Ael17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 641

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 641

File number(s):

MLG 70 of 2017

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

11 August 2022

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Subclass 866 protection visa – whether the Tribunal fell into jurisdictional error – no jurisdictional error found – the application is dismissed.

Legislation:

 Migration Act 1958 (Cth)

Cases cited:

Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Fox v Percy [2003] HCA 22

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Ethnic Affairs  v Wu Shan Laing (1996) 185 CLR 259

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

WZAVW v Minister for Immigration and Border protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of last submission/s:

4 August 2022

Date of hearing:

4 August 2022

Place:

Sydney

Counsel for the Applicant:

Mr Gordon

Counsel for the Respondents:

Mr Roeger

ORDERS

MLG 70 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AEL17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	11 AUGUST 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application is dismissed.

3.The Applicant is to pay the First Respondents costs fixed in the amount of $6000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a Sri Lankan citizen of Tamil ethnicity. The applicant arrived in Australia as an unauthorised maritime arrival on 20 June 2012.

2. On 6 November 2012, the applicant applied for a Subclass 866 Protection visa. On 20 March 2014, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.

3. On 26 March 2016, the applicant sought merits review at the then Refugee Review Tribunal (“RRT”). On 15 June 2015, the RRT affirmed the delegate’s decision not to grant the applicant a visa.

4. The applicant sought judicial review in the then Federal Circuit Court. On 25 March 2016 the Court quashed the findings of the RRT and remitted the matter back for reconsideration.

5. On 6 October 2016, the Administrative Appeals Tribunal (“the Tribunal”), which by this stage incorporated the previous RRT, conducted a further hearing (differently constituted) with the applicant and his representative present. On 15 December 2016, the Tribunal again affirmed the delegate’s decision to refuse the applicant a Protection visa.

6. The applicant again seeks judicial review, on this occasion, in relation to the second Tribunal decision.

7. The matter was initially listed for hearing on 20 June 2022. The applicant was initially unrepresented, however, the day before the listed hearing date, he instructed a legal representative to appear. The Court reluctantly granted an adjournment on the basis that the applicant pay the costs of the first respondent thrown away by the late instruction of legal representatives.

   The Administrative Appeals Tribunal Decision

8. The Tribunal decision record runs to some 14 pages and 65 paragraphs. It is a comprehensive discussion of the applicant’s claims, factual findings and the relevant conclusions that fall form those findings.

9. At paragraphs 5 to 6 of its decision, the Tribunal noted that the applicant and his registered Migration Agent attended the hearing.  The Migration Agent requested further time to provide a written submission, which was granted until 27 October 2016, however no further submissions were received. 

10. Paragraphs 7 to 13 of the Tribunal decision consist of a recitation of the relevant law and policy that the Tribunal was bound by.

11. At paragraph 12 of its decision, the Tribunal was satisfied as to the nationality and the identity of the applicant.  At paragraph 13 of its decision, the Tribunal set out the applicant’s claims to for serious harm on return to Sri Lanka.  These were an imputed political opinion, specifically an imputed pro Liberation Tigers of Tamil Eelam (“LTTE”) political opinion, primarily because in 2008, the applicant’s father helped an LTTE member obtain bail, who then subsequently absconded.  The applicant also claims serious harm on return to Sri Lanka because of his Tamil ethnicity, because he is from the Northern Province, that he is a failed asylum seeker and because he departed the country illegally.

12. The Tribunal reviewed the various claims made by the applicant both in his application for a Protection visa, his interview, and his evidence given before the first Tribunal as well as his evidence given before the current Tribunal.

