AMB15 v Minister for Home Affairs
[2018] FCA 1928
•3 December 2018
FEDERAL COURT OF AUSTRALIA
AMB15 v Minister for Home Affairs [2018] FCA 1928
Appeal from: AMB15 v Minister for Immigration & Anor [2018] FCCA 1857 File number(s): NSD 1088 of 2018 Judge(s): BURLEY J Date of judgment: 3 December 2018 Catchwords: MIGRATION – refusal of a protection visa application – whether there was jurisdictional error in the decision of the Tribunal – whether procedural fairness was denied – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 36(2)
Cases cited: AMB15 v Minister for Immigration & Anor [2018] FCCA 1857
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Date of hearing: 16 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 22 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr T Hillyard of Sparke Helmore Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1088 of 2018 BETWEEN: AMB15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
3 DECEMBER 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
The appellant is a 37 year old male citizen of Sri Lanka of Tamil ethnicity who came to Australia by boat as an irregular maritime arrival on 11 August 2012. He applied for a Protection (Class XA) visa, and claims that he is a person to whom Australia has protection obligations pursuant to s 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act). On 24 September 2013 a delegate of the Minister for Immigration and Border Protection refused to grant the appellant the visa and he then applied to the Refugee Review Tribunal for a review of that decision. On 26 March 2015 the Tribunal considered and then affirmed the decision of the delegate.
The appellant then applied to the Federal Circuit Court of Australia (FCCA) for an order that the decision of the Tribunal be quashed. On 6 June 2018 the primary judge heard and determined that application adversely to the appellant; AMB15 v Minister for Immigration & Anor [2018] FCCA 1857. The appellant then filed a Notice of Appeal in this Court. The ground of appeal that he relies upon is:
[His] Honour erred when [he] did not find that the Tribunal fell into jurisdictional error by denying the [appellant] procedural fairness by reason of there being a reasonable apprehension of bias and/or legal unreasonableness.
The appellant represented himself at the hearing of the appeal with the assistance of a Tamil interpreter, and filed no written submissions. The Minister filed written submissions in advance of the hearing and was represented at the hearing by his solicitors Sparke Helmore.
2. THE DECISION OF THE TRIBUNAL
The appellant appeared before the Tribunal on 10 February 2015 and gave evidence. He was represented by a registered migration agent.
The decision of the Tribunal notes that the evidence of the appellant consisted of the contents of his Protection visa application forms, his statutory declaration made on 29 November 2012, the evidence he gave during an interview with an officer of the department held on 11 October 2012, an audio record of his interview with the delegate (to which the Tribunal had listened) and his evidence at the Tribunal hearing.
The Tribunal summarised the appellant’s claims as being on the basis that he is a Tamil man from Colombo. He operated a small shop in a market, but was harassed by the Criminal Investigation Department of the Sri Lankan police (CID) to the point that he felt he could not continue the business. As a result of the harassment, he attempted to leave Sri Lanka illegally in 2009. That attempt was unsuccessful. He was apprehended by the navy, arrested, imprisoned for a period of months and also fined. After his release from prison he was again harassed and apprehended by the CID members who had harassed him when he operated the shop. In July 2012 the appellant received a visit from members of the CID whom he did not recognise. They took his photograph and noted down the details of his passport and identity card. They made no accusation against him, and did not explain why they considered it necessary to visit him or take his details. The appellant was concerned that their conduct indicated that the CID intended to kill him. Accordingly, he left Sri Lanka illegally on a boat.
The Tribunal considered each of these claims in the context of the evidence that was placed before it. In a series of detailed findings it found that the evidence given by the appellant was not credible. The relevant conclusions that it reached in this respect are set out below:
45.At the beginning of the hearing, the Tribunal advised the applicant that although the delegate may have accepted as credible, aspects of his account, it was nevertheless the Tribunal’s task ultimately to decide whether or not his evidence was truthful. Considered cumulatively, the concerns the Tribunal holds about the applicant's credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. In reaching that finding the Tribunal carefully considered the contents of documents submitted by the applicant to the department and the Tribunal purporting to corroborate his claims.[6] However, they do not overcome the concerns the Tribunal holds about the applicant’s credibility which significantly discredit him as a witness. Accordingly, the Tribunal does not give evidentiary weight to these documents.
