AWT15 v Minister for Immigration
[2016] FCCA 2282
•2 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWT15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2282 |
| Catchwords: MIGRATION – Protection visa – judicial review of a decision of the Refugee Review Tribunal. |
| Legislation: Constitution of the Commonwealth of Australia, s. 75(v) Migration Act 1958 (Cth), ss. 36, 414, 430, 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 |
| Applicant: | AWT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 470 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 5 May 2016 |
| Date of Last Submission: | 9 June 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 2 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Rasan T. Selliah & Associates |
| Counsel for the Respondents: | Mr McGlade |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
That the applicant pay the first respondent’s costs in an amount to be fixed by the Court.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 470 of 2015
| AWT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant was born on 24 March 1977.
The applicant is a citizen of Sri Lanka. He was born in Batticaloa in the Eastern Province of Sri Lanka. The applicant belongs to the Tamil ethnic group.
In July 2012 the applicant arrived in Australia as an unauthorised maritime arrival.
In November 2012 the applicant applied for a Protection (class XA) visa.
In August 2013 a delegate of the Minister for Immigration and Border Protection (“the Minister”) made a decision refusing to grant the applicant a protection visa. In that same month (August 2013) the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision. The Tribunal has since become known as the Administrative Appeals Tribunal.
The applicant’s agent provided written submissions to the Tribunal dated 22 January 2014. Those written submissions appear from page 208 of the Court Book which is in evidence in these proceedings.
On 27 January 2015 the applicant appeared before the Tribunal and was represented at the hearing by his registered migration agent. A Tamil interpreter was also present. This is the same migration agent who had represented the applicant when the matter was before the Minister’s delegate. In addition to the written submissions provided by the migration agent to the Tribunal on 22 January 2014 – the applicant’s agent also provided written submissions to the Tribunal dated 19 January 2015.
On 1 May 2015 the Tribunal affirmed the Minister’s delegate’s decision not to grant to the applicant a Protection visa.
On 29 May 2015 the applicant filed an application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision and sought from the Court the issue of constitutional writs directed to the Tribunal.
Amended Application
The applicant filed an Amended Application on 14 April 2016. Indeed, that Amended Application was annexed to a document entitled, “Outline of Submission for Applicant”. The Minister took no issue with the filing of the Amended Application in that manner. The grounds of review contained in the Amended Application are as follows:-
Ground 1:
“1. The applicant claimed that he would experience persecution in Sri Lanka because he would be perceived to support the LTTE because he and his family have strong links to the Tamil National Alliance. The Refugee Review Tribunal (“RRT”) overlooked dealing with this aspect of the applicant’s claims, giving rise to jurisdictional error.”
Ground 2:
“3. The RRT has failed to apply the correct test pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
a. The RRT made an error in paragraph 60 of its decision when, in considering the application of s 36(2)(aa) to the applicant’s claims relating to the Tamil National Alliance, the RRT mis-applied or wrongly applied a finding from an earlier part of its decision which considered the criterion for a protection visa in s 36(2)(a). As a result, the RRT failed to apply the correct test pursuant to s 36(2)(aa).
………
d. This finding was “bound up” in the statutory formula pursuant to section 36(2)(a) and is not dispositive of the claim under section 36(2)(aa) of the Act.”
Jurisdiction
As noted, the applicant seeks the issue of constitutional writs.
Section 476(1) of the Migration Act 1958 (“the Act”) provides:-
“476(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.”
Section 75 of the Constitution relevantly provides:-
75. Original jurisdiction of High Court
In all matters:
…
v. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.”
The jurisdiction of the Federal Circuit Court of Australia to issue constitutional writs is subject to section 474 of the Act. Section 474 of the Act relevantly provides:-
“474. 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.
(2) In this section:
“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 relevant decision of the Tribunal in this case was made on 1 May 2015 and is a privative clause decision.
However, the Court does still have jurisdiction to issue constitutional writs in relation to the Tribunal’s decision – provided the Court is satisfied that the decision made by the Tribunal is, in fact, affected by jurisdictional error.
In the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated at paragraph 82:-
“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-
“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.
“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.” [1]
[1] In these reasons for judgment the emphasis and the underlining has been added.
In SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90 at paragraph 6, in relation to the role of the Court in reviewing a decision of the Tribunal, Allsop J (as His Honour then was) stated, inter alia:-
“6. … 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…”
Ground Number 1
In the first ground of the applicant’s application for judicial review the applicant maintains that the Tribunal failed to consider one of his claims for a Protection visa.
Section 414 of the Act provides (relevantly for the circumstances of this case) that, “the Tribunal must review the decision”. In a decision entitled Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at paragraph 42 Allsop J (as His Honour then was) stated, in relation to section 414 of the Act, inter alia, as follows:-
“42. … The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review under s 414 of the Migration Act 1958 (Cth) (the Act) requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.”
The precise words used by the applicant in ground number 1 state:-
“1. The applicant claimed that he would experience persecution in Sri Lanka because he would be perceived to support the LTTE because he and his family have strong links to the Tamil National Alliance.”
In the applicant’s “Outline of Submission for Applicant” filed on 14 April 2016 this part of the applicant’s contentions are referred to. The applicant has submitted:-
“Failing to deal with claim
Introduction
13. One set of claims by the applicant arose from the fact that he was Tamil and, in January 2012, he had been briefly detained and questioned by the Sri Lankan Army about his links with the LTTE. The applicant’s agent, in a written submission dated 22 January 2014, identified the issue for the Tribunal as whether there was a real chance the applicant would suffer persecution in Sri Lanka because of his Tamil race or “his implied political opinion of support for the…LTTE”. (CB 208.5)
14. Another set of claims by the applicant arose from the fact that the applicant supported the TNA, in 2012 his father was elected to Eastern Provincial Council as a representative of the TNA, and in the lead up to the election the applicant was threatened by an opposing political party call the TMVP. The applicant’s agent, in a written submission dated 22 January 2014, identified the issue for the Tribunal as whether there was a real chance the applicant would suffer persecution in Sri Lanka because of “his imputed political opinion of support for…the TNA”. (CB 208.5)
15. The applicant’s agent then identified a link between these two sets of claims which it put as follows: (CB 208.9)
“[The applicant] will be perceived…to support the LTTE because…(b) his family have strong links to the TNA, a party which supports greater autonomy for Sri Lanka’s population…”
Specifically, the applicant (by his agent) expressly claimed that his and his family’s strong links to the TNA would cause him to be perceived to support the LTTE, which in turn would cause him to be persecuted by the Sri Lankan Army and authorities (“the TNA – LTTE Claim”)
16. The applicant’s contention in these court proceedings is that the Tribunal did not deal with this aspect of the applicant’s claims, that is the TNA-LTTE Claim.
One of the first respondent’s submissions is that this claim by the applicant was not one that “was a squarely articulated one relying on established facts” (note paragraph 43(b) of the first respondent’s Amended Outline of Submissions filed 4 May 2016). In a decision entitled NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at paragraph 68 the Full Court of the Federal Court (per Black CJ, French and Selway JJ) stated:-
“68. Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”
In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)197 ALR 389 the High Court stated at paragraph 24 and 25 per Gummow and Callinan JJ as follows:-
“[24] To fail to respond to a substantial, clearly articular argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. A failure to accord natural justice did not provide a statutory basis for a review of a decision of the Tribunal. This followed from the language of s 476(2)(a) of the Act (as it was when the applications were made) which provided as follows:
“(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision.”
[25] The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution. It is to that question that we will now turn.”
