AOL16 v Minister for Immigration
[2018] FCCA 2944
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AOL16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2944 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal decision – whether Tribunal considered each integer of the applicant’s claims – whether the Tribunal accorded procedural fairness – whether Tribunal properly considered the alternative criterion for complementary protection – grounds of review not made out – no jurisdictional error discerned – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 424, 425, 476, 499 Migration Regulations 1994 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | AOL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 517 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 3 October 2017 |
| Date of Last Submission: | 3 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Grant |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed on 15 March 2016 be dismissed.
The Applicant pay the costs of the First Respondent fixed at $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 517 of 2016
| AOL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 15 March 2018, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
Background
The applicant, a Sri Lankan national aged 34 years, first arrived in Australia on 5 August 2012. Before doing so, the applicant had travelled from Colombo to Malaysia on 6 March 2007 using a valid tourist visa. While present in Malaysia, the applicant approached the United Nations High Commissioner for Refugees and on 18 August 2008 was mandated as a refugee. On 2 January 2012, the applicant travelled from Malaysia to Indonesia and registered with the UNHCR. On 28 July 2012, the applicant travelled to Christmas Island as an irregular maritime arrival.
On 14 January 2013, the applicant applied for a Protection (Class XA) visa with the assistance of a registered migration agent. On 9 April 2013, the applicant was granted an associated Bridging visa.
By his statutory declaration, the applicant claimed to fear harm, mistreatment and death if returned to Sri Lanka. The applicant feared harm due to his Tamil ethnicity. He reported being persecuted and tortured on several occasions arising from his suspected support of the Liberation Tigers of Tamil Eelam (LTTE) and his extended family members’ support for the LTTE. The declaration addressed three incidents, each occurring in 2006, in relation to which the applicant claimed to have been subjected to ill treatment at the hands of the Sri Lankan authorities. The applicant detailed the difficulties he had encountered while living in Malaysia and his decision to travel to Australia. The applicant declared that he feared harm and mistreatment if returned to Sri Lanka, doing so in general terms.
On 31 May 2013, the applicant was invited to attend an interview on 27 June 2013 to discuss his visa application and claims for protection. The applicant appeared on that date represented by a migration agent and was assisted by a Tamil interpreter.
On 19 December 2013, the delegate refused the visa application. The delegate was not satisfied that the applicant was a person to whom Australia had protection obligations. Although the delegate accepted that the applicant held a subjective fear of harm or mistreatment, it was not accepted that the Sir Lankan authorities had continued to visit his home or searched for him arising from the incidents alleged in 2006. The delegate concluded that Tamils who were not connected to any government-opposed activities were reportedly safe upon their return and that there was no evidence that the applicant would be of interest to authorities beyond the initial interview process, being a process that was applied to all Sri Lankan returnees.
On 24 January 2014, the applicant, with the assistance of his migration agent, lodged an application for review of the delegate’s decision to the then Refugee Review Tribunal.
On 24 March 2014, the applicant’s migration lawyers filed a detailed submission in support of the application for review.
On 11 December 2015, the applicant was invited to appear before the Tribunal on 10 February 2016 to give evidence and present arguments relating to the issues arising in his case. The applicant appeared on that date, again represented by his migration agent and with the assistance of a Tamil interpreter.
On 18 February 2016, the Tribunal made a decision affirming the delegate’s decision to refuse the visa application. The Tribunal provided a statement of reasons for that decision (Reasons). In my view, those reasons were comprehensive.
Tribunal decision
The Tribunal examined in detail each of the incidents in which the applicant claimed to have been ill-treated together with an additional claim that had been advanced in the submissions filed by his lawyers: Reasons, [9]-[24], [37]-[38]. The Tribunal found a number of the claims made by the applicant to be false. It rejected the claim that the applicant’s extended family had involvement with the LTTE: Reasons, [25]-[26]. The Tribunal rejected as false the applicant’s claims that two of his brothers had fled Sri Lanka by reason of suspected LLTE links: Reasons, [27]-[34].
The Tribunal also determined that the applicant was not a person of particular or sufficient interest to the Sri Lankan CID: Reasons, [35]- [36]. In providing a summary of its preliminary findings, the Tribunal concluded that the applicant was not a generally credible witness: Reasons, [38].
The Tribunal considered whether the applicant faced a real chance of persecution by reference to each of the matters which he had advanced: (a) the 2006 incidents: [40]-[44]; (b) prosecution: [45]-[46]; (c) Hindu religion: [47]-[49]; (d) Tamil ethnicity and LTTE support: [50]-[56]; (e) illegal departure: [57]-[65]; (f) member of offshore diaspora: [66]-[68]; (g) asylum seeker from Western country: [69]-[78]. In doing so the Tribunal paid extensive regard to certain country information. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution and therefore was not a person to whom Australia owed protection obligations or complementary protection: Reasons: [78]-[88]. Accordingly, the Tribunal affirmed the delegate’s decision.
Procedural history
On 15 March 2016, the applicant filed an application for judicial review of the decision made by the Tribunal. The applicant sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 19 February 2016.
On 14 March 2018, the applicant made an affidavit in support of his application for judicial review exhibiting a copy of the Tribunal’s decision record and deposing as to the matters relied upon that the Tribunal’s decision was affected by jurisdictional error. I have examined that affidavit and considered those matters.
By a Response filed on 7 April 2016, the Minister contended that the Tribunal’s decision was not affected by jurisdictional error and should be dismissed.
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 any amended application and additional grounds of review, together with any further affidavits and written submissions in support of their application.
The applicant did not take the opportunity afforded by those orders to file any further material.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).[1]
[1]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [75]-[76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[2]; see also Minister for Immigration and Citizenship v SZMDS.[3]
[2] (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ).
[3] (2010) 240 CLR 611, [40] (Gummow A-CJ, Kiefel J), [102] (Crennan and Bell J).
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat.[4]
[4](2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for a Protection visa are set out in s 36 of the Act and Subclass 866 of Sch 2 to the Migration Regulations 1994. Subclass 866 prescribes the primary and secondary criteria that must be satisfied in relation to a Protection visa application, at the time of the application and at the time of decision respectively.
As the applicant was self-represented before me, I have considered the Reasons and the materials contained in the court book. The Reasons confirm that the Tribunal identified and applied the correct legal test to the merits review of the application.
I am satisfied that the Tribunal brought an active intellectual process to, and gave genuine consideration to the applicant’s claims: Minister for Immigration and Citizenship v Khadgi.[5]
[5] (2010) 190 FCR 248.
Three particularised grounds of review were set out in the application.
Ground 1 – integers of claim
Ground 1 reads:
The decision of the Administrative Appeals Tribunal (Refugee Division) is affected by jurisdictional error.
Particulars
a. The Tribunal did not consider, properly or at all, the distinct integer of the Applicant’s new claim that mentioned the alleged involvement of his extended family members in the LTTE, namely the three sons of his grandmother’s sister. This claims was summarily dismissed as false when there was evidence given by the applicant that he had obtained refugee protection in Malaysia, after being assessed by the UNHCR, whose decision contained reference to his extended family members’ involvement in the LTTE.
b. The tribunal should have made inquiries to UNHCR in Malaysia as to the veracity of this decision or directed the Applicant to provide a copy of the decision, before making its decision.
c. This was a very relevant consideration given that the UNHCR risk profiles which the tribunal quotes in its decision particularly identifies persons with family links or who are dependent on or otherwise closely related to persons with risk profiles.
The Tribunal was obliged to consider each integer of the applicant’s claims. I consider that the Tribunal did so.
The applicant’s first ground of review was referrable to the admittedly new claim based upon the alleged involvement of his extended family members in the LTTE. Contrary to the applicant’s contention, the Tribunal did consider this claim and rejected it: Reasons, [23]-[25]. At [25] the Tribunal identified four reasons for rejecting this claim.
I am not satisfied that the Tribunal failed to consider this integer of the applicant’s claim. I accept the submission made on behalf of the Minister that, in this case, the basis on which the applicant complains of a failure to consider the integers of his claim amounts to an impermissible attempt to seek a merits review of the Tribunal’s decision: Minister for Immigration and Ethic Affairs v Wu Shan Liang[6]; Applicant S214/2003 v Refugee Review Tribunal.[7]
[6] (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[7] [2006] FCAFC 166, [26] (Allsop, Jacobsen and Graham JJ).
As concerns the complaint that the Tribunal ought to have conducted enquiries of the UNHRC as to the alleged involvement of his extended family members in the LTTE, it may be accepted that jurisdictional error may be established in some circumstances grounded upon a failure to make an obvious enquiry upon a critical fact, the existence of which was easily ascertainable and which, if established, would provide a sufficient link to the outcome a visa application.[8]
[8]Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [25]-[26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), [52] (Heydon J); SZOER v Minister for Immigration and Citizenship [2010] FCA 1100, [27]-[32] (Cowdroy J); SZNBX v Minister for Immigration and Citizenship (2009) 112 ALD 475, [21] (Bennett J); see also, Ashraf v Minister for Immigration and Border Protection [2018] FCAFC 50, [56] (Tracey, Mortimer and Moshinsky JJ).
However, I discern no error in the Tribunal’s decision for allegedly not having done so. The question is not whether the Tribunal was subject to a duty to make inquiries but whether the decision was vitiated by jurisdictional error. First, it was for the applicant to adduce evidence and present arguments relating to the issues arising on the review of the delegate’s decision.[9] As the Full Court stated in Applicant S214/2003 v Refugee Review Tribunal,[10] “[t]he Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon.” Secondly, in my opinion the Tribunal was not required in the circumstances of this case to make inquiries of the kind suggested by the applicant. Thirdly, the Tribunal accepted that it was possible the UNHRC’s decisions may have contained a reference of the kind suggested. Fourthly, contrary to the applicant’s ground of review, the Tribunal did in fact make such enquiries. Fifthly, the UNHRC’s response undermined the applicant’s claim that an UNHRC decision contained references to the alleged involvement of his extended family members in the LTTE. Sixthly, in those circumstances, it is most unlikely that any further inquiry would have made a difference to, or had any effect upon, the Tribunal’s decision.[11] Seventhly, here any failure to pursue further enquiries or to afford the applicant additional time to do so, could not be characterised as amounting to a constructive failure to exercise jurisdiction.[12] Finally, it should not be characterised as conduct which otherwise infected the decision with jurisdictional error.[13]
[9]Abebe v Commonwealth of Australia (1999) 197 CLR 510, [187] (Gummow and Hayne JJ); Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166, [26].
[10] [2006] FCAFC 166, [26]; Special leave to appeal refused: [2007] HCATrans 508.
[11]SZOER v Minister for Immigration & Citizenship [2010] FCA 1100, [50]-[52]; Special leave to appeal refused: [2011] HCASL 78, [7]-[8].
[12] Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123.
[13] SZNBX v Minister for Immigration and Citizenship [2009] FCA 1403, [29] (Bennett J).
Ground 1 is rejected.
Ground 2 – guarantee of bail
Ground 2 reads:
The Tribunal failed to accord the applicant procedural fairness as required by s.425(1) of the Act.
Particulars
a. The Tribunal’s conclusion or assumption that the Applicant or his family or someone else would be able and willing to provide the guarantee required for the Applicant’s bail was ‘adverse’ to the Applicant and was ‘not open on the known material’: SZBEL v Minister for Immigration and Citizenship [2006] HCA 63; (2006) 228 CLR 152, [29].
b. The Tribunal did not give the Applicant ‘the opportunity of ascertaining’ that issue or the opportunity ‘to be informed of the nature and content of adverse material’ in relation to that issue: SZBEL v Minister for Immigration and Citizenship [2006] HCA 63; (2006) 288 CLR 152, [32].
c. The issue of whether a family member would act as a guarantor for the Applicant was a ‘crucial link’ in the Tribunal’s chain of reasoning, which the Tribunal had to identify to the Applicant in order to comply with s.425(1): Minister for Immigration v SZTQS [2015] FCA 1069, [60].
On the Tribunal’s reasoning at [57]-[59], it was concluded that the applicant had departed Sri Lanka lawfully. This finding was quite clearly open. Upon that finding, the issue of the applicant being required to provide surety as any condition for the grant of bail was moot. The applicant was more probably to be treated upon arrival in Sri Lanka as a person who had departed the country legally and so would not be charged, detained, the subjection of a conviction, imprisonment or granted bail only on condition of payment of money.
In addition, the Tribunal considered the remote alternative scenario that the applicant may possibly be considered to have departed his country unlawfully and may for that reason be detained but granted bail and subject to a fine. The Tribunal examined country information upon this issue and concluded that if a fine was imposed, it would be payable by instalments: Reasons, [59]-[60]. Upon the consideration of further country information the Tribunal also concluded that even if the applicant was subject to a brief period of detention, it was not satisfied that the applicant would be detained for more than a few hours and, “like most persons, would also be granted bail on personal surety . . .” (Emphasis added): Reasons: [62]-[64].
The particulars to Ground 2 rest upon an alleged failure to notify the applicant of adverse information in discharge of an obligation to comply with s 425 of the Act. The applicant was entitled to procedural fairness. However, the Tribunal was not required to give the applicant advance warning of an adverse finding unless it was obviously not open on the materials before the Tribunal.[14] Nor was it obliged to give the applicant a running commentary on his evidence, prospects of success or all possible reasons for the failure of the application.[15]
[14]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [36] (per curiam).
[15] SZMUF vMinister for Immigration and Citizenship [2009] FCA 182, [22] (Flick J).
In fact, the applicant had himself raised both the question of bail and surety and so was on notice of those issues. His lawyers detailed submissions at [128]-[130] squarely addressed the issues of detention, the grant of bail and surety. The applicant’s lawyer’s submitted that “Most – but not all – returnees are granted bail based on personal recognisance with a family member standing as guarantor.”[16]
[16] Citing DFAT, MRT/RRT Information Request LKA41452, DFAT Report 1479.
Quite apart from the fact that the applicant was on notice of this issue, at no point in the course of those submissions was it suggested that the posting of bail was a matter on which the applicant sought to make any submission or adduce any evidence.
The particulars to Ground 2 contain reference to Minister for Immigration v SZTQS [2015] FCA 1069, [60]. There, Griffiths J held that on the facts of that case a crucial link in the Tribunal’s chain of reasoning was whether a family member would have to provide surety for the applicant. Earlier, at [54]-[58], Griffiths J had accepted other authority that the Tribunal was not obliged to expose all of its thought processes to the applicant and that in some circumstances, a Tribunal’s reasoning processes could not have taken an applicant by surprise.
More recently, in SZTAP v Minister for Immigration and Border Protection[17] Robertson and Kerr JJ (Logan J agreeing) held that SZTQS did not stand for the “high level proposition that every reference to a family member being required to provide surety involves a breach of s 425(1) of the Act.” The holding in SZTAP has been followed in a number of decisions: see, e.g. ASD16 v Minister for Immigration and Border Protection.[18] In the present case, I am satisfied that as the applicant was on notice of the issue of bail and the imposition of a surety, no question of a breach of s 425(1) arose.
[17] (2015) 238 FCR 404 at [76]-[77].
[18] [2018] FCA 1165, [15] (Tracey J).
I also accept the Minister’s submission that as the Tribunal’s reasoning at [59]-[65] proceeded upon the basis of an alternative analysis – namely, that the applicant would be treated as a person who had left Sri Lanka unlawfully – the conclusion in relation to the imposition of a surety as a condition of bail was not critical to the Tribunal’s finding.[19] Equally, I accept the submission that the basis of Ground 2 of the application proceeded upon an unstated assumption that the imposition of any surety would entail an order for the payment of money, which assumption was unsubstantiated. No such assumption was warranted.[20] To the contrary, the Tribunal’s analysis contained express reference to DFAT country information that the applicant may be required to provide personal surety: Reasons, [59], [64].
[19] SZTAP, supra, [2015] FCAFC 175, [79].
[20] Ibid, [80].
Finally, I agree that by force of par 424(3)(a), the Tribunal was not required to bring to the applicant’s attention information concerning the question of a monetary surety as a condition of bail as such information derived from DFAT country information, being information which was not personal to the applicant.[21]
[21] ACC15 v Minister for Immigration and Border Protection [2016] FCA 97, [29] (Gilmour J).
Ground 2 is rejected.
Ground 3 – complementary protection
Ground 3 reads:
The Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, especially the investigation upon return to Sri Lanka and the state of the prison conditions in Sri Lanka, as described in reports quoted by the tribunal.
The Tribunal complied with its obligations under Ministerial Direction 56 imposed by dent of sub-s 499(2A) in giving consideration to the PAM3 – Refugee and Humanitarian – Complementary Protection Guidelines, and in particular, its consideration of detention and prison conditions, including by a review of country information: Reasons, [6], [79]-[86]. There was force in the Minister’s submission that as the Tribunal’s primary finding was that the applicant had departed Sri Lanka lawfully, any error respecting its assessment of possible imprisonment as constituting significant harm within the meaning of s 36(2A) would have been an error within jurisdiction.
Ground 3 is rejected.
Conclusion
As stated above, as the applicant was self-represented, I have considered the Reasons and the materials contained in the court book.
As the grounds of judicial review have not been made out and as I have identified no other ground upon which it may be suggested that the Tribunal’s decision was otherwise affected by jurisdictional error, the application must be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 19 October 2018
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