ALU16 v Minister for Immigration

[2019] FCCA 22

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALU16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 22

Catchwords:
MIGRATION – Protection visa – application for judicial review of Tribunal decision – applicant claims to fear harm from neighbour from whom he had borrowed money – grounds of application expressed at high level of generality – whether applicant denied procedural fairness – whether Tribunal’s decision affected by affected by error of law or procedural fairness – whether legally unreasonable – no jurisdictional error shown – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 422B, 425A, 426A, 441A, 474, 476

Migration Regulations 1994 (Cth), reg 4.35D

Cases cited:

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

MZARG v Minister for Immigration and Border Protection [2018] FCA 624

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319

Plaintiff M76/2013 v Minister for Immigration and Border Protection (2013) 251 CLR 322

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

Singh vMinister for Immigration and Border Protection [2017] FCAFC 105
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: ALU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 418 of 2016

Judgment of: Judge A Kelly

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Melbourne

Delivered on: 17 January 2019

REPRESENTATION

The Applicant:	In person
Counsel for the Respondents:	Mr Petrie

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed on 3 March 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed at $7,206. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 418 of 2016

ALU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 3 March 2016, the applicant seeks judicial review of a decision of the then Refugee Review Tribunal (Tribunal) made on 15 February 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act). 

2. For the reasons that follow, the application must be dismissed.  There was no substance in the unparticularised grounds of review that the Tribunal’s decision was affected by an error of law or that the applicant had been denied procedural fairness.

Background

1. The applicant, a male Sri Lankan citizen aged 32 years, first came to Australia on 2 August 2012 as an unauthorised maritime arrival.   He is of Sinhalese ethnicity and of the Buddhist faith.

2. On 6 December 2012, the applicant lodged an application for a Protection (Class XA) visa.  By his application, the applicant claimed that, one or two months before coming to Australia, he had borrowed money which he could not repay.  He claimed that he had borrowed 500,000 rupees from a neighbour, Keerthi, who was said to be influential in politics and who had threatened to kill him following his default in repaying the loan.  He added that he had come to Australia because it had been his intention to study.

3. The applicant’s migration lawyers also attached a statutory declaration to his visa application in which he articulated the basis on which he claimed protection. The applicant claimed that he borrowed 50 lakhs (500,000 rupees) from his neighbour, Keerthi, to assist his family financially, promising to repay it within two months. The applicant claimed that when he was unable to repay the loan, Keerthi looked for him daily and threatened to kill him. The applicant stated that he had hidden at the home of his grandmother but Keerthi had come to his parents’ home on a daily basis threatening to kill him and, as he declared, then drink his blood.

4. The applicant claimed that Keerthi controlled politicians and police and that there was therefore no point in the applicant seeking assistance from the authorities. The applicant claimed that if he returned to Sri Lanka he would be harmed by Keerthi and possibly by the police.

5. On 29 August 2013, the applicant attended an interview with the delegate at which he then claimed that he had obtained the loan of 50 lakhs from Keerthi on 11 July 2011 for the benefit of a friend who had not repaid the loan and left the country in August 2011.  The applicant claimed that upon default in repayment, he went into hiding, variously staying at his grandmother’s home or the homes of his friends and occasionally at his parents’ home. The applicant also claimed that he worked full time in Colombo while he was in hiding from Keerthi.

6. On 11 December 2013, the delegate made a decision to refuse to grant the visa. The delegate did not accept the applicant’s claims on the basis that they were inconsistent.  The delegate cited credibility concerns and was not satisfied that the applicant borrowed money from Keerthi or had gone into hiding. The delegate concluded that applicant was not owed protection obligations by Australia.    

7. On 17 December 2013, the applicant applied to the Tribunal for a merits review of the delegate’s decision.

8. On 26 March 2014, the applicant’s migration lawyer lodged written submissions in support of the visa application. The submissions confirmed that the applicant claimed to fear persecution on account of his imputed political opinion and his membership of a particular social group, being a returnee from a western country/failed asylum seeker and a person unable to repay a debt to a loan shark.

9. On 25 August 2015, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments on the issues arising in relation to the decision under review.  The hearing was rescheduled on account of the applicant’s ill-health.

10. On 6 November 2015, the applicant attending the hearing before the Tribunal with the assistance of his migration lawyer.  Two letters were tendered from the applicant’s parents attesting to the danger which he would face from Keerthi if returned to Sri Lanka. 

11. On 27 November 2015, the applicant’s migration lawyers lodged a post-hearing submission with the Tribunal.

12. On 15 February 2016, the Tribunal affirmed the decision of the delegate to refuse the applicant a Protection visa, providing a statement of its reasons for doing so (Reasons).

Procedural History

1. On 3 March 2016, the applicant filed an application for judicial review of the Tribunal’s decision.

2. An affidavit affirmed by the applicant on 2 March 2016 exhibited a copy of the Reasons but adduced no further evidence in support of the application for judicial review.

3. By an Amended Response filed on 1 July 2016, the Minister contended that the Tribunal’s decision was not affected by jurisdictional error and was therefore a privative clause decision pursuant to s 474(2) of the Act and sought dismissal of the application with costs.

4. On 20 July 2016, orders were made by consent listing the matter for final hearing.  Further orders were made regulating the filing by the applicant of any amended application, affidavits, written submissions and a list of authorities.

5. The applicant did not file any further material. 

Consideration

1. Being a privative clause decision[1], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2]  Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]  The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.

   [1] Section 474(2).

   [2]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [3]             Sub-s 476(2).

