AEL15 v Minister for Immigration - [2015] FCCA 2656

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEL15 v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2656

Catchwords:
MIGRATION – Administrative review – Review of Refugee Review Tribunal decision – Protection visa – no grounds established – application dismissed – costs.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant:

AEL15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 229 of 2015

Judgment of:

Judge Vasta

Hearing date:

21 September 2015

Date of Last Submission:

21 September 2015

Delivered at:

Brisbane

Delivered on:

21 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr S. Barataraj

Solicitors for the Applicant:

SUBRAMANIAM BARATARAJ

Solicitors for the First Respondent:

SPARKE HELMORE

ORDERS

That the name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
That the Application be dismissed.
That the Applicant pay the costs of the First Respondent in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 229 of 2015

AEL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

By way of application filed in this Court on 11 March 2015 and by further application filed in this Court on 9 June 2015, the Applicant, AEL15, seeks a review of the decision of the then Refugee Review Tribunal (“RRT”), who had refused to issue a visa to himself and to the second applicant, who is his son.
It was the evidence before the Tribunal that the Applicant was born in December of 1969, where he had lived in a village with his wife and children. He left Sri Lanka on 12 July 2012 with his son, who is now aged 19, and arrived in this country on 25 July 2012.
He made application for a protection visa which was refused by the delegate of the Minister. He sought to review that decision in the then Refugee Review Tribunal. There was a hearing on 30 January 2015, and, on 10 February 2015, the Tribunal affirmed the decision of the delegate, which leads to the matter before me.
In this application, the grounds are that:
“1. The Minister erred in law in not following the proper procedures in determination of the application made by the applicant.
a. Particulars: Letter dated November 4 2014 by the Tribunal required the Applicant to forward the Tribunal written submissions setting out all claims made and maintained by the Applicants by 25 January 2015. The submission should be accompanied by a signed declaration from the Applicants that the submission has been read and explained to them and it accurately and completely presents their claims. This was not done. The Minister breached legal procedure and made a decision which is a judicial error.”
Where this ground stems from is this; that upon the Applicant arriving and making his first application for a protection visa, he made a written statement to the delegate of January 2013. That statement was used when the Delegate was making the decision.
Before a hearing with the then Refugee Review Tribunal is set down, Applicants are given the opportunity to provide any other material or submissions, and, in this case, because the Tribunal hearing was on 30 January 2015, all such submissions and so on had to be in by 25 January 2015. It so happens that the Applicant himself did not provide any further material.
Instead, what happened was that the Second Applicant, his son, made a submission or a statement. The son had not previously made a statement. Therefore, the only statement of the father before the RRT was the one he had made two years earlier in January 2013. The January 2015 statement was a statement of the son.
Now, that statement, it seems, was never seen by the father. Nor was it signed by the father, but it was simply put into the evidence before the Tribunal. The Applicant says that there has been, therefore, a irregularity of the procedures relating to matters put before the Tribunal; that is, that the Applicant had not himself signed or acknowledged that material that was before the Tribunal. It was submitted that the only way that material could get before the Tribunal was by complying with the directions in the letter of 4 November 2014. The statement signed by the son was not in accordance with the letter of 4 November 2014. The argument is that it was procedurally incorrect for the Tribunal to have used that material.
Whether or not the father knew exactly what was in the son’s statement is not a matter of record in the judgment. The Applicant submitted an affidavit on 6 June 2015 in this proceeding that reads as follows at paragraph 2:
“I understand that my son’s submissions also appearing on my behalf to the Tribunal were accepted with his signature. However I have not made any submissions on my behalf without my signature. There is no evidence that I did indeed read or understand what was written in the submissions.
The Tribunal should have returned the submissions and requiring my signature too as I am the main applicant and as specified in the letter. The Tribunal Member did not alert me of this mistake at the Interview and asked me if I have read the submissions. (sic)”
