AJY16 v Minister for Immigration & Anor
[2017] FCCA 565
•31 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJY16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 565 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – Sri Lankan Tamil – failure to particularise grounds – whether lack of procedural fairness – whether error of law – whether excess of power – whether impermissible merits review sought – whether bias in assessment of credibility – whether evidence of mental conditions alleged to have affected assessment of credibility – nature of required medical evidence of mental condition – whether on judicial review reliance can be placed on documents not before the Tribunal – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 AWX16 v Minister for Immigration & Anor [2016] FCCA 928 Craig v South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193 Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge (No 2) [2017] FCCA 190 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 |
| Applicant: | AJY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 75 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 March 2017 |
| Date of Last Submission: | 23 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 31 March 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr P J Corbould |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 75 of 2016
| AJY16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Third Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”).
Background prior to the Judicial Review Application
Prior to the Third Tribunal Decision
The background prior to the Third Tribunal Decision is as follows:
a)the applicant is a citizen of Sri Lanka who was born on 10 January 1983. He arrived in Australia on 21 May 2012 as an unauthorised maritime arrival: Court Book (“CB”) 1, 14 and 102;
b)on 19 September 2012 the applicant applied for a Protection Visa which was refused by the Delegate on 9 November 2012: CB 37 and 101;
c)on 7 December 2012 the applicant applied to the Tribunal (then the Refugee Review Tribunal) for review of the Delegate’s Decision, and on 26 April 2013 the Tribunal affirmed the Delegate’s Decision (“First Tribunal Decision”): CB 136 and 215;
d)the applicant applied to this Court for judicial review of the First Tribunal Decision, and the Minister conceded that there was jurisdictional error because the Tribunal failed to consider the applicant’s claim that he feared that he would be detained without charge under the Prevention of Terrorism Act 1979 (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”);
e)on 20 September 2013 orders were made by consent for the issue of a writ in the nature of certiorari quashing the First Tribunal Decision and a writ in the nature of mandamus compelling the Tribunal to reconsider and determine the matter according to law: CB 261;
f)the Tribunal (constituted by the same Tribunal member who made the First Tribunal Decision) reheard the matter and on 11 July 2014 again affirmed the Delegate’s Decision (“Second Tribunal Decision”): CB 322;
g)on 30 July 2014 the applicant again applied to this Court for judicial review of the Second Tribunal Decision. The Minister conceded that the Second Tribunal Decision was affected by jurisdictional error on the ground of apprehended bias;
h)on 25 November 2014 consent orders were made for the issue of a writ of certiorari quashing the Second Tribunal Decision and a writ of mandamus requiring the Tribunal to determine the matter according to law: CB 366;
i)the matter was reheard by the Tribunal (constituted by a different member) and the applicant appeared before the Tribunal on 24 March 2015 to give evidence and present arguments, assisted by an interpreter and his registered migration agent: CB 488 at [4]; and
j)on 22 January 2016 the Third Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 487.
Third Tribunal Decision
In the Third Tribunal Decision the Tribunal:
a)found that the applicant claimed to fear persecution if returned to Sri Lanka principally because of his Tamil ethnicity, his imputed political opinion of being opposed to the Sri Lankan government and supporting the Liberation Tigers of Tamil Eelam (“LTTE”), and his membership of particular social groups, being “returned failed Tamil asylum seekers”, “Tamil fisherman” and “the Karaiyar caste”: CB 495-496 at [18];
b)made the following key findings and statements in relation to the applicant’s claims:
i)the applicant was not a credible witness or a witness of truth: CB 497 at [25] and CB 499 at [35];
ii)the applicant is an ethnic Tamil born in a village in the North-Western province of Sri Lanka and was employed there as a fisherman: CB 499 at [36];
iii)the applicant and his father may have supported a political party, the UNP, but the Tribunal did not accept that the profile of the applicant or his father was anything other than that of low level supporters, and did not accept that the applicant was detained and beaten by the police following an altercation with the opposition party, as the Tribunal did not find the applicant a credible witness: CB 500 at [39];
iv)the applicant had never been a member or supporter or associated in any way with the LTTE: CB 502 at [47];
v)that it did not accept that the applicant would be imputed as being pro-LTTE and having anti-government sympathies on the basis of:
1. his failure to attend a protest or demonstration on 1 May 2012: CB 500-501 at [40]-[42];
2. his membership of the Karaiyar caste: CB 502 at [47];
3. fisherman in his village having helped the LTTE during the Sri Lankan civil war: CB 502 at [48];
4. the departure of the applicant’s older brothers from Sri Lanka: CB 502 at [51];
5. two incidents with the Sri Lankan navy: CB 503 at [55]; and
6. his illegal departure from Sri Lanka: CB 503 at [56];
vi)the applicant may have come to the notice of the Sri Lankan navy for fishing without a pass and being accused of travelling within an exclusion zone close to the navy base, but found that the applicant would not face a real chance of harm at the hands of the Sri Lankan navy or any other person or authority in the future if he returned to his occupation of fishing on his return to Sri Lanka: CB 503 at [55];
vii)that it did not accept that the applicant had ever had or will in the future have, a profile as a member of the diaspora or be considered to be a Tamil activist working for a separate Tamil state: CB 504 at [58];
viii)while there would be some monitoring of the applicant on his return to Sri Lanka on the basis of his Tamil ethnicity, the possibility that the level of monitoring would amount to persecution was remote: CB 504 at [61];
ix)while the applicant would face some harassment and discrimination because of his Tamil ethnicity, was not satisfied that this would amount to a real chance of serious harm, including any denial of access to health and education, or the ability to subsist, or any denial of social or economic rights as a result of his ethnicity or membership of any particular social groups: CB 505 at [62] and [65];
x)considering the applicant’s individual circumstances and his profile cumulatively, did not accept that the applicant would face a real chance of serious harm because of an actual or imputed political opinion as a member of, or a person supporting, the LTTE or opposing the current Sri Lankan government if he returned to Sri Lanka now or in the reasonably foreseeable future: CB 506 at [69];
xi)the applicant may be identified as a person who has unsuccessfully sought asylum in Australia: CB 506 at [73], and accepted that the applicant’s arrival would be noted, and that he may be questioned by the Sri Lankan authorities, but did not accept that, as a returning failed Tamil asylum seeker, he faced a real chance of harm at any point after returning to Sri Lanka, either at the airport or when returning to his village: CB 507 at [76];
xii)the applicant is likely to be charged with breach of Sri Lanka’s departure laws under s.45(1)(b) of the Immigrants & Emigrants Act 1949 (Sri Lanka) (“I&E Act”) and held on remand pending a bail hearing: CB 507 at [78], but was not, however, satisfied that the treatment faced by the applicant as a returnee who departed Sri Lanka illegally would give rise to persecution as contemplated by s.91R(1)(c) of the Migration Act: CB 509 at [84] and [87]; and
xiii)the likelihood of the applicant being considered a person who might be sympathetic to the LTTE or a person who should be detained pursuant to the POT Act for any other reason, was remote: CB 510 [88] and [90];
c)after considering the applicant’s claims individually and cumulatively, the Tribunal concluded that the applicant did not have a well-founded fear of persecution for a Convention reason and did not satisfy the criterion set out in s.36(2)(a) of the Migration Act: CB 510-511 at [91]-[93]; and
d)in considering the complementary protection criterion, the Tribunal, for similar reasons, found that the applicant failed to meet the requirements in s.36(2)(aa) of the Migration Act: CB 511-513 at [94]-[108].
The Third Tribunal Decision was handed down on 22 January 2016: CB 487-538.
Judicial Review Application
On 22 February 2016 the applicant applied to this Court for judicial review of the Third Tribunal Decision. The applicant filed an affidavit with the Judicial Review Application which did no more than annex the Third Tribunal Decision.
The applicant sought review of the Third Tribunal Decision on the following grounds:
1.Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra-virus.
(Transcribed from the original without amendment).
The grounds of review were not supported by particulars.
On 30 March 2016 a Registrar of the Court made orders (“March 2016 Orders”) to prepare the Judicial Review Application for hearing, and ordered that by 22 June 2016 the applicant file and serve an amended Judicial Review Application giving particulars of the grounds of review and any further affidavits upon which he intended to rely at the hearing of the matter, and an outline of submissions not less than 42 days before the hearing. The applicant did not file any amended Judicial Review Application, further affidavits or an outline of submissions in accordance with the March 2016 Orders.
The Minister’s written submissions filed in accordance with the March 2016 Orders asserted that there was no jurisdictional error in the Third Tribunal Decision on the grounds relied on by the applicant, and that the failure to particularise the grounds warranted the dismissal of the Judicial Review Application in any event.
At hearing the applicant made an oral submission (Transcript at page 3) that:
a)persons returning to Sri Lanka having sought asylum overseas were subject to assault and torture, and some people were missing; and
b)it was not possible to get people to give evidence about this as they were scared of the Sri Lankan authorities.
At hearing the applicant also handed up a document comprising a letter addressed to the Court and three annexed documents, which were marked as Exhibit 1.
Both the oral submissions made at hearing and the claims made in Exhibit 1 are dealt with below: see [23]-[41] below.
Consideration
Jurisdictional error required
The Third Tribunal Decision may only be set aside upon judicial review by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ; Craig v South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
No merits review
By making this Judicial Review Application to the Court the applicant is not entitled to a general review of the merits of the Third Tribunal Decision or his claims for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Failure to particularise
The failure to particularise a ground of review is itself sufficient to warrant dismissal of a ground of review. In WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (“WZAVW”) the Federal Court observed as follows:
Ground two is, I agree, an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection[2014] FCA 969.
In this case, the applicant has failed to particularise any of the three grounds of review in the Judicial Review Application as filed. Moreover, there is no evidence from which any particulars might be drawn by the Court, and, in the circumstances, that is sufficient to warrant the dismissal of the three grounds of the Judicial Review Application as filed: WZAVW at [35] per Gilmour J, and the cases there cited. See also AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard. Further, and in any event, none of the three grounds of the Judicial Review Application as filed are made out for reasons which follow.
Ground 1
With respect to ground 1, alleging, essentially a failure to provide natural justice (or procedural fairness), the Court notes that:
a)the Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in his case: CB 398-399;
b)the Tribunal had before it lengthy written submissions from the applicant’s representatives: CB 409-443;
c)the applicant attended the hearing and gave evidence with the assistance of a Tamil interpreter, and his registered migration agent was also in attendance: CB 488 at [4];
d)the Tribunal put to the applicant information that would comprise the reasons for affirming the Delegate’s Decision and invited him to respond: CB 499-513 at [36]-[111] generally;
e)the Tribunal had before it lengthy post-hearing submissions from the applicant’s representatives: CB 446-480; and
f)the Tribunal addressed the claims made by the applicant in the Third Tribunal Decision: see CB 499-513 at [36]-[111] generally.
As this was a case to which s.422B of the Migration Act applied, the applicant was entitled only to the rights afforded him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the applicant was invited to and attended, and gave evidence at, the Tribunal hearing, and had matters which concerned the Tribunal put to him for comment. Thereby, the applicant was afforded procedural fairness: Migration Act, s.425(1); SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
Ground 1 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Third Tribunal Decision.
Ground 2
With respect to ground 2 the Court’s view is that the Tribunal has identified and applied the correct legal principles (which are set out at CB 514-516 at [113]-[123]). The Tribunal’s analysis of the applicant’s claims reveals no error of law, on the face of the record or otherwise, in the Third Tribunal Decision.
Ground 2 of the Judicial Review Application is not made out and does not establish jurisdictional error in the Third Tribunal Decision.
Ground 3
With respect to ground 3, the applicant has failed to identify any delegated legislation upon which he relies or which was applied by the Tribunal, and where, as here, no delegated legislation was applied by the Tribunal, ground 3 is entirely baseless and must fail. No jurisdictional error in the Third Tribunal Decision is therefore established by ground 3.
Applicant’s oral submissions
The applicant’s oral submissions are summarised at [10] above. They amount to no more than a claim that failed asylum seekers returning to Sri Lanka will suffer persecution, or assault or torture, at the hands of Sri Lankan authorities. The risk of the applicant suffering serious harm for a Convention reason, or significant harm for the purposes of complementary protection, was comprehensively examined and dealt with by the Tribunal in the Third Tribunal Decision at CB 505-510 at [66]-[90] and CB 511-513 at [94]-[108]. In the circumstances, the submissions simply seek impermissible merits review contrary to the long-standing principles flowing from Wu Shan Liang.
The Court also notes that the claim concerning the inability to get people to give evidence because they are scared of the Sri Lankan authorities does not appear to have been a claim made before the Tribunal, and therefore cannot be considered by this Court, but, in any event, the allegation is subsumed by the findings of the Tribunal in relation to whether or not the applicant would suffer serious harm for a Convention reason, or significant harm for complementary protection purposes, on return to Sri Lanka: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
In the circumstances, nothing in the applicant’s brief oral submissions at hearing establishes jurisdictional error in the Third Tribunal Decision.
Exhibit 1
Exhibit 1, which was handed up by the applicant at hearing, comprises a letter from the applicant addressed to the Court (“Applicant’s Letter”), and the three documents marked 1, 2 and 3 referred to at [8] in the Applicant’s Letter.
The terms of the Applicant’s Letter are as follows:
1.I am the Applicant in the above case
2.I do not have a lawyer to appear on my behalf. My submission is that the second respondent did not discharge his functions in a proper manner by not examining the real situation in my village of … [village name deleted] that had an intrinsic connection with the east coast of Sri Lanka which was the scene of the Tamil revolt which lasted for over 40 years.
3.This intrinsic connection was the social circumstances of the majority of the village and myself being members of the Karaiyar caste, which took the major part in this revolt
4.The leader of the revolt … [name deleted] was a member of this caste
5.The prevention of terrorism act which was passed in 1978 has subsequently been made a part of permanent law in Sri Lanka, and is specifically aimed at the Tamil community and more so to young Tamils who have been active fishermen and belong to the Karaiyar Caste.
6.In an ethnic and social context I fall into this category, more so as other members of my family have been suspected of being members of the LTTE.
7.The second respondent was biased in assessing my credibility. Credibly should be assessed in the context of the mental strain I underwent, which would have naturally in my view lead to certain contradictions. I was also mentally depressed.
8.The situation in Sri Lanka and in … [village name deleted] continues to be the same for the last so many years and it is not safe for me to return to Sri Lanka. I submit the following documents to point to present situation in Sri Lanka which is a continuation of the same situation when the second respondent examined my case for a protection visa:
a)Document marked 1 article by Bruce Haigh a former diplomat
b)Document marked 2 – an extract from the Oakland Institute in the USA titled – The Long Shadow of War – The Struggle of Justice in Post war Sri Lanka.
c)Document marked 3 – An extract from a report: Sri Lanka October 2016 signed by Nalliah Suriyakumaran, Father Jordan, A Ratnakanthan, Chris Slee, Michael Cook
I therefore, appeal to your Honour to order a new enquiry to be made to my claims for a protection visa to remain in Australia as I was not given a fair or adequate assessment by the second respondent who has therefore not discharged his responsibilities and fell into jurisdictional error.
(Transcribed from the original without amendment, save for deletions to comply with the anonymisation requirements of s.91X of the Migration Act).
The Court will treat [2]-[8] of the Applicant’s Letter as further grounds of review, being Applicant’s Letter – Grounds 2-8.
In relation to Applicant’s Letter – Grounds 2-6 generally the submissions deal with factual matters and, at least implicitly, seek that the Court undertake impermissible merits review: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. More specifically, however, the Court observes that:
a)in relation to Applicant’s Letter – Ground 2 that the Tribunal examined the situation in the applicant’s village, noting that he was born and resided there, and that it was the appropriate place of reference, and that his claims were considered on the basis that he would return there: CB 507 at [76], and in that regard the Tribunal had regard to country information which dealt with the relevant circumstances in that village in the context of the Tamil uprising, as well as events subsequent to the cessation of the Sri Lankan civil war in 2009: CB 499 at [36]; CB 505-506 at [62]-[68]; CB 507 at [76];
b)in relation to Applicant’s Letter – Ground 3 the Tribunal had regard to the fact that the applicant was a member of the Karaiyar caste, and concluded that this did not result in his having a profile which was perceived to be anti-government or that of a supporter of the LTTE: CB 501-502 at [46]-[47]; CB 505-506 at [62]-[68] and CB 510 at [90]-[91];
c)Applicant’s Letter – Ground 4 takes the matter no further, as it simply names an alleged leader of the Tamil uprising and notes that he was a member of the Karaiyar caste;
d)in relation to Applicant’s Letter – Ground 5 the Tribunal expressly considered the provisions of the POT Act and the likelihood of the applicant being considered a person who might be detained pursuant to the POT Act (or for any other reason), and concluded that that possibility was remote: CB 510 at [88]-[90] and CB 511 at [97], and did so in the context of its overall consideration of the applicant as being an ethnically Tamil fisherman belonging to the Karaiyar caste: CB 510 at [90] and CB 511 at [97]; and
e)in relation to Applicant’s Letter – Ground 6 the Tribunal dealt with the question of whether or not the applicant might be suspected of being a member of the LTTE, and concluded that the applicant had never been a member or supporter or associated in any way with the LTTE: CB 502 at [47], and, as with Applicant’s Letter – Ground 5, the likelihood of him being considered to be a person sympathetic to the LTTE was remote: CB 510 at [88]-[90] and CB 511 at [97].
It follows from the above that Applicant’s Letter – Grounds 2-6 establish no jurisdictional error in the Tribunal Decision, and in fact seek no more than impermissible merits review: Wu Shan Liang.
In Applicant’s Letter – Ground 7 the applicant alleges bias by the Tribunal in assessing the applicant’s credibility.
In Applicant’s Letter – Ground 7, the applicant has made no attempt to comply with the requirement that the serious allegation of bias made by him be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD at [69] per Gleeson CJ and Gummow J (“Jia Legeng”). There is no evidence:
a)that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper assessment of the applicant’s credibility: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the assessment of the applicant’s credibility: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The allegation of bias was not particularised in any way, save to assert that credibility should have been assessed having regard to the mental strain that the applicant underwent in the process, and also because the applicant was mentally depressed. The Tribunal did have regard to the fact that it needed to be sensitive to asylum seekers, and, where possible, to give them the benefit of the doubt in relation to claims made: CB 497 at [21]. Further, insofar as the applicant alleges that he was “mentally depressed”: CB 498 at [30]-[32], there was no evidence to support that assertion: CB 498 at [32]. Judgments of the Federal Court and this Court, both in migration proceedings and other proceedings, establish that a person alleging a medical condition, and seeking to rely upon that medical condition for the grant of an indulgence (whether before the Tribunal or in the courts), needs to give sworn evidence concerning the medical condition: see, for example NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [5]-[10] per Lindgren J; BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 at [35] per Perry J; AWX16 v Minister for Immigration & Anor [2016] FCCA 928 at [45(e)] per Judge Lucev; Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]-[49] per Collier, Griffiths and Mortimer JJ; Ellis v Rottnest Lodge (1989) Pty Ltd Trading As Rottnest Lodge (No 2) [2017] FCCA 190 at [35] per Judge Lucev.
In relation to the particulars of Applicant’s Letter – Ground 7 the Tribunal considered the mental strain upon the applicant: CB 497 at [21] and CB 498 at [30]-[32], and had no medical evidence before it that the applicant was mentally depressed.
Bias is not established merely because the Tribunal forms an adverse view of the applicant’s credibility: W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [64] per Tamberlin and RD Nicholson JJ; SZKGS v Minister for Immigration & Anor [2007] FMCA 1549 at [14] per Turner FM (an appeal by the applicant to the Federal Court, which was dismissed, did not raise the bias issue: SZKGS v Minister for Immigration & Citizenship [2007] FCA 1955, and a subsequent application to the High Court for special leave to appeal was also dismissed: SZKGS v Minister for Immigration & Anor [2008] HCASL 253).
In all of the above circumstances, Applicant’s Letter – Ground 7 is not made out, and establishes no jurisdictional error in the Tribunal Decision.
Applicant’s Letter – Ground 8 seeks to submit further documents in support of the Judicial Review Application, namely:
a)document 1, an article published in The Age newspaper on 6 February 2017 by Bruce Haig a former diplomat (“Haig Article”);
b)document 2, an extract from a report published by the Oakland Institute in the United States in 2015, being the Executive Summary to that report (“Oakland Institute Executive Summary”); and
c)document 3, an extract from a report entitled “Information Report: Sri Lanka – October 2016” (“Information Report”), seemingly prepared by five individuals and dated December 2016.
On an application for judicial review of a decision of the Tribunal it is not open for this Court to have regard to material which was not capable of being put before the Tribunal because it post-dated the Tribunal Decision. To do so would be to embark upon fact-finding, and not judicial review, in respect of material which because of its post-Tribunal Decision origins, cannot give rise to jurisdictional error in the Tribunal Decision. The choice of country information and the factual findings arising from it, where those factual findings are, as here, open on the available material, are matters for the Tribunal as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. The Tribunal cannot commit jurisdictional error by failing to have regard to relevant material which was not in existence at the time of the Tribunal Decision, and the Court cannot have regard to such material: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J (“WZATI”). On this basis, the Court cannot have regard to the Haig Article or the Information Report as they both post-date the Tribunal Decision.
As to the Oakland Institute Executive Summary it is not possible to tell whether or not it post-dates the Tribunal Decision made on 23 October 2015. The most that can be said in relation to the Oakland Institute Executive Summary is that it bears a copyright claim marked 2015, and the text (which is only a page and a half) refers to incidents as late as the proposed release of a United Nations report in March 2015, and its postponement for six months following the election of a new government in Sri Lanka in January 2015. In any event, the Oakland Institute Executive Summary was not before the Tribunal, and there is nothing in the page and a half Oakland Institute Executive Summary which indicates that, other than in a very general sense, it has any relevance to the claims of the applicant. In particular, the Oakland Institute Executive Summary does not deal with the claims specifically made by the applicant. Even if it did, it would be no more than an impermissible invitation for the Court to conduct a merits review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In the circumstances, the documents referred to at Applicant’s Letter – Ground 8 are neither relevant nor admissible: Evidence Act 1995 (Cth), s.56(2), and the Court has had, and can have, no regard to them: WZATI at [70] per Barker J.
In the circumstances, the Applicant’s Letter – Ground 8 cannot be made out, and does not establish jurisdictional error in the Tribunal Decision.
Generally
The Tribunal addressed all of the applicant’s claims as put forward in the applicant’s statements and submissions and did not fail to take into account any relevant considerations or take into account any irrelevant considerations. The Tribunal specifically considered the claim relating to the POT Act which was not considered in the First Tribunal Decision: CB 510 at [88]-[90] and CB 511 at [97].
The Tribunal’s consideration of the applicant’s claims was comprehensive and it made findings and reached conclusions that were open to it on the evidence, including its adverse view of the applicant’s credibility. There is nothing illogical or irrational in the Tribunal’s reasons, and there is an evident and intelligible justification for the conclusions in the Third Tribunal Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181.
Conclusion and orders
In relation to each of:
a)the three grounds of the Judicial Review Application as filed;
b)the applicant’s oral submissions at hearing; and
c)the Applicant’s Letter – Grounds 2-8,
the Court has concluded that the Third Tribunal Decision is not affected by jurisdictional error. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 31 March 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
-
Procedural Fairness
-
Jurisdiction
4