13. At paragraph 26 of its decision, the Tribunal was prepared to accept that the applicant’s father acted as bail guarantor for an LTTE member suspected of murder by authorities.  When the person absconded, the applicant’s father had to attend Court and was sentenced to a month in prison and fined a significant sum of money.  After the applicant’s father was released from prison and paid the fine, the Tribunal accepted that was the end of the matter until 2011 when the Criminal Investigation Department (“CID”) came looking for his father in connection with the same man.  Even though the Tribunal thought it was strange that the authorities would wait three years before speaking to the father, the Tribunal accepted that the CID visited the applicant’s family on two occasions in the same week in 2011, and on the second time they threatened the applicant with a gun.  The Tribunal accepted that the applicant’s father moved to Trincomalee, but did not accept that the applicant or his father were of any ongoing interest to the CID or other authorities in Sri Lanka.

    GROUNDS OF JUDICIAL REVIEW

14. The applicant initially relied upon no less than 18 purported Grounds of Judicial review contained in an Initiating Application filed with the Court on 13 January 2017.

15. It is to be noted that none of the large number of grounds of judicial review initially relied upon contained any particulars in support of the alleged jurisdictional error committed by the Tribunal.  The allegations of jurisdictional error consisted of bland assertions only. For this reason alone they were liable for dismissal: (see; WZAVW v Minister for Immigration and Border protection [2016] FCA 760 at [35]).

16. As a result of the matter being adjourned, the Court directed that an amended Initiating Application be filed with the Court. That application was provided to Chambers on 2 August 2022. In addition to all of the previous un-particularised grounds, the following additional ground was added:

    1.   The Tribunal erred in law in making the following findings that were not open on the evidence before the Tribunal:

    a.   that the tribunal finds it somewhat implausible that the Sri Lankan authorities would allow S to be released on bail if they considered him a murder suspect and LTTE suspect during a period when suspicion of LTTE members and supporters was high.

    b.   That many Tamils were detained for extended periods during that period on suspicion alone.

    c.   That the applicant gave vague with oral evidence about key aspects of the matter, such as knowledge of the murder case, where or when his father was imprisoned (or the duration), or his father’s court matters.

    d.    That the applicant ought to have discussed or was expected to have discuss the matters with his father subsequently.

    e.   That the applicant made no mention that his father was imprisoned in his initial written statement to the Department.

17. Somewhat surprisingly, the amended Initiating Application also included the following:

    Such further or other grounds as the honourable Court may consider fit, just, expedient necessary and required in the circumstances of the case.

18. This ground is entirely misconceived. In Djokovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the Full Court of the Federal Court stated that the task of a Court conducting judicial review can be described in this manner:

    … An application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom of the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

19. Accordingly, it is not for the Court of its own motion, where an applicant is legally represented, to see if it can find error in the Tribunal’s decision.  The Court is not required to make the applicant’s case for him. The Court will only look at those matters that are the subject of complaint as set out in the application before the Court or are otherwise properly raised with the Court during the proceedings.

20. After some discussion, the legal representative abandoned all grounds of judicial review except the sole ground as set out above.         

    THE APPLICANT’S SUBMISSIONS

21. On behalf of the applicant, it was submitted that the Tribunal fell into jurisdictional error when it held that the applicant had not mentioned in his entry interview that his father had been jailed and only mentioned it at the hearing before the Tribunal.  It was submitted that this finding was the same finding that was found to be in error in the first hearing of this matter before the Court.

22. At paragraph 25 of its decision, the second Tribunal stated:

    The Tribunal has some concerns with aspects of the applicant’s claims and evidence in relation to his father and the matter with S, as follows.  The Tribunal finds it somewhat implausible that the Sri Lankan authorities would allow S to be released on bail if they considered him a murder suspect and LTTE suspect during the period when suspicion of LTTE members and supporters was high (emphasis added)…

    The Tribunal also notes that the applicant made no mention that his father was imprisoned in his initial written statement to the Department.

23. It was submitted that both findings were incorrect findings of fact that were not put to the applicant and formed the basis for the Tribunal not to believe the applicant.

