AUG17 v Minister for Immigration & Anor
[2017] FCCA 1874
•17 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUG17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1874 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka due to an imputed association with the LTTE – applicant disbelieved in critical respects and other fears found not to be well-founded – whether the Tribunal took into account irrelevant considerations, made findings unsupported by evidence – made an unreasonable decision or was biased considered – whether the application form used for the visa application was invalid considered – no jurisdictional error. |
| Legislation: Legislation Act 2003 (Cth), s.38 Migration Act 1958 (Cth), ss.35A, 36, 46, 46A, 338, 353, 473CA, 473DA, 473DD, 473FA, 474, 476, 495 Migration Regulations 1994 (Cth) |
| Cases cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 355 Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 Buchwald v Minister for Immigration (2016) 242 FCR 65 BVJ16 v Minister for Immigration & Anor [2017] FCCA 178 COC15 v Child Support Registrar & Anor [2016] FCCA 224 Commissioner of Taxation v Pham (2013) 134 ALD 534 DZU16 v Minister for Immigration & Anor [2017] FCCA 851 Kostas v HIA Insurance Services Pty Ltd(2010) 241 CLR 390 Minister for Immigration v Eshetu (1999) 197 CLR 611 Minister for Immigration v SGLB (2004) 78 ALD 224 Minister for Immigration v Singh (2014) 231 FCR 437 Minister for Immigration v Yusuf (2001) 206 CLR 323 MZZUG v Minister for Immigration [2015] FCA 1151 MZZYE v Minister for Immigration [2015] FCA 1378 Randhawa v Minister for Immigration (1994) 52 FCR 437 Su & Anor v Minister for Immigration & Anor [2016] FCCA 83 The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 |
| Applicant: | AUG17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 168 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 August 2017 |
| Date of Last Submission: | 13 September 2017 |
| Delivered at: | Sydney, via telephone to Brisbane and Canberra |
| Delivered on: | 17 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr H Ford of Hugh Ford, Solicitor |
| Counsel for the Respondents: | Mr B McGlade |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application as amended on 23 August 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 168 of 2017
| AUG17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 13 February 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa known as a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the Minister’s written submissions filed on 26 July 2017.
The applicant is a 26 year old[1] citizen of Sri Lanka.[2]
[1] Court Book (CB) 893.
[2] Authority Reasons, [1] and [22] (CB 6 and 13).
On 14 November 2012, the applicant arrived in Australia by boat (as an unauthorised maritime arrival).[3]
[3] CB 819 and 890 ff.
On 21 December 2015, the Minister exercised his power pursuant to s.46A of the Migration Act 1958 (Cth) (Migration Act) to lift the bar to permit the applicant (despite being an unauthorised maritime arrival) to apply for either a temporary protection visa or a SHEV.[4]
[4] CB 878 to 889.
On 29 February 2016, the applicant lodged an application for a SHEV.[5]
[5] Authority Reasons at [1] (CB 6).
A SHEV is a temporary protection visa[6] that is valid for five years. To obtain that visa, the applicant needed to establish (among other things) that at the time of the decision he met either the refugee or complementary protection criteria in ss.36(2)(a) or 36(2)(aa) of the Migration Act.[7]
[6] Migration Act, s.35A(3A).
[7] Migration Regulations 1994 (Cth) (Regulations), Schedule 2, clause 790.221(2).
On 21 December 2016, the delegate made a decision to refuse to grant the applicant the visa.[8]
[8] The delegate’s decision can be seen at CB 258 ff.
In this case, the delegate’s decision was a “fast track decision”. The reason for this has been detailed in numerous earlier decisions of this Court. Put simply, it was a fast track decision because it was a decision relating to a protection visa applicant who arrived onshore by boat, as an unauthorised maritime arrival, between 13 August 2012 and 1 January 2014.
The material consequence of the decision being a fast track decision was that it had to be referred to the Authority for review,[9] with no right of review by the Administrative Appeals Tribunal (Tribunal) under Part 7 of the Migration Act[10]. The Authority has a different review procedure to that associated with a Tribunal review of a protection visa decision.[11]
[9] Migration Act, s.473CA.
[10] Migration Act, s.338(1)(d).
[11] Pursuant to Part 7 of the Migration Act.
Some of the differences between the Authority and Tribunal reviews were detailed in the Minister’s written submissions. However, in short, the material differences between the Authority and the Tribunal review procedures are that:
a)an Authority review is ordinarily done on the papers without an oral hearing (albeit this is subject to some exceptions);
b)the Authority is only permitted to consider new claims or evidence in exceptional circumstances;
c)the powers conferred on the Authority to conduct the review are more limited than those conferred on the Tribunal; and
d)procedural fairness requirements are more constrained in the Authority review regime.
On 5 January 2017, the Minister referred the delegate’s decision to the Authority in accordance with s.473CA of the Migration Act.[12]
[12] CB 235 and 248-251.
On 13 February 2017, the Authority made a decision to affirm the delegate’s decision.[13]
[13] A copy of the Authority’s decision can be seen at CB 5 ff.
On 23 February 2017, the applicant applied to this Court for orders quashing the Authority’s decision and for the issue of a writ of mandamus, directed to the Authority, requiring it to re-make its decision according to law.
The applicant also seeks a declaration that the applicant “is a person in respect of whom Australia has protection obligations under the Refugees Convention”. However, this Court does not have jurisdiction to make such an order.[14]
[14] SZISJ v Minister for Immigration & Anor [2006] FMCA 1884 at [19] (Scarlett FM).
