ANR15 v Minister for Immigration
[2016] FCCA 988
•29 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANR15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 988 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Sri Lankan citizen – whether bias – whether wrong issue and wrong question considered – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 46A, 91R(1)(c), 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 SZTAL v Minister for Immigration & Anor [2015] FCCA 64 Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 |
| Applicant: | ANR15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 162 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 April 2016 |
| Date of Last Submission: | 20 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 April 2016 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms E Tattersall |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 162 of 2015
| ANR15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 21 April 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“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”).
A copy of the Tribunal Decision is at Court Book (“CB”) 175-219.
Factual context
The factual context is as follows:
a)the applicant is a citizen of Sri Lanka who arrived at Christmas Island as an Irregular Maritime Arrival on 5 June 2012: CB 95;
b)an entry interview was undertaken on 17 July 2012: CB 1-16;
c)on 27 November 2012 the applicant lodged an application for the Protection Visa: CB 17-43;
d)on 19 February 2013, the Minister lifted the bar under the then s.46A of the Migration Act: CB 95;
e)the applicant claimed:
i)to fear harm on the basis of his Tamil ethnicity and his imputed anti-government and pro-LTTE political opinion by virtue of his ethnicity, illegal departure and application for asylum: CB 129-130;
ii)that in 1989 his family moved to Amaravu, Kilinochchi which was controlled by the LTTE, and that he met his wife there: CB 44 at [3];
iii)that in 1995 the applicant and his wife moved from Kilinochchi to Udappu: CB 44 at [4];
iv)that in 2011 a round-up was conducted by the Sri Lankan Police and the applicant and his wife were intensively questioned: CB 44-45 at [5]-[6]; and
v)on 14 February 2012 members of the Sri Lankan Army (“SLA”) attended the applicant’s home and took his eldest son. When the applicant attended the SLA Camp later that day his son was released and he was taken into custody. The applicant was accused of hiding from the SLA and was beaten and interrogated: CB 45-46 at [7]-[11] but he was released on 19 February 2012 after his wife, mother and the chairman of the village attended the camp and paid money: CB 46 at [12] (“February 2012 Incident”);
f)the applicant attended an interview before the Delegate on 24 May 2013: CB 99. At that interview the applicant further claimed that:
i)he was attacked by Sinhalese persons on a bus because he is Tamil: CB 102; and
ii)there were problems with Sinhalese persons entering Udappu and beating people with iron bars: CB 103;
g)on 25 February 2014, the Delegate refused the grant of a Protection Visa to the applicant: Delegate’s Decision at CB 94-113;
h)on 14 March 2014 the applicant lodged an application for review to the Tribunal: CB 114-115; and
i)the applicant with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages and his representative appeared before the Tribunal on 5 February 2015 and gave evidence and presented arguments: CB 178 at [16] and CB 159-162.
