ARK15 v Minister for Immigration
[2017] FCCA 1810
•4 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARK15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1810 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal acted unreasonably by not granting the applicant further time to provide material in support of a claim he had not previously raised – whether Tribunal acted unreasonably by making a decision within one hour of representing to the applicant that it refused the applicant’s request for further time but that it would consider any additional submission the applicant may make before the Tribunal makes its decision – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.427(1)(b) |
| Cases cited: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 |
| Applicant: | ARK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1251 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 June 2016 |
| Date of Last Submission: | 30 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Patterson |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1251 of 2015
| ARK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
In his application for a Protection visa, the applicant claimed he had a well-founded fear of persecution if he were to return to Sri Lanka. He claimed he will be imputed with a political opinion favourable to the Liberation Tigers of Tamil Eelam (LTTE) because he is Tamil, and because on his return to Sri Lanka he would become a member of the social group of failed asylum seekers. The applicant also claimed he was entitled to complementary protection because, if he returns to Sri Lanka, he would be imprisoned because he had illegally departed Sri Lanka.
Ground of application
The applicant’s grounds for review are stated in his amended application filed on 7 June 2016. They are as follows:
1. In relation to the applicant’s request for additional time made at 9:11 am on 1 April 2015, the Tribunal’s conduct in:
a.refusing to give the applicant additional time; and / or
b.telling the applicant that it would consider any further information received before it made its decision but then proceeding to make its decision less than one hour later, without informing the applicant that the making of the decision was so imminent,
was legally unreasonable, and the Tribunal thereby fell into jurisdictional error.
2. The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the [Migration Act 1958 (Cth)].
Particulars
a.The Tribunal failed to take into account PAM3: Refugee and humanitarian – Complementary Protection Guidelines.
3. The Tribunal engaged in jurisdictional error by misconstruing the applicable law or failed to ask the correct question.
Particulars
a.In rejecting the applicant’s claim for complementary protection under s 36(2)(aa) of the [Migration Act 1958 (Cth)], the Tribunal adopted an erroneous view of the applicable legislation; namely that the intentional placement of the applicant in a Sri Lankan jail did not satisfy the element of ‘intent’ found in the statutory definition of the types of harm amounting to ‘significant harm’;
b.Contrary to the interpretation of the legislation adopted by the Tribunal, the intentional placement of the applicant in a Sri Lankan jail was capable of satisfying the element of ‘intent’ found in the statutory definition of the types of harm amounting to ‘significant harm’.
The applicant relies on ground 1 and ground 3, but does not press ground 2. Further, the applicant accepts that ground 3 is bound to fail in the face of the judgment of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection.[1] Given, however, the High Court has reserved its decision on an appeal from the judgment of the Full Federal Court,[2] the applicant formally submits the Full Federal Court’s decision in SZTAL is incorrect.
[1] [2016] FCAFC 69
[2] SZTGM v Minister for Immigration and Border Protection & Anor [2016] HCATrans 276
In these reasons for judgment, therefore, I only consider ground 1. Before I consider that ground, it will be necessary to set out the relevant facts.
