AJQ16 v Minister for Immigration

[2017] FCCA 661

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJQ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 661

Catchwords:
MIGRATION – Protection Visa – Judicial Review.

Legislation:

Migration Act 1958

Cases cited:
Australian Postal Corporation v D'Rozario [2014] FCAFC 89
Minister for Immigration and Citizenship and Le [2007] 164 FCR 151
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Border Protection vSZRTF [2013] FCCA 91
NAHI v The Minister for Immigration & Multicultural & Indigenous Affairs and Anor [2004] FCAFC 10
SZTDX v Minister for Immigration and Border Protection [2014] FCA 515

Applicant: AJQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 160 of 2016

Judgment of: Judge Howard

Hearing date: 15 February 2017

Date of Last Submission: 15 February 2017

Delivered at: Brisbane

Delivered on: 15 February 2017

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms Wheatley

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs fixed in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 160 of 2016

AJQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore on 15 February 2017 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.

1. The applicant in this case was born on 24 December 1987 and arrived in Australia on 11 August 2012 as what is termed “an unauthorised maritime arrival”.  The applicant applied for a protection class XA visa on 5 December 2012.  The Minister’s delegate refused the application for a protection visa.  That decision was dated 6 January 2014.  The applicant filed an application for a review to the Refugee Review Tribunal on 9 January 2014 and, on 6 February 2014, detailed submissions by the applicant’s representative were made to the Tribunal. 

2. In January of 2015, the Tribunal wrote to the applicant and invited the applicant to a hearing so that the applicant could give oral evidence and present other arguments.  Leave was given for the applicant to attend via video conference link, apparently the applicant was somewhat closer to Rockhampton, and the leave was granted in February 2015 and then it seems there was a hearing set down for 25 February 2015, but it was adjourned. 

3. A further hearing was to take place on 20 March 2015 and it did take place via video conference link between Sydney and Rockhampton.  Subsequently, a representative of the applicant wanted to provide further submissions and leave was granted to do so.  A further oral hearing occurred on 28 October 2015.  An issue arose in relation to the applicant’s mental health and there was apparently some further medical information provided and taken into account by the Tribunal.  This seems to have occurred on 27 and 30 November 2015.  The Tribunal made a decision on 28 January 2016.  The decision is contained in the Court Book which is exhibit 1.  The decision is quite detailed.  The Tribunal, in its decision, affirmed the decision of the Minister’s delegate. 

4. On 19 February 2016, the applicant filed an application for judicial review of the Tribunal’s decision.  By that stage, the name of the Tribunal had changed to the Administrative Appeals Tribunal.  The application for judicial review was filed in the Federal Circuit Court of Australia.  The applicant filed an amended application on 24 May 2016 setting out some grounds of application.  The grounds of the application are numbered 1, 2 and 3 and will be included in their entirety here in these reasons for judgment. 

   “1. The Tribunal erred in law by taking into consideration facts not relevant to the matter in making the decision.

   Particulars: Please refer to Ground 3 where this ground applies.

   2. The Tribunal erred in law by not taking into considerations relevant facts in making the decision.

   Particulars:

   a. The purpose of the interview is to obtain important further 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 seek to put forward. In this instance the Tribunal failed to ask questions of the Applicant relevant questions in order to arrive at a fair and reasonable conclusion.

   b. The Tribunal has made several conclusions without obtaining substantial facts in the interview from the Applicant to ascertain the validity of the conclusions. These conclusions were made without substantiation with facts that support them.

   3. The Tribunal erred in not taking into consideration relevant Country information in making the decision.

   Particulars:

   a. The Applicant has provided valuable country information that supported his application in that his suspicion of involvement in a murder placed him in a category that supports the criteria for the grant of the protection visa under the Complementary Protection Provision of the Migration Act 1958.”

5. Turning initially to ground number 1, ground number 1 is linked, it says, to ground number 3, that is to say the particulars for ground number 1 are said to be contained in ground number 3 so that it is appropriate for ground numbers 1 and 3 to be considered at the same time. 

6. The applicant had made various claims relating to his religion, namely, as a Roman Catholic Tamil from the north of Sri Lanka and of suspected involvement in a murder or the withholding of evidence relating to a murder, that he was seen to be a supporter of the LTTE, amongst other claims that are all referred to in the Tribunal’s decision, one of which is that he unlawfully departed from Sri Lanka.

7. The Tribunal, as I said earlier, did give consideration to the question of the applicant’s mental health and the Tribunal did make some adverse findings as to the applicant’s credit to the effect that some of his claims were untrue, that his claim of interrogation and mistreatment by the authorities in Sri Lanka was said to be a fabrication and that other evidence that he gave in particular in relation to the alleged murder inquiry, were simply not plausible in the view of the Tribunal.  This Court is not permitted to conduct a merits review of the Tribunal’s findings.

8. Looking at grounds 1 and 3 together, it is said in grounds 1 and 3 that the Tribunal had erred in law by taking into consideration facts not relevant to the matter in making the decision and the particulars relate to the question of country information as explained further in the typed paragraph, Ground Number 3. 

9. This question of country information arises quite often.  The Tribunal, of course, had before it a substantial amount of country information.  This Court is not permitted to, as it were, look behind the country information and assess whether or not the country information was true because to do so would be to embark upon what is referred to as an “impermissible merits review”.  In a case entitled NAHI v The Minister for Immigration & Multicultural & Indigenous Affairs and Anor [2004] FCAFC 10 at paragraph 11, the Full Court of the Federal Court stated, inter alia, that:

   “11. …There can be no objection in principle to the Tribunal relying on “country information”.  The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function … It is not, as the first appellant submitted, an error of law, or a jurisdictional error for the Tribunal to base a decision on “country information” that is not true. The question of the accuracy of the “country information” is one for the Tribunal and not for this Court.  If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review.  The Court does not have power to do that.”

