AIR15 v Minister for Immigration
[2016] FCCA 1808
•18 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIR15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1808 |
| Catchwords: MIGRATION – Judicial review-applicant represented by counsel – applicant’s grounds for reviews and arguments misconceived – baseless submissions made by the applicant’s counsel. |
| Legislation: Migration Act 1958 (Cth), ss.32(2)(aa), 91R(1)(a), 412, 415, 424, 430 |
| Cases cited: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 |
| Applicant: | AIR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 667 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 16 June 2016 |
| Date of Last Submission: | 16 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 18 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barataraj |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application filed 1 April 2015 is dismissed.
The applicant pay the first respondent’s costs in accordance with the Federal Circuit Court Scale of Courts fixed in the sum of $7,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 667 of 2015
| AIR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This case was initially listed for final hearing on 10 February 2016. The applicant filed an application in a case seeking an adjournment because he had found legal representation and they needed time to prepare. The Court granted the adjournment and the final hearing proceeded on 16 June 2016.
The applicant was represented by counsel at the hearing who prepared written submissions as well as submissions in reply to the respondent’s submissions. These submissions and the oral argument were hard to follow.
The applicant is a Sri Lankan citizen born in Udappu. He is a Tamil.
The applicant applied for a protection visa on 21 January 2013.
The applicant was represented when appearing before the delegate and the Tribunal.
During his entry interview the applicant said he left Sri Lanka for two reasons.[1] The first was that his family was not able to earn enough income. He referred to the problems he had in his work place with Sinhalese workers and an altercation he had with them. This arose after he made a complaint to Human Resources Office (“HRO”) at his work about derogatory comments one of the Sinhalese workers made to a female colleague. The applicant had told the Sinhalese worker not to make those comments. He said he had problems with the army as a result of this. He said that one of the Sinhalese workers had the support of the army. The second reason is that he fears harm because of being a failed asylum seeker if he returns to Sri Lanka.
[1] Court Book (“CB”) 22 to 35.
The applicant’s migration agent prepared and filed a statutory declaration by the applicant.[2]
[2] CB 74 to 77.
The Delegate’s Decision
The applicant had the assistance of a migration agent at both hearings who also prepared detailed written submissions.
The delegate accepted that the applicant had experienced harassment in his work place, noting that this is probable in any country. The delegate accepted parts of his claim and not others.
Whilst the delegate accepted the applicant’s claims about the workplace dispute and the attempted assault, the delegate did not find that this met the criteria set out in s.91R(1)(a) of the Migration Act 1958 (Cth) (“Migration Act”) being fear of persecution for a Convention ground because the attempted assault occurred after the applicant complained to the HRO and the applicant’s issues with the Sinhalese workers escalated after he made this complaint.
The delegate also considered the applicant’s claim based on being a returning failed asylum seeker and found that he did not fit into any of the risk profiles. The delegate then considered the complementary protections.
The Tribunal proceedings
The applicant’s agent filed detailed written submissions dated 19 March 2014 prior to the Tribunal hearing.[3] It is the first time the applicant made any suggestion of being imputed with a pro-LTTE opinion.[4]
[3] CB 179 to 203.
[4] CB 184 [93].
The applicant’s migration agent filed further written submissions after the Tribunal hearing dated 26 February 2015.[5]
[5] CB 224 to 233.
The Tribunal’s decision is dated 28 February 2015. [6]
[6] CB 237to 268.
The Tribunal decision records the Tribunal member’s concerns about inconsistencies in the applicant’s evidence. She records the inconsistencies she put to the applicant and the applicant’s response that he did not want to comment. The Tribunal considered the applicant’s agent’s oral submissions and her written submissions after the hearing explaining the inconsistences but the Tribunal did not find those persuasive observing that if the events had occurred he would have given reasonably consistent evidence. One inconsistency was whether or not any physical contact had taken place prior to the attempted assault.
The Tribunal identified other inconsistencies with respect to the applicant’s claims that the Sri Lankan Army (“SLA”) visited his house and whether or not two or three civilians accompanied them and the timing of when he left his home.