Facts
The applicant appeared before the Tribunal on 24 March 2015 to give evidence and present arguments. The applicant’s agent, Ms Saunders, appeared by telephone, and Dr Mark Copland, who held the position of Executive Officer, Social Justice Commission, Catholic Diocese of Toowoomba, appeared as the applicant’s support person. At the end of the hearing Ms Saunders agreed to provide post-hearing submissions by 31 March 2015.[3]
[3] CB218, [5]
On 30 March 2015 Ms Saunders had a telephone conversation with Dr Copland during which Dr Copland said the applicant had documents that showed he was a member of the Eelam People’s Democratic Party (EPDP).[4] Later on 30 March 2015 Dr Copland emailed to Ms Saunders two non-English documents.[5]
[4] Saunders affidavit 06.05.2014 (sic), [8]
[5] Saunders affidavit 06.05.2014 (sic), [9]
On 31 March 2015, from 7:45 pm to 9:09 pm Australian Eastern Daylight Time (AEDT), Ms Saunders had a telephone conversation with the applicant through an interpreter about the documents Dr Copland had emailed to Ms Saunders. The applicant informed Ms Saunders he had joined the EPDP in 1992, and the documents Dr Copland sent to Ms Saunders were the applicant’s EPDP membership card and a letter from the Sri Lankan police confirming the applicant’s EPDP membership (EPDP documents). The applicant told Ms Saunders he had not previously disclosed his EPDP membership because “Tamils [who are] involved with the EPDP are at risk of harm from other Tamils” and, “[u]ntil now”, the applicant had been afraid to disclose this information. After the applicant provided further information about his fear of harm because of his EPDP membership, Ms Saunders said she would contact the applicant on 2 April 2015 to prepare a statutory declaration setting out his new claims.[6]
[6] Saunders affidavit 06.05.2014 (sic), [11]
On 1 April 2015 at 9:11 am AEDT Ms Saunders emailed a letter to the Tribunal in which she stated the applicant had new information to provide to the Tribunal that he had not previously disclosed to the Tribunal or to the Department of Immigration and Border Protection. Ms Saunders said the information related to the applicant’s “extensive involvement with” the EPDP. Ms Saunders stated the applicant wished to provide the Tribunal with an updated statutory declaration setting out the applicant’s involvement with the EPDP, and she requested an additional seven days to do so. [7]
[7] Saunders affidavit 06.05.2014 (sic), [12]
According to an internal document of the Tribunal titled “Task Details 14352266” created at 11:37 am Australian Eastern Standard Time (AEST) on 1 April 2015, an instruction was given by the presiding Tribunal member that referred to the applicant’s “request for extension of time”. The instruction recorded that the Tribunal member suspected that, “given [the applicant has] raised a brand new claim”, it will be necessary to hold a second hearing. The Tribunal member requested that a Tribunal officer call the applicant’s representative and inform her that “a second hearing will be needed given [the applicant’s] new claims” and that there “is a slot available for a hearing on 9 April 2015 in the morning if [the applicant’s agent agrees] in writing to shortening the period of notice”. The Tribunal member asked the officer to “call [the applicant’s agent] and see if they can do that”.[8] The “Task Details”, however, also records the following:
[8] Varess affidavit 03.06.2016, 18
Notes: Michelle just called; please hold off on this task until notified otherwise.
According to an internal document titled “Task Details 14355943”, at around 3:47 pm AEST on 1 April 2015 the presiding Tribunal member instructed a Tribunal officer as follows:
[P]lease phone or email rep in response to their letter of today requesting extension of time and inform that tribunal has considered request but declined it as the applicant had ample opportunity to present his claims.
At approximately 4:12 pm AEDT (3:12 pm AEST) on 1 April 2015 Ms Saunders received a telephone call from a Tribunal officer and had a conversation to the following effect:[9]
Tribunal officer: The Tribunal has considered your request for an extension of time but has declined to grant this request as the applicant has had ample opportunity to present his claims. However Tribunal will consider any submissions provided prior to a decision being made in this matter.
Saunders:Can you please confirm this in writing?
Tribunal officer: Yes.
[9] Saunders affidavit 06.05.2014 (sic), [13]
At 4:14 pm AEDT (3:14 pm AEST) on 1 April 2015 Ms Saunders received an email from the Tribunal which confirmed what the Tribunal officer said to Ms Saunders in their telephone conversation.[10]
[10] Saunders affidavit 06.05.2014 (sic), [14]
At 5:09 pm AEDT (4:09 pm AEST) on 1 April 2015 the Tribunal decided to affirm the decision of the delegate not to grant the applicant a Protection visa.[11]That decision, however, was not communicated to Ms Saunders until 3:52 pm AEDT on 2 April 2015.[12] In the meantime, on 1 April 2015 at 5:55 pm AEDT, Ms Saunders emailed the Tribunal a letter that attached the EPDP documents and stated the applicant was obtaining additional documents from his wife, and an updated statutory declaration would be provided to the Tribunal by 7 April 2015. Ms Saunders further requested that, in light of the new information, the Tribunal schedule an additional hearing for the applicant.[13]
[13] Saunders affidavit 06.05.2014 (sic), [17], page 12
Ms Saunders deposed that, had the Tribunal informed her that a decision was imminent, she would have sent the letter she sent to the Tribunal on 1 April 2015 at 5:55 pm AEDT sooner, and she would have included in it, among other things, an explanation why the applicant’s claim based on his association with the EPDP had not been disclosed previously, and the information concerning the applicant’s involvement with the EPDP.[14] Ms Saunders does not state, however, what she means by “imminent”. Presumably she means the Tribunal’s making its decision at the time the Tribunal had in fact made its decision.