The applicant’s migration agent in a letter dated 22 January 2014 addressed to the Tribunal provided detailed written submissions on behalf of the applicant. That letter set out the applicant’s claims that he wished to make to the Tribunal. Paragraph 3 of that letter (22 January 2014) states:-
“3. Mr AWT15 will be perceived to be opposed to the government of Sri Lanka and the TMVP, and to support the LTTE because:
a. he is Tamil;
b. his family have strong links to the TNA, a party which supports greater autonomy for Sri Lanka’s Tamil population (and opposes the Sri Lanka Freedom Party);
c. his brother-in-law was an LTTE cadre; and
d. he has applied for protection in Australia”. (Underlining added)
The written submissions of the applicant dated 22 January 2014 were, of course, before the Tribunal. The hearing before the Tribunal did not take place until 27 January 2015. Admittedly, the letter containing the submissions dated 22 January 2014 did raise quite a number of claims on behalf of the applicant. I do consider that paragraph 3 of the letter dated 22 January 2014 does sufficiently raise a claim by the applicant that he would experience persecution in Sri Lanka because he would be “…perceived to…support the LTTE because…his family have strong links to the TNA. …”
Notwithstanding the first respondent’s submission that the claim was not one that was a squarely articulated one relying on established facts – the first respondent goes on to submit that, in any event, the Tribunal nonetheless, did in fact consider whether or not the applicant would be perceived to support the LTTE because he and his family have strong links to the Tamil National Alliance.
In the Tribunal’s Statement of Decision and Reasons dated 1 May 2015 it is noted at paragraph 20:-
“20. The applicant has several claims for protection. He claims he was extorted by the army in the past and will be harmed by the army again. He claims he was threatened by supporters of the TMVP in the past and will be harmed by TMVP supporters in the future. Both of those claims he says are related to his father being a politician for the TNA and his own support for the TNA. He claims too that he would be harmed because he is a businessman. He further claims he will be harmed by the Sri Lankan authorities because he is a Tamil, applied for asylum in Australia and departed Sri Lanka illegally. The Tribunal discussed each of the applicant’s claims with him in detail at the hearing.”
The Tribunal’s Statement of Decision and Reasons then include the following paragraphs under the stated heading:-
“Political opinion – Pro TNA, support for his father
21. At the hearing, the Tribunal discussed with the applicant that on the basis of the English version of his birth certificate, the Tribunal accepts the applicant is the son of his father. From information the Tribunal accessed from the Department of Elections website and Eastern provincial council website, the Tribunal accepts the applicant’s father was elected to the Sri Lanka national parliament in 2001 and to Eastern provincial council in 2012 as a representative of the TNA.
22. There are several aspects to the applicant’s claims arising from his pro-TNA political opinion. Firstly the claim he was extorted by the army, he claimed part of the reason for that was his support for his father and the TNA. He fears future harm by the army. Secondly, are the threats he received from the TMVP to persuade his father to stand as their candidate rather than for the TNA. Thirdly, is his own political opinion as being pro-TNA. Fourthly, is the claim he will be harmed because he is the son of his father. Fifthly, is the claim he was the largest financial supporter of his father’s campaigns.
23. The Tribunal discussed his claims regarding his being questioned by the army in January 2012 following which, the army extorted him for money to pay for alcohol at an army party. The Tribunal indicated it was willing to accept these things happened. It noted he was questioned about any connection with the LTTE while being questioned and that he was released unharmed. He agreed that was correct. That suggested to the Tribunal he was not considered by the army to be a person with an LTTE profile (which the Tribunal discussed more below). It noted too he was not harmed by the army after he paid for the alcohol. He agreed too that was correct. He replied that he feared future harm by the army because of his past contact with the LTTE (which the Tribunal discusses below). He did not raise at the hearing that he feared future harm from the army because of his pro-TNA political opinion. Nevertheless, the Tribunal has considered that part of his claim.
24. The Tribunal has considered the applicant’s claims regarding fear of harm from the army for support of the TNA. The Tribunal does not consider the applicant was questioned or extorted by the army for the essential and significant reasons of his support for the TNA. Rather his evidence indicates the focus of the army questioning him was whether he had any links to the LTTE and the extortion too was related to fabricated links to the LTTE. The Tribunal notes too that after the applicant agreed to pay money to the army, he encountered no further difficulties from the army, for any reason, even though he remained in Sri Lanka for several months after he was questioned by the army in January 2012. Furthermore, when having regard to the instances of serious harm set out in s.91R(2) the Tribunal does not consider the applicant being questioned by the army or his being extorted money to be instances of serious harm. For those reasons, the Tribunal considers the applicant faces only a remote chance and therefore is not satisfied the applicant has a real chance of facing serious harm from the army because of his political opinion in support of the TNA, now or in the reasonably foreseeable future if he returns to Sri Lanka.