It is not necessary to summarise the detail of the Tribunal’s consideration of the evidence and findings. The Tribunal member provided detailed reasons as to why she did not accept key aspects of his evidence.
The Tribunal addressed the issue as to whether or not the applicant would be imputed with pro-LTTE opinions. After recording that the applicant did not claim that he or his family had any involvement with the LTTE the Tribunal considered the country information. The Tribunal member observed that the LTTE was defeated almost 6 years earlier and the reports about Tamils being imputed with anti-government or LTTE connections have “substantially reduced”.[7]
[7] Court Book 248-9 [55] – [57]
The Tribunal considered the country information referred to in the applicant’s submissions at some length and gave reasons.
Grounds for review
The applicant relies on 3 grounds for review:
a)The Tribunal erred in law by taking into consideration facts not relevant to the matter in making the decision.
Particulars: Different answers in the Protection Visa interview to the same question used to discredit the Applicant:
i)The Tribunal erred in law by misinterpreting the statements made by the Applicants at the PV interview of what his mother had been told by the SLA;
ii)The Tribunal referred to another question to the applicant in the Protection Visa interview (with reference to threats to his life). The applicant replied the question differently, one which included less facts than the other. This also was the factor which the Tribunal took to discredit the applicant;
iii)The applicant claimed in his Protection Visa interview that he was interrogated by the SLA. It is obvious that this must be for his possible involvement with the LTTE (alleged by his complainant) rather that the Police who attend to criminal complaints. The Tribunal never questioned the applicant on this, to establish he was telling the truth or otherwise.
b)The Tribunal erred in law by failing to ask reasonable number of questions in order to ascertain the credibility of the applicant and make a fair decision.
Particulars:
i)The purpose of the interview is to obtain important information from the applicant which would either support his application or in the absence of a valid and plausible answer to any questions the Tribunal seeks to put forward. The questions the Tribunal must ask relate to questions already asked in the PV interview. In this instance the Tribunal failed to ask questions of the applicant relevant questions in order to arrive at a fair and reasonable conclusion;
ii)Tribunal relied solely on the PV interview to make the decision and by this reason did not carry out its duties as required to do so by law.
c)The Tribunal erred in not taking into consideration under the Complementary Protection Provision of the Migration Act 1985 of the information provided by the applicant.
Particulars:
i)The Tribunal did not have the need to consider the applicant under this provision simply because it had not established by any questioning that there was a genuine fear of the Applicant being returned to Sri Lanka. Failure to question the Applicant on this would have meant that the Tribunal had arrived at conclusions wrongly that the applicant would not fit this criteria.
Argument
Ground one
The applicant’s written submissions make several assumptions without providing any basis for them. For example at [6] the applicant’s counsel writes that the SLA rarely gets involved in criminal matters as they are generally dealt with by police. He says the involvement of the SLA is serious matter as any suspicion that the applicant had any association with the LTTE would make him very vulnerable.
In the following paragraph he stated that the Singhalese workers would have falsely reported that the applicant was a LTTE agent or member in order for the SLA to become involved. Even the applicant’s own evidence does not support these statements.
Written and oral submissions are designed to present a party’s arguments and persuade the Court to make the orders that party seeks. They must be based on the evidence and the application of the law.
The applicant’s submissions say the following at [12] and [13]:
The three grounds of the appeal centred in the lack of fair procedures in that both the Delegate and the Tribunal did not apply the normal criteria in proper interview procedures and request if necessary in the interest of justice, assistance from the Applicant (considering that he was unrepresented) in requesting or seeking more details of documents to support his case.
While it is accepted that neither authority was bound by any legal duty to advise, such requests would assist the authority in dealing with applications humanely and would possibly discourage the Applicants from using the expensive court process, after they perceive that they were not treated fairly. Only those with genuine reasons will approach the judicial system for judicial review. In this case it is clear that the Applicant was not given due consideration by lack of proper questioning in the interview. The RRT interview appeared to be very short. The Court Book had not described any reasonable and fair number of questions the decision on the basis of serious procedural error on the part of the Delegate and perpetuated by the Tribunal in the arrival of the adverse decision.