Tribunal Decision
In the Tribunal Decision dated 24 March 2015 the Tribunal:
a)found that though certain aspects of the applicant’s claims were credible, important aspects of his claims were not and were rejected as unreliable, exaggerated, or fabricated for the purpose of strengthening the applicant’s Protection Visa claims: CB 205 at [107];
b)notwithstanding its finding in relation to the applicant’s credibility, accepted that the applicant:
i)was born in Uddapu and moved to Kilinochchi until 1995 and that his wife was born in Kilinochchi: CB 206 at [109]-[110]; and
ii)and his wife were questioned by the Sri Lankan police in 2011 and subsequently let go: CB 206-207 at [112];
c)did not accept that:
i)the authorities tortured the applicant in 2011; or
ii)based on the fact that the applicant and his wife were released, as well as other circumstances of the case, that the authorities suspected the applicant or his wife were supporters or sympathisers of the LTTE or had any other relevant links to the LTTE such that they would continue to be suspected as such: CB 206-207 at [112];
d)rejected the claim that the February 2012 Incident occurred: CB 207 at [113] not being satisfied (based on the evidence before it including the country information) that there would have been any reason for the Sri Lankan authorities to resume investigation or questioning the applicant or his wife and that he would not have been released in August 2011 if the authorities were not satisfied that he had no relevant links to the LTTE: CB 207 at [113];
e)as it had rejected the applicant’s claims to have been detained in February 2012, did not accept that:
i)the authorities accused him of hiding from them;
ii)the authorities beat him in front of his family;
iii)he was kept in a small cell or that he was beaten and interrogated; and
iv)he faced further harassment and beatings upon return to his village or that he was required to report periodically: CB 207 at [114]-[115];
f)considered the applicant’s risk of harm on the basis of his political opinion, but did not accept that the cumulative effect of the applicant’s Tamil ethnicity, marriage to a woman from Kilinochchi, and having lived in Kilinochchi from 1989 to 1995, would result in him being imputed with a pro-LTTE and antigovernment political opinion: CB 208 at [117];
g)considered the claim that the applicant’s wife had been told if he returned they would finish him off to be a fabrication, and was not satisfied that the applicant is a person of interest to the Sri Lankan authorities: CB 209 at [121];
h)in relation to the applicant’s claim to have been attacked on a bus the Tribunal found the claim to be vague and generalised and it was not satisfied that the applicant was assaulted, whether for a Convention reason or otherwise: CB 210 at [125];
i)was not satisfied that the applicant had been active in pro-LTTE or antigovernment activities in Australia or Sri Lanka and rejected the proposition that the applicant faced a real chance of serious harm for any reason, or combination of reasons, raised by the applicant: CB 210-211 at [127];
j)in relation to the applicant’s return to Sri Lanka as a failed asylum seeker, as well as his illegal departure from Sri Lanka, did not accept that the applicant was at a risk of serious harm as a result of inquiries that would be made upon his return: CB 211 at [130], and further found that:
i)a fine that may take years to pay off did not amount to serious harm: CB 213 at [138]; and
ii)the treatment faced by returnees who departed illegally, including processing at the airport, questioning, and being held on remand for a few days, would not give rise to persecution for the purposes of s.91R(l)(c) of the Migration Act: CB 216 at [150]; and
k)in considering the complementary protection criteria did not accept that the applicant faced a real risk of mistreatment in the process of being determined not to be a person of interest: CB 217 at [156], and that any fine imposed as a result of his illegal departure would not constitute serious harm: CB 218 at [160], and although it accepted that prison conditions were poor and overcrowded it did not accept that the relatively short period on remand amounted to serious harm: CB 219 at [162]-[164].
Grounds of application
The grounds for review set out in the Judicial Review Application are:
1.Jurisdictional error
2.Bias based on conscious or unconscious prejudice by ignoring relevant material
3Identifying a wrong issue based on a wrong question.
Consideration
Jurisdictional error required
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: 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 (“Yusuf”).
The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J. Findings of fact made, including any assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s ability to be satisfied or otherwise of the applicant’s claims, are matters for the Tribunal to determine on the evidence before the Tribunal: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
No particulars
There are no particulars in support of the applicant’s grounds. The failure to particularise a ground of review is itself sufficient to warrant dismissal of the grounds of review: SZELX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM; WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (from which an appeal by the applicant was dismissed: see WZATH v Minister for Immigration & Border Protection [2014] FCA 969); AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard.
Ground 1
Ground 1 is an unparticularised assertion of jurisdictional error and can be dismissed for the reasons set out at [8] above. Otherwise, for reasons set out below, no jurisdictional error is apparent in the Tribunal Decision. It follows that ground 1 is not made out.
Ground 2
It is well established that an allegation of bias is a serious matter which must be made distinctly 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 17 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”).
The applicant has made no attempt to comply with the requirement that this serious allegation of bias be firmly and distinctly made and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Further, there is no evidence:
a)that the Tribunal had a pre-existing state of mind which disabled it from undertaking or rendered it unwilling to undertake any proper evaluation of materials relevant to the making of the Tribunal Decision: 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 may not have brought an impartial mind to the resolution of the question to be decided: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
It follows that ground 2 is not made out.