25. The Tribunal discussed with the applicant the threats he received in the past from the TMVP in March 2012. The Tribunal indicated it was willing to accept these things happened. The Tribunal had found reports4 that after the election in 2012, the applicant’s father was pressured by the United Peoples Freedom Alliance (“UPFA”) (a coalition including the TMVP) for his father to change his support from the TNA to the SLFP. The pressure was reported as being in the form of both inducements and threats. The applicant explained his father refused to change party. The applicant stated too that neither his father nor any other member of his family had been harmed by supporters of the TMVP or anyone else. The Tribunal noted that would be a reason for it to consider there was not a real chance the applicant would be harmed by supporters of the TMVP in future. The Tribunal discussed with the applicant that threats may not amount to serious or significant harm.”
It is important to note that the Tribunal accepted that the applicant is the son of a TNA politician. The applicant’s father was elected to the National Parliament of Sri Lanka in 2001. In 2012 the applicant’s father was elected to the Eastern Provincial Council – again as a representative of the TNA.
The first respondent maintains that in three separate parts of the Tribunal’s Statement of Decision and Reasons (dated 1 May 2015) the Tribunal did consider whether or not the applicant “would be perceived to support the LTTE because he and his family have strong links to the Tamil National Alliance”.
In paragraph 23 of the Tribunal’s Statement of Decision and Reasons the Tribunal accepted that in January 2012 the applicant had been questioned by the Army and following that – the Army did extort money from him to pay for alcohol to be consumed at an Army party. The Tribunal also accepted that the applicant was questioned about any connection with the LTTE. The applicant was released unharmed following that questioning. The Tribunal also noted that the applicant did not suffer any further difficulty from the Army “for any reason” – even though the applicant remained in Sri Lanka for several months after he had been questioned by the Army in January 2012. The Tribunal then stated (in paragraph 23) of its decision:-
“That suggested to the Tribunal he was not considered by the army to be a person with an LTTE profile.”
In addition to accepting that the applicant’s father is a serving TNA politician – the Tribunal also accepted that the applicant was a supporter of the TNA personally.
I also note that paragraph 23 of the decision the Tribunal stated that the applicant “did not raise at the hearing that he feared future harm from the army because of his pro-TNA political opinion. Nevertheless, the Tribunal has considered that part of his claim”.
The Tribunal did not “consider the applicant was questioned or extorted by the army for the essential and significant reason of his support for the TNA”. In paragraph 24 of the decision the Tribunal continued:-
“Rather his evidence indicates the focus of the army questioning him was whether he had any links to the LTTE and the extortion too was related to fabricated links to the LTTE.”
The Tribunal then concluded that the applicant, “faces only a remote chance and therefore is not satisfied the applicant has a real chance of facing serious harm from the army because of his political opinion in support of the TNA, now or in the reasonably foreseeable future if he returns to Sri Lanka” (note paragraph 24 of the Tribunal’s decision).
That finding that the applicant did not have a real chance of facing serious harm from the Army is a general finding. As noted, it appears in the last sentence of paragraph 24 of the Tribunal’s decision.
I note what was said by the Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 especially at paragraph 47 per French, Sackville and Hely JJ. In that paragraph their Honours noted:-
“[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegates decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
There was a general finding made (in paragraph 24 of the Tribunal’s decision) that the applicant was not at risk of harm from the Army because of his TNA links. On the authority of WAEE (supra) the Tribunal was not then required to specifically make a finding that the applicant was not at risk of harm from the Army because his links to the TNA – would see him perceived to be an LTTE supporter.
The particular claim made by the applicant (that he would experience persecution in Sri Lanka because he would be perceived to support the LTTE because he and his family have strong links to the Tamil National Alliance) was, essentially, subsumed within the finding made by the Tribunal – by which finding the Tribunal rejected that the applicant faced harm from the Army.