24. It was submitted that the Tribunal failed to take into account that the applicant’s entry interview stated that only in the judgement of the case against S in absentia, did the (Sri Lankan) Court find that S had LTTE links, and not before.   It was also submitted that in the entry interview, the applicant stated that his father had been gaoled.  It was submitted that both of these were incorrect findings of fact that were not put to the applicant and formed the basis of adverse credit findings against the applicant.  These had a cascading effect on the issue of credit, credibility assessment and the credit findings against the applicant. This then affected the conclusion at paragraph 28 of the Tribunal decision that, the applicant was not at risk of harm on return. It was submitted that the second Tribunal fell into the same jurisdictional error as the first Tribunal.

    THE FIRST RESPONDENT’S SUBMISSIONS

25. It was submitted that in making its decision, it was plain that the Tribunal had regard to all the applicant’s evidence, including the contents of his Protection visa application, material provided to the first Tribunal and his oral evidence at the second Tribunal hearing.

26. While the Tribunal generally accepted the applicant’s evidence, it did not accept that the CID had continued to visit his family home to enquire about his whereabouts after he left.  Given the vagueness of the claims, the inconsistencies identified by the Tribunal and the general implausibility of the CID continuing to visit his family in these circumstances, the Tribunal’s finding and ultimate conclusion that the applicant was not of adverse interest to Sri Lankan authorities, was open on the evidence.

27. It was submitted that the Tribunal correctly applied the relevant law.  There were no irrelevant matters taken into account by the Tribunal or failure to take into account relevant matters or consider the applicant’s claims.  The Tribunal was alive to the specific way in which the applicant made his claims, his personal and circumstantial attributes as set out by the applicant’s representative in a written submission to the first Tribunal.  In making its findings, the Tribunal considered each of the applicant’s claims individually and in combination with the contended attributes but concluded that the applicant was not entitled to his visa.

28. In relation to the now sole ground of judicial review contained in the amended application, it was submitted that the second Tribunal made no jurisdictional error.  The Tribunal mentioned in its findings that “the applicant made no mention that his father was imprisoned in his initial written statement to the Department”: (see; paragraph 25 of the decision record).  This is factually accurate and does not reflect any error.  The error made by the previously constituted Tribunal was finding that the claim had been advanced for the first time of the first Tribunal hearing.  This error has not been repeated.  While the Tribunal noted that the claim was not mentioned in the applicant’s statement to the Department, the Tribunal went on to accept the claim, finding at paragraph 28, that it was willing to accept the applicant’s evidence about the applicant’s father acting as a bail guarantor for S in 2008 and accepted that when S absconded, the applicant’s father had to attend Court, was sentenced to a month in prison and fined

    
    

    Rs 100,000.00.  In circumstances where the Tribunal accepted the claim, there was no need for the Tribunal to have regard to the fact that the claim had been advanced during the entry interview.

29. In relation to the second aspect of the ground of judicial review, this alleges that the Tribunal erred in failing to consider another aspect of the applicant entry interview, in which he claimed S had been found to be linked to the LTTE.  It was submitted that although the Tribunal did not refer to the entry interview, this does not disclose any error.  The Tribunal had regard to the applicant’s evidence about S and his LTTE involvement and noted some previous inconsistencies in his account at paragraphs 25 to 26 of the decision record.

30. The isues in regards to the findings that Tamils were detained for long periods of time, that the applicant gave vague oral evidence and should have discussed the issue of what happened to his father as regards S absconding were open to the Tribunal on the evidence before it.

31. Those inconsistencies existed even if the entry interview was taken into account. Ultimately, the Tribunal accepted the applicant’s core claim, that his father had acted as a guarantor for S’s bail and had been fined and jailed when S absconded.  Thus, it was not necessary for the Tribunal to have regard to this aspect of the entry interview.

32. Lastly, it was submitted that even if the Tribunal did fall into error in the matters alleged (which was not admitted), the errors would not be material and accordingly would not amount to jurisdictional error: (see; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”)). 