The son gave an affidavit, also filed on 6 June 2015. Commencing paragraph 4:
“I note that I have made a submission to the Tribunal and signed on behalf of both myself and my father.
I do not know if my father had seen the submissions or if he had made, or wanted to make submissions in his behalf.
He then says, as part of argument:
“In other words as far as this Tribunal was concerned, my father, the main applicant, had not been given the opportunity to make submissions on his own.”
The Tribunal notes this at paragraph 6 and 7 of the reasons:
“The applicants appeared before the Tribunal on 30 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing by telephone. The agent had until 6 February to provide submissions, and these were provided on 5 February 2015.
In those submissions, the agent noted the son would like an opportunity to submit his own claims to the tribunal. The tribunal finds the son has had an opportunity to present his own claims at the hearing on 30 January 2015. Both were invited to the hearing. Both provided written statements and both gave evidence. The tribunal has heard from both applicants at hearing and considered their claims. The tribunal opened the hearing with both applicants noting the son had provided written claims in January 2015 and both applicants acknowledged that they were aware of the son’s January 2015 claims and the father also adopted the claims. Both applicants were provided plenty of opportunity to present their claims at the hearing, the tribunal discussed their claims including the father’s assault and the threats to the son and father. S424AA and country information about their circumstances was put to both of them and both responded. The tribunal has considered both applicants’ claims, and they have had an opportunity at hearing to present their claims.”
Having read those paragraphs from the judgment, it does seem that the Applicants were given the opportunity to make submissions. Again, as paragraph 7 notes that:
“… both applicants acknowledged they were aware of the son’s January 2015 claims and the father also adopted the claims.”
The point of the matter is that those rules, that asked for submissions or statements (in this case, by 25 January 2015), are set up, in effect, to ensure that the Tribunal has information before it and the information is provided in a timely manner. This is to ensure that there has been fairness given to the Applicants; that is, that every piece of information that they want the Tribunal to consider has been put before the Tribunal.
The most obvious example of this is that, notwithstanding that the solicitor had not put in submissions by 25 January, the solicitor was still allowed to attend by phone and to put further submissions to the Tribunal after the hearing had been conducted. .
Again, it does not seem that such a procedure is contemplated under the letter that was sent to the Applicants, but nevertheless, the submissions were, in fact, made and accepted by the Tribunal. That is because the Tribunal is there to ensure that whilst there should be compliance with those rules, that the rules themselves are not so constrictive as to deny an Applicant the opportunity to put any information that they want before the Tribunal. If the RRT were going to be strict about the rules that it puts in its letters to Applicants, then it would not have allowed the solicitor to make those further submissions
So therefore, even though it may be that the main Applicant had not signed the statement of the son to say that he was happy that it was true and correct, that does not constitute a jurisdictional error. It has not resulted in any unfairness having been occasioned to the father. The fact is that the First Applicant did adopt the claims, and he was given the opportunity to say what he wanted about any parts of the claim.
In fact, if the Tribunal had refused to accept the statement of the son (as the applicant now claims should have occurred), I would have found that such refusal was a jurisdictional error. Therefore, I am of the view that ground 1 is not a basis for me finding that there is jurisdictional error.
Ground two is as follows:
“2. The Minister breached s437 of the Migration Act 1958 in that the Minister leaked confidential personal information of the applicants in February 2014 and has placed the applicants and their families in great danger. The Applicant is making a claim for protection under the principle of ‘sur place’; The Minister failed to take into consideration of the effect of the leak in determining the claims of the Applicant.”
When arguing this matter, Mr Barataraj quite fairly conceded that he was not talking of this matter as a “leak” as it is known in the general parlance. “A leak” connotes that there has been a purposeful dissemination of information for a nefarious purpose or a purpose inconsistent with that for which the information would normally be occasioned.