10. In the case currently before the Court, the Tribunal, in numerous parts of its decision, has made reference to country information, including in paragraphs 17 and 20 and many other parts of the decision itself, including paragraph 53 of the Tribunal’s decision.  In terms of the way that the applicant has framed his grounds and particulars of review, the applicant has not actually identified for this Court what country information he says that the Tribunal did not take into account.  The Tribunal refers to or at least was clearly mindful of the material provided by the applicant which included the submissions that were made, as well as the country information that was provided. 

11. The country information to be considered and the weight that it is given, as I said previously, is a matter for the Tribunal and not for the Court.  I refer to paragraph 53 of the Tribunal’s decision and it is relevant to note here (because the issue is linked to country information) that the applicant’s actual claim that he had been interrogated and/or mistreated for the length of time he claimed was found by the Tribunal to be a fabrication.  So that is a credit or merit finding and this Court is not permitted to review such a finding.

12. The Court concludes, in relation to grounds 1 and 3, that no jurisdictional error has been identified. 

13. As to ground number 2, the Court notes the decision of the High Court of Australia in the Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 and this case is directly on point here because it relates to the question of a duty to inquire. The particular in ground number 2 of the applicant’s application seems to relate to the question of a duty to inquire. I note paragraph 1 of the decision in SZIAI where it is stated, inter alia:

    “1. …The class of "RRT-reviewable decisions" includes decisions by delegates of the Minister for Immigration and Citizenship (“the Minister”) refusing the grant of protection visas.  In the exercise of its review function, the Tribunal may obtain such information as it considers relevant.  In this sense it has an inquisitorial function.  That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Acthttp:// - .”

14. Paragraph 25 of the decision in SZIAI states:

    “25. Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.”

15. In a decision entitled Minister for Immigration and Border Protection vSZRTF [2013] FCCA 91, Katzmann J again referred to this duty to inquire and, in fact, the heading above paragraph number 26 in Her Honour’s decision is “no duty to inquire” – and Her Honour refers to SZIAI and, in particular, to paragraph number 25.  The critical fact in SZRTF related to the pregnancy or otherwise of the applicant and her Honour noted comments by Kenny J in a case called Minister for Immigration and Citizenship and Le [2007] 164 FCR 151 where Kenny J stated that – or at least Katzmann J’s interpretation of Kenny J’s comments were – that:

    “…the circumstances in which a duty to inquire will arise and jurisdictional error will result from a failure to discharge it are likely to be “rare and exceptional”.”

16. In the present case, the applicant has not identified the obvious inquiry, the critical fact and nor has the applicant highlighted the so called “sufficient link” to what the High Court referred to as “the sufficient link to the outcome to constitute a failure to review” and, without identifying these crucial elements or by failing to identify these crucial elements, the applicant has not been able to establish jurisdictional error and that ground, which is essentially ground 2(a), in relation to that ground, the applicant is not successful.  He has not identified jurisdictional error. 

17. As to ground 2(b), it also is linked to a question of whether there was a duty to inquire, but it is said also that the Tribunal had made conclusions without obtaining substantial facts in the interview from the applicant.  Now, the applicant actually has not identified which conclusions he is referring to.  If it could be seen that this argument is raising or attempting to raise what is referred to as a “no evidence submission”, such an argument is not relevant here, certainly not an argument that would persuade this Court.  There is a decision of Australian Postal Corporation v D'Rozario [2014] FCAFC 89 where Bromberg J stated at paragraph 118:-

    “118. … An insufficiency of evidence or other material does not sustain a “no evidence” finding.  The ground will not be made out unless it is established that there was no evidence or other material to justify the finding made.”

18. It cannot be said here that there was a complete absence of evidence, whether that is direct evidence or other material upon which or from which inferences could be drawn to support findings of fact and it needs to be remembered that, whilst it may be an error of law if a finding of fact is made when there is no evidence, it has to be remembered that there is no error of law if the Tribunal makes a wrong finding of fact. 

19. In a decision entitled SZTDX v Minister for Immigration and Border Protection [2014] FCA 515, Perry J made some comments which it seems to me are applicable to ground number 2 generally, both (a) and (b). At paragraph 20, Perry J noted:

    “20. The Court below, however, held at [17] that “the Tribunal was not required to invite the appellant to provide information or arguments which he had failed to provide on his own initiative.  The Tribunal’s obligation to make inquiries is limited to a narrow range of circumstances, none of which were present in this case”.” 

20. Perry J referred to SZIAI and noted that the Tribunal is under no general obligation to make inquiries and, of course, that authority and those conclusions are, as I said, relevant to subparagraphs (a) and (b) of ground number 2.

21. Now, the Tribunal, in its considerations, considered the claim for protection as a refugee and considered the complementary protection criteria.  As I said earlier, unfortunately for the applicant, the Tribunal did not accept some of his key claims and the Tribunal is entitled to make those findings of fact and this Court does not have a power to review the fact finding in this case made by the Tribunal. 

22. It is important for the applicant to understand that this Court only has certain parameters within which it is permitted to review or consider decisions of the Tribunal.  This Court does not in any way have the power to permit the applicant to remain in Australia.  That is a power that is vested in the Executive Branch of Government. 

23. The applicant in this case has not identified any jurisdictional error.

24. I reserve the right to provide any further reasons for judgment should it become necessary.  I will settle these reasons and a copy will be delivered to the parties. 

25. Costs should follow the event in the amount stipulated in the written submission by the second respondent.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 12 April 2017