   [4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

2. The application contains two grounds of review which read:

   The decision of the Tribunal:

   (a)     is affected by an error of law; and

   (b)     denied the applicant procedural fairness.

3. As is apparent, the grounds of review were wholly unparticularised.  On that basis alone, the application was liable to be dismissed.[5]

   [5]WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, [35] (Gilmour J); MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25], (McKerracher J).

4. As the applicant was self-represented I have examined the Reasons and the materials comprising the court book.

Ground 1 – error of law

1. The Reasons provided a summary of the application and identified the issue in the application as whether the applicant had a well-founded fear of persecution for a reason set out in the Refugees Convention: [6]. The Tribunal attached to its Reasons a statement of the applicable legal principles. There is nothing in that attachment which leads me to conclude that the Tribunal misstated those principles.

2. The Tribunal accepted that the applicant’s identity and nationality was Sri Lankan [8], and proceeded to identify the claims for protection which had been made by the applicant: [9]-[10]. Nothing in the Reasons causes me to consider that the Tribunal misunderstood the claims which were being made.

3. The Tribunal then undertook an assessment of the applicant’s claims to be a refugee: (a) debt to loan shark: [11]-[29]; (b) returnee from West/failed asylum seeker: [30]-[35]; (c) illegal departure: [36]-[41]. The Tribunal had serious credibility concerns in relation to the applicant’s substantive claim and did not believe that the applicant had borrowed money from Keerthi and for that reason did not accept that he or his family members had been threatened by him for default in repayment: [26]. Rejection of the substantive claim was largely dispositive of the subsidiary claims which were likewise rejected. I agree in the Minister’s submission that the Tribunal considered each of the applicant’s claims in detail.

4. The Tribunal found that the applicant did not face a real chance of persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future, that his stated fear of persecution was not well-founded and that he was not a person in respect of whom Australia owed protection obligations: [42]-[43]. Nor was it satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there was a real risk that the applicant would suffer significant harm and was, for that reason, owed complementary protection: [52].

5. The Tribunal was not required to otherwise consider an unarticulated claim which did not clearly arise from the material before it.[6]

   [6]NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [48]-[489], [55]-[63] (Black CJ, French and Selway JJ).

6. An error of law will constitute jurisdictional error on the part of the Tribunal where it “causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely upon irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion.”[7]  As the Minister submitted, the Tribunal was required to make its decision by reference to correct legal principles and to apply them correctly.[8]

   [7]Craig v South Australia (1995) 184 CLR 163, 179 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

   [8]Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319, [78]-[79] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); see also Plaintiff M76/2013 v Minister for Immigration and Border Protection (2013) 251 CLR 322, [216] (Kiefel and Keane JJ).

7. I see no error on the part of the Tribunal in its statement of the applicable legal principles or in its application of those principles to the facts of the application on its conduct of a merits review. 

8. Ground 1 is rejected.

Ground 2 – procedural fairness

1. The Tribunal was obliged to afford the applicant natural justice.  This meant that the applicant was entitled to a fair process and hearing.

2. Insofar as it deals with the subject, an exhaustive statement of the natural justice hearing rule is provided by Div. 4, Part 7 of the Act which concerns Part 7-reviewable decisions: Conduct of Review.[9]   In applying the provisions of Div. 4, the Tribunal was obliged to act in a way that was fair and just.[10]  In my view, it did so.

   [9] s 422B(1).

   [10] s 422B(3).

3. The applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments on the issues arising in relation to the decision under review.[11] The notice of invitation complied with the requirements of s 425A(2). The applicant was informed of the time and place of the scheduled hearing, which notice was transmitted by post to the applicant’s migration lawyers.[12] The period of notice given was in excess of the required period of notice: Reg 4.35D of the Migration Regulations 1994 (Cth). The notice contained a statement of the effect of s 426A.[13]

   [11] s 425A(1).

   [12] s 441A(4).

   [13] s 425A(4).

4. The Tribunal was obliged to act reasonably in deciding the application. The applicant had been requested to lodge submissions and took the opportunity to do so, both before and after the hearing.

5. The hearing was conducted on 6 November 2015.  The applicant was represented by his migration lawyer at that hearing.  He gave evidence and made submissions at that hearing.  The issues arising on the decision of the delegate under review were canvassed with him.

6. In the circumstances described above, the Tribunal applied the provisions in Div. 4 in a way that was fair and just and did not fail to accord the applicant procedural fairness, natural justice or deny him an opportunity to address the issues arising on the decision under review.

7. Ground 2 is rejected.

Conclusion

1. I have considered whether the Tribunal’s conduct in deciding the application was legally unreasonable.  While the Tribunal was obliged to act reasonably in deciding the application, the test of legal unreasonableness is a stringent one.[14]  I am not satisfied that the Tribunal’s conduct of the hearing of the application, in proceeding to decide the application demonstrates that it acted in a way which should be characterised as legally unreasonable.  It allowed the applicant further time in which to file further submissions.  Having regard to the power which was being exercised, its decision did not lack an intelligible justification or a rational foundation.  Nor was it plainly unjust or lacking in common sense.[15]   The Tribunal’s conduct in proceeding to complete its review cannot be described as legally unreasonable, in the sense of being without any legal justification.[16]

   [14]           Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [113] (Gageler J).

   [15]Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [41] (Allsop CJ).

   [16]Singh vMinister for Immigration and Border Protection [2017] FCAFC 105, [80] (Mortimer J, Jagot and Bromberg JJ agreeing).

2. As I discern no error which would support the grant of relief sought in this application and as the grounds of review are not made out, the application must be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 17 January 2019