AJV16 v Minister for Immigration

[2018] FCCA 1824

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJV16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1824

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Refugee Review Tribunal – protection (class XA) visa – Sri Lankan national – tribunal’s obligation to explain definition of ‘refugee’ – whether the tribunal complied with its statutory obligations – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.424A, 424AA, 425, 476(1).

Cases cited:

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: AJV16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 325 of 2016

Judgment of: Judge Mercuri

Hearing date: 14 February 2018

Date of last submission: 14 February 2018

Delivered at: Melbourne

Delivered on: 6 July 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the respondents: Ms S Koya

Solicitors for the respondents: DLA Piper

ORDERS

1. The applicant’s application for judicial review filed on 23 February 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 325 OF 2016

AJV16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal

   
   

   (“the tribunal”) on 21 January 2016.  In its decision, the tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on

   
   

   21 February 2014 not to grant the applicant a protection (class XA) visa (“the visa”). 

2. The tribunal’s decision can be found in the Court Book at pages 178 to 187.

3. This proceeding is brought pursuant to section 476(1) of the Migration Act 1958 (Cth) (“the Act”). To obtain relief from this Court, the applicant must show jurisdictional error in the tribunal’s decision.

Background

1. The applicant is a male citizen of Sri Lanka. He arrived in Australia on 15 July 2012 as an unauthorised maritime arrival and applied for a protection visa on 18 April 2013.[1]

   [1] Court book at pages 34 to 90.

2. The applicant claimed to fear harm in Sri Lanka as a result of his Tamil ethnicity and suspected links to the Liberation Tigers of Tamil Eelam (“LTTE”).

3. In particular, the applicant claimed that:

   a)he suffered persecution throughout his entire life due to his ethnicity as a Tamil;[2]

   b)in 2005 when he was working as an electrical trainee, a mobile telephone went missing and he was accused of stealing the telephone. He was apparently taken to court over this issue even though he denied stealing the telephone and ultimately was released when the telephone was found;[3]

   c)his father disappeared in 2009;[4]

   d)he was questioned by police in 2009 and 2010 about his father and because his name was the same as an LTTE commander and he was told that he would be under scrutiny because of his name;[5]

   e)in November 2010 whilst he was working in what was predominantly a Sinhalese area, he was beaten up by five of the other construction workers as he was the only Tamil worker;[6]

   f)in February 2011 when he recommenced working, he was the only Tamil again and he was falsely accused of having stolen another worker’s telephone;[7] and

   g)in March 2012, the applicant was told that his father’s name had been blacklisted as being associated with the LTTE and that the police were looking for him and that he should be careful.[8]

   [2] Court book at page 86.

   [3] Court book at page 87.

   [4] Court book at page 87.

   [5] Court book at pages 87 to 88.

   [6] Court book at page 88.

   [7] Court book at page 88.

   [8] Court book at page 88.

4. The applicant said that he left Sri Lanka in 2012 after being told that the police were looking for him.  Since leaving Sri Lanka, the applicant stated that the police have attended upon his mother’s home asking about him and have told her that if he returns he would be arrested and killed.[9]

   [9] Court book at page 88.

5. Essentially, the applicant claimed to fear further harm if he were to return to Sri Lanka because he is a Tamil and he has been imputed with the political opinion of being associated with the LTTE because of his father’s disappearance and because his family name is the same as an LTTE commander. He also stated that he fears persecution for having sought asylum in a Western country.[10]

   [10] Court book at pages 88 to 89.

Procedural history

1. The applicant’s application for the visa was refused by a delegate of the Minister on 21 February 2014.[11]

   [11] Court book at pages 107 to 126.

2. On 26 February 2014, the applicant appealed to the (then) Refugee Review Tribunal.[12]

   [12] Court book at pages 127 to 132.

3. The applicant attended a hearing before the tribunal on 13 January 2016 and provided two character references from persons in Australia in support of his application.[13]

   [13] Court book at pages 159 to 161.

4. At the hearing before the tribunal, the applicant raised a new claim; namely, that he was beaten and stabbed while in Sri Lanka.  He said that after this incident he had been arrested by the police and had been tortured and the police had accused him of trying to stab a boy. He said that during this period, he was once again asked by the police about his father and the police were saying that his father was in the LTTE.[14]

   [14] Court book at page 173 at paragraph [28].

5. Also at the hearing, the applicant alleged (for the first time) that he had been hit on the head and that this had affected his memory.[15] The applicant stated that he had not previously mentioned this incident as he was concerned that the information might be released and his family adversely affected.[16]

   [15] Court book at page 172 at paragraphs [23] and [24].

   [16] Court book at page 172 at paragraph [24].