33. The Tribunal accepted that the applicant’s father had acted as a bail guarantor for S and that when he absconded, the applicant’s father had to attend Court, was sentenced to a month and in prison and had to pay a fine.  The Tribunal further accepted that in 2011, that the CID were monitoring Tamils with potential links to the LTTE.  The Tribunal accepted the CID had visited the applicant’s family on two occasions, and that after the first visit the applicant’s father had moved to Trincomalee and that on the second occasion the CID had threatened the applicant with a gun.  However, it did not accept that the applicant or his father would have ongoing interest to the CID or the authorities in Sri Lanka.

    CONSIDERATION

34. The sole ground of review now relied upon submits that five findings by the Tribunal were not open on the evidence. In considering this claim, firstly, reasons of a Tribunal should not be read with “an eye finely attuned to error”: (see; Minister for Immigration and Ethnic Affairs v Wu Shan Laing (1996) 185 CLR 259).

35. Secondly, it will be insufficient for there to be jurisdictional error where different minds might reach conclusions in a jurisdictional fact and that the test for illogicality or irrationality: (see; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]).

    … Must be to ask whether logical or rational or reasonable minds might with adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by reviewing court to be a logical or irrational or unreasonable simply because the conclusion that has been preferred to another possible conclusion.

36. At paragraph 26 of its decision, the Tribunal noted, notwithstanding its concerns the applicant had been consistent in his claims as regards his father’s involvement with S and what happened after S absconded. It accepted the claim that the applicant’s father had to attend Court, had been gaoled for a month and had to pay a fine of R100, 000.00. This was a conclusion that had been rejected by the first Tribunal. Thus, the second Tribunal did not make the same mistake as the first Tribunal.

37. The Tribunal set out in some detail, at paragraph 27 of its decision in particular, its reasons for not accepting that the applicant was of adverse interest to Sri Lankan authorities. In the Court’s view, those findings were open on the evidence before the Tribunal for the reasons it gave. The Tribunal’s findings in respect of the applicant’s other claims were also open to the Tribunal for the reasons it gave.

38. The Tribunal had the opportunity to assess the applicant’s oral evidence. It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness Fox v Percy [2003] HCA 22 at [41]. The Tribunal was entitled to find that the applicant’s evidence was vague when he was unable to give oral evidence about key aspects of the murder case. The finding, that the Tribunal would have expected the applicant to have discussed the matter with his father, was also reasonably open to the Tribunal. The Court rejects the claim that these impugned credit findings within paragraph 25 of the decision record then infected all other consideration of the matter such that there was jurisdictional error.

39. The Court is satisfied that there was an inconsistency between the entry interview and the applicant’s written statement that accompanied his Protection visa application as to the goaling of his father.

1. There is nothing in the decision record to indicate that the Tribunal failed to properly consider the evidence, or misapplied the facts. The decision is not legally unreasonable. The test for legal unreasonableness is ‘stringent’ and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgements made by the decision maker: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30], [113]). The Tribunal also accepted that the CID had visited the applicant’s family on two occasions. This included that on the second occasion, the applicant was threatened with a gun by the CID.

2. The Court does not accept that the errors claimed by the applicant in the Tribunal’s decision, even if accepted, made any difference to the ultimate finding of the Tribunal, that neither the applicant or his father were of ongoing interest to the CID authorities in Sri Lanka, such that the applicant would be at risk if he were to be returned.

3. The reasoning at paragraph 28 of the decision record combines the factual findings at paragraph 27 with the improvement in the security situation as at the time of the Tribunal decision to be such he did not have a risk of serious harm upon return.

4. In these circumstances, even if there were errors, the Court is not satisfied that the errors were material and accordingly no jurisdictional error exists approved: (see; MZAPC).

5. None of the grounds relied upon by the applicant had any merit.

   CONCLUSION

6. Accordingly, the application is dismissed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       11 August 2022