[14] Saunders affidavit 06.05.2014 (sic), [17]
Tribunal’s reasons
In its reasons for decision the Tribunal referred to the applicant’s request for further time to provide an updated statutory declaration setting out the applicant’s claim based on his association with the EPDP. The Tribunal also referred to the applicant’s agent having informed the Tribunal that the applicant had information about his extensive involvement with the EPDP that he had not previously disclosed “to the tribunal, immigration or his representatives”.[15] The Tribunal said:[16]
The tribunal carefully considered the request for extension of time but refused the extension as the applicant was provided with ample opportunity to present his claims and has not previously raised any claim about the EPDP and there was no explanation as to why he had not raised the claim before. Further, the agent provided oral submissions at hearing and was given seven days after the hearing to provide any further written submissions, but none were received.
[15] CB218, [5]
[16] CB218, [6]
The Tribunal also referred to the following matters:
a)The applicant applied for a Protection visa on 9 January 2013, the Tribunal hearing was held on 24 March 2015, the applicant provided a written statement in December 2012, and he further expanded on his claims in his agent’s submissions of December 2013.[17]
b)At the outset of the hearing the Tribunal confirmed with the applicant and his agent there was no more material to be provided to the Tribunal, and that his claims were set out in “those documents”.[18]
c)The Tribunal explained to the applicant the procedure to be followed at the hearing, noting that the hearing was the applicant’s opportunity to be heard and to discuss his claims for protection. The Tribunal then discussed with the applicant his claims for protection “at length for over two hours”.[19]
d)At the end of the applicant’s evidence, the Tribunal heard oral submissions from the agent who requested time to take instructions about the credibility issues raised, and to provide written submissions within seven days.[20]
e)At the end of the hearing, the applicant said “he had totally explained and told the truth but he did not know how to present his case as he was not educated, cannot read or write but everything was right and true”.[21]
[17] CB218, [7]
[18] CB218, [8]
[19] CB219, [8]
[20] CB219, [8]
[21] CB219, [8]
The Tribunal concluded this part of its reasons as follows:[22]
The tribunal considers the applicant has had ample opportunity to present his claims both prior to the hearing and at hearing and he confirmed twice that he had explained his claims at hearing. He had not mentioned claims about EPDP until the agent’s letter of 1 April 2015 . . .
[22] CB219, [9]
Ground 1
The applicant claims the Tribunal made a jurisdictional error by acting unreasonably: first, by refusing to give the applicant the additional time he sought; and second, by telling the applicant that it would consider any further information it may receive before it makes its decision, but then proceeding to make its decision less than one hour later without informing the applicant that the making of its decision was imminent.
Principles
To find the Tribunal made a jurisdictional error on the ground of unreasonableness the applicant must demonstrate that the Tribunal’s exercise or failure to exercise a particular power or powers under the Migration Act 1958 (Cth) (Act) was unreasonable. Although the applicant does not identify the particular power he claims the Tribunal exercised or failed to exercise unreasonably, the only power that can reasonably be said the Tribunal engaged by considering the applicant’s request for further time was the power conferred on the Tribunal to “adjourn the review from time to time” under s.427(1)(b) of the Act.[23] The Tribunal was under a duty to exercise that power reasonably.[24]
[23] Although nothing turns on it, I consider the relevant provisions of the Act as the Act applied at the time the applicant lodged his application for a Protection visa, namely, 9 January 2013. For ease of expression, however, I refer to the Act in the present tense.