Jurisdiction and the nature of the application
The application before this Court seeks the issue of constitutional writs.[15]
[15] The High Court has the jurisdiction to grant a writ of mandamus against officers of the Commonwealth (including Authority officers) expressly pursuant to s.75(v) of the Constitution and a writ of certiorari pursuant to the accrued jurisdiction incidental thereto: see Tang v Minister for Immigration (2013) 217 FCR 55 at [6] (Rares, Perram and Wigney JJ) and Minister for Immigration v SZIAI (2009) 111 ALD 15 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [13] (“The statutory jurisdiction of the Federal Magistrates Court is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. The tribunal’s decision was a “migration decision”. The Federal Magistrates Court could therefore grant relief by way of prohibition or mandamus and, ancillary to such relief, could issue certiorari to quash the decision. However it could only do those things if the tribunal was shown to have committed jurisdictional error”).
This Court has the same original jurisdiction as the High Court to issue such writs under s.476(1) of the Migration Act.[16] However, that jurisdiction is constrained by s.474 of the Migration Act.
[16] Where such orders are sought in respect of “migration decisions” (such as in this case): refer to s.476(1) of the Migration Act.
In this regard, by s.474(2) of the Migration Act the Authority’s decision is (on its face[17]) considered to be a “privative clause decision”.[18]
[17] That is, absent a finding of jurisdictional error.
[18] Migration Act, s.474(2) provides that a “privative clause decision” means “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”.
The effect of the decision being of such a nature is set out in s.474(1) of the Migration Act as follows:
Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
…
However, and despite s.474(1) of the Migration Act, it has been recognised that Constitutional writs can be issued where the Authority’s decision is affected by jurisdictional error.[19]
[19] That is because, if a decision is affected by jurisdictional error, it is not considered to be a decision “made under [the] Act” (and, hence, does not fall within the definition of a “privative clause decision”): see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [87] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
The concept of “jurisdictional error” has been addressed in a number of cases.[20] It occurs where a decision-maker commits an error that results in the decision-maker acting in excess of his or her authority or powers.[21]
[20] See, for example, Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ).
[21] Yusuf at [82] (McHugh, Gummow and Hayne JJ).
In SZAYG v Minister for Immigration[22] Allsop J (as his Honour then was) described the Federal Circuit Court’s role in reviewing a decision of the type in question in the following way:
The Migration Act and the Judiciary Act provide for judicial review of the Tribunal's decision. That judicial review is the application that was brought to the Federal [Circuit] Court. It is important to understand that that application is not simply a rehearing of what was before the Tribunal. It is not hearing afresh the evidence to decide whether or not a visa should be given. It is a review by the Court of the decision of the Tribunal in order to ascertain whether the Tribunal has acted lawfully. That is sometimes expressed in the legal expression to ascertain whether the Tribunal has committed any jurisdictional error.
[22] [2005] FCA 90 at [6].
The applicant’s claims and the Authority’s decision
The applicant’s claims were numerous and detailed. They are summarised at length in [21] of the Authority’s reasons.[23]
[23] CB 10-13.
The applicant’s primary claim
The applicant’s primary claim, which features at the forefront of his judicial review application, related to him being a Tamil with a perceived Liberation of Tamil Tigers of Eelam (LTTE) profile.
That claim was to the following effect:
a)the applicant was a Tamil who had burns on his feet from his childhood (which Sri Lankan people had, in the past, associated with LTTE links);
b)as a child, he was teased and discriminated against on account of his scars;
c)as an adult, after moving from his hometown (Batticaloa) to Colombo in April 2012 to begin a workplace trainee program, he experienced significant harassment, threats and harm on account of being a Tamil with an imputed LTTE profile; and
d)relevantly, this included:
i)the applicant’s team leader (who had strong anti-LTTE sentiments) accusing the applicant of having LTTE links due to his scarring. The team leader bullied and harassed the applicant on account of this. However, the applicant had a friend within the workplace who defended the applicant to the team leader. The team leader threatened to kill them both;
ii)on 2 July 2012, the applicant and his friend were stopped on the street and asked for their identity cards by people who identified themselves as police, albeit being in plain clothes. Those men accused the applicant of having LTTE links and put him into a van. They took the applicant to a secluded area where they beat him, resulting in the applicant’s hospitalisation;
iii)when the applicant returned to work, his team leader asked him about the beating (and, in the premises, the applicant believes that the team leader organised the beating);
iv)the applicant went to report the beating incident to the police. However, the police were dismissive, after which the applicant withdrew the complaint. A few days later, stones were thrown at the applicant’s window within the boarding house where he resided;
v)on 1 October 2012, the applicant’s friend was killed when a van intentionally ran into him;
vi)the following day, as he was leaving his boarding house, the applicant saw four unknown people, armed with weapons, including a machete, on two motorbikes in the street. The applicant says that, as he left the boarding house, the people approached him. However, the applicant averted danger by quickly running back inside the boarding house; and
vii)thereafter, the applicant returned to his hometown in Batticaloa and, from there, fled to Australia by boat.
The Authority was not satisfied that the applicant faced a real risk of being persecuted or harmed on account of his primary claim were he to return to Sri Lanka.
It came to this view by the following reasoning process.
The Authority accepted that the applicant was harassed and bullied when he was in Columbo in 2012 on account of his Tamil/LTTE profile.[24]
[24] Authority reasons at [30] (CB 13).