The tribunal’s reasons

1. The tribunal identified a number of inconsistencies between the claims made in the applicant’s written statement and the evidence he gave at the hearing in relation to his father and the difficulties he claimed to have experienced.[17]

   [17] Court book at pages 178 to 179 at paragraphs [50], [52] and [54].

2. The tribunal also identified inconsistencies between the evidence given and the documents provided relating to his education[18] and the claims made about his father’s place of birth and location at the time of the applicant’s birth.[19]

   [18] See court book at page 179 at paragraph [51].

   [19] See court book at page 180 at paragraph [57].

3. The tribunal identified other inconsistencies in the evidence given by the applicant in relation to the difficulties he had experienced as a result of being a Tamil and because of his father’s alleged involvement with the LTTE.[20]

   [20] Court book at pages 179 to 180 at paragraphs [53] to [56].

4. The tribunal put to the applicant the inconsistencies between the information provided during his entry interview and the subsequent claims made by him, and explored with the applicant his explanations for these inconsistencies.[21]

   [21] Court book at page 181 at paragraphs [59] to [61].

5. After considering the explanations put forward by the applicant and having regard to the guidelines issued by the Department which require caution to be exercised in placing reliance on entry interviews (given the circumstances in which those interviews are conducted), the tribunal concluded that the applicant was telling the truth in the entry interview. Therefore, they did not accept that the applicant had problems with the police or that he had problems with Sinhalese people.[22]

   [22] Court book at pages 181 to 182 at paragraphs [62] to [63].

6. The tribunal accepted that the applicant’s father had deserted his family but did not accept that he was questioned about his father’s whereabouts or suggested links to the LTTE nor that the police had suggested to the applicant that he himself had worked for the LTTE.

7. Moreover, the tribunal did not accept that the applicant was ever arrested, beaten and abused or tortured or had to pay bribes to the police. The tribunal also did not accept that the police attended upon the applicant’s mother’s home and threatened his mother that if he returned he would be arrested and killed.[23]

   [23] Court book at page 182 at paragraph [64].

8. The tribunal did accept that the applicant had been stabbed but did not accept that that was linked to his ethnicity as a Tamil or that he was arrested or tortured by the police or accused of stabbing another boy as he claimed.[24] Further, the tribunal did not accept that the applicant had been accused of stealing a mobile telephone or hit on the head with an iron rod or that he had been beaten up by his fellow workers who were Sinhalese.[25]

   [24] Court book at page 182 at paragraph [64].

   [25] Court book at page 182 at paragraph [64].

9. The tribunal accepted that the applicant had difficulties with his employment but found that this did not amount to serious harm for a convention reason and found that the applicant would be able to support himself if he were to return to Sri Lanka.[26]

   [26] Court book at pages 182 to 183 at paragraph [65].

10. The tribunal concluded on the basis of country information that the applicant would not be harmed as a result of his Tamil ethnicity or due to being a failed asylum seeker.[27]

    [27] Court book at pages 183 to 185 at paragraphs [66]-[70] and [74].

11. The tribunal accepted that the applicant would be charged under the Immigrants and Emigrants Act due to his illegal departure from Sri Lanka and that he would be briefly detained and then released on bail and ultimately fined.[28]  However, the tribunal concluded that this would be the result of a law of general application; that is, the applicant would not be singled out or treated differently as a result of having departed Sri Lanka illegally for one or more of the convention reasons.

    [28] Court book at page 184 at paragraph [70].

12. Moreover, the tribunal did not accept that the applicant would be harmed while in detention on remand.[29] While the tribunal accepted that prison conditions in Sri Lanka are poor, it did not accept that they amounted to significant harm as defined in the Act, or that the poor conditions were intentionally inflicted as required by Australian law. As such, the tribunal did not accept that the applicant would be subjected to ‘torture’ as defined whilst on remand. Nor did the tribunal accept that a person in prison or on remand would satisfy ‘cruel or inhuman treatment’ or ‘degrading treatment’ as defined in section 5 of the Act.[30]

    [29] Court book at page 185 at paragraph [75].

    [30] Court book at page 186 at paragraph [76].

Legislative framework

1. The tribunal’s decision is one to which section 474 of the Act applies. Section 474 limits the judicial review to questions of jurisdictional error. As noted by their Honours Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (footnotes excluded):

   Once it is accepted, as it must be, that s474 is to be construed conformably with Ch III of the Constitution, specifically, s75, the expression “decision[s]… made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.[31]

   [31] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

2. The issue therefore is whether the tribunal’s decision is infected by jurisdictional error.

Proceedings before the court

1. The application filed by the applicant on 23 February 2016 sets out three grounds of review, namely:

   1.The decisions of the Tribunal and the Department of Immigration are wrong as they are affected by administrative error.

   2.In the process of applying for refugee status and subsequently for a Protection visa, the applicant was never provided with a full definition of what constitutes a “Refugee” under the article 1A(2) United Nations Convention relating to the Status of Refugees as amended by its 1967 Protocol (the Refugee Convention).

   3.The applicant was denied procedural fairness at the AAT Tribunal hearing.  There are discrepancies between the transcript and the audio recording of the hearing.  Therefore the applicant may have been denied the opportunity to fully present his case at the tribunal hearing.

Ground one

1. The first ground of review in the applicant’s application was:

   The decisions of the Tribunal and the Department of Immigration are wrong as they are affected by administrative error.[32]

   [32] See the applicant’s application filed 23 February 2016.

2. No particulars were provided by the applicant.  This ground as stated is broad and does not disclose any jurisdictional error on its face.

3. At the hearing before the court, the applicant appeared in person and was assisted by an interpreter.  When asked to explain in his own words what he meant when he said that the tribunal’s decision was affected by an ‘administrative error’, the applicant said that his life was at risk and he wanted protection.

4. He also said that the tribunal rejected his case and that he had been here for a long period and has “requested… the protection visa or some visa – my life’s at risk.”[33]

   [33] Transcript page 4 at lines 35 to 37.

5. As stated by his Honour Gilmour J in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760,

   
   

   “failure to particularise a ground of review is sufficient basis for it to be dismissed”.[34]

   [34] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. See also WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

6. Ground one is not properly particularised and does not disclose any jurisdictional error.

Ground two

1. The second ground of review in the application was:

   In the process of applying for refugee status and subsequently for a Protection visa, the applicant was never provided with a full definition of what constitutes a “Refugee” under the article 1A(2) United Nations Convention relating to the Status of Refugees as amended by its 1967 Protocol (the Refugee Convention).[35]

   [35] See the applicant’s application filed 23 February 2016.

2. In the affidavit filed by the applicant on 22 February 2016, after referring to the decision record of the tribunal which sets out the definition of a refugee, the applicant deposes:

   …Before I received this Decision Record, I was not aware of the definition of a “Refugee” nor that I have to demonstrate either one or all five of the reasons of persecution in order to be granted refugee status or a protection visa.  I was not advised of the definition at my first interview at Christmas Island, nor was I aware of the five criteria when I applied for a protection visa.[36]

   [36] Paragraph 6 of the applicant’s affidavit filed 22 February 2016.

3. As noted in the Minister’s written submissions, at its highest, this ground could be said to be an allegation of a failure by the tribunal to comply with its obligations under section 425 of the Act. That is, that the applicant’s satisfaction of section 36(2)(a) was a dispositive issue such that the relevant criteria needed to be explained to the applicant, or alternatively, that a failure to explain the criteria to the applicant meant that the hearing provided was not a meaningful one.

4. The affidavit of Aaron Michael Day affirmed 10 May 2016 annexes a copy of the transcript of the proceedings before the tribunal on

   
   

   13 January 2016.  This transcript evidences that the tribunal member explained to the applicant that the tribunal would be considering whether he was a refugee and that this required him to satisfy the definition in the Refugee Convention.[37]  In particular, the court was referred to the following excerpt of the transcript:

   I will consider, first, whether you are a refugee. To be a refugee you have to satisfy the definition set out in the Refugee’s Convention.  That definition requires that you have a well-founded fear of being persecuted for one of five reasons.  Those five reasons are your race, religion, nationality member of a particular social group or political opinion.  If I decide that you are not a refugee I will consider whether you are entitled to what is referred to as complimentary protection.

   The law in Australia requires that there must be substantial grounds for believing that there is a necessary and foreseeable consequence of your being removed from Australia to your country there is a real risk that you will suffer significant harm.  Significant harm is defined for the purpose of the law.  So it means that you will be arbitrarily deprived of your life, that the death penalty will be carried out on you, that you will be subjected to torture, that you will be subjected to cruel or inhuman treatment or punishment or that you will be subjected to degrading treatment or punishment.[38]

   [37] See annexure A of the affidavit of Aaron Michael Day filed 12 May 2016.

   [38] Transcript page 2 at lines 32 to 39.

5. In the course of the hearing, the applicant indicated that he had not received a copy of Mr Day’s affidavit and he had only seen the transcript of the proceedings before the tribunal for the first time at the hearing.[39]  At the conclusion of the proceedings, I made orders permitting the applicant to file and serve any written submissions in response to the affidavit of Mr Day within 28 days of the hearing and the first respondent to file and serve any submissions in reply, within seven days thereafter.[40]

   [39] Transcript page 13 at lines 5 to 19.

   [40] Transcript page 14 at lines 27 to 30.

6. The court received correspondence from the applicant dated

   
   

   14 March 2018 indicating that he had no submission to make in response to the affidavit of Mr Day.  By email dated 16 March 2018, the first respondent’s solicitors also confirmed that they consequently had no further written submissions in reply.

7. To the extent that the applicant’s second ground relies upon his assertion that he was not provided with a definition of what it means to be a refugee and this resulted in the tribunal’s decision being infected with jurisdictional error, this ground must fail.  It is clear from the transcript annexed to Mr Day’s affidavit that the meaning of the term ‘refugee’ and the requirements of which the tribunal would need to be satisfied, were explained to the applicant at the commencement of the tribunal’s hearing on 13 January 2016.[41]

   [41] See lines 31 to 46 on page 2 of the transcript of the tribunal hearing, being annexure A to the affidavit of Aaron Michael Day filed 12 May 2016.

8. In addition, in the course of responding to oral submissions put on behalf of the Minister, the applicant suggested that he had in fact been told what the requirements were for refugee status whilst in the detention centre. [42]

   [42] Transcript page 12 at lines 1 to 35.

9. Ground two is therefore not made out.

Ground three

1. The third ground of review in the applicant’s application was:

   The applicant was denied procedural fairness at the AAT Tribunal hearing.  There are discrepancies between the transcript and the audio recording of the hearing.  Therefore the applicant may have been denied the opportunity to fully present his case at the tribunal hearing.[43]

   [43] See the applicant’s application filed 23 February 2016.

2. The Minister noted that to the extent that this allegation refers to discrepancies between the audio recording of the hearing and the ‘transcript’, this must be taken to be a reference to the tribunal’s decision record as there does not appear to have been a transcript available to the applicant at the time that he filed his application. 

3. Indeed in his affidavit, Mr Day deposed that he sent the transcript request for the tribunal hearing on 4 April 2016 and received a copy of that transcript on 13 April 2016.

4. Moreover, the applicant himself did not produce any other transcript of the proceedings before the tribunal to which he could have been referring.  On the basis of the material before this court, I therefore accept the Minister’s submissions that the applicant must be taken to be referring to discrepancies between the audio and the tribunal’s decision record in ground three.

5. In either case, the applicant has not particularised what discrepancies he is referring to.  The decision record is not intended to be a transcript of the proceedings before the tribunal but rather a summary of what occurred and, importantly, the tribunal’s reasoning and decision.  The applicant was unable to point to any discrepancies between the transcript annexed to Mr Day’s affidavit and the audio recording to which he referred. 

6. As stated above, when it became apparent that the applicant maintained that he had not been provided with a copy of Mr Day’s affidavit prior to the hearing before this court, and notwithstanding that the affidavit was filed on 10 May 2016, the applicant was afforded a further 28 days to consider the transcript and make any further written submissions in relation to that.  As stated above, no further written submissions were received from the applicant.

7. In those circumstances, I find that ground three does not disclose any jurisdictional error on the part of the tribunal and must therefore be dismissed.

The tribunal’s compliance with statutory obligations

1. The Minister also made submissions, for completeness, in relation to the tribunal’s compliance with its statutory obligations to afford the applicant procedural fairness. 

2. Counsel for the Minister submitted that the tribunal had complied with its procedural obligations under Division 4 of Part 7 of the Act. Firstly, as the tribunal could not find in favour of the applicant based on the material before it, the tribunal invited the applicant to attend the hearing on 13 January 2016 as required by section 452 of the Act. During that hearing, the dispositive issues were traversed and the applicant was afforded the opportunity to present further arguments and provide evidence in support. In this regard, I refer both to the tribunal decision record and also the transcript annexed to Mr Day’s affidavit.

3. In addition, the tribunal specifically put information to the applicant during that hearing as required by section 424AA of the Act.[44]

   [44] Court book at pages 177 to 178 at paragraphs [46] to [49].

4. Section 424AA of the Act relevantly states:

   (1)If an applicant is appearing before the tribunal because of an invitation under section 425:

   (a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)if the Tribunal does so, the Tribunal must:

   (i)      ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii)    orally invite the applicant to comment on or respond to the information; and

   (iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv)    if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

5. The transcript annexed to Mr Day’s affidavit demonstrates the fact that the tribunal member complied with these obligations.[45]

   [45] Page 18 at lines 44 to page 19 at line 4 of the transcript of the tribunal hearing, being annexure A to the affidavit of Aaron Michael Day filed 12 May 2016.

6. I accept the submissions put on behalf of the Minister that the procedural requirements of the Act have been met.

Conclusion

1. As I have found that none of the grounds raised by the applicant have disclosed a jurisdictional error on the part of the tribunal, the applicant’s application for judicial review must be dismissed and the applicant must pay the Minister’s costs.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:     6 July 2018