This particular ground stems from a letter written to the Applicant from the Department which is at page 173 of the bundle of documents. It is headed Unauthorised Access to Personal Information. I will read it into the record:
“In February 2014, a routine report released on the department’s website unintentionally enabled access to some personal information about people who were in immigration detention on 31 January 2014. This information was accessible online for a short period of time before it was removed from the department’s website. The information was not visible as part of the report, and was not easily accessible.
As you were in immigration detention on 31 January 2014, I am informing you that some of your personal information may have been accessed through the report for that short time.
We deeply regret inadvertently allowing potential unauthorised access to your personal information. The department takes privacy very seriously, and has in place a range of policies and procedures to ensure that personal information is managed properly. The information was never intended to be in the public domain, and the department has taken a number of steps to ensure that this sort of incident does not happen again.
The information that it was possible to access was your name, date of birth, nationality, gender, details about detention (when you were detained, reason and where) and if you have other family members in detention.
The information did not include your address (or any former address), phone numbers or any other contact information. It also did not include any information about protection claims that you or any other person may have made, and did not include any other information such as health information.
The department will assess any implications for you personally as part of its normal processes. You may also raise any concerns you have during these processes.
If you would like to seek more information about the incident, please telephone 1300 724 010, email [email protected] or talk to your case manager, if you have one.
Yours sincerely,
Martin Bowles PSM,
Secretary
Department of Immigration and Border Protection.”
The fact that this occurred does not seem to have been mentioned during the actual hearing on 30 January. At paragraph 76, the Tribunal notes this:
“Post hearing submissions referred to both father and son being subject to a privacy data breach by immigration (a number of applicants’ names disclosed on a website), in which it might be possible that the Sri Lankan authorities are aware of they (sic) have sought asylum. However, the Tribunal does not accept that this raises the applicants’ profiles or puts them at any greater risk as upon return the applicants will already be identified in any event as failed asylum seekers because of their return from Australia. Further, based on the county information referred to above, (sic) tribunal does not accept seeking asylum in a western country or Australia or being overseas increases the risk of harm.”
The ground of review to this Court, in effect, is saying that the Tribunal did not properly consider the effect of this “leak” in determining the claims of the Applicant. As I say, that original letter was sent well over a year before the hearing. There is no evidence as to whether there has been a follow‑up or, if there had been a follow‑up, what the department ended up discovering as any potential consequences of this dissemination of information, and that does not seem to have been explored. The evidence was simply what is in the letter and the claims that the Applicants have made and still make before me: that the Tribunal failed to take into consideration the effect of this dissemination in determining the claims of the Applicant.
It seems to me that when one reads paragraph 76, it is obvious that the Tribunal did take it into consideration. Whether they ought to have put more weight on it or not is not the point; it is whether the finding that it made in paragraph 76 was open to it. When one considers the state of the evidence that was before it, and examines that evidence, the finding was well and truly open.
Even if such a finding was not open, the state of the evidence is not such that I could conclude that, upon a consideration of the whole of the evidence as I find it, that the Tribunal should have been satisfied that the Refugee Convention criteria or the Complementary Protection criteria had been met. In my view, because the finding of satisfaction was still open to the Tribunal on the evidence properly before it, there was no jurisdictional error.
Grounds 3 and 4 can be read together:
“3. The Tribunal erred in law by taking into consideration information not relevant to the applicants’ claim:
a. Particulars inter alia: The Tribunal related the information provided by the Applicants on the assault of their (wife/mother) which was not declared in the mother’s declaration as a credibility factor on the part of the applicants.