(underlining in the original)
Paragraph 12 is simply inaccurate. Paragraph 13 is vague and emotive and has no place in submissions. It is understandable when a person is unrepresented but not when prepared by a lawyer. When a lawyer drafts these types of statements it detracts from the submissions.
These submissions were filed on 24 May 2016, well before the hearing. They were prepared by the applicant’s counsel who also prepared written submissions in reply which are even more confusing.
These submissions fall well short of this in contrast to the respondent’s submissions which accurately summarises the issues and the Tribunal’s findings with specific references to the relevant parts of the Court Book (“CB”).
The applicant also complains that both the delegate and the Tribunal did not engage in proper questioning. This complaint cannot be made out without a transcript. The applicant had ample opportunity to obtain one. At the hearing the applicant’s counsel submitted that the questions and answers should have been referred to in the Tribunal’s decision. If this is correct then decisions would be unwieldy and would be longer than transcripts of the hearing. There is no basis for this.
The first respondent correctly submits that there is no obligation on the Tribunal to ask questions to establish a claim that the applicant has not put forward or to establish the applicant’s credibility. It is significant to note that the applicant was represented and his representative made submissions before and after the hearing.
In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 the Full Court of the Federal Court stated at [33] and [34]:
The Tribunal is required by s 430 to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 and [Minister for Immigration and Citizenship v] SZGUR [(2011) 241 CLR 594].
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
In SZEHN v Minister for Immigration & Multicultural & Indigenous Affiairs [2005] FCA 1389 the High Court of Australia (“High Court”) stated at [58]:
It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.
The first respondent submits that the applicant’s grounds for review and submissions misunderstand the nature and function of the Tribunal’s function. It is necessary to examine Part 7 of the Migration Act. Section 412 refers to reviewable decisions. Section 415 sets out the powers the Tribunal has which include affirming the decision, varying the decision and remitting the matter.
Section 424 enables the Tribunal to get information it thinks is relevant. It is not obliged to.
There is no obligation on the Tribunal to ask a certain number of questions or ask questions to elicit the applicant’s claim. In conducting the review the Tribunal must be satisfied that the applicant meets the visa requirements. When an applicant is invited to attend a Tribunal hearing he or she is on notice that the Tribunal is not satisfied about his or her claim based on the information before it.
In Abebe v The Commonwealth (1999) 197 CLR 510 at [187] Gummmonw and Hayne JJ made the following observation:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
In SZRRN v Minister for Immigration and Citizenship [2014] FCA 77 Farrell J said at [44]:
In its terms, the ground advanced by the appellant in her notice of appeal to this Court is a bare assertion of denial of natural justice and disagreement with the decision of the Federal Magistrate without particulars. Such a global claim is an invitation to merits review, which neither the Federal Magistrates Court nor this Court may undertake.
The first respondent also points out that whilst the applicant’s contention that the Tribunal failed to ask the right questions is flawed as there is no such obligation, it is also bound to fail because the applicant has failed to obtain a transcript.
Section 430 sets out the requirements for the Tribunal’s decision in writing:
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application--indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.
Another complaint the applicant makes is that the Tribunal made adverse credibility findings in part based on the statement of his mother and what the applicant said at his initial interview. This submission is without merit. The applicant submitted his mother’s statement. In those circumstances he cannot then complain that the Tribunal placed some reliance on it in finding that he gave inconsistent versions of his evidence. It is also necessary to point out that when he complains about the Tribunal’s findings appearing in the third paragraph of CB 153, that is in fact the delegate’s decision, not the Tribunal’s.
The applicant’s submissions go on to make generalised suppositions about the involvement of the SLA rather than the police.