Ground 3
The Tribunal did not identify a wrong issue or fail to consider relevant material. The Tribunal correctly identified the relevant law: CB 202-204 at [85]-[99]. The Tribunal considered the applicant’s claims in full and made findings that were reasonably open to it on the available evidence before it, for the reasons it gave.
It is for the Tribunal to identify the material that it finds relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
At hearing, the applicant asserted that the Tribunal had made mistakes:
a)in assessing his personal circumstances; and
b)in incorrectly assessing and applying information in relation to the country circumstances in Sri Lanka.
The alleged incorrect assessment of personal circumstances is not evident on the basis of the Tribunal Decision. In any event, it amounts to no more than an allegation that the Tribunal made mistakes in its merits assessment of the personal circumstances of the applicant, and as such would require the Court to engage in impermissible merits review of the Tribunal Decision: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In relation to the assessment of country information in relation to country information it is plain that the Tribunal had regard to extensive independent country information covering topics such as:
a)the situation for Tamils in Sri Lanka since 2009: CB 184-188 at [48]-[53];
b)the treatment of people suspected of being associated with the LTTE: CB 188-191 at [54]-[60]; and
c)penalties for illegal departure and treatment of returnees: CB 191-202 at [61]-[84].
In having regard to those topics the Tribunal examined a vast array of independent country information including, for example:
a)the May 2012 US Department of State report entitled “Country Reports on Rights Practices for 2011: Sri Lanka”: CB 184-185 at [48];
b)2012 reports on the situation in Sri Lanka from Amnesty International, Human Rights Watch and the International Crisis Group: CB 185-186 at [49];
c)the UN High Commissioner for Refugees December 2012 “Eligibility Guidelines for assessing the international protection needs of asylum seekers from Sri Lanka”: CB 186-187 at [50]-[52]; CB 188-189 at [55]-[56]; CB 192 at [65] (concerning procedures with respect to returnees who had departed illegally); CB 197 at [74];
d)the decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in GJ & Ors (“post-civil war: returnees”) Sri Lanka CG [2013] UKUT 00319 (IAC): CB 187-188 at [53]; CB 198-199 at [78];
e)an October 2013 Department of Foreign Affairs and Trade (“DFAT”) Country Report on Sri Lanka: CB 188 at [54];
f)2013 and 2014 reports from Human Rights Watch, Refugee World and the BBC concerning alleged sexual attack and violence by the security forces following the end of the civil war in Sri Lanka as it related to Tamils suspected of links to the LTTE: CB 189 at [57];
g)a 2014 DFAT report concerning persons with links to the LTTE: CB 189-191 at [58]-[60];
h)the provisions of Sri Lankan domestic legislation: CB 191 at [61];
i)an October 2012 DFAT report concerning processes for dealing with returnees to Sri Lanka where the persons had departed illegally: CB 191-192 at [62]-[63], and various DFAT advice and further country information reports from 2013 concerning the treatment of returnees to Sri Lanka, where those returnees had departed illegally: CB 193-195 at [66]-[68];
j)information from the British High Commission in Colombo concerning the process for returnees arriving in Sri Lanka from the UK in January 2012: CB 192 at [64];
k)a December 2012 Sydney Morning Herald report concerning returnees to Sri Lanka, and their treatment upon return, including conditions for those jailed in Negombo Prison in Colombo, and the penalties likely to be imposed upon those fined for being found guilty of leaving Sri Lanka improperly: CB 195 at [69];
l)an Amnesty International July 2014 report which commented on Tamil asylum seekers returning to Sri Lanka: CB 195-196 at [70];
m)an October 2014 background paper by the Human Rights Law Centre referring to the treatment of persons suspected of having links to the LTTE who return to Sri Lanka: CB 196 at [71];
n)DFAT’s October 2014 Country Report on Sri Lanka concerning the treatment of returnees to Sri Lanka: CB 196-197 at [72]-[73] and CB 197-198 at [76], as well as DFAT advice of November 2012 concerning the lack of any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka: CB 197 at [75];
