunal’s questioning of the applicant at the hearing concerning inconsistencies between written and oral statements;
c)the putting to the applicant of independent country information concerning the consequences of return to Sri Lanka of failed asylum seekers: CB 280-281 at [83]-[90]; and
d)the putting to the applicant of the Tribunal’s s.424A Letter: CB 249.
As this was a case to which s.422B of the Migration Act applied, the applicant was entitled only to the rights afforded him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the applicant was invited to attend, and did attend, and gave evidence at, the Tribunal Hearing, and had matters which concerned the Tribunal put to him for comment. Thereby, the applicant was afforded procedural fairness: Migration Act, s.425(1); SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
Findings as to credit are findings of fact and are for the Tribunal to make: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J. The Tribunal was under no obligation to uncritically accept all or any of the allegations made by the applicant, or to have rebutting evidence available to it before making a particular factual finding: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; Minister for Immigration & Multicultural Affairs v Rajalingham & Ors [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43. The weight to be given to the applicant’s claims was a matter for the Tribunal to assess as part of its fact-finding function, and it is not permissible for the Court to simply review the Tribunal’s factual findings concerning the applicant’s claims and evidence: Wu Shan Liang; Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ. The Tribunal was careful in putting matters in issue to the applicant and considering the claims made by the applicant: see [16] above. The fact that it rejected the applicant’s claims on grounds which are otherwise free from jurisdictional error does not constitute a denial of procedural fairness.
In all of the above circumstances, the alleged failure to afford the applicant procedural fairness (or natural justice) is not made out.
Like ground 1, ground 2 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [13]-[14] above.
In the circumstances, ground 2 is not made out, and therefore does not establish jurisdictional error in the Tribunal Decision.
Ground 3
In ground 3, the applicant has made no attempt to comply with the requirement that a serious allegation of bias be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J (“Jia Legeng”). There is no evidence:
a)that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper evaluation of the materials before him which were relevant to the decision to be made: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ, or that the Tribunal ignored any relevant material. In that regard, the Court observes that the Tribunal Decision is lengthy, running to some 27 pages and 255 paragraphs and contains a detailed consideration of the claims and evidence by reference to the applicant’s claims and submissions, which are discussed in detail before conclusions are arrived at, in relation to both the Refugees Convention and complementary protection criteria.
Like grounds 1 and 2, ground 3 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [13]-[14] and [20] above.
In the circumstances, ground 3 is not made out, and therefore does not establish jurisdictional error in the Tribunal Decision.
Consideration of other matters raised
As indicated above, the Court will also deal with the further matters raised by the applicant by reason of the further materials filed or tendered by the applicant in these proceedings, which are referred to at [7]-[10] above.
5 November 2015 Letter
The 5 November 2015 Letter does not of itself raise additional judicial review grounds, but rather indicates that the applicant wishes to submit documents relating to the situation of Sri Lankan Tamils, and submitted under cover of the Applicant’s First November 2015 Affidavit two documents which he said pertained to human rights abuses against Sri Lankan Tamils recorded by the UNHCR. The Applicant’s First November 2015 Affidavit and the documents annexed thereto are dealt with immediately below.
Applicant’s First November 2015 Affidavit
The Applicant’s First November 2015 Affidavit annexed two documents marked I and II (“November 2015 – Document I” and November 2015 – Document II” respectively), which are dealt with in more detail below: see [29]-[33] below. Otherwise, the applicant says in the Applicant’s First November 2015 Affidavit as follows:
1. I am a Sri Lankan Tamil living in the Western Province of Sri Lanka and belong to a family and caste that follows fishing as a livelihood.
2. My family move to fish in the Eastern Province of Sri Lanka during the Monsoon season.
3. Due to this reason my family and those living in my village were suspect[ed] of aiding the Tamil revolt for a separate state.
4. It is for this reason that my village has had an armed camp of the Sri Lankan navy for a long time and this continues to date.
5. I have been harassed as a young Tamil fisherman with a perceived connection with the LTTE that led the Tamil revolt to create a separate state in Sri Lanka for the Tamils.
6. I submit herewith the latest report submitted to The Human Rights Council by the Office of the High Commissioner for Human Rights (folios 5 and 6).
7. This shows the wide speared [spread] human right abuses committed by the Sri Lankan government against ethnic Tamils like me.