4. The Minister (sic) erred in not taking into consideration relevant information in making the decision.
a. Particulars: inter alia, The main applicant stated that in view of the severe head injuries received because of assault in Sri Lanka, he was suffering from poor memory. This is a very (sic) important information that the Tribunal should have considered and in so doing should have been very careful in making an assessment on credibility.
b. The Applicant had provided proof of the assault by the various appearances of the accused in court. The fact that the court had not resolved the issue by the time the applicants left the country, the information is only relevant as to provide evidence the applicant was assaulted rather than the fact that justice was delivered. This court information should provide the seriousness of the assault and the injury, substantiating the claim of head injuries leading to memory loss which was not considered in making the decision.
c. Country information was provided as evidence of events that happen in Sri Lanka which supported the applicants’ statements. These were not taken into consideration.”
Basically, grounds 3 and 4 fall into a category of quasi‑merits‑review applications. When examining a decision of the Tribunal by a Court such as this one, it is not whether the Tribunal “got it right or got it wrong”; it is whether, on the evidence before the Tribunal, the decision it made was open to it.
In this case, what the Applicants sought to persuade the Tribunal was that the First Applicant was heavily involved in the political scene in Sri Lanka. He was president of his local branch. He often put up posters, and he attended a conference of the political party.
His original claim was that he was assaulted quite seriously in 2011. The date given was May 2011, which was the date of elections. That assault required hospitalisation, and, from thereon in, the Applicant was scared for his life because he would be persecuted because of his political beliefs.
He says that the people who were arrested were taken to the police station and given bail. The Applicant maintains that on a serious case such as this, bail should never have been granted. So that is, he says, prima facie evidence that the people against whom he made the complaint were politically connected, otherwise they would not have received a bail grant.
The Applicant further submits that these people then came around to the house and have spoken to his son, who had been a witness, and told him that he should not be going to Court, or if he did try to go to Court, he would be killed or seriously harmed. The Applicant points to the fact that the matter has still not been finalised. It is this fear that caused him to leave his village, and he waited for the opportunity to leave the country and arrive in Australia on a boat.
The Tribunal did not accept this version for a number of reasons. The Tribunal accepted that there was no doubt that the Applicant was assaulted. However, the Applicant sought to align the assault as being for political purposes because it occurred in May 2011, at the time of elections, arguing that therefore it had to have been politically motivated.
The material before the Tribunal indicated that the assault did occur, but it occurred two years earlier in May 2009. There were no elections held around that time, and it is therefore not possible to infer that assault in 2009 was politically motivated.
It was then pointed out that these people must be politically connected still because they were given bail, and as at 2012, the matter had still not been finalised before the Court.
However, it makes little sense that, if this was politically motivated violence and the people were intent on causing harm, why they would come back and simply threaten the people not to go to Court, rather than assault the Applicant again to, to use the vernacular, finish the job they started out to do. So therefore the Tribunal did not find much in the way of credibility in this matter.
With regard to the specific particulars, there was a letter that the wife of the Applicant did send, which was given to the Tribunal. However, the Tribunal had a look at that, and for a number of reasons, did not accept the force of what was said in that statement from the wife, who is in Sri Lanka.
At paragraph 29, the tribunal wrote:
“The tribunal has considered the mother’s affidavit which confirms the father was threatened and assaulted by political rivals. While the tribunal accepts (below) the applicant was assaulted, it does not accept the wife was assaulted as the applicants have not made such a claim and it is inconsistent with their statements and evidence. In respect of the political rival claims, the tribunal places little weight on it because it lacks detail; for instance, it does not mention the UNP or who the opposition rivals were.”