[24] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Whether in any given case the Tribunal has exercised or failed to exercise a power unreasonably must be determined in accordance with the principles stated in Minister for Immigration and Citizenship v Li[25] “and the earlier authorities discussed in it”.[26] Having regard to the subject matter, scope, and purpose of the relevant statutory power, a decision is legally unreasonable if the decision possesses one or more of the qualities conveyed by such words or expressions as ““plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate””.[27] If the Court concludes the decision possesses one or more of these attributes, the decision will be held to be legally unreasonable.[28]
[25] [2013] HCA 18; (2013) 249 CLR 332
[26] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [42]
[27] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]
[28] Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [65]
Where it is claimed that a decision supported by reasons is unreasonable, reasonableness should be assessed both by reference to the actual reasoning the decision-maker adopted in reaching the decision, and the outcome of the decision.[29] In those circumstances, the decision will be unreasonable if it lacks an intelligible justification; and the intelligible justification “must lie within the reasons the decision-maker gave for the exercise of the power”.[30]
[29] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]
[30] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47]
Parties’ submissions
In support of his claim of unreasonableness, the applicant submits as follows:
a)The purpose for which the applicant requested further time was not to put forward further submissions, but rather to provide new information about a new claim.[31]
b)It took the Tribunal around 7 hours to make and inform the applicant’s agent of its decision not to grant the extension of time, yet the Tribunal decided to affirm the decision of the delegate within one hour or so after it informed the applicant’s agent the Tribunal would consider all submissions that may be submitted before the Tribunal makes its decision.[32]
c)One of the reasons on which the Tribunal relied for not granting the applicant further time was that the applicant gave no explanation for not having previously made a claim about his association with the EPDP. The Tribunal, however, deprived the applicant of the opportunity to provide that explanation. [33]
d)There was no urgency in the Tribunal making its decision. In those circumstances, to proceed to make a decision less than one hour after informing the applicant that, although the Tribunal declined to grant further time, it would consider all submissions submitted before it made its decision, can properly be described as arbitrary, or without common sense, plainly unjust, or lacking “an evident or intelligible justification”. [34]
[31] Applicant’s Outline Submissions, [27]
[32] Applicant’s Outline Submissions, [28]
[33] Applicant’s Outline Submissions, [29]
[34] Applicant’s Outline Submissions, [31]
The Minister, on the other hand, submits that, having refused the request for an extension of time, the Tribunal was entitled to make its decision at any time it chose. The Tribunal made no assurance it would delay making its decision for any period. It cannot, therefore, be said that, by making its decision when it did, the Tribunal’s decision was outside the range of possible, acceptable outcomes that are legally defensible in respect of fact and law, or that its decision was arbitrary.
Did the Tribunal act unreasonably?
The applicant relies on two aspects of the Tribunal’s conduct for submitting the Tribunal acted unreasonably. The first is the Tribunal’s decision not to grant the applicant the further time he requested. Here, the applicant relies on two matters. One is the purpose for which the applicant requested further time, namely, to provide new information about a new claim as opposed to providing further submissions about claims he had already made. The other matter is the Tribunal’s relying on the applicant’s not providing an explanation for not previously claiming he was a member of the EPDP as one of the reasons for not granting the applicant the extension of time. The applicant submits this was unreasonable because the Tribunal denied the applicant an opportunity to inform the Tribunal of why he had not previously claimed an association with the EPDP.
These matters do not render unreasonable the Tribunal’s decision to refuse the applicant further time to make a new claim. The Tribunal was aware of the reason for which the applicant requested further time; and the applicant’s not providing an explanation for not having previously claimed membership of EPDP was a matter on which it was reasonably open to the Tribunal to rely to refuse the applicant’s request for an extension of time. I do not accept the applicant’s submission that the Tribunal’s conduct and in particular its informing the applicant’s agent that “[the] Tribunal will consider all submissions submitted prior to a decision being made in this matter” (Representation) denied the applicant the opportunity to explain to the Tribunal why he had not previously made a claim based on his membership of the EPDP. At the time she requested an extension of time, the applicant’s agent was aware of the reasons the applicant had given her why he had not previously made a claim for protection based on his membership with the EPDP. The applicant, therefore, did have an opportunity to inform the Tribunal why he had not made such a claim previously.
Further, the Tribunal relied on other matters for not granting the applicant the additional time he requested. These were the applicant’s not having mentioned the new claim until 1 April 2015, more than two years after he applied for a Protection visa; the applicant’s being informed that the hearing was his opportunity to explain his case; and the applicant’s confirming at the hearing that everything he said in support of his claims was true. It was reasonably open to the Tribunal to rely on these matters when considering and then refusing the applicant’s request for further time; and the Tribunal’s decision not to grant the applicant an extension of time was one that was reasonably open to it for the reasons it gave.
The second aspect of the Tribunal’s conduct on which the applicant relies for claiming the Tribunal acted unreasonably is a combination of two matters. The first is the Representation; and the second is Tribunal’s deciding to affirm the delegate’s decision in less than one hour after the Tribunal made the Representation. The applicant does not, however, identify the power or powers the Tribunal exercised unreasonably by making the Representation and then proceeding to make its decision less than one hour after it made the Representation.
The power to adjourn the review conferred by s.427(1)(b) of the Act cannot be said to be the source of the Tribunal’s power to make the Representation. This is because the Tribunal had already exercised that power by communicating to the applicant’s agent it would not grant the extension of time the applicant requested. Assuming the Tribunal did not act unreasonably by refusing to grant the applicant the further time he requested then, in the absence of the identification of a power pursuant or purportedly pursuant to which it could be said the Tribunal acted by making the Representation, it is difficult to conclude the Tribunal’s conduct in making the Representation but deciding to make its decision within less than one hour, even if unreasonable, could have resulted in the Tribunal making any jurisdictional error.
I will assume, however, that the Tribunal’s making the Representation, and affirming the delegate’s decision within one hour of making the Representation, was done pursuant or purportedly pursuant to a power conferred on the Tribunal which the Tribunal was required to exercise reasonably. Can it be said this conduct was unreasonable in the sense it was one that no reasonable decision-maker in the Tribunal’s position could have made, or for which it had no intelligible justification? In answering this question, it is relevant to note that, although the applicant’s agent deposed she would have done certain things had the Tribunal informed the applicant a decision was “imminent”, the applicant does not submit the Tribunal was under any duty to inform the applicant that a decision was imminent. Nor does the applicant allege the Representation was misleading or incorrect. None of this is surprising, because the Representation was not reasonably capable of conveying anything more than that the Tribunal intended to make a decision subject to its considering any submission the applicant may communicate to the Tribunal before the Tribunal were to make its decision. The Representation did not impliedly convey the Tribunal would make its decision by any particular time or that it would not immediately make a decision. The Tribunal’s having made its decision within one hour of making the Representation, therefore, was consistent with the meaning the Representation ought reasonably to have conveyed to the applicant’s agent. There is, therefore, no basis for claiming that the Tribunal acted unreasonably in making its decision within one hour of making the Representation.
Further, the underlying premise of the applicant’s case is that the Tribunal gave the applicant insufficient time to put forward any further submissions. The Tribunal gave the applicant no more than just under one hour. That premise is reflected in the submission counsel for the applicant made that “there was, in reality, no opportunity to provide any further submissions”. In the circumstances of this case, however, I do not accept that the Tribunal’s making of its decision within one hour after the Representation was unreasonable or in some other way denied the applicant a meaningful opportunity to put forward further submissions. By the end of 31 March 2015 the applicant’s agent had obtained instructions from the applicant in a telephone conversation that lasted over an hour,[35] the applicant’s agent had recorded those instructions in a file note, and she was in a position to include that information in a letter to the Tribunal.[36] Further, the applicant’s agent had in her possession two documents, namely, the EPDP documents, that she could immediately have provided to the Tribunal once the Tribunal had informed her of its refusal to grant the applicant further time to make further submissions. The applicant’s agent was also able to obtain relevant country information “within a few minutes”.[37] The applicant’s agent, therefore, was in a position to make submissions within the one hour the Tribunal had in effect given the applicant.
[35] Saunders affidavit 06.05.2014 (sic), [11]
[36] Saunders affidavit 05.01.2016, [5], [6]
[37] Saunders affidavit 05.01.2016, [7]
The applicant’s agent deposes she did not provide this information immediately because she wanted to seek further information and details from the applicant and provide that information in the form of a statutory declaration. That the applicant’s agent so decided cannot reasonably be attributed to anything the Tribunal did or did not do. It was open to the applicant’s agent to have provided immediately to the Tribunal whatever information she had at hand.
For these reasons, I am of the opinion the Tribunal did not act unreasonably by affirming the delegate’s decision within one hour of representing that it would consider any submission the applicant may wish to make before the Tribunal were to make its decision.
Disposition
I propose to order that the application be dismissed.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 4 August 2017
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
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