ANG16 v Minister for Immigration

[2019] FCCA 101

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANG16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 101

Catchwords:
MIGRATION – Protection visa – application for judicial review of Tribunal decision – applicant claims to fear harm from Sri Lankan authorities – 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, 441A, 474, 476.

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, Multicultural Affairs and Citizenship (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: ANG16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 479 of 2016

Judgment of: Judge A Kelly

Hearing date: 4 October 2017

Date of Last Submission: 4 October 2017

Delivered at: Melbourne

Delivered on:  24 January 2019

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: The Australian Government Solicitor

ORDERS

1. The Application filed on 10 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 479 of 2016

ANG16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 10 March 2016, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on made on 10 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(b) of the Migration Act 1958 (Cth) (Act).

2. As will be seen, the grounds of review were wholly unparticularised.  Nothing was said as to why an error of law had been committed or how the applicant had been denied procedural fairness.  As the applicant was self-represented, I have re-examined the materials comprised in the court book.  I see no basis for a conclusion that the decision or the Tribunal’s conduct was legally unreasonable.

Background

1. The applicant, a Sri Lankan national aged 30 years who is of Tamil ethnicity and Hindu religion, first arrived in Australia on 24 July 2012 as an irregular maritime arrival.

2. On 13 December 2012, the applicant applied for a Protection (Class  XA) visa.  The applicant provided a statutory declaration made on 13 December 2012 in Killinochi in the Northern Province of Sri Lanka in which he claimed to have worked in a shop selling bicycle parts,  The applicant claimed that one of his brothers, Saravana Bavanthan, had been forcibly taken by the Liberation Tigers of Tamil Eelam (LTTE) in 2009 and that he had not been seen since.  The applicant claimed that about one month and repeatedly thereafter he had been interrogated by the army as to whether he had any LTTE involvement and also as to his brother’s whereabouts.  The applicant further claimed that another of his brothers, Chandra Kumar, had been granted refugee status in Australia.  The applicant feared he would be harmed or killed by the authorities if he returned to Sri Lanka.

3. On 20 December 2013, the delegate refused the visa application on the basis that his claims were not considered to be credible.  The delegate’s Decisional Record gave provided reasons for that decision.

4. On 3 January 2014, the applicant lodged an application for review to the then Refugee Review Tribunal. The applicant was assisted in his application by his migration agent.

5. On 29 July 2014, the applicant’s representative made submissions in support of the application for review.  The submissions contained country information and concluded that the applicant feared he would be arrested, questioned and seriously harmed by Sri Lankan authorities on account of his Tamil race and presumed support of the LTTE if he was returned.

6. On 5 January 2016, the applicant was invited to appear before the Tribunal on 27 January 2016 to give evidence and present arguments relating to the decision under review.  The applicant attended that hearing and was assisted by his migration lawyer and an interpreter.

7. On 21 January 2016, the applicant’s migration agent made further submissions, including by way of updated country information.

8. On 11 February 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa, providing a statement of its reasons for that decision (Reasons).

9. In its Reasons, the Tribunal accepted that the applicant’s brother Saravana Bavanthan had been abducted by the LTTE in 2009 and that this had probably been with the object of forcibly recruiting him.  The Tribunal accepted that the applicant’s family had not heard from the applicant’s brother, Saravana, since that time.  The Tribunal accepted that although the applicant was vague about the reasons, the applicant’s brother, Chandra Kumar, had been granted refugee status in Australia.  The Tribunal also accepted that another of the applicant’s brother, Yogeswaran, has sought, and was awaiting asylum in Switzerland.

10. Although the Tribunal accepted that in early 2010 the applicant had been asked to attend an army camp for questioning as to the whereabouts of his brother, Chandra Kumar, it did not accept that the applicant had been handcuffed or mistreated. The Tribunal was also concerned that the applicant changed his evidence regarding the number of times that he was questioned at the camp. 

11. The Tribunal placed great weight on its discussion with the applicant and the lack of information regarding attempts by the Sri Lankan authorities to locate him since his departure in July 2012.  The Tribunal found that the authorities had not inquired about the applicant after his departure, either before the date of his statutory declaration or after that time.  Furthermore, the Tribunal found that shortly after January 2010, the authorities ceased to have any interest in the applicant.  

12. The Tribunal did accept that the questioning at the camp may have had a deleterious effect on the applicant’s ability to arrive at work on time and may have led to him losing some work, but found that it did not have a significant impact on the applicant’s ability to work.

13. The Tribunal considered the applicant’s claim that he faced difficulty in practicing his Hindu religion on the basis that Buddhist statues had been placed in the Hindu temple near his house in Kilinochi where his family had traditionally done Puja.  The Tribunal found the applicant to be evasive when answering questions about this topic.  The Tribunal found that the applicant’s family continued to do Puja and that the applicant would also be able to do so if he returned.  The Tribunal concluded that although this might cause the applicant some discomfort, it would not rise to the level of serious or significant harm.

14. The Tribunal discussed the applicant’s claims to fear harm because he departed Sri Lanka unlawfully, and accepted that although the applicant would be charged under the Immigrants and Emigrants Act and briefly detained, it was satisfied that there was not a real chance the applicant would be singled out or treated differently for any one or more of the five Convention reasons.

15. The Tribunal concluded that upon a consideration of the totality of the applicant’s circumstances, there were no substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there would be a real risk that the applicant would be arbitrarily deprived of his life; that the death penalty be carried out on him; that he would be subjected to torture; that he would be subjected to cruel or inhuman treatment or punishment or that he would be subjected to cruel or inhuman treatment as defined.  The Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations.

Procedural History

1. On 10 March 2016, the applicant filed an application for judicial review of the Tribunal’s decision.

2. The applicant affirmed an affidavit on 9 March 2016 to which he exhibited a copy of the Tribunal’s decision but which adduced no further evidence in support of his application for judicial review.

3. By a Response filed on 22 March 2016, the Minister contended that the application should be dismissed on the ground that the decision under review was not affected by jurisdictional error.

4. On 3 August 2016, orders were made, by consent, that the application be listed for final hearing. By this Order, the applicant was afforded an opportunity to file an amended application with proper particulars of the grounds of the application, together with a supplementary court book and written submissions in support of their application. The applicant did not do so.

5. On 13 September 2017, the Minister filed submissions which were responsive to the matters raised in the application.

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.  Nothing was said as to why an error of law had been committed or how the applicant had been denied procedural fairness.  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 stated above, 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: [1]-[2]. 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 identified the claims for protection which had been made by the applicant and detailed the evidence which was considered: [3]-[26]. Nothing in the Reasons causes me to consider that the Tribunal misunderstood the claims which were being made. The Tribunal accepted the applicant’s Sri Lankan identity and nationality [27].

3. I have set out above the Tribunal’s assessment of the applicant’s claims.  The Tribunal was not required to otherwise consider an unarticulated claim which did not clearly arise from the material before it.[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]

   [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).

   [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).

4. 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. 

5. 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 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] 

   [11] s 425A(1).

   [12] s 441A(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 27 January 2016.  The applicant was represented by his migration lawyer at that hearing.  He gave evidence and made submissions at that hearing.  The issues arising from  the decision of the delegate under review were canvassed with him.

6. In the circumstances described above, the Tribunal applied the provisions in Part 7, Div. 4 in a way that was fair and just and according to the substantial justice and merits of the case. It 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.[13]  I am not satisfied that the Tribunal’s hearing of the application, including 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.[14]   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.[15]

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

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

   [15]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: 24 January 2019