Now as I say, whether that is a conclusion that I or any other Federal Circuit Court Judge would have made on the evidence is not to the point. It is whether such a conclusion, even if I vehemently disagree with that conclusion, was open. To my mind, it was a conclusion that was open.
The claims in Ground 4 were that the severe head injuries meant that the Tribunal should have considered this factor and been very careful in making decisions on the Applicant’s credibility. As I’ve already mentioned during the hearing in argument, it seems to me that the Tribunal did do that. Paragraph 14 states that:
“The tribunal was mindful throughout the hearing to clarify the applicants’ evidence to ensure accuracy of understanding. The tribunal took into account nervousness and was mindful of nuances in language when communicating through an interpreter…”
Later on, commencing paragraph 21, the Tribunal said:
“The father explained he had a poor memory due to the assault on his head as he had 12 stitches and sometimes gets dizzy. He asked the doctor about it 6 months ago and had an appointment for scans. The son claimed they remember things differently as some things he knows and some things his father knows and they cannot remember everything. The tribunal has also considered the agent (sic) submissions about credibility and the father’s poor memory.
While no medical evidence in relation to the father’s memory was provided the tribunal has taken this into account and made allowances for poor memory and has not focussed on minor inconsistencies or recall of specific dates. The tribunal was also careful to repeat and clarify questions and father’s evidence in particular throughout the hearing…”
In looking at the remainder of Ground 4, there was a complaint that the Tribunal had ignored that the applicant had provided proof of the assault. That, as I say, had been well and truly considered;
It was also contended that Country information that was provided as evidence of events that happened in Sri Lanka was not properly considered. The facts are a matter for the Tribunal to determine as to what emphasis they will give to those facts. Again, as I’ve said a number of times in these reasons, it’s not whether I would have come to that same conclusion; it is whether such a conclusion was open. In this case, I’m of the view that the overall conclusions made were open and there is no jurisdictional error. Therefore I do not find that grounds 3 and 4 have been made out.
While I have looked at the individual complaints raised by the Applicants, it is not the proper procedure to look at the individual complaints to decide whether any of those matters have merit.
The “jurisdictional fact” is that the Tribunal was satisfied that the applicants did not fit the Convention criteria nor did they fit the Complementary Protection criteria. It is that “jurisdictional fact” that must be found to be in error for there to be a “jurisdictional error”.
A finding that a particular aspect of the reasons of the Tribunal was unsustainable does not automatically lead to a finding that there has been a jurisdictional error.
The final ground, Ground 5, states as follows:-
“5. Complementary Protection Criterion
a. The tribunal had not provided definite or substantive reasons to determine that the Applicants do not qualify under the Complementary Protection criteria. The standard established by the Tribunal was unsatisfactorily rigid and high.”
Now, with regard to that, the Tribunal spoke at some length about this aspect from paragraph 99 onwards. It would seem that the Tribunal is quite cognisant of its obligations as far as the Complementary Protection criterion is concerned, and at paragraph 100 says this:
“For the reasons set out above, the tribunal has not accepted the applicant’s claims of UNP membership or activities and has not accepted their claims of harm or threats because of UNP membership, or activities or that they were in hiding due to threats of such harm. While the tribunal accepted the father was assaulted in 2009, the tribunal does not accept he or the son faces any real risk of significant harm in this regard in the future as they have lived in Sri Lanka since then without harm. Further the tribunal found this was a random criminal act, which is subject to police prosecution.”
Now, whether the Tribunal was correct in saying it was a “random” criminal act is not relevant. It would seem to me that this criminal act was quite purposeful and quite deliberately targeted at the applicant. But that is beside the point. What I take the Tribunal is saying when it says it’s “a random criminal act” is that it is a criminal act done by criminals; not by political agitators for a political purpose, which is what the Applicants were trying to persuade the Tribunal of.
The Tribunal also looked at the fact of the illegal departure by the Applicants, and what would occur upon their being returned to Sri Lanka. At paragraph 105, the Tribunal said:
“The Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk they will suffer significant harm (as defined) as a consequence of the poor conditions in prisons due to overcrowding during any period which they may spend in gaol on remand. The Tribunal finds that there is no real risk that the applicants will suffer significant harm for any other reason or reasons.
…
Having considered these circumstances, singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there would be a real risk that they would suffer harm which would amount to significant harm.”
Having reviewed what the Tribunal has said, it is not made out that the Tribunal is setting the bar at any particular height that would be too rigid. It is, in my view, the fact that the Tribunal have actually paid heed to what is written in the legislation in s.36(2)(aa), and applying that criterion. The Tribunal is simply satisfied that the Applicants do not meet that criterion. That satisfaction is explained and in my view it is open to the Tribunal.
For those reasons, I cannot see that Ground 5 has been made out.
Having a look at the matter as a whole, I am not satisfied that there has been any jurisdictional error, and I therefore dismiss the application. I order that the name of the Refugee Review Tribunal be changed to Administrative Appeals Tribunal, and I order that the applicants pay the costs of the Minister, fixed in the sum of $5800.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 19 October 2015