AUV15 v Minister for Immigration and Border Protection
[2017] FCCA 1951
•17 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUV15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1951 |
| Catchwords: MIGRATION – Protection visa – Sri Lankan citizen – claims that LTTE and Karuna Group after applicant – none established – applicant seeking deferral of decision until High Court’s decision in SZTAL – need to apply the law as it currently stands – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 414, 420 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 AKD16 v Minister for Immigration & Anor [2016] FCCA 3026 Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123 Geelong Football Club Ltd v Clifford [2002] VSCA 212 Minister for Immigration and Border Protection v Eden [2016] FCA FC 28 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’ (2014) |
| Applicant: | AUV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1154 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 26 July 2017 |
| Date of Last Submission: | 26 July 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Mr W. Mosely |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The amended application filed 16 June 2017 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1154 of 2015
| AUV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed 16 June 2017 (leave to file having been given by a registrar in this court on 15 September 2015) the applicant sought judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made
30 April 2015.[1] The Tribunal affirmed an order of the Minister’s delegate refusing to grant the applicant a protection visa.[2]
[1] Court book filed 6 April 2016 at pp.278-294.
[2] Court book filed 6 April 2016 at pp.179-200.
The applicant, a Sri Lankan, applied for a protection visa on
15 November 2015. A delegate appointed by the Minister refused
to grant the visa on 14 August 2013. The applicant sought a merits review before the Tribunal. He appeared before the Tribunal on
26 February 2015 to give evidence and to present argument. He was assisted by an interpreter and a migration agent.
The Tribunal affirmed the decision not to grant the applicant a protection visa. In essence, the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations and that he therefore did not satisfy the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal also found that the applicant did not meet the criterion in s.36(2)(aa) of the Act.
The applicant relied on three grounds in support of his application for judicial review. Each ground had subjoined to it multiple paragraphs described as particulars. In essence, nine separate grounds of review were advanced in this application.
Synopsis
For the reasons that follow, in my judgment none of the grounds were made out.
Short factual narration
At all relevant times, the applicant was a 37-year-old male Sri Lankan citizen of Tamil ethnicity and Hindu religion. In his protection visa application he claimed to fear harm in Sri Lanka due to –
a)a perceived opposition to a military group with allegiances to the government known as the Karuna Group (“KG”);
b)his Tamil ethnicity;
c)his Hindu religion;
d)his being a failed asylum seeker who would be imputed as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”); and
e)his status as a person who left Sri Lanka illegally.
Expressed broadly, the applicant asserted he had witnessed the shooting of his brother in 2007 by members of the KG and the applicant was able to identify one of the four persons involved.
The applicant asserted that as a consequence, he received death threats. He asserted his wife had received death threats. The applicant said he went into hiding from 2007 until 2012 when he left Sri Lanka.
He applied for the protection visa on 15 November 2012.
The Tribunal accepted that –
a)the applicant’s brother may have been shot by members of the KG in 2007 and that the applicant may have witnessed the shooting;
b)the applicant could have known one other person involved whose surname was Eniaparathy;
c)the KG assisted the Sri Lankan Army during intense fighting in 2006 and 2007 during which a large number of civilians were killed; and
d)the KG maintained a presence in the east at the end of the conflict and, although officially disarmed, it had previously been implicated in criminal activities in the east including extortion, intimidation, abduction to ransom, election fraud and violence.
The Tribunal did not accept that –
a)
members of the KG sought to abduct the applicant in
March 2012, five years after shooting the applicant’s brother;
b)men in military uniforms visited the applicant’s wife in 2012 or harassed or assaulted her;
c)the KG were searching for the applicant;
d)Eniaparathy held a position within the government or as an adviser to the former President; and
e)members of the KG threatened the applicant or were looking for him in 2011 to kill him because he had witnessed the shooting of his brother five years earlier.
Further, the Tribunal did not accept that there was a real chance the applicant would suffer any harm presently or in the reasonably foreseeable future because of his religion.
The Tribunal did not accept that the applicant would be questioned or detained or otherwise harmed presently or in the reasonably foreseeable future because of an actual or imputed LTTE association arising from any support he had provided to LTTE prior to 2006 when the LTTE was in control of the area.
The Tribunal did not accept that there was a real chance that the applicant would be seriously harmed by the Sri Lankan Army presently or in the reasonably foreseeable future because of his ethnicity or because of an imputed support of the LTTE arising from his ethnicity.
Based on country information, the Tribunal did not accept that the applicant would be detained or tortured upon return to Sri Lanka because he was Tamil or because he lived in an LTTE-controlled area. Nor did the Tribunal accept that Eniaparathy or the KG were looking for the applicant or that they would know of his return or that they would harm him.