o)various sources including Human Rights Watch, Freedom from Torture and Amnesty International, and reports prepared by them with respect to the risk of harm to returnees of failed asylum seekers with certain links to the LTTE: CB 198-199 at [77] and [79];
p)a November 2012 ABC News report concerning the arrest and release on bail of Sri Lankan asylum seekers deported from Australia: CB 199 at [80];
q)a DFAT country report for Sri Lanka dated February 2015 concerning the treatment of illegal departees or returned failed asylum seekers to Sri Lanka: CB 199 at [81];
r)a report on the Chinese news service Xinhua from July 2012 concerning the treatment of returned asylum seekers: CB 200-201 at [82];
s)a December 2012 articled in The Age newspaper concerning the investigation, and jailing of many, failed Sri Lankan asylum seekers returned to Sri Lanka by Australia: CB 201 at [83]; and
t)an August 2011 Immigration and Refugee Board of Canada report on the treatment of Tamils returning to Sri Lanka, including failed asylum seekers: CB 201-202 at [84].
The choice of country information, and the factual findings arising from that country information, where the country information is recent and the factual findings are, as here, open on the available material, are matters solely 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; WZATA v Minister for Immigration & Anor [2016] FCCA 305 at [50] per Judge Lucev. There was more than adequate information and material in the country information, and in particular in the UNHCR Eligibility Guidelines, and the various DFAT reports, as well as some of the press reports, to found the findings of the Tribunal as to what might happen to the applicant if returned to Sri Lanka as a person who had either departed illegally or as a returned failed asylum seeker. For the Court to interfere with the findings in the Tribunal Decision in relation to the country information it would require the Court to make its own factual findings based upon its own assessment of certain of the country information. That is not the Court’s task, especially in circumstances where the Tribunal has assessed the country information so thoroughly. For the Court to undertake that task would be to engage in impermissible merits review: Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows that ground 3 is not made out, either as stated in its unparticularised form in the grounds of the Judicial Review Application, or as seemingly expanded upon in the applicant’s oral submissions at hearing.
Complementary protection provisions
Insofar as the Tribunal may be said to have relied on a construction of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” in s 5(1) of the Migration Act requiring an actual, subjective intention, it was correct to do so: SZTAL v Minister for Immigration & Anor [2015] FCCA 64; SZTCY v Minister for Immigration & Anor [2015] FCCA 85; SZTGM v Minister for Immigration & Anor [2015] FCCA 87; SZTKF v Minister for Immigration & Anor [2014] FCCA 2827. Although the above three judgments are subject to appeal before the Full Court of the Federal Court they represent, unless perceived to be plainly wrong (which they are not in the Court’s view) the present state of the law in this Court, and as a matter of judicial comity should, in the circumstances, be applied and followed by this Court.
Grounds of review – conclusions
The applicant’s grounds of review are:
a)pro-forma;
b)not sufficiently particularised to make them meaningful; and
c)do not identify jurisdictional error in the Tribunal Decision.
For reasons set out above the specific grounds 1, 2 and 3 have not been made out. In effect, the Judicial Review Application constitutes no more than a request for the Court to engage in merits review based on the applicant’s dissatisfaction with the Tribunal Decision. The Court is not permitted to engage in merits review on an application made under s.476 of the Migration Act: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Conclusion and orders
The Court has concluded that no jurisdictional error in the Tribunal Decision has been made out by the applicant. As no jurisdictional error is revealed, the Tribunal Decision is a privative clause decision within the meaning of s.474 of the Migration Act. It follows that the Judicial Review Application must be dismissed. There will be an order to that effect.
The Court will hear the parties as to costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 April 2016
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
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Procedural Fairness
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Jurisdiction