46.At the hearing, the representative submitted that it due to anxiety and the lapse of time since the events on which the applicant’s protection claims are based had occurred he was unable to clearly articulate his claims and consistently relate them. It was submitted that his overall account was consistent. The Tribunal disagrees with those assertions and finds that they are not the true reasons for the concerns the Tribunal holds about his credibility. In written submissions the representative referred to a media report issued in November 2009 about the Sri Lankan government intercepting boatloads of asylum seekers on their way to Australia.[7] The Tribunal disagrees with the submission that this demonstrates that the applicant’s claim to have attempted to leave Sri Lanka by boat in 2009 is credible. The report provided does not corroborate the applicant’s claims which the Tribunal finds are false.
47.The Tribunal disbelieves the applicant’s claims that he operated a business in which he was harassed by the CID; that he attempted to leave Sri Lanka illegally in 2009; that he was imprisoned in relation to that matter; that he had any dealings with the CID after that including his claims about being shown an official notice that he could be again arrested, that he was put on probation, that he was apprehended by them in April 2011, that they came to his home after that including in July 2012 (following which he went to the police). All of those claims are false. Because he is not a witness of truth the Tribunal also disbelieves certain residual claims. They comprise claims made by the applicant at his interview with an officer of the department in October 2012 that in 2002 he was arrested by police when he was working in a fish market; that his father passed away after being attacked by Sinhalese people [8]; that the applicant suffered discriminatory treatment in Sri Lanka (including a claim that Tamils were treated badly in prison - the Tribunal finding the applicant was never in prison).
48.There is no credible evidence that the applicant suffered harm from Sri Lankan authorities or anybody else in Sri Lanka. There is no credible evidence that anyone in Sri Lanka wishes to harm him. There is no credible evidence as to why the applicant left Sri Lanka and why he does not want to return there. The Tribunal accepts that the applicant is Hindu but he did not claim protection on that ground. The Tribunal therefore turns to an assessment of the risk of the applicant suffering serious harm in Sri Lanka on the only grounds which arise in this review which are that he is a Tamil man from Colombo who left Sri Lanka illegally in 2012 and will return there as a failed asylum seeker from Australia.
Having regard to these findings, the Tribunal determined that the appellant’s application for a protection visa should be refused.
3. THE DECISION OF THE FCCA
The appellant applied to the FCCA for orders quashing the decision of the Tribunal. In his amended application he alleged:
1.The Tribunal fell into jurisdictional error in that the Tribunal denied the applicant procedural fairness by reason of there being a reasonable apprehension of bias and/or legal unreasonableness.
Particulars
a. The applicant provided the following documents to the delegate:
i. Detention attestation [CB110-111];
ii. Detention order [CB112]; and
iii. Receipt of payment of fine [CB103-104].
b. The applicant provided a charge sheet to the Tribunal [CB225-228]. The Tribunal did not make any findings that the documents were not genuine.
c. The delegate accepted as credible aspects of the applicant’s claims except:
i. He was questioned by the CID in April 2011 and held overnight; and
ii.He was questioned by the CID in July 2012 and that he reported the harassment to the Kotahena Police.
d. The fact-finding by the Tribunal was performed in a manner which in major respect was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision;
e. The applicant submitted various documents from different authorities relating to his detention in November 2009. The Tribunal’s findings at [45] at [CB270] of an inconsistency in the applicant’s evidence as to whether he was released in January or February 2010 affected his credibility and did not give any evidentiary weight to his corroborating documents was capricious and legally unreasonable;
f. The Tribunal made findings that were not put to the applicant for comment that:
i. All of his claims were false in [46] at [CB271];
ii. He was never in prison in [47] at [CB271];
iii.There is no credible evidence that the applicant suffered harm from Sri Lankan authorities or anybody else in Sri Lanka in [48] at [CB271];
iv. The applicant was denied procedural fairness and the Tribunal acted in a manner that was capricious, arbitrary and legally unreasonable to such an extent that it is reasonable to apprehend that the Tribunal did not bring an impartial mind to bear on the decision.
The appellant represented himself before the FCCA.
The learned primary judge addressed each of the particulars set out above. He found that particulars (a) and (c) were factual narratives that raised no matter requiring consideration and that the matters raised in relation to particular (d) were not the subject of particulars and lacked meaningful substance.
In relation to particular (b), the appellant alleged that the Tribunal did not find, in terms, that the charge sheet he provided to it, and presumably the other documents referred to in [45] of the Tribunal’s reasons, were not genuine. The primary judge accepted that this was the case, but considered that the Tribunal did not need to make a finding in express terms as to whether the documents were genuine in order to reach a relevant conclusion in relation to them. The Tribunal’s conclusion was, in this case, that it accorded the relevant documents no weight. The primary judge considered that in the Tribunal’s eyes, the other parts of the applicant’s case were so lacking in credibility that the documents could not save it and that the Tribunal must be understood in the circumstances to have implicitly rejected the accuracy or the authenticity of the documents on that basis. The primary judge considered that the same conclusion followed in relation to particular (e).