So far as the applicant’s fear of harm based on illegal departure from Sri Lanka was concerned, the Tribunal stated –
a)poor prison conditions involving inadequate resources or overcrowding do not give rise to significant harm under Australian law;
b)a short period on remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or inhuman or degrading treatment or punishment; and
c)substantial grounds did not exist for believing that there was a real risk that the applicant would be arbitrarily killed and the death penalty did not arise on the facts of the case.
The Tribunal affirmed the delegate’s decision not to grant the applicant the visa.
SZTAL v Minister for Immigration and Border Protection
The applicant contended that in relation to at least one ground of review, the decision of the High Court of Australia is pending in
SZTAL v Minister for Immigration and Border Protectionand so I should await the High Court’s decision before giving judgment in this case.
For reasons addressed in ACX15 v Minister for Immigration and Border Protection,[3] in my view I am currently bound by the decision of the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration and Border Protection[4] (“SZTAL”). Unless and until the High Court of Australia reverses the decision of the Full Court of the Federal Court of Australia I am duty-bound to apply the law as it currently stands. I am also duty-bound to deliver my judgment in this case expeditiously. In those circumstances, I decline to await the High Court’s pronouncements on point.
[3] [2017] FCCA 1392.
[4] [2016] FCAFC 69.
Ground 1
The applicant advanced particulars (a) to (f) as grounds of his principal complaint that the Tribunal fell into jurisdictional error by failing to consider relevant considerations including claims, integers of claims or information before the Tribunal. Each particular had its own relevant factual scenario. Accordingly, in the context of a consideration of each particular below, I have canvassed the factual circumstances pertaining to that particular.
A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether,
by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[5] proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).[6]
[5] (2003) 216 CLR 473.
[6] (2003) 216 CLR 473 at [1].
In the context of a protection visa Gleeson CJ said the arguments and evidence of the applicant and the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.[7]
[7] (2003) 216 CLR 473 at [39].
The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov v Minister for Immigration and Multicultural Affairs,[8] and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in
[8] (2003) 77 ALJR 1088 at [24].
NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2)[9] (“NABE”). Other authorities at single judge and
Full Court level in the Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s “claim”.
By way of illustration in Htun v Minister for Immigration and Border Protection[10] Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414 of the
Act that the Tribunal considers ‘the claims’ of the applicant stating –
The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration.[11]
[9] (2004) 144 FCR 1, 22 at [61] and [68].
[10] (2001) 194 ALR 244.
[11] (2001) 194 ALR 244 at [42].
The Tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs[12] as well as by the Full Court of the Federal Court of Australia
(Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs.[13]
[12] (1998) 94 FCR 28, 63.
[13] (1999) 90 FCR 287, 293-294.
But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the Tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs.[14] As the
Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.[15] Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[14] (2003) 129 FCR 137 at [19].
[15] (2004) 144 FCR 1 at [58].
It is true that the Tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs,[16] Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.[17]
[16] (2003) 199 ALR 364.
[17] (2003) 199 ALR 364 at [17].
The settled position nowadays is that stated in NABE.[18] The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation,
the Tribunal is not required to consider criteria for an application never made.
[18] (2004) 144 FCR 1 at [61].
To my way of thinking, it would place an impossible burden on the Tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[19] (French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.[20] Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the Tribunal.
[19] [2003] FCAFC 184 at [46].
[20] (2014) 5 Victorian Judicial Scholarship.
Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –
a)a “substantial, clearly articulated argument relying upon established facts”;[21]
b)a claim or claims and its or their component integers;[22]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[23]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[24] and
e)not an application or claim never made.[25]
[21] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24].
[22] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244.
[23] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
[24] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[25] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
As Robertson J held in Minister for Immigration and Citizenship v SZRKT[26] –
Although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim.[27]
[26] (2013) 212 FCR 99.
[27] (2013) 212 FCR 99 at [98].
Once the “claim” that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS.[28]
[28] (2010) 243 CLR 164 at [7].
In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well-founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[29] (“Abebe”) and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS.[30]
[29] (1999) 197 CLR 510 at [187].
[30] (2013) 230 FCR 431, 444 at [38].
More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v SZSWB[31] held that “[m]oreover, the claim must emerge clearly from the materials”.[32]
[31] [2014] FCAFC 106.
[32] [2014] FCAFC 106 at [33].
Having identified each “claim” and “integer of claim” the Tribunal was then required to give active intelligent consideration to each claim or integer of claim so identified. The question in this case was whether the Tribunal correctly did both of those things.