In essence the applicant’s complaint under this ground disagrees with the credibility findings and seeks to engage this Court in a merits review. The Tribunal made adverse findings about the applicant’s credibility. That is an issue for the Tribunal and not this Court.[8]
[8] Ex Parte Durairajasingham (2000) 168 ALR 407.
I accept the respondent’s submissions that the applicant’s submissions fall well short of establishing that the Tribunal’s reasons were arbitrary, irrational or perverse.
Ground 1 must be dismissed.
Ground two
There is some overlap with ground one.
The applicant’s submissions with respect to the second ground complains that the Tribunal did not “apply the criteria of a reasonable man to actually interview the Applicant independently….” The submissions do not make reference to any provision in the Migration Act or authority to support this point.
Again the submissions complain about questions that allegedly the Tribunal did not ask. It also says that the questions must relate to the questions asked in the initial interview. This is not so. The Tribunal is tasked with conducting a review. There are not limits imposed on what questions it asks to consider the review.
At paragraph 2(b) of his written submissions the applicant says:
The Tribunal relied solely on the answers the applicant made in the PV interview to make the decision. No questions of significance was asked of the Applicant to independently review the decision of the Delegate.
This bald assertion is not supported by any specific reference to the CB and there is no transcript. An examination of the Tribunal’s reasons show it to be plainly inaccurate.
The complaint that the applicant makes about the use it made of the applicant’s mother’s statement and the inconsistency of the evidence the applicant gave cannot be sustained. The applicant is the one who put his mother’s statement before the Tribunal in support of his case. He cannot now complain that is it only hearsay.
Ground two also must fail.
Ground three
This ground complains that the Tribunal did not consider the country information provided by the applicant when considering the complementary protection provisions. The submissions read in part:
The Tribunal did not have the need to consider the Applicant under this provision simply because it had not established by any questioning that there was a genuine fear of the Applicant being returned to Sri Lanka. The Applicant had indicated his genuine fear of the SLA because of their involvement in the matter rightly or wrongly. This involvement is of a personal nature and therefore the applicant is extremely vulnerable.
The Applicant validly believes he is a marked man confirmed by the fact that the SLA had not forgotten him by looking for him in September and October 2012 …
It assumes that the applicant’s version is correct and is really inviting the Court to engage in an impermissible merits review. It gets worse when it says:
It is not surprising therefore, the Applicant having witnessed all the happenings in the country to have developed this fear of the SLA once they tum their interest on him on the instructions of the employee who had the high level contact.
First of all there are no references provided to point out where in the CB the applicant gave this evidence. It is also hyperbole because at the most, the applicant said he thought that one of the employees might have connections with the SLA, but he did not know, he was “just guessing”.[9]
[9] CB 245 [36] second bullet point.
The first respondent’s written submissions at [11] identifies the inconsistencies the Tribunal identified in the applicant’s evidence. It refers to the references in both parts of the CB. The inconsistences are more extensive than the ones identified by the applicant’s counsel. It is another example of the sloppiness and lack of substance in the applicant’s counsel’s submissions.
The applicant filed written submissions in reply to the first respondent’s submissions. The orders made by the Registrar made no provision for this. Those submissions are difficult to follow.
The applicant complains that the Tribunal failed to consider the applicant’s complementary protection claims. Section 36(2)(aa) of the Migration Act sets out Australia’s obligations in this regard:
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
The Tribunal considered the country information and the applicant’s complementary protection claims in detail at paragraphs 113 to 129. Part of the applicant’s complaint in this regard relies on an acceptance the SLA attended the applicant’s home. The Tribunal rejected this evidence. The Tribunal did consider whether or not the applicant would be imputed with a pro-LTTE opinion and whether his return to Sri Lanka as a failed asylum seeker would amount to significant harm. The Tribunal considered the country information and the applicant’s written submissions and reached the conclusion that Australia’s complementary protection obligations were not enlivened.
Ground 3 must also fail.
The applicant has not established that the Tribunal has made a jurisdictional error. I will dismiss the application and order the applicant to pay the first respondent’s costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 18 July 2016
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