In relation to particulars (f)(i), (ii) and (iii), which concerned allegations of lack of procedural fairness, the primary judge observed that the Tribunal had no duty to put to the appellant its thought processes or its conclusions so that he might comment on them. He also noted that the Tribunal’s concerns regarding the appellant’s credit had been put to him in comprehensive terms, a conclusion that the primary judge reached having regard to paragraphs in the Tribunal’s reasons which record matters upon which the appellant was questioned. More generally, the learned primary judge considered and rejected the claim made by the appellant that he was denied procedural fairness, having regard to the Tribunal’s obligations under s 424A of the Act. The unparticularised allegation of bias on the part of the Tribunal was also rejected.
In the conclusion the primary judge determined that the appellant had not demonstrated jurisdictional error on the part of the Tribunal and dismissed the application.
4. CONSIDERATION OF THE APPEAL
I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the visa or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Tribunal’s decision to refuse to grant the visa to the appellant. The jurisdiction of the FCCA is limited to considering only whether the Tribunal’s decision to refuse to grant the appellant a visa is lawful under the Act, that is, whether the decision of the Tribunal is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the Tribunal under s 24 of the Federal Court of Australia Act 1976 (Cth).
The grounds of the appeal before this court contain no particulars. For present purposes I assume in favour of the appellant that the grounds are intended to incorporate the grounds before the learned primary judge.
Turning to these, I see no error on the part of the primary judge in summarily concluding that the grounds identified in particulars (a), (c) and (d) as being of no substance. The first two of these are no more than recitations of factual matters. The third is not accompanied by any detail upon which it is asserted that the fact-finding by the Tribunal was capricious or arbitrary or otherwise unreasonable. The primary judge formed the view that, to the contrary, the Tribunal’s analysis was detailed and not affected by these alleged deficiencies. I have had regard to the reasons of the Tribunal in the context of the materials supplied and see no error on the part of the primary judge in reaching that conclusion.
The ground articulated in particular (b), is that the FCCA fell into jurisdictional error by reason of the fact that the appellant provided a charge sheet to the Tribunal but the Tribunal did not make any findings that the documents were not genuine. This ground is not easily understood. The learned primary judge took it to allege that the Tribunal erred by not giving consideration to the genuineness of the documents presented. In this regard the primary judge referred to the decision of the Tribunal at [45] (quoted in [7] above) and noted that the Tribunal reached the conclusion that the documents could be afforded no weight, having regard to its view of the lack of credibility of the appellant. The primary judge found that the Tribunal was entitled to form that view.
In my view this conclusion reflects no error. The role of fact finding and the weight to be placed on materials put before the Tribunal are not matters that can generally be revisited on appeal when the question of law is whether there has been a jurisdictional error. Neither the ground advanced by the appellant nor the reasons provided by the Tribunal suggest that the conclusion reached by the primary judge to the effect that no error is reflected in the reasons is incorrect. The same conclusion must be reached in relation to particular (e), which similarly complains about the Tribunal’s treatment of the contents of the documents relied upon by the appellant and to which the Tribunal referred at [45].
In particular (f) the appellant first contends (in sub-particulars (i), (ii) and (iii)) that the Tribunal erred by not putting to him for comment certain identified contentions set out in [46] – [48] of its decision. The decision of the Tribunal indicates that a great number of the matters that gave it concern about the truth of the claims advanced by the appellant, and which led to its conclusions as to the credibility of the appellant, were expressly put to him. The primary judge observes this at [17] of his reasons and provides some cross-referenced examples to support her view. Furthermore, the observation of the primary judge that the Tribunal has no duty to put its thought processes or conclusions to the appellant is unimpeachable.
In particular (f)(iv), the appellant next contends that he was denied procedural fairness and that the Tribunal acted in a manner that was capricious, arbitrary and legally unreasonable to such an extent that it is reasonable to apprehend that the tribunal did not bring an impartial mind to bear on the decision. No particulars are provided and in my view the primary judge was correct to reject each of these in the manner that he did.
5. DISPOSITION
The appeal must be dismissed and the appellant pay the Minister’s costs of the appeal.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 3 December 2018
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