In my view it did. Let me explain.
Particular 1(a)
The applicant’s written submissions[33] advanced the proposition that in determining whether the man who killed the applicant’s brother
(or other KG member) came after the applicant to threaten harm to the applicant, the Tribunal did not consider and determine the applicant’s claim that the applicant was identified by the man who the Tribunal accepted had shot and killed the applicant’s brother. Counsel for the applicant contended that such a claim was made during the entry interview and was referred to between paragraphs 28 to 33 of the Tribunal’s reasons.
[33] Applicant’s written submissions filed 16 June 2017.
In response the Minister contended that the Tribunal –
a)accepted the applicant’s brother may have been shot by members of the KG in 2007, and the applicant may have been a witness to the shooting;
b)accepted that the applicant could have known that one of the people involved was called Eniaparathy;
c)did not accept that a member of the KG threatened to kill the applicant if he told anyone he had witnessed the shooting;
d)did not accept that members of the KG visited the applicant’s wife or father or warned them or asked for the applicant;
e)did not accept that the police would have investigated the shooting even if the applicant had identified one of the shooters and did not accept that Eniaparathy or members of the KG would have been concerned about the possibility of prosecution for shooting the applicant’s brother;
f)found that if members of the KG had any concerns about the applicant they would have killed him at the time;
g)did not accept that Eniaparathy or the KG looked for the applicant after his brother was shot or that they had any interest in the applicant or that the applicant was in hiding from 2007 until he left Sri Lanka in 2012;
h)did not accept that members of the KG sought to abduct the applicant in March 2012, five years after shooting his brother in order to prevent him from disclosing their identity;
i)found that the applicant has never named any persons involved and there was no reason why they would be concerned he would name them in 2012 when he had not named them in the preceding five years;
j)did not accept that men in military uniforms visited the applicant’s wife looking for the applicant;
k)did not accept that the KG was searching for the applicant or threatened the applicant’s wife; and
l)concluded at [38] of the Tribunal’s reasons for decision –
For all of the reasons above, the Tribunal does not accept that members of the [KG] have threatened the applicant or were looking for him in 2012 to kill him because he witnessed the shooting of his brother 5 years previously.
The Tribunal does not accept that members of the [KG] or other people in military uniforms visited the applicant’s wife and assaulted her in 2012 because they were looking for the applicant to kill him. The Tribunal does not accept that members of the [KG] are looking for the applicant or wish to harm him to prevent him from identifying who shot his brother in 2007.[34]
[34] First respondent’s contentions of fact and law filed 12 July 2017 at [11].
This claim was confusingly and inconsistently advanced by the applicant. In particular 1(a) of the amended application, the applicant asserted –
… in determining this material question of fact [the Tribunal] did not consider and determine the applicant’s claim that he was identified by the associates of the man … [who] … had shot and killed the applicant’s brother.
In other words, cast in that way the applicant asserted that he claimed the associates of the shooter identified the applicant. In fact, the claim was cast in opposite terms. In the irregular maritime arrival entry interview, the following exchange took place (transcribed verbatim) –
A. After I was resettled, I saw both of them, in year 2008, within a Temple, in a crowd of people. I am the only one who saw him, but he did not see me.
Q. How did they know that you had seen him?
A. There was two people behind him, and they are the ones who saw me, and it must be they are the ones who told him.
Q. Then they requested you to meet him, is that correct?
A. Yes, that’s when they saw, the first time they came in a van, and they came on a motorbike.
Q. And did you ever meet with him?
A. No.
Q. What do you think he wanted with you?
A. They just want to shoot me because they know if I’m there I will identify them, and he’ll be in trouble.[35]
[35] Court book filed 6 April 2016 at p.47.
In other words, the asserted claim to fear was based on the applicant’s ability to identify “them” (presumably the associates) rather
than the associates’ ability to identify the applicant, as was asserted in particular 1(a). The applicant’s written submissions at paragraph 6(h) said as much.
In paragraph 30 of its reasons, the Tribunal stated that it did not accept that the police would have investigated even if the applicant had identified one of the shooters. In other words, the Tribunal was prepared to proceed on the basis of an assumption that the applicant had identified one of the shooters and not that one of the shooters’ associates had identified the applicant. The Tribunal then found, as a matter of fact, that it did not accept the proposition claimed.
In those circumstances the Tribunal did in fact consider the claim advanced. I reject the notion that it did otherwise. The Tribunal stated as follows at paragraph 38 of its reasons –
The Tribunal does not accept that members of the [KG] are looking for the applicant or wish to harm him to prevent him from identifying who shot his brother in 2007.[36]
[36] Court book filed 6 April 2016 at p.285.
The claim was squarely addressed. As it happened, the Tribunal addressed it adversely to the applicant.
There was no merit in paragraph 1(a) of the grounds of review.
Particular 1(b)
Under this ground the applicant advanced what I regarded as a
non-sensical contention. The strands of reasoning were multiple. So the applicant contended –
a)the Tribunal considered whether the applicant’s brother’s killer or other KG members came after, threatened, warned or harmed the applicant;
b)the Tribunal determined that those persons had no need to come after, threaten, warn or harm the applicant because a culture of impunity protected them from prosecution;
c)in addressing that issue the Tribunal did not address whether the members of the KG may have considered that their impunity may not last; and
d)if that impunity did not last, the members of the KG may have determined to eliminate a witness or future avenger.
In support of this particular, counsel for the applicant relied on paragraphs 8, 29 and 30 of the Tribunal’s reasons. That was in paragraph 19 of the applicant’s written submissions. In his verbal submissions concerning this particular, counsel for the applicant stated as follows –
[T]he tribunal, at paragraphs 29 to 30 on page 280, dismissed the claim that the Karuna Group had come hunting for the applicant, in part because the tribunal said, “Well, look, they were operating with impunity. They didn’t need to be worried about somebody coming or provoking any kind of police investigation or prosecution; there wouldn’t have been any”. But the tribunal didn’t turn its mind to the question of what may happen – sorry, I withdraw that. The tribunal didn’t consider whether they may have thought that, “Well, we’re okay at the moment but what may happen in the future?” And, indeed, what has happened in the future is that there has been a significant change; the civil war came to an end.
It would appear that there is still some level of impunity; how far, it’s not clear. It’s not a matter, of course, for your Honour to determine that, but, in my submission, it was a question that the tribunal needed to consider. The tribunal, in my submission, has taken a very simple view that they were operating with impunity, so they wouldn’t have cared about witnesses or anything of that kind. Had the tribunal asked the question, then it may or may not have come to a different answer and it could, in my submission, have affected the decision.[37]
[37] Transcript of proceeding, 26 July 2017 at p.11.
The Minister resisted the contentions in relation to particular 1(b) arguing –
a)between 2007 when the applicant’s brother was shot and 2012 when the applicant departed Sri Lanka, the applicant was not sought out or threatened;
b)the Tribunal so found;
c)members of the KG were not searching for the applicant;
d)there was no reason why members of the KG would be concerned the applicant would name them in 2012 when the applicant had not named the KG members in the five years between 2007 and 2012; and
e)the Tribunal correctly found that on the ground alleged, there was not a real chance of persecution now or in the reasonably foreseeable future.
So far as this particular was concerned, let me state a few things.
First, to the extent that the matters alleged in this particular represented a “claim” properly so-called, the Tribunal dealt with it by rejecting it. Second, in my view the matters alleged in this component of the applicant’s claim did not include the concept contended for. In other words, this component of the applicant’s claim neither invited nor required the Tribunal to address whether members of the KG may have considered that the impunity may not last and therefore, that those group members may have determined to eliminate a witness or future avenger. Third, nowhere was it said by the applicant’s counsel which member or members of the KG was or were relevant when assessing the group’s consideration of their impunity. In other words, some members of the group might have so considered a particular set of circumstances while other members of the group might not.
Fourth, whether or not any of the group members might have given consideration to any particular matter involved an analysis of the subjective state of mind of one or more members of the group as well as the likelihood of their consideration being given to that matter. Fifth, in the applicant’s submissions counsel used the word “may” not less than three times in relation to this ground, indicating to me the highly speculative nature of the proposition being put. Sixth, nowhere was the nature and extent of the alleged impunity given. Seventh, nowhere did the applicant contend how any such consideration by the KG members might, would or could have altered matters in the way asserted.
It seemed to me that particular 1(b) had no merit. It was highly speculative. I do not consider that the Tribunal fell into jurisdictional error in the manner alleged in particular 1(b) of the applicant’s amended grounds of review.
Particular 1(c)
Paragraph 34 of the Tribunal’s reasons was relevant to this particular. In it, the Tribunal found it did not accept that men in military uniforms visited the applicant’s wife in search of the applicant. The Tribunal did accept that the applicant’s wife may have complained to the Sri Lankan Human Rights Commission on 15 December 2012. The Tribunal did not accept that the applicant’s wife’s complaint to the Human Rights Commission was on account of the KG threatening her to disclose the applicant’s whereabouts.
In particular 1(c) of the applicant’s amended grounds of review the applicant asserted that in paragraph 34 of the Tribunal’s reasons,
the Tribunal did not consider what may have been the cause of the complaint to the Sri Lankan Human Rights Commission or whether it (presumably the complaint) may have had a bearing on any risk to the applicant.
Counsel developed the argument under this particular in his verbal submissions before me. The argument was, to say the least, ambitious. It advanced the concept that it was incumbent on the Tribunal to have assessed an array of matters by reason of the fact that the applicant’s wife “may have” made a complaint to the Sri Lankan Human Rights Commission. Counsel for the applicant put the contention as follows –
[T]
he tribunal accepted that the applicant’s wife may have made a complaint to the Human Rights Commission; it didn’t accept that it had to do with the Karuna Group hunting for the husband, but the tribunal didn’t go into that at all. It didn’t consider what may have been the reason for that complaint. If it was whether it was a complaint of substance or not, and whether a complaint by the applicant’s wife may have related to a situation which could impinge upon the applicant himself were he to return, in my submission, had the tribunal just simply said “well, here’s the applicant trying to dress things up by saying the wife has made a complaint. I don’t believe any of that”, that would be the end of it, but the tribunal didn’t do that. It accepted that there may have been a complaint and it was, therefore, incumbent on the tribunal to consider what, what weight, how this may or may not impinge upon the applicant, and in a situation where part of the background was that even the tribunal accepted that there was at least a measure of abduction, torture, killing going on by way of the Karuna Group. But separately, there was an enormous weight of material to the effect that, at least for some people in
Sri Lanka, things continued to be very dangerous years after the end of the war; this was a necessary question for the tribunal,
in my submission, and it didn’t ask it.[38]
[38] Transcript of proceeding, 26 July 2017 at p.11.
The applicant said the Tribunal did not go into certain issues including the reason for the complaint. He said the Tribunal did not consider what weight was to be given to the point. The applicant said the Tribunal did not consider how the point may have impinged upon the applicant.
It must be pointed out at once that it falls to the applicant to put such material before the Tribunal as an applicant is able in order to make good his or her claim, in this case, a claim for protection. It therefore fell to the applicant to inform the Tribunal about the Sri Lankan Human Rights Commission complaint in such detail as the applicant considered was appropriate to advance his protection claim.
The applicant gave evidence to the Tribunal. There was nothing to show that the applicant put before the Tribunal the Sri Lankan Human Rights Commission complaint, any supporting material lodged in that proceeding or even information to suggest how the filing of that complaint showed that the applicant’s wife suffered any harm as result of the filing of the complaint.
Counsel for the Minister correctly pointed out that it is not up to the Tribunal to make out the applicant’s case, citing Abebe. To my mind, under this particular the applicant elevated an alleged failure by the Tribunal to jurisdictional error. I do not agree that the Tribunal failed to do the things the applicant asserted. For example, in written submissions counsel for the applicant said that upon complaint having been made to the Sri Lankan Human Rights Commission, “it must have been an obvious possibility that she had good cause to do so, and therefore that she may be in danger of serious harm which may also threaten her husband, the applicant”.[39] Whether she had good cause to complain to the Sri Lankan Human Rights Commission was pure speculation. Whether her reason for complaining related to her being in danger or serious harm that may have also threatened the applicant were matters that fell for the applicant to demonstrate to the Tribunal. There was no evidence he did so.
[39] Applicant’s written submissions filed 16 June 2017 at [21].
I do not accept that the Tribunal fell into jurisdictional error in the manner asserted in this particular.
Particular 1(d)
This ground focused on paragraph 38 of the Tribunal’s reasons.
In essence, the applicant asserted that the Tribunal failed to address the applicant’s submission that in the reasonably foreseeable future the applicant may have a real chance of persecution or a real risk of significant harm as a person opposed, or perceived as being opposed, to the KG.
The applicant asserted that in written submissions put to the Tribunal that commenced at court book page 222, the contention was squarely advanced. It was that the applicant’s perceived opposition to the KG arising out of his personal problem with Eniaparathy would lead to his being perceived with suspicion by the Sri Lankan authorities. That was the gravamen of the submission, at any rate. The Minister contended that the Tribunal actually dealt with the proposition. Counsel for the Minister contended before me that the Tribunal’s finding that the applicant did not face a real chance of serious harm in Sri Lanka because of his actual or imputed political opinion in opposition to the KG was underpinned by other relevant findings, namely –
a)the applicant was of no interest to members of the KG;
b)between 2007 and 2012 members of the KG had not in fact pursued the applicant; and
c)there was in fact no perceived opposition to the KG by reason of some personal enmity between the applicant and the individual known as Eniaparathy.
The Tribunal rejected the claim founded on those matters. It then stated its conclusion in paragraph 38 of its reasons. That conclusion was open. It was correctly reasoned. I do not agree that the Tribunal failed to consider the submission advanced at court book page 222.
The Tribunal did and it reached a conclusion on point, albeit adversely to the applicant. I detected no jurisdictional error in relation to particular 1(d).
Particular 1(e)
Under this ground the applicant asserted that the Tribunal failed to consider whether the process of Sinhalisation and harassment might over time amount to persecution or significant harm.
The process of “Sinhalisation” was explained in the applicant’s written submissions to the Tribunal. The applicant’s representative wrote the following about it –
We submit that the ongoing mass militarization of the north and east of Sri Lanka is integral to a deliberate and systematic campaign designed by the Sri Lankan government to intimidate and suppress the Tamil Population.[40]
[40] Court book filed 6 April 2016 at p.220.
In the same passage, the applicant’s representatives quoted from a 2014 report by the Bath Human Rights Committee of England and Wales and the International Truth and Justice Project into Sri Lanka in the following terms –
A Sinhalisation process is underway in the north in terms of culture and demography. Sinhalese are moving into the area and the Sri Lanka Defence secretary Gotabaya Rajapaksa has said it is “unnatural” for the North to be predominately Tamil. Sinhalese officials are increasingly becoming the decision makers in the administration. Scores of Buddhist temples have been erected in the former conflict areas as well as war monuments glorifying the army, while street names are being changed from Tamil to Sinhala. This is a deliberate erosion of Tamil culture.[41]
[41] Court book filed 6 April 2016 at p.220.
The applicant raised the Sinhalisation process in the material he presented to the Tribunal.
[43] Transcript of proceedings, 26 July 2017 at p.13.
In written submissions in this court, the applicant said the Tribunal’s failure lay in its not considering “the more serious and obvious question of the effect of chronic harassment over time”.[42] A similar proposition was put in verbal submissions before me where counsel for the applicant stated that the Tribunal failed to consider whether
“over time, a level of chronic violation of rights and harassment might amount to significant harm or to serious harm, sufficient to fear persecution”.[43][42] Applicant’s written submissions filed 16 June 2017 at [24].
So far as the harassment of Tamils in the north of Sri Lanka was concerned, the Tribunal did address the point, as was evident from the matters canvassed in paragraphs 50, 52 and 64 of the Tribunal’s reasons. So far as the applicant’s contentions concerning the Tribunal’s failure to consider “harassment over time” was concerned,
the applicant did not say over what period he was speaking when making that assertion. The Tribunal did in fact correctly consider matters referenced to a timeline defined by the reasonably foreseeable future. That was the correct test. In my view the Tribunal complied with that test and in doing so made no error. I reject the suggestion that the Tribunal fell into jurisdictional error under this particular.
Particular 1(f)
This ground contained a collection of assertions that the Tribunal failed to consider information from diverse sources. The precise pinpoints of sources said to have recorded the information that the applicant said the Tribunal failed to consider were set out in paragraphs 25, 26 and 27 of the applicant’s written submissions, namely at court book pages 218, 221, 222, 223, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235 and 236. The pages of the court book mentioned in the applicant’s amended particular were more limited, however. For the purposes of my examination of this particular, I have considered the broader range of court book references rather than the more narrow range so as not to disadvantage the applicant in any way.
The applicant called in aid the decision of the Federal Court of Australia in Applicant M190 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[44] There, Finkelstein J held that a tribunal is guilty of failing to take a relevant consideration into account if the tribunal overlooks an important fact without reason.
[44] [2003] FCA 1362.
For the purposes of this ground, the question was whether the Tribunal overlooked an important fact without reason.
In my view it did not. To the contrary, in my view it properly had regard to all relevant information. In the passages below I have explained why. But at this juncture it is important to point out the legal principles that apply to this ground.
As a general proposition, the Tribunal does not fall into jurisdictional error when it makes a choice between competing information.
The choice of weight to be given to such information is a matter for the Tribunal. Several statements of Full Courts of the Federal Court of Australia have so held including VWFW v Minister for Immigration and Multicultural and Indigenous Affairs,[45] Aporo v Minister for Immigration and Citizenship[46] and MZZZW v Minister for Immigration and Border Protection.[47]
[45] [2006] FCAFC 29.
[46] [2009] FCAFC 123.
[47] [2015] FCAFC 133.
The Tribunal is not obliged to set out every detail of the reasoning process which it has employed for consideration. The High Court of Australia so held in Re Ruddock & Anor; Ex parte Applicant S154/2002.[48] That broad statement was qualified by the concept that a failure to have regard to relevant material so fundamental that it goes to jurisdiction may in some circumstances constitute jurisdictional error, as was held by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf[49] and by the Full Court of the Federal Court of Australia in WAFP v Minister for Immigration and Multicultural and Indigenous Affairs.[50] Similarly, the accuracy of country information is a matter for the Tribunal, not for a court because a court would be engaging in an impermissible merits review if it made its own assessment of country information as the Full Court of the Federal Court of Australia held in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[51]
[48] (2003) 201 ALR 437.
[49] (2001) 206 CLR 323.
[50] [2003] FCAFC 319.
[51] [2004] FCAFC 10.
The Tribunal considered the applicant’s claims based on his
Hindu religion between paragraphs 39 to 43 of its reasons. Relying on DFAT information, the Tribunal found that most members of religious groups in Sri Lanka were able to practice their religions unmolested.
The Tribunal considered the applicant’s claims based on his Tamil ethnicity between paragraphs 47 and 52 of the Tribunal’s reasons.
The Tribunal found that it did not accept the applicant’s claims to fear harm on account of his ethnicity.
The Tribunal considered the applicant’s claims based on his fear of harm as a Tamil returnee and that he would be detained and tortured due to his ethnicity. It did so in paragraphs 51, 53, 54, 55, 56, 57 and 58 of its reasons. It addressed country information from DFAT, Amnesty International and from the UK Home Office. It rejected the applicant’s claims.
The Tribunal considered the applicant’s claims to fear harm as a consequence of his illegal departure from Sri Lanka. It did so between paragraphs 59 and 78 of its reasons. The Tribunal considered country information from DFAT, the United States Department of State and the UK Home Office. The information of relevance was recorded in paragraphs 61, 62, 64, 69, 70 and 71 of its reasons. The Tribunal rejected the applicant’s claims.
The applicant asserted that the Tribunal failed to have regard to sources of information available to it. I do not agree. It did the opposite.
The Tribunal had regard to an extensive array of country information from a variety of sources. To my mind, those sources of information were sufficiently diverse as to give a balanced perspective of events in Sri Lanka. In view of the Tribunal’s entitlement to choose such information on which it relied and to place such weight as it chose on the information it selected, in my view the Tribunal made no error in relying on the totality of country information as it did.
In my view there was considerable force in the Minister’s submissions that the applicant, in reality, was seeking a merits review when contending that the Tribunal fell into jurisdictional error in the way he contended in respect of this particular. I reject the applicant’s contentions. No jurisdictional error was made out in respect of this particular of ground of review.
Let me say a few things about the argument in relation to s.420 of the Act. That section does not generate what has been described as a “private right of action” as was held in NAXN v Minister for Immigration and Multicultural and Indigenous Affairs.[52] The section is intended to be facultative – not restrictive – as was held by the
Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZMOK.[53] Even if the applicant had been able to demonstrate that s.420 of the Act had been contravened, and I say he failed to do that, any breach thereof did not give rise to jurisdictional error as was held in Hong v Minister for Immigration and Multicultural and Indigenous Affairs.[54]
[52] [2004] FCAFC 221.
[53] [2009] FCAFC 83.
[54] [2004] FCA 1308.
In my view, each of the subsets of ground one failed. None were illustrative of jurisdictional error.
Ground 2
While several bases were cited as illustrations of the proposition,
the main grievance disclosed by ground 2 was an assertion that the Tribunal fell into jurisdictional error because it misunderstood the law or applied the wrong legal test.
It is necessary to go to the specific particulars to address each of the applicant’s grounds of review.
Particular 2(a)
Under this ground the applicant asserted that the Tribunal twice used the phrase “would have” in reference to certain events whereas the applicant said the correct test was whether there was a real chance that those events might have occurred (past tense) or might occur (future tense). The applicant contended that the Tribunal failed to apply the test in Chan Yee Kin v Minister for Immigration and Ethnic Affairs[55] (“Chan”).
[55] (1989) 169 CLR 379.
The Minister submitted that the use of the expression “would have” in the context of there being a real chance was already the subject of learning at Full Court level in NABB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[56] There, the Full Court considered a Tribunal’s use of the phrases “would be carried out” and “would have”. The Full Court held that those phrases were connected to the Tribunal’s absence of satisfaction about whether any possible harm or threat would come to fruition. The Full Court held as follows –
In each case, the words complained of, namely “would be carried out”, “would” and “would have”, are connected to the Tribunal's absence of satisfaction about whether any possible harm or threat would come to fruition. While the sentences do not state what standard of satisfaction was being applied by the Tribunal,
the Tribunal's reasons, as a whole, indicate that it was applying the well founded fear standard as explained by the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.[57][56] [2002] FCAFC 225.
[57] [2002] FCAFC 225 at [22].
To my mind, those observations are apposite here. Accordingly, when read as a whole it seemed to me that in this case the Tribunal’s reasons indicated that the Tribunal was applying the well-founded fear standard as explained by the High Court in Chan. As Kirby J held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[58] the Tribunal’s reasons must be read as a whole and considered fairly. His Honour said it would be erroneous to comb through the words of the decision-maker with a fine appellate tooth comb.
[58] (1996) 185 CLR 259.
To my mind, that was the applicant’s approach in relation to this ground. In my view, when read fairly and as a whole, the Tribunal’s reasons revealed that it applied the standard as stated in Chan. The use of the word “would” did not alter that. I reject that contention that the Tribunal applied the wrong test.
Particular 2(b)
Under this particular, the applicant asserted that the Tribunal misunderstood the law or applied the wrong legal test by not considering the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”. The applicant focused on paragraph 73 of the Tribunal’s reasons for his criticisms about the Tribunal’s consideration of the matter.
This ground invited a consideration of the Full Court of Australia’s decision in SZTAL. Counsel for the applicant urged me to await the decision of the High Court on point.
For reasons already given, I am required to decide this case according to the law as it presently stands. Support for that approach exists in, among other places, a decision of the Court of Appeal of the
Supreme Court of Victoria in Geelong Football Club Ltd v Clifford[59] (“Clifford”). There, Ormiston JA held as follows –
Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial. It is not necessary to examine such authorities as there are on the subject, for they were not referred to in argument and all deal with particular cases. Possible changes in the law are too speculative and it is ordinarily rare that one can foresee that a decision on appeal will necessarily apply in the subject proceeding. In the end, as I have said on another occasion, it is the principle which counts, not the outcome of a particular case. Many issues are on appeal in the High Court at any one time and many applications for special leave are in the pipeline, but one cannot demand that trials be delayed and adjourned merely because the outcome of any one of those appeals may have a bearing on the outcome of a particular trial. One may think of exceptions, particularly where the issue is limited and the appeal to the High Court is intended to resolve a dispute between two directly conflicting lines of authority binding on the trial court, but that would seem to be a rare situation.[60]
[59] [2002] VSCA 212.
[60] [2002] VSCA 212 at [7].
Of course, a decision of the Court of Appeal of a state Supreme Court does not bind me. However, the decision in Clifford is persuasive and I have decided to apply it in this case. Not only was Ormiston JA an outstanding jurist with an encyclopaedic intellect but his Honour’s reasons were unarguably correct.
In the upshot, I am currently bound by the Full Court’s decision in
SZTALand I decline to await the decision of the High Court.
Ground 3
In essence the applicant contended that the Tribunal’s decision was unreasonable when it concluded that there was no real chance of the applicant suffering persecution and no real risk of him suffering significant harm especially in any period of detention and interrogation after his return to Sri Lanka.
Before me, counsel for the applicant told me that ground 3 was alternative to particular 1(f).
In resisting this ground, the Minister relied on the analysis of legal unreasonableness in Minister for Immigration and Citizenship v SZMDS,[61] in ARG15 v Minister for Immigration and Border Protection,[62] in Minister for Immigration and Border Protection v Stretton[63] and in Minister for Immigration and Border Protection v Eden[64] (“Eden”).
[61] (2010) 240 CLR 611.
[62] [2016] FCAFC 174.
[63] [2016] FCAFC 11.
[64] [2016] FCAFC 28.
[65] [2016] FCCA 3026.
My examination of the authorities of legal unreasonableness in
AKD16 v Minister for Immigration & Anor[65]was current to
November 2016. The more authoritative pronouncements on point are set out in the paragraph immediately above.
In Eden the Full Court held as follows –
It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.[66] (footnote omitted)
[66] [2016] FCAFC 28 at [65].
In this case I am of the view that it cannot be said that the Tribunal’s decision fell outside of the range of lawful outcomes. Here,
the conclusions expressed in paragraphs 64 and 65 of the Tribunal’s decision did not fall outside of the range of lawful outcomes. I do not agree that the Tribunal fell into jurisdictional error on the basis that it engaged in legal unreasonableness on the ground for which the applicant contended.
Ground 3 must be dismissed
Conclusion
All grounds of review failed.
This application for judicial review must be dismissed.
The applicant must pay the Minister’s costs.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 17 August 2017
11
36
2