It also accepted that:
a)the applicant was beaten;
b)the applicant’s friend had been hit by a van and killed; and
c)the applicant had seen armed men in the street the day after his friend was hit by the van.[25]
[25] Authority reasons at [32]-[38] (CB 14 and 15).
However, as to these aspects of the applicant’s claims:
a)the Authority did not accept that the beating had been organised by the team leader (with the evidence suggesting that it was a racially motivated attack which the team leader did not arrange);[26]
b)the Authority did not accept that the applicant’s friend had been intentionally hit by a van on 1 October 2012 (with the evidence pointing to the likelihood of it being an accident);[27] and
c)the Authority did not accept that the following day, the applicant was targeted by a group of armed men, with the evidence suggesting the likelihood of this being a mistaken supposition on the part of the applicant.[28]
[26] Authority reasons at [52] (CB 17 and 18).
[27] Authority reasons at [37] (CB 14).
[28] Authority reasons at [38] (CB 14 and 15).
With those findings made, the Authority then proceeded to assess whether there was a real chance that the applicant would be threatened or harmed on account of his Tamil/LTTE profile if he returned to Sri Lanka. It concluded that it was not satisfied of such a matter.
It came to this view on the basis of the following:
a)the country information suggested that no LTTE imputed profile or adverse attention would come to the applicant merely on account of his scarring;[29]
b)the harassment the applicant had received in 2012 on account of his Tamil/LTTE profile was largely one that was the product of timing and location. To this end:[30]
i)2012 was a particularly bad time for Tamil oppression. The applicant’s oppression at that time largely reflected the heightened anti-Tamil sentiment/environment in Sri Lanka throughout the war and in its immediate aftermath; and
ii)that oppression was particularly heightened for the applicant due to the locality where the applicant was living at the time. In this regard, the government of the day harassed the Tamil population in Columbo at that time, and the applicant was living in a Sinhalese majority area within Colombo;[31] and
c)in the five-odd years that had elapsed since the applicant’s departure from Sri Lanka, the government had changed and the security situation in Columbo had improved. Moreover, it was open to the applicant to return to his home town of Batticaloa. There was no indication that the Tamil harassment which had taken place in Columbo had extended to Batticaloa.
[29] Authority reasons at [61] (CB 19 and 20).
[30] Authority reasons at [47], [48], [52] and [56] (CB 17 and 18).
[31] Authority reasons at [47]-[48] (CB 17).
Other claims
The Authority also considered other claims made by the applicant relating to:
a)him being falsely accused of murdering his friend by the police; and
b)him being a failed asylum seeker who had illegally departed Sri Lanka.[32]
[32] The Authority also considered a religion (Christianity) based claim that the applicant did not expressly advance at [58] of its reasons (CB 19).
The Authority rejected these claims because:
a)there was no plausible basis for the police to suspect that the applicant was involved in the killing;[33] and
b)on his return to Sri Lanka, the applicant would not be of any adverse interest to the authorities on account of his scarring and, in the circumstances, while he may be detained, questioned and fined on his return to Sri Lanka, he did not face any real chance of being persecuted or harmed.[34]
[33] See, eg, Authority reasons at [35] (CB 14).
[34] See, eg, Authority Reasons at [59]-[69] (CB 19-21).
The current proceedings
These proceedings began with a show cause application filed on 23 February 2017. At the trial of this matter, the applicant continued to rely upon that application. However, there was a disconnection between the grounds in the application and the pre-trial submissions filed on behalf of the applicant. Having regard to that, and to the course of oral argument at the trial, I gave leave for the applicant to file and serve an amended application.
The amended application was filed on 23 August 2017 and contains the following grounds:
1.The Immigration Assessment Authority (IAA) took into account a number of irrelevant considerations at paragraphs 17, 42, 43, 44, 45, 47, 50, 56, 61 of the IAA decision.
2. The IAA made adverse findings about the credibility of the Applicant. The IAA had no evidence for its finding that the Applicant was not a person of credibility. The IAA took into account a number of irrelevant considerations when it made its decision about the credibility of the Applicant. The fact that the Applicant may have made an inconsistent statement about a matter does not of itself mean that the Applicant's claims about persecution have been concocted.
3. The IAA has no evidence for many of its findings. The IAA has no evidence for its findings at paragraphs 9, 10, 11, 15, 16, 17, 35, 36, 37, 38, 45, 49, 52, 51, 54, 56, 57, 58, 66 and 68.
4. The IAA is not qualified to comment on the psychological status of the Applicant. The IAA has no evidence for its findings about the status of the Applicant.
5. The decision was so unreasonable that no reasonable person could have made the decision.
6. The IAA disclosed its bias when it refused to allow the Applicant the opportunity to put forward new information in support of the Application. Such an approach was not fair or reasonable. The IAA is required pursuant to Section 473FA of the Migration Act 1958 to be free of bias. There is a reasonable apprehension of bias on behalf of the Tribunal because the Tribunal refused to allow the Applicant the opportunity to put forward new information.
7. When the Applicant applied for the visa, the form which the Applicant used was an invalid form. The Application for the visa was therefore an invalid Application. As the Application was an invalid application, there can never be a refusal of the visa. Further, the IAA cannot make a decision to refuse the visa because there never was a visa Application in the first place.
8.On 17 May 2017, the Minister for Immigration and Border Protection stated that, ‘When you look at some of the judgements that are made, the sentences that are handed down it’s always interesting to go back to have a look at the appointment of the particular Labor Government of the day. Anyway, it’s a frustration we live with’. The comments made by the Minister on radio attacked the independence of both the Administrative Appeals Tribunal and the IAA. The comments of the Minister now raise a reasonable apprehension of bias. The AAT and the IAA cannot now hear and or deal with any migration matter because there is a reasonable apprehension of bias. The Applicant in this matter is of the opinion that the IAA Member when he dealt with his case was fearful of being sacked and therefore found against the Applicant.
9. On 19 May 2017, the Minister for Immigration and Border Protection stated; ‘The government wanted to announce today that the government has taken a decision in relation to those people who are fake refugees’. When the Minister made this statement, this is more evidence of a reasonable apprehension of bias. The Minister has indicated that those individuals who are applicants for a protection visa are fake refugees. That is, that their claims are concocted.
10. Although a delegate of the Minister is making a decision in such matters, legally it is the Minister and not the delegate who is making the decision. It is clear that the delegate is acting under dictation. If the Minister thinks that refugee applicants are fakes, then the delegate also thinks that the applicant is a fake. Quite irrespective of the claims of the Applicant, the Minister is of the opinion that the Applicant and all protection visa Applicants are fakes. The Applicant once again has a reasonable apprehension of bias.
11. The Minister is also fettering the discretion of the delegate by declaring the protection visa applicants to be fakes. The delegate will now have great difficulty in making a decision which is contrary to the views of the Minister. There is an element of prejudgement in this and other matters.
The Minister requested a further directions hearing on the amended application, which took place on 4 September 2017. At that hearing, the solicitor for the applicant stated that Ground 4 and Grounds 8-11 in the amended application were not pressed. I was able to connect the remaining grounds in the amended application to the applicant’s written submissions, as indicated to the parties.
At the trial of the matter on 9 August 2017, it was apparent that an issue of substance being pursued by the applicant was whether the form of application for the protection visa used by the applicant was a valid form. I required the Minister to provide additional evidence in relation to that issue, as well as giving the Minister the opportunity to make further submissions in relation to the application as ultimately amended. The Minister filed an affidavit by Caitlin Jane St Clair McConnel on 13 September 2017, as well as closing submissions. In addition to that affidavit, I have before me as evidence the court book filed on 28 April 2017.
Consideration
Ground 1 – irrelevant considerations
The applicant contends that the Authority took into account a number of irrelevant considerations at [17], [42]-[45], [47], [50], [56] and [61] of its decision. I accept the Minister’s submissions on this ground and it follows that the ground cannot succeed.
First, an irrelevant considerations ground can only succeed where it is shown that a decision-maker has taken into account a matter that the relevant statute expressly or impliedly forbade or prohibited the decision-maker from taking into account;[35]
[35] Greenpeace Australia Pacific Ltd v Chief Executive Officer of the Australian Radiation Protection & Nuclear Safety Agency [2002] FCA 1144 at [69] (Beaumont J); Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 130 ALD 589 at [104] and [105] (Kenny J).
Secondly, such a ground focuses on whether a decision-maker has properly applied the law.[36] Factual considerations are different.[37]None of the factual matters to which the applicant refers to were matters that the Authority was forbidden or prohibited from taking into account.[38] That would even be the case were this Court to consider that any of the matters were objectively or probatively irrelevant[39].
[36] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [74] (McHugh, Gummow and Hayne JJ).
[37] Kumar v Minister for Immigration (2009) 176 FCR 401 at [99] (Besanko J, with whom Stone and Greenwood JJ agreed); Abebe v Commonwealth (1999) 197 CLR 510 at [195] (Gummow and Hayne JJ); Minister for Immigration v Yusuf (2001) 206 CLR 323 at [73] (McHugh, Gummow and Hayne JJ.
[38] See, eg, footnote 36 above.
[39] Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority (2012) 130 ALD 589 at [104] and [105] (Kenny J).
Thirdly, this case is analogous to the matter before Judge Jarrett in Su & Anor v Minister for Immigration & Anor[40] where his Honour stated:
[34] The gravamen of this ground appears to be the submission that the tribunal took into account an irrelevant consideration because it was wrong to prefer certain evidence before it over other evidence more favourable to the applicant’s case that was before it.
[35]On its face, this ground invites impermissible merits review of the tribunal’s decision…
[40] [2016] FCCA 83.
Although probably unnecessary in light of the matters set out above, for the sake of completeness each of the “considerations” the applicant contends were not relevant were in fact matters upon which it was open to the Authority to rely on in coming to its decision.[41] Further, numerous of the so-called “irrelevant considerations” had little to no impact on the Authority’s decision. This creates another issue for the applicant’s jurisdictional error contention in connection with such a ground.
[41] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J).
Further to this point, each of the paragraphs of the Authority’s reasons which this ground purports to challenge are discussed below.
At [17] of the Authority’s reasons, it stated that “[I]t is important to note that the attorney’s statement is a recitation of the information provided to him by the applicant’s father and in that regard it does not verify the claimed events” [42].
[42] Applicant’s further submissions at [23].
At [23] of the applicant’s further outline of submissions, the applicant contends that whether the letter there in issue was a recitation was an irrelevant consideration. However, that is a mere complaint about the merits of the Authority’s decision. In relation to s.473DD of the Migration Act, it was plainly open for the Authority to consider this matter.
At [24] of the applicant’s further submissions, the applicant complains that the Authority “referred to the fact that the applicant’s brother and father were working in the area”.
There was, however, nothing wrong with this. One of the applicant’s claims was that he would have difficulty finding employment upon his return to Sri Lanka (Employment Claim). The fact that persons in a similar position to him did not appear to have any difficulties obtaining work was clearly a matter that was open to the Authority to consider in assessing the applicant’s claim.
At [25] of the applicant’s further submissions, the applicant complains about the Authority referring to the applicant’s academic achievements. He contends that such achievements were irrelevant considerations.
It is, however, significant that at [43] of its reasons, the Authority was examining the studies that the applicant had been able to achieve despite his Tamil ethnicity, in the context of examining his expressed concern that he would not be able to secure employment in consequence of his Tamil ethnicity. That was plainly relevant to the applicant’s Employment Claim.
At [44] of the Authority’s reasons, it took into account that “there was a high incidence of unemployment in… Sri Lanka, largely due to the effect of the civil war”.
The applicant at [26] of his further submissions further contends that this was also an irrelevant consideration. However, it was plainly relevant, given that it tended to show that any unemployment problems the applicant may have faced in Sri Lanka was not on account of any Convention nexus or Tamil ethnicity.
At [27] of the applicant’s further submissions, the applicant complains about the Authority noting the fact that the applicant’s scars did not prevent him obtaining casual employment in 2009. The applicant claims that this was a further irrelevant consideration.
I reject that contention. Ascertaining a person’s prospects of future harm by reference to past events is wholly unexceptional.
At [28] of the applicant’s further submissions, the applicant complains about the Authority noting that it was open to him to return to Batticaloa. The applicant claims that was an irrelevant consideration because it did not mean that he had not been subject to persecution in the past.
The point is, however, that the Authority was required to assess the likelihood of the applicant being subjected to harm in the future, which was the apparent reason for the Authority noting the fact that it was open to the applicant to return to Batticaloa.
At [50] of the Authority’s reasons, it stated, “I consider that if [the applicant’s] attackers were police officers they would have simply have taken him to a police station and not to a secluded place as claimed”. The applicant complains that this was an irrelevant consideration.[43]
[43] Applicant’s further submissions at [29].
However, [50] of the Authority’s reasons merely involved the Authority examining the veracity of an element of the applicant’s story. That was part of its statutory function.
At [56] of the Authority’s reasons, it stated as follows:
… [The incidents which the Applicant endured] were localised to Colombo and there is no indication they would extend to Batticaloa. The Applicant does not have to live in Colombo on return and it is open to him to return to his home in Batticaloa. However, if the applicant chose to live in Colombo on return I note the improvement in the security situation in Sri Lanka and I find that there is not a real chance that he would experience serious harm.
At [30] of the applicant’s further submissions, the applicant complains that the question of where he will live on his return was an irrelevant consideration. I reject that contention, for the same reasons as set out at [56] above.
At [61] of the Authority’s reasons, it was evaluating whether the applicant would likely be harmed on his return to Sri Lanka. One aspect of this task was considering whether harm might follow from his questioning by police at the airport on account of his claimed difficulties recounting traumatic events. However, the Authority was of the view that the applicant would not have such difficulties, as was evidenced by his ability to broach sensitive topics in his protection visa interview. Such a matter was plainly capable of being viewed by the Authority as being relevant. The applicant’s complaint at [31] of his further submissions that this matter was an irrelevant consideration cannot succeed.
Ground 2 - credibility findings
By this ground, the applicant takes issue with adverse credibility findings said to have been made against him by the Authority.
The Minister deals with this ground by asserting, among other things, that the Authority did not make any adverse credibility findings against the applicant.
Be that as it may, the Authority was not satisfied in relation to a number of factual assertions made by the applicant. To the extent that the applicant asserts that the Authority found that any of his claims were “concocted”, as was asserted in the applicant’s written submissions, I accept that there was no such finding.
The Authority referred to an inconsistency between the content of a letter from a named person (Mr P) and the content of the applicant’s protection claims and found that this “[brought] into doubt” whether the letter was a true representation of the applicant’s experiences.[44]
[44] Authority decision at [11]; applicant’s further submissions at [8].
The applicant erroneously construes this to be the Authority making a finding that the applicant’s claims were fictitious. The Authority never said as much.
Moreover, the applicant’s reliance on the decision of Kirby J in Minister for Immigration v SGLB[45] (presumably [73(6)-(7)] thereof) is misplaced. His Honour outlined that there is not necessarily a correlation between an inconsistency in an applicant’s claims and credibility. That is undoubtedly correct. However, it does not follow that a link between inconsistency and credibility cannot be drawn in an appropriate case. Further, in this case the Authority did not make an adverse credibility finding against the applicant higher than the non acceptance of particular factual assertions.
[45] Minister for Immigration v SGLB (2004) 78 ALD 224.
Ground 3 – no evidence
The applicant contends that the Authority had no evidence for its findings at [9]-[11], [15]-[17], [35]-[38], [45], [49], [51], [52], [54], [56]-[58], [66] and [68].
I accept the Minister’s submissions as to the general principles to be applied.
First, the making of a finding of fact for which there is no supporting evidence is an error of law.[46] However, the mere existence of an error of law, in the context of a “no evidence” ground, does not of itself give rise to the existence of jurisdictional error. Jurisdictional error will only arise where the relevant fact, for which there was no evidence to support, was a jurisdictional fact;[47]
[46] Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 ([91]) (Hayne, Heydon, Crennan and Kiefel JJ).
[47] Buchwald v Minister for Immigration (2016) 242 FCR 65 at [33]-[39] (Bromberg J). See, also M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (2017, 6th ed) at [4.600].
Secondly, a “no evidence” ground only applies to findings of fact, not to expressed opinions[48] or to findings of satisfaction or non-satisfaction[49].
[48] SZFWB v Minister for Immigration [2007] FCA 167 at [37] (Kenny J).
[49] WAJS v Minister for Immigration (2004) 240 FCR 261 at [17] (Wilcox, Marshall and Jacobson JJ); NAVK v Minister for Immigration [2005] FCAFC 124 at [32] to [34] (Nicholson and Conti JJ, with whom Edmonds JJ agreed).
Thirdly, in ascertaining whether or not a finding of fact was made in the absence of evidence:
a)determining whether a particular inference can be drawn from facts is a question of law;[50] and
b)“the no evidence ground cuts out when even a skerrick of evidence appears”.[51]
[50] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 355 (Mason CJ (with whom Brennan J agreed)).
[51] M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (2017, 6th ed) at [4.600] (citing Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at 587 (Weinberg J), Commissioner of Taxation v Pham (2013) 134 ALD 534 at [46] (Katzmann J) and MZZYE v Minister for Immigration [2015] FCA 1378 at [54] (Murphy J)).
Fourthly, as with all assertions of jurisdictional error, the party asserting that a finding was made in the absence of evidence bears the evidentiary onus of proving such a matter.[52]
[52] BSB15 v Minister for Immigration [2016] FCA 1135 at [20] (White J).
Further to the point made at [70] above, the relevant jurisdictional fact in a refugee context is the decision-maker’s “state of satisfaction” that the relevant visa criteria are met.[53]
[53] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [20] (Gummow ACJ and Kiefel J).
Further to the point made at [73] above, in the absence of the applicant adducing a transcript of the hearing before the delegate, which was provided to the Authority[54] and to which the Authority stated it had had regard[55], it is difficult to be satisfied that there was no evidence to support findings made by the Authority.[56]
[54] CB 250.
[55] Authority reasons at [3] (CB 6).
[56] COC15 v Child Support Registrar & Anor [2016] FCCA 224 at [19] (Judge Street).
I also accept that a finding of fact is not necessary to support a conclusion of non satisfaction.[57]
[57] MZZUG v Minister for Immigration [2015] FCA 1151 at [57] per Murphy J.
I otherwise agree with the Minister’s closing submissions on this ground.
All of the applicant’s “no evidence” grounds must fail in circumstances where:
a)some of the alleged “findings” that are asserted to have been made were not, in fact, findings made by the Authority;
b)a no evidence ground has no application to conclusions of non-satisfaction/disbelief;
c)a no evidence ground has no application to non-jurisdictional facts; and
d)it is difficult to be satisfied of the existence of a no evidence ground, absent evidence of what occurred at the protection visa interview being adduced.
As to each specific complaint, the evidence supporting the Authority’s so-called “findings” are detailed below.
As I have already noted above, the Authority never found that the applicant’s claims were concocted.[58]
[58] Authority decision at [9]; applicant’s further submissions at [6].
The Authority’s non-satisfaction that a senior member of a criminal organisation could hold the position of a justice of the peace is not something to which a no evidence ground has any application.[59]
[59] Authority decision at [10]; applicant’s further submissions at [7].
The Authority referred to an inconsistency between the content of the letter from Mr P and the content of the applicant’s protection claims and found that this “[brought] into doubt” whether the letter was a true representation of the applicant’s experiences.[60]
[60] Authority decision at [11]; applicant’s further submissions at [8].
As noted above in relation to Ground 2, the applicant erroneously construes this as the Authority making a finding that the applicant’s claims were fictitious. The Authority never made such a finding.
In any event, the “finding” expressed by the Authority was not a finding of fact. Rather, it was an expression of doubts about the veracity of the letter’s contents.
The Authority’s expressed non-satisfaction that the letter from the Batticaloa Police Station was genuinely issued is not a matter to which a no evidence ground has any application.[61]
[61] Authority decision at [15] and [16]; applicant’s further submissions at [9].
In any event, that state of non-satisfaction was one clearly supported by the evidence to which the Authority referred, namely, the significant inconsistencies between the contents of the letter and the applicant’s other claims.
At [17] of the Authority’s reasons, it stated:[62]
17. I note the letter from [Mr B], attorney and that [the] applicant’s father is a client of, and is personally known to, the attorney. It is important to note that the attorney’s statement is a recitation of the information provided to him by the applicant’s father and in that regard it does not verify the claimed events. There is no apparent reason why such a statement could not have been obtained earlier and I am not satisfied that there are exceptional circumstances for having regard to the statement.
[62] applicant’s further submissions at [10].
The applicant claims that there was no evidence to support the Authority’s claims that the attorney’s statement did not verify the claimed events.
Clearly, all the Authority was outlining when it stated that the attorney’s statement did not “verify” the claimed events was that such information was not provided by a person who could give direct evidence of the matters contained therein. So much is clear from the Authority’s use of the words “and in that regard”. Viewed through that prism, the Authority’s statement at [17] was factually correct and wholly unexceptional.
The applicant contends that there was no evidence that supported the Authority “not accepting” that his friend was intentionally killed, or the applicant was suspected by the authorities of such a killing.[63]
[63] Authority decision at [35], [36], [37]; applicant’s further submissions at [11]-[12].
Again, this assertion must fail, given that:
a)it relates to a conclusion of disbelief/non-satisfaction expressed by the Authority; and
b)that conclusion was supported by the matters referred to at [38] of the Authority’s reasons.
First, the Authority did not need any rebutting evidence before it in order not to be satisfied of the truth of such matters.[64] Secondly, there were ample matters (to which the Authority referred in [35]-[37] of its reasons) to support its non-satisfaction of such matters. Thirdly, as noted above, a no evidence ground has no application to conclusions of disbelief or non-satisfaction.
[64] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 (Beaumont J); Selvadurai v Minister for Immigration (1994) 34 ALD 347 at 348 (Heerey J).
In [42]-[46] of its reasons, the Authority considered the applicant’s claim that he would have difficulty securing employment on his return to Sri Lanka on account of his Tamil ethnicity and perceived LTTE links arising from his scars.
The Authority considered all of the applicant’s circumstances, including the fact that the applicant had previously been able to obtain employment notwithstanding his scars, and concluded that it was not satisfied that the applicant would not be denied the capacity to earn a livelihood of any kind.
The applicant complains that the “[Authority] has indicated that it is not convinced that the scars would prevent the applicant from obtaining casual employment”,[65] and that there was no evidence to support such a finding. I reject that contention. Without limitation, there was evidence that in the past his scars had not deprived him of the ability to obtain employment.
[65] Applicant’s further submissions at [14].
In so far as the applicant asserts that there is “very recent country information” indicating that he would not be able to obtain employment on account of his scars, that information was not before the Authority and cannot be relied upon as a basis to impugn the Authority’s decision.
Further, in so far as the applicant complains that there was no evidence to reject his claim that he would not be able to obtain casual employment, I reiterate the following. First, the Authority did not need rebutting evidence before not being satisfied of any aspect of the applicant’s claims. Secondly, and in any event, there was ample evidence to support the Authority’s state of non-satisfaction that the applicant would not be able to obtain work on account of his Tamil ethnicity and scars.[66]
[66] as per [42]-[46] of the Authority’s reasons.
In so far as the applicant complains that the Authority did not address the personal circumstances of the applicant, I reject the contention on the facts of the case.[67]
[67] refer, eg, [45] and [46] of the Authority’s reasons.
The applicant complains of the Authority’s conclusion at [49] and [51] of non-satisfaction about the claim that the applicant’s team leader arranged for him to be beaten on the basis that “[the Authority] has no evidence for such a finding”.[68]
[68] Applicant’s submissions at [15].
Again, as already noted, a conclusion of non-satisfaction is not something to which a no evidence ground has application. In any case, however, the Authority’s conclusion was supportable, given the speculative nature of the applicant’s assertions and the inconsistencies in the accounts which he had provided.[69]
[69] Authority’s reasons at [48].
The applicant’s assertion that the persons who assaulted him were police officers was a matter about which the Authority was not satisfied. Hence, a no evidence ground has no application.[70]
[70] Authority’s reasons at [51].
In any event, that conclusion was one supported by the matters discussed by the Authority at [50] of its reasons.
The Authority’s finding that the applicant’s history of animosity with the team leader would not give rise to a real chance of harm on return to Sri Lanka was plainly supported by the matters outlined at [54] of the Authority’s reasons, namely:[71]
… As noted above, the applicant has completed the training program and there is no reason to believe he would encounter this team leader in the future. His past experiences with this team leader were isolated to his time in the training program…
[71] Authority’s reasons at [54].
The Authority was correct in expressing that there was “no indication” that the situation the applicant endured in Colombo extended to Batticaloa. The applicant does not point to any evidence to the contrary.[72]
[72] Authority’s reasons at [56].
Moreover, a comment about there being a lack of evidence before a decision-maker on a particular matter is not something to which a no evidence ground extends.
The Authority’s expressed non-satisfaction about the applicant’s electoral commission card giving rise to any perceived harm is similarly not a matter to which a no evidence ground extends. Moreover, there was no evidence capable of linking the electoral card with any perceived/potential harm.[73]
[73] Authority’s reasons at [57].
At [58] of the Authority’s reasons, it pointed to evidence suggesting that the applicant would not be harmed on return to Sri Lanka on account of his Christianity.
At [66] of the Authority’s reasons, it expressed a conclusion of law, to which a no evidence ground has no application.
For the reasons given above, the Authority’s non-satisfaction that the applicant would be imputed with an LTTE profile[74] is not a matter to which a no evidence ground has any application.
[74] Authority decision at [68].
Moreover, the applicant claimed that the authorities would perceive him to have LTTE connections on account of his scars. Country information indicated of itself that this would not attract the interest of the authorities.[75]
[75] Authority decision at [61].
In any event, the “finding” expressed by the Authority was not a finding of fact but, rather, was an expression of its doubts about the veracity of the contents of the letter referred to above.
The Authority’s expressed non-satisfaction that a letter was genuinely issued is not something to which a no evidence ground has any application.[76]
[76] Authority decision at [15] and [16].
In any event, that state of non-satisfaction was one clearly supported by the evidence to which the Authority referred, namely, the significant inconsistencies between the contents of the letter and the applicant’s other claims.
Ground 5 – unreasonableness
By this ground, the applicant asserts that it was unreasonable for the Authority not to consider new information in reliance upon s.473DD of the Migration Act.
The Minister’s principal contention is that unreasonableness as a ground has no operation in relation to fact finding, contrasted with discretionary decisions.[77]
[77] Minister for Immigration v Eshetu (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J) and [123] to [126] (Gummow J); SZOOR v Minister for Immigration (2012) 202 FCR 1 at [83] (McKerracher J (with whom Reeves J agreed)); Minister for Immigration v SZSNW [2014] FCAFC 145 at [81] and [82] (Buchanan J) and [109] (Perram J); Minister for Immigration v Li (2012) 202 FCR 387 at [33] and [34] (Greenwood and Logan JJ); The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [175] (Edelman J).
I accept that it is certainly arguable that s.473DD is not a discretionary provision as it provides that the Authority must not consider “new information” unless it is satisfied that there are exceptional circumstances to justify considering the material, once it is found to be “new information”[78] and one of the two additional matters in s.473DD(b) are satisfied.
[78] Section 473DD(a).
Nevertheless, as I made clear in DZU16 v Minister for Immigration & Anor,[79] I do not accept that the ground of unreasonableness is unavailable in relation to reviews conducted by the Authority. In addition to my reasons given in that case, I do not rule out the possibility that unreasonableness may be available whether or not the Authority is engaged in an exercise of a discretionary power.[80]
[79] [2017] FCCA 851.
[80] Minister for Immigration v SZSNW [2014] FCAFC 145 at [15]-[16].
I accept, however, that it is highly unlikely that the Authority would be found to have acted unreasonably where it is simply following its code of procedure. That was the situation here. Upon that basis I reject this ground.
Ground 6 – bias
I do not accept the applicant’s contentions in relation to this ground. I do accept the relevant submissions of the Minister.
Contrary to the applicant’s assertion, s.473FA is aspirational in nature[81] and does not impose any substantive obligations capable of being breached.
[81] I accept the relevance of the analogous cases made in the context of s.353 of the Migration Act – see, eg, Minister for Immigration v Eshetu (1999) 197 CLR 611 at [48]-[53] (Gleeson CJ and McHugh J) at [77] (Gaudron and Kirby JJ), at [109] (Gummow J) and at [176]-[179] (Callinan J). See also Minister for Immigration v Singh (2014) 231 FCR 437 at [49] (Allsop CJ, Robertson and Mortimer JJ).
Bias is a ground giving rise to jurisdictional error. However, merely refusing to consider new evidence, as the Authority was required to do under s.473DD and which the applicant concedes was open to the Authority[82], does not support any assertion of bias.
[82] Further Submissions at [3].
I do not accept the contention at [2] of the applicant’s submissions that the rules of procedural fairness bound the Authority to consider the further submissions of the applicant, despite s.473DD. The rules of procedural fairness, in so far as they bear upon the concept of a fair hearing free of bias, are exhaustively embodied in Part 7AA, Division 3 of the Migration Act.[83] In any event, the Authority did consider the applicant’s submissions in numerous respects, except in so far as s.473DD precluded the Authority from doing so.[84]
[83] Section 473DA.
[84] See, eg, Authority reasons at [5]-[19] (CB 7-9).
Ground 7 – invalid form
The applicant contends that the form used by the applicant to make his visa application was invalid, with the consequence that the visa application was also invalid and hence there was nothing for the Authority to review. The invalidity in the form is said to have arisen because it was a “disallowable instrument” or “legislative instrument” which was not tabled in Parliament.
While this ground in the application as amended is clearly arguable, I prefer the submissions of the Minister on it.
To understand the applicant’s contention, it is necessary to understand the statutory scheme. That scheme is as follows:
a)by regulation 2.07(1)(a), the approved form for any visa application is set out in Schedule 1 of the Regulations.
b)Schedule 1, item 1404 provides:
1404 Safe Haven Enterprise (Class XE)
(1) Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
c)by regulation 2.07(5):
(5) If an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:
(a) an approved form for making an application for a visa of a specified class;
…
d)section 495 of the Migration Act[85] and regulation 1.18[86] are also of some relevance.
[85] Migration Act, s.495: “The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used”.
[86] Regulation 1.18(1)(a) of the Regulations: “(1) The Minister may, in writing, approve forms for… (a) use in making an application for a visa…”.
In this case, by IMMI 15/045, the Assistant Minister, acting under regulation 2.07(5), specified for Schedule 1, item 1404(1) that the “approved form” was Form 790 (which was the form the applicant completed).[87]
[87] See annexure “CJM-2” to the affidavit of Ms McConnel.
The applicant seems to suggest that IMMI 14/045 was not valid because it was not tabled. It is true that legislative instruments are required to be tabled in each House of Parliament,[88] but the clear evidence in this case is that IMMI 15/045 was tabled.[89]
[88] Legislation Act 2003 (Cth), s.38.
[89] See affidavit of Ms McConnel.
In any event, even if the form of application were invalid (which I do not accept), the only consequence is that there would have been no approved form for the subclass of visa for which he applied. If that were right, it is difficult to see why lodging a Form 790 (a form which provided the details necessary to comply with s.46 of the Migration Act) would result in any application invalidity.[90]
[90] That is particularly so when one has regard to the fact that strict compliance with Schedule 1, item 1404 is not necessary for the validity of a visa application: BVJ16 v Minister for Immigration & Anor [2017] FCCA 178 at [39] (Judge Street).
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 October 2017
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