Paragraph 40 of the Tribunal’s decision lends weight to the conclusion that I have reached. In this paragraph of the Tribunal’s decision the Tribunal made reference not merely to the Army but to the Sri Lankan authorities generally. The Tribunal stated in paragraph 40 of its decision:-
“40. On the basis of the country information discussed above, it does not accept he will be imputed with any anti-government or pro-LTTE opinion because he is a Tamil or because he lived or work in a Tamil area. The Tribunal has rejected above that the applicant was the owner of the engineering business, but accepted that he was involved in that business. It accepts from the country information that the business would have paid taxes and other monies to the LTTE as the LTTE were effectively the government in the applicant’s home area during the Sri Lankan civil war. The applicant has consistently stated his brother-in-law was a member of the LTTE. Although the Tribunal has found the applicant exaggerated other aspects of his claims, the Tribunal is unable to confidently make a finding against the applicant in relation to this brother-in-law, it therefore gives the applicant the benefit of the doubt accepts for the purpose of this decision that his brother-in-law was a member of the LTTE. The Tribunal notes that the applicant was questioned by the army about any connections he had with the LTTE in January 2012 and was released unharmed. The Tribunal therefore concludes the applicant despite the applicant’s brother-in-law being a member of the LTTE and the applicant’s father giving money and other support to the LTTE during the Sri Lankan civil war, the Sri Lankan authorities do not consider the applicant is a person with such links to the LTTE that he would be targeted for harm. The Tribunal considers given the personal circumstances of the applicant and his limited dealings with the LTTE, the Tribunal considers there is only a speculative and therefore not a real chance he will be questioned, arrested, detained, assaulted, abducted or killed or suffer any form of serious harm by the Sri Lankan authorities either individually or cumulatively, because of his race as Tamil, any particular social group or political opinion related to the LTTE or any other Convention reason, now or in the reasonably foreseeable future if he returns to Sri Lanka.”
The specific findings made by the Tribunal in paragraph 40 of the Tribunal’s decision – including those which have been highlighted in bold type in the above quotation – indicate that the Tribunal was not satisfied that the applicant is at risk of any form of serious harm by the Sri Lankan authorities. It is a general finding made noting all of the specific circumstances of the applicant. It is a general finding which, it must be accepted, was made by the Tribunal knowing the applicant’s links to the TNA (including the fact that the Tribunal accepted that the applicant’s father is a TNA politician). It is also a general finding made by the Tribunal and includes a conclusion by the Tribunal that the Sri Lankan authorities did not consider the applicant to be a supporter of the LTTE.
For the reasons stated, I have come to the conclusion that ground number 1 contained in the applicant’s application for judicial review must be rejected.
Ground 2
Ground number 2 (which is actually included in a paragraph numbered 3 of the Amended Application filed 14 April 2016) states:-
“3. The RRT has failed to apply the correct test pursuant to section 36(2)(aa) of the Migration Act 1958 (Cth).
Particulars
a. The RRT made an error in paragraph 60 of its decision when, in considering the application of s 36(2)(aa) to the applicant’s claims relating to the Tamil National Alliance, the RRT mis-applied or wrongly applied a finding from an earlier part of its decision which considered the criterion for a protection visa in s 36(2)(a). As a result, the RRT failed to apply the correct test pursuant to s 36(2)(aa).
………
d. This finding was “bound up” in the statutory formula pursuant to section 36(2)(a) and is not dispositive of the claim under section 36(2)(aa) of the Act.”
Section 36 of the Act relevantly provides:-
“36 Protection visas
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.”
The applicant has provided written submissions under the heading “Complementary protection issue” (applicant’s “Outline of Submission” filed 14 April 2016).
The applicant has referred the Court specifically to paragraphs 57-61 of the Tribunal’s decision. Those paragraphs state:-
“Real risk of significant harm
57. The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No. 56, made under s.499 of the Act.
Discrimination
58. The Tribunal accepted above on basis of the country information that Tamils in Sri Lanka have historically faced a degree of harassment and discrimination on account of their ethnicity and may continue to do so, such as difficulties in accessing employment and disproportionate monitoring by security forces. The Tribunal has had regard to whether that harassment and discrimination amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the harassment of or discrimination towards Tamils involves severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, the harassment and discrimination cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could the harassment or discrimination be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal accepts the harassment and discrimination may cause some humiliation to the applicant, but is not satisfied that the harassment and discrimination would cause extreme humiliation which is unreasonable. Therefore, the Tribunal is not satisfied any harm arising from the harassment or discrimination will amount to significant harm.
Illegal departure
59. The Tribunal has had regard to whether the harm the applicant may suffer arising from his committing offences under the IEA amounts to significant harm, in particular, his bail conditions, being detained for a short period while on remand and imposition of a fine. The Tribunal has had regard to whether that amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s being questioned, bail conditions, detention on remand or fine will involve severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, his being questioned, the bail conditions, detention while on remand and fine cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could his bail conditions, detention while on remand or fine be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal is not satisfied too that his being questioned, the bail conditions, detention while on remand and fine would cause extreme humiliation which is unreasonable. Moreover, the definitions of ‘cruel or inhuman treatment or punishment’ in s.5(1) requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. Therefore, the Tribunal is not satisfied any harm arising from his being questioned, the bail conditions, being detained while on remand or fined will amount to significant harm.
60. In relation to the balance of the applicant’s claims, including his claims regarding his political activities, his father’s political activities and his father’s business, the Tribunal found above the applicant did not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. Given the test is the same, for the same reasons set out above in relation to real chance, the Tribunal is not satisfied the applicant has a real risk of significant harm.
61. The Tribunal therefore concludes there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the named applicant does not meet the requirements of s.36(2)(aa). (Emphasis added).
In the applicant’s outline of submission (filed 14 April 2016) he states in relation to paragraph 60 of the Tribunal’s decision, inter alia:-
“33. The last part of the first sentence in the above paragraph (60) is incorrect. Specifically:
…
d) … the Tribunal, in paragraph 60, stated that it had made a finding earlier in its decision that the applicant, in connection with the links of the applicant and his father with the TNA, “does not face a real chance of serious harm” in the reasonably foreseeable future if required to return to Sri Lanka. However, the Tribunal did not previously make this finding. Instead, the Tribunal made a more qualified finding (in paragraph 30 of its decision) that the applicant, in connection with the links of the applicant and his father with the TNA, does not face a real chance of serious harm for a Convention reason in the reasonably foreseeable future if required to return to Sri Lanka.
34. The Tribunal, in paragraph 60, then relied on the finding it had made (or believed it had made) in paragraph 30 of its decision, to reject the applicant’s claim for complementary protection under s 36(2)(aa).
35. Part of the criterion for a protection visa referred to in s 36(2)(a) is that the applicant has a well-founded fear of persecution “for a Convention reason”. In contrast, the qualification or limitation of “for a Convention reason” does not apply to the criterion for a protection visa referred to in s 36(2)(aa). For this reason, the Tribunal’s mistake in paragraph 60 was significant. Because of the Tribunal’s reasoning process in paragraph 60, it failed to turn its mind to whether, in connection with the links of the applicant and his father with the TNA, “there is a real risk that the [applicant] will suffer significant harm” (words of s 36(2)(aa)), being harm not covered by the Tribunal’s finding in paragraph 30 (which was limited to the risk of harm for a Convention reason).”
Paragraph 30 of the Tribunal’s decision states:-
“30. The Tribunal has considered the applicant’s claims individually and cumulatively regarding fear of harm from the TMVP, Pillayan group or any other opposition political group due to the applicant’s support of the TNA generally or of his father as a candidate. The applicant provided inconsistent evidence at the hearing regarding his ownership of the engineering business and finding of his father’s campaigns. The Tribunal therefore does not accept the applicant was the owner of the engineering business. It does not accept the applicant was the largest donator to this father’s campaigns. The Tribunal does not accept the applicant was involved in the running of his father’s business and that funds from that business were used to fund his father’s campaign. The Tribunal considers the applicant has sought to exaggerate his role in his financial support for his father’s candidacy so as to create a profile upon which to make claims for protection. While mindful of the applicant’s age and personal circumstances, the Tribunal does not consider the threats the applicant experience in the past are instances of serious harm when having regard to the examples of serious harm set out in s.91R(2). While the migration agent provided country information to indicate there are instances of political violence in the past between supporters of TMVP and TNA, the recent Presidential election showed a marked decrease in political violence. The Tribunal notes too that the TNA are now part of the ruling coalition of the new President. The Tribunal considers the applicant has exaggerated his claim that the TNA not accepting a proposed ministerial position mean the TNA have left the ