AKZ16 v Minister for Immigration

[2016] FCCA 2821

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKZ16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2821

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal made erroneous findings of fact – whether applicant denied procedural fairness – impermissible merits review – no denial of procedural fairness – no error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a) &(aa), 359AA, 425

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 228 CLR 152

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 75 ALD 151

Applicant: AKZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 63 of 2016

Judgment of: Judge Heffernan

Hearing date: 28 July & 7 September 2016

Date of Last Submission: 7 September 2016

Delivered at: Adelaide

Delivered on: 11 November 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The Application as amended is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 63 of 2016

AKZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review from a decision of the Administrative Appeals Tribunal dated 8 February 2016 that affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa.

2. The applicant appeared before me unrepresented, but with the assistance of a Sinhalese interpreter.  The Application for Review was lodged on 26 February 2016, and raises the following grounds:

   “1.The Tribunal concluded that “the applicant … fabricated the entirety of his claims and the Tribunal rejects these claims” (“the finding”).

   2.The finding was based on an erroneous interpretation of the evidence and, in particular, upon the identification of apparent conflicts in the testimony of the applicant in circumstances where no such conflict did exist in fact.”

3. On 8 April 2016, the Registrar gave the applicant leave to file and serve an amended application by 29 April 2016.  He was also given leave to file and serve such further material, including transcript of the proceedings before the second respondent, by that date.  The applicant was ordered to file and serve an outline of submissions 10 business days prior to the hearing date which was set at 28 July 2016.  Prior to that date, the applicant did not file any amended application, further materials, or an outline of submissions.

4. During the course of submissions, I gave the applicant permission to amend his application to add the following further grounds:

   “3.The applicant was denied procedural fairness because the Tribunal did not give him a meaningful hearing.

   4.The applicant was denied procedural fairness because he was misled into believing that the Tribunal would provide him with written notice of its concerns about his evidence.”

5. This matter first came before me for hearing on 28 July 2016.  During the course of submissions, it became apparent that the applicant wanted to file further material and raise an argument that he was not in a position to raise on that day.  Accordingly, this matter was adjourned.  During the period of the adjournment, the transcript of the proceedings before the second respondent was filed as a Supplementary Court Book.  The applicant filed a Statutory Declaration dated 5 September 2016, from his previous solicitor, Philip James Winter.

6. The applicant relies upon his affidavit dated 26 February 2016.  That affidavit annexes a copy of the decision of the Administrative Appeals Tribunal and repeats the grounds of application, but otherwise provides no further information.  The applicant also relied on the materials in the Court Book and the Statutory Declaration of Mr Winter.  The first respondent relied on the materials in the Court Book and Supplementary Court Book.

Background

1. The relevant background has been succinctly summarised by the first respondent.  The matters contained in that summary are not disputed by the applicant, and I have paraphrased them below.

2. The applicant is a Sri Lankan citizen and 49 years old.  He is a married man with three children.  His wife and children did not accompany him to Australia.  He arrived in Australia on 29 June 2012 and lodged his application for a protection visa on 7 January 2013.  That application was refused by a delegate of the Minister on 31 March 2014.  The applicant applied to the Tribunal for a merits review of the delegate’s decision.  That matter proceeded before the Tribunal on 4 November 2015, and on 5 February 2016 the Tribunal affirmed the delegate’s decision refusing to grant the applicant a protection visa.

3. The applicant became a police officer in Sri Lanka in 1990.  He worked in the North and North Western provinces of that country and had lived most of his life in Chilaw.

4. The applicant claimed to fear persecution based on his imputed political opinion.  He claimed that in 2006, he had arrested a driver of a Member of Parliament for the Chilaw area.  He claimed that this had adverse consequences for him and that he was targeted within the police by having done this and that he was transferred as a form of punishment.

5. As well as the driver for the Minister, the applicant claims that he arrested eight other supporters of the Member of Parliament.  After the driver had been taken into custody, the applicant claimed that he was pressured to release him, apparently at the behest of the Member of Parliament.[1]  He did not release the driver, took him to court, and the driver was sentenced.

   [1]     Court Book (‘CB’) p 89 at [28].

6. The applicant claimed that in 2012, he had executed a search warrant at a worksite in order to effect the arrest of a suspect.  When he attended at the worksite, he spoke with the supervisor and was advised that the suspect was not at work that day.  The applicant left, but took the view that the supervisor had probably been misleading him.  He returned to the worksite and interviewed the supervisor.  The supervisor called the Member of Parliament.  The applicant says that he then received calls from his superiors ordering him to return to the police station.

7. The applicant claimed that rather than complying with those orders, he sought advice from a judge, who then ordered that the suspect be brought to court the next morning.  The applicant says that he effected the arrest that evening and the next day brought the suspect to court.

8. Following this incident, the applicant says that he received a series of threatening phone calls and he sustained property damage to his house. He says that people were looking for him.  In spite of the fact that he reported the matter to police, they did nothing.  It was at this point that the applicant determined to flee the country.

Tribunal hearing

1. The applicant was represented at the Tribunal hearing by the solicitor Mr Winter. The applicant gave evidence at that hearing. The Tribunal member did not accept any of the claims made by the applicant. It found that his evidence was exaggerated, embellished and at times evasive. The Tribunal relied on country information, which it found directly contradicted the applicant’s chronology of events. That country information established that the Member of Parliament the applicant had referred to took office only in 2008, in other words, 2 years after the first of the events claimed by the applicant. The Tribunal found that there were numerous inconsistencies in the versions given by the applicant, as well as inherent contradictions between his statement at the time of the visa application, and the evidence given before the Tribunal. The Tribunal rejected that the applicant was a person in respect to whom Australia had protection obligations under the Refugees Convention, and accordingly, he did not satisfy the criterion set out in s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal considered the complimentary protection obligations, but was not satisfied that he was a person in respect of whom Australia owed such obligations under s.36(2)(aa). For that reason, the Tribunal affirmed the decision not to grant the applicant a protection visa.

Submissions

1. When the applicant appeared before me on 28 July 2016, he made the submission that there had been insufficient time before the Tribunal to raise all the matters that needed to be raised.  He submitted that the Tribunal had told him that it would let his advisor know by letter when the hearing could resume.  He said that the Tribunal had raised three issues with him and given him some time in which to respond.  Apparently this had no occurred.

2. In response to those submissions, Mr d’Assumpcao, for the first respondent, submitted that the submission was not in accordance with the application, but conceded that if necessary, it would be possible to grant leave to amend the application.  He also pointed to the fact that the applicant had been given leave to file further materials and had no done so.  He made the valid submission, that it is entirely incumbent upon an applicant to prove that the Tribunal had fallen into jurisdictional error.  It was submitted that it appeared, on the face of the materials, that the applicant had been afforded a meaningful opportunity to be heard by the Tribunal, which was the relevant statutory task.

3. Whilst the exact nature of the defect asserted by the applicant was not clear on that occasion, I adjourned the matter to enable him to obtain further materials.  It was indicated to the applicant that it would be necessary to file a copy of the transcript, an affidavit from his former solicitor, and to make an application to amend his proceedings.

4. As I have already noted, the applicant did file a statutory declaration prior to the adjourned hearing.  The first respondent filed the transcript.  On the adjourned date, I permitted the applicant to amend his application in the terms I have already detailed.

5. At the adjourned hearing, the applicant submitted that in November 2014, only half of his statement had been considered.  He said that he had been informed that a written letter regarding his case would be sent to his solicitor within a month.  He claims that he did not receive any such letter, and the next he heard from the Tribunal was that the decision of the delegate had been affirmed.

6. The Statutory Declaration of Mr Winter confirms that he appeared on behalf of the applicant before the Tribunal.  Mr Winter confirms that he has read the transcript of the Tribunal hearing and agrees that it was a true and accurate record of what transpired.  His Statutory Declaration referred to a passage in the evidence where the Tribunal member outlined some concerns that she had with the applicant’s evidence.  The relevant passage referred to is as follows:

   “So I’m just going to interrupt myself for a second.  Mr Winter, what I’m thinking is that this is getting a little complex and we’re running out of time.  What we might do is I will go ahead and outline these issues, and then you can provide me some maybe written submissions addressing these issues”.[2]

   [2] Transcript of Tribunal hearing at p 27 at [30].

7. Mr Winter states that he understood that the Tribunal would provide him with written advice of the issues of concern to it to which he was expected to provide a written response.[3]  Mr Winter states that this is in accordance with his previous experience of Tribunal procedure.  He made no note of the matters of concern raised with him by the Tribunal.  He believed that the comments made at the hearing, were simply an overview of matters of which he would be advised by the Tribunal in great detail at a later stage.

   [3] Statutory Declaration of Philip James Winter signed 5 September 2016 at [11].

8. Mr Winter did not receive a letter from the Tribunal, and accordingly wrote to the Registrar of the Tribunal on 16 November 2015, asking when he would receive a request from the Tribunal for further information or comments.  On 1 December 2015, his assistant was advised by telephone, that the Tribunal would not be sending a letter.  His assistant was advised by the Registrar that the matters of concern had been raised by the Tribunal member during the course of the hearing and that her comments could be found in the transcript.  Mr Winter then examined the transcript and refreshed his memory as to the remark made by the Tribunal member.  He took the view that the matters raised by the Tribunal were:

   “… too general and could only be explained by the applicant in person.  The weight to be given to any explanation required an assessment of the applicant’s credibility.  I was also of the view that the issues had already been foreshadowed by submission made prior to the commencement of the hearing and forwarded to the Tribunal on 13 August 2015.”[4]

   [4] Ibid at [18].

9. Mr Winter’s Statutory Declaration then summarises the effect of that previous submission, which was that the delegate had failed to pay sufficient regard to the language difficulties faced by the applicant and that in the application process, there were always dangers of errors and misunderstandings occurring as a result.  The submission suggested that the applicant’s evidence may not have been contradictory but incomplete, misconstrued or inaccurately interpreted.

10. For the first respondent, Mr d’Assumpcao made the submission that the applicant had been represented at the relevant time before the Tribunal.  His solicitor had laboured under a misunderstanding during the course of the hearing and immediately afterwards as to what the Tribunal had clearly said, namely that it would outline its concerns to him and give an opportunity for him to respond on behalf of the applicant.  Given that Mr Winter accepts that the transcript is a true and accurate record, and the applicant does not suggest otherwise, it is clear that what happened was that Mr Winter had simply misunderstood what the Tribunal said.  Further, the Statutory Declaration confirms that a forensic decision was made by the solicitor once the situation was confirmed by the Tribunal.  It is clear that the solicitor consulted the transcript and reached the conclusion that he could not address the concerns in a further written submission.  That was a tactical decision and one that was open to the solicitor.

11. Mr d’Assumpcao submitted that there could be no doubt that the Tribunal summarised its concerns at the hearing, and that it indicated that it would give the applicant a chance to respond in writing.  There was no denial of procedural fairness for two reasons: Mr Winter made a decision not to put in a further written submission on behalf of the applicant; and secondly, the Tribunal had accorded procedural fairness by outlining the concerns it had and providing an opportunity for a further written submission to be put to it.  The consequences of any tactical decision made by Mr Winter, or any misunderstanding on his part, could not have caused the Tribunal to fall into jurisdictional error.

12. With respect to the original grounds of application, the first respondent relied on its written submissions.  In essence, the respondent submits that the Tribunal made unimpeachable findings of fact and that no error, let alone a jurisdictional error, arises with respect to its treatment of the applicant’s claims.

Consideration

1. I will deal firstly with the amended grounds.  I am not satisfied that the Tribunal failed to accord the applicant a meaningful hearing.  I am also not satisfied that the applicant was denied procedural fairness by being misled by the Tribunal to the effect that they would provide his solicitor with a written list of matters upon which it wanted further submissions.

2. The obligation on the Tribunal under s.425(1) of the Act was to invite the applicant to appear before it and give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal complied with this obligation. It did provide the applicant with a meaningful opportunity to present his claims and present arguments. Unless the Tribunal puts an applicant on notice of issues beyond those raised by the delegate of the Minister, an applicant is entitled to assume that those issues considered dispositive by the delegate, were issues which arose in relation to the decision under review.[5]  In this matter, the Tribunal clearly had concerns about the evidence given by the applicant.  In fairness to the applicant, the Tribunal member outlined those concerns in detail.  To the extent that any of those concerns went beyond the issues regarded by the delegate as being the reason, or part of the reason, for declining the protection visa, the Tribunal complied with its duty to put the applicant on notice of those concerns.[6] The obligation under s.425 of the Act required the Tribunal to provide the applicant with a ‘real and meaningful’ invitation to present his case.[7]  I am satisfied that the applicant was not simply provided with a hollow invitation by the Tribunal.  He gave evidence and outlined his claims.  The Tribunal outlined the concerns it had with his evidence.  It then provided an opportunity for his representative to respond on his behalf.  There was no error in the procedure taken by the Tribunal.

   [5]     SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor (2006) 228 CLR 152.

   [6] Section 359AA of the Migration Act.

   [7]     Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 75 ALD 151.

3. There is no substance to the contention that the applicant was somehow denied procedural fairness because he had been misled by the Tribunal.  The Tribunal clearly indicated the basis upon which it was providing an opportunity to respond in writing, if he chose to do so.  His representative misunderstood what the Tribunal had proposed, but this was later clarified.  On reflection, the representative made the forensic decision not to provide a further written submission.  Whilst it is not referred to in the Statutory Declaration of the solicitor, it has not been suggested that any request was made to the Tribunal to reconvene in order to hear further evidence.  There is no jurisdictional error established with respect to this ground. 

4. With respect to the original grounds of application, I am not satisfied that the Tribunal fell into jurisdictional error simply because it concluded that the applicant had fabricated the entirety of his claims.  The Tribunal made significant findings of credit against the applicant.  It considered and analysed his evidence and did not accept it.  Ground one is simply an invitation for this Court to undertake an impermissible merits review.

5. Similarly, ground two is an invitation for the Court to consider the evidence and reach a different conclusion.  It is also a request for an impermissible merits review.  To the extent that ground two implicitly alleges that the reasoning of the Tribunal was unreasonable, illogical or irrational, I am not satisfied that this is the case.  No jurisdictional error has been established with respect to ground two.

6. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 11 November 2016