8. I therefore have a well-founded fear of retu[r]ning to Sri Lanka as a failed asylum seeker and will be subject to then notorious provisions of the Prevention of Terrorism Act of Sri Lanka.
Save for the implied assertion that the Tribunal has failed to have regard to recent country information concerning abuses against ethnic Tamils, the remainder of the Applicant’s First November 2015 Affidavit seeks impermissible merits review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Quin CLR at 35-36 per Brennan J.
The implied assertion that the Tribunal has failed to have regard to the most recent, or appropriate, country information is based upon November 2015 - Documents I and II.
November 2015 - Document I appears to be a UNHCR style document, although it is not truly possible to determine whether that is so or not from the two page extract from “Part 1 – I. Introduction” which constitutes November 2015 – Document I. In any event, the provenance of November 2015 – Document I is immaterial, as it is plain that it was a document prepared sometime after Sri Lankan parliamentary elections on 17 August 2015, and therefore a document which could not have been before the Tribunal when making the Tribunal Decision on 10 February 2015: November 2015 – Document I at [11]. The Minister objected to November 2015 – Document I on the basis of relevance due to it not being a document which was capable of being put before the Tribunal.
November 2015 – Document II is a press report dated 13 August 2015 referring to a report by a UK-based charity, Freedom from Torture, alleging that Sri Lankan security forces continue to torture Tamil detainees even after the election of a reformist President in January 2015. November 2015 – Document II therefore post-dates the Tribunal Decision by more than six months. The Minister objected to November 2015 – Document II on the same basis as November 2015 – Document I set out in [30] above.
On an application for judicial review of a decision of the Tribunal it is not open for this Court to have regard to material which was not capable of being put before the Tribunal because it post-dated the Tribunal Decision. To do so would be to embark upon fact-finding, and not judicial review, in respect of material, which because of its post-Tribunal Decision origins, cannot give rise to jurisdictional error in the Tribunal Decision. The choice of country information and the factual findings arising from it, where those factual findings are, as here, open on the available material, are matters solely for the Tribunal as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (“NAHI”). The Tribunal cannot commit jurisdictional error by failing to have regard to relevant material which was not in existence at the time of the Tribunal Decision, and the Court cannot have regard to such material: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J (“WZATI”).
In the circumstances, November 2015 – Documents I and II are not relevant, and are therefore not admissible in evidence before the Court: Evidence Act 1995 (Cth) (“Evidence Act”), s.56(2). In any event, for the reasons set out in WZATI referred to above: see [32] above, the Tribunal cannot commit jurisdictional error by failing to have regard to relevant material not in existence at the time of the Tribunal Decision.
In all of the above circumstances, no jurisdictional error in the Tribunal Decision is revealed by the material in the Applicant’s First November 2015 Affidavit.
Applicant’s Second November 2015 Affidavit
In the Applicant’s Second November 2015 Affidavit at [2]-[8] the applicant says as follows:
2. I submitted an Affidavit on the 1st of November 2015 which contained documents in furtherance of my application.
3. At the time I submitted my Affidavit I did not have the Court Book.
4. I now submit paragraphs 38, 56, 108 and 122 of the Decision Record of the Refugee Review Tribunal as documents I now cite to claim my case for a judicial review.
5. Paragraph 38 states that Australia does not monitor what happens to people like me who are forced to return to Sri Lanka.
6. Paragraph 108 points to the fact that the Tribunal did not accept vital documents that I had submitted.
7. Paragraph 122 clearly points out that the Tribunal had only followed the country report submitted by the Australian Department Of Foreign Affairs And Trade and did not pay attention to International Agencies like Amnesty International in assessing the situation of Sri Lankan Tamils in Sri Lanka and my fear of returning to that country.
8. The report of the Department Of Foreign Affairs And Trade along with the directions given by the Minister under the Migration Act was caused a bias and consequently I was not given procedural fairness.
In the Tribunal Decision at CB 277 at [38] the Tribunal repeats a submission made on behalf of the applicant by his representative. The submission is made in the context of significant criticisms in the submissions of a 2012 Department of Foreign Affairs and Trade (“DFAT”) report into Sri Lanka, and a submission that unless voluntary returnees report to the International Organisation for Migration (“IOM”) what happens to them upon their return to Sri Lanka is unknown: CB 277 at [36]-[37]. The Tribunal’s summary of the submission made by the applicant then proceeds at CB 277 at [38] as follows:
38.Australia does not “proactively” monitor what happens to people on return. A number of sources provide various reports of instances where individuals or groups have been mistreated, intimidated, threatened and, in some cases physically abused or had members of their families abused.
Viewed in the above context, the Tribunal Decision at CB 277 at [38] is not capable of giving rise to jurisdictional error because it merely repeats a submission made to it by the applicant. It obviously signifies that the Tribunal was aware of the submission, and absent any indication to the contrary, that the Tribunal took that submission into account. Ultimately, however, the choice of country information and factual findings arising from country information, where the factual findings are open on the available material, are matters for the Tribunal as the finder of fact: NAHI at [11] per Gray, Tamberlin and Lander JJ. It is evident that the Tribunal had regard to a variety of country information, including that put to it by the applicant, and made findings which did not favour the applicant. In so doing, the Tribunal was merely performing its function of assessing the country information, and ultimately making a determination as to the applicant’s eligibility for a Protection Visa. In the circumstances, nothing in the Tribunal Decision at CB 277 at [38] gives rise to jurisdictional error in the Tribunal Decision.
In the Tribunal Decision at CB 278 at [56], and also relevantly at [57], the Tribunal wrote that:
56.I said that I noted that he had claimed to have been born and raised in a village called … [village name deleted] on the North West coast of Sri Lanka and that it was a village that was almost exclusively Tamil and had no direct involvement in the Tamil separatist LTTE movement and the Sri Lankan Army. According to the independent material before me the major industry in … [village name deleted] was fishing.
57.The applicant agreed that was the case.
No jurisdictional error arises by reason of information being put to the applicant, with which the applicant agrees, and which, in the circumstances, appears to not be controversial, particularly in the context of what is then said at CB 278 at [58] as to the applicant not making any claims in regard to his having been associated with the LTTE.
In the circumstances, no jurisdictional error arises by reason of what is said in the Tribunal Decision at CB 278 at [56].
In the Tribunal Decision at CB 282 at [108] the Tribunal records that:
108. On 19 January 2015 the Tribunal received a further submission containing:
a. an “emergency” passport for his father to confirm that his father had sought asylum in Australia and had been sent back to Sri Lanka in 2010.
b. Two Xray photographs purporting to be of the injuries the applicant’s father suffered “when he was tortured after his return to Sri Lanka in 2010. They are claimed to be Xrays of his father’s broke wrist and a chest Xray.
c. Copy of a “diagnosis ticket” dated 19 December 2010 presented to the delegate at the protection visa interview with the delegate.
d. Copy of a patient transfer report dated 12 May 2011, also presented to the delegate.
Once again all the Tribunal was doing at CB 282 at [108] is setting out a submission and referencing documents received from the applicant. The Tribunal set out in some detail further factual material related to the applicant’s father and his medical condition and his immigration treatment in Australia: CB 282-283 at [109]-[112]. The Tribunal then dealt with the claims relating to the applicant’s father in some detail at CB 291-292 at [172]-[182], finally characterising the claims concerning the father as an attempt to give false evidence to the Tribunal to give weight to the claim that failed asylum seekers are harmed on return to Sri Lanka. Without more, nothing at CB 282 at [108] gives rise to any jurisdictional error in the Tribunal Decision and the subsequent findings of the Tribunal concerning this issue were open on the evidence before the Tribunal.
At CB 283 at [122] the Tribunal was dealing with the country information before it, and together with CB 283 at [121] says as follows:
121. There is a wide range of independent material on the issue of return of illegal departure and return of failed asylm seekers before me ….
122. DFAT Country report Sri Lanka 3 October2014 pp.21and23; UNHCR Eligibility Guidelines for assessing the international protection needs of asylum seekers from Sri Lanka;
Amnesty International Report: The UK Home Office Country Information and Guidance Sri Lanka: Tamil Separatism 28 August 2014: Freedom from Torture Report 13 September 2013.An ABC report of a Tamil asylum seeker in Australia as well as the material provided in submissions on behalf of the applicant:
The Tribunal then goes on to consider the various country information referred to in the Tribunal Decision at CB 283 at [121]-[122], together with other country information, including the following:
a)UK Country of Origin Report: CB 283 at [123];
b)UNHCR information: CB 284-285 at [124]-[125];
c)July 2013 DFAT advice: CB 285-286 at [126];
d)the most recent DFAT report of 3 October 2014: CB 286-287 at [127];
e)a Cisnet report numbered CX291271, when considering the nature of the fishing industry in the region from which the applicant came: CB 287-288 at [138] and [141];
f)DFAT Country Information Report No.12/67 in relation to the fishing situation in the applicant’s region: CB 288 at [143]-[145];
g)a Minority Rights Group International report concerning fishing in Sri Lanka: CB 288 at [146]; and
h)a Weekend Australian article from 8 May 2010 concerning persecution in Sri Lanka: CB 292 at [190].
The Tribunal expressly indicated that it had considered “material from a wide range of NGOs or Human Rights sources” and also “material from UNHCR, IOM and DFAT”: CB 295 at [213]. Having regard to the UNHCR’s mandate for the protection of refugees and IOM’s responsibility for returning failed asylum seekers the Tribunal indicated that it gave greater weight to the reports from UNHCR and IOM, as well as DFAT, the latter because the Tribunal drew its information from those sources (namely UNHCR and IOM) and similar sources as well: CB 295 at [214]-[215].
It is plain from what has been set out above that the applicant’s submission that the Tribunal “only followed the country report submitted by … [DFAT] and did not pay attention to International Agencies like Amnesty International in assessing the situation of Sri Lankan Tamils in Sri Lanka and my fear of returning to that country”: Applicant’s Second November 2015 Affidavit at [7] is a submission which cannot be made out. As is evident, the Tribunal had regard to a wide range of country information, including country information submitted to it by the applicant, and it chose to primarily rely upon what it perceived to be reliable information from those organisations with the responsibility for dealing with refugees and asylum seekers, namely the UNHCR and IOM, as well as DFAT. The selection of country information to be relied on, and the weight to be given to such country information was a matter for the Tribunal: NAHI at [11] per Gray, Tamberlin and Lander JJ.
Reading the Tribunal Decision as a whole, and having regard to the sources of country information relied upon by the Tribunal, as well as the opportunity given to the applicant to attend the Tribunal Hearing, the matters put to the applicant at the Tribunal Hearing, and the opportunity afforded to the applicant to deal with the matters referred to in the Tribunal’s s.424A Letter, it cannot be said that the Tribunal’s referral to, and any reliance placed upon, DFAT reports resulted in any bias on the part of the Tribunal, or any want of procedural fairness by the Tribunal in arriving at the Tribunal Decision.
For the above reasons, CB 283 at [122] of the Tribunal Decision does not give rise to any jurisdictional error.
For all of the reasons set out above the Applicant’s Second November 2015 Affidavit does not establish any jurisdictional error in the Tribunal Decision.
Exhibit 1
The gist of Exhibit 1 was the submission of the documents marked I, II and III in support of the Judicial Review Application, namely:
a)an article published in The Age newspaper on 6 February 2017 by Bruce Haig a former diplomat (“Haig Article”);
b)an extract from a report published by the Oakland Institute in the United States in 2015, being the Executive Summary to that report (“Oakland Institute Executive Summary”); and
c)an extract from a report entitled “Information Report: Sri Lanka – October 2016” (“Information Report”), seemingly prepared by five individuals and dated December 2016.
In relation to the documents in [50] above the applicant said in the Applicant’s March 2017 Affidavit as follows:
4)The facts stated in these reports above were prevalent at the time the Second Respondent examined my application for a Protection Visa.
5)The Second Respondent fell into jurisdictional error when he did not examine the true situation in Sri Lanka in relation to my application and my fear of persecution if I was to return to Sri Lanka as a Tamil failed asylum seeker.
In relation to the Haig Article, the Oakland Institute Executive Summary and the Information Report the Court repeats what is said at [32] above. In the circumstances, each of these documents is not admissible in evidence before the Court: Evidence Act, s.56(2), and for the reasons set out in WZATI at [32] above, the Tribunal cannot commit jurisdictional error by failing to have regard to relevant material not in existence at the time of the Tribunal Decision. Essentially what the applicant therefore seeks is impermissible merits review, contrary to the well-established principles flowing from Wu Shan Liang. It follows that in the circumstances, nothing in Exhibit 1 establishes jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that:
a)none of the grounds of review have been made out;
b)none of the other matters raised by the applicant establish any jurisdictional error in the Tribunal Decision;
c)no jurisdictional error has therefore been established in the Tribunal Decision; and
d)it follows from (a), (b) and (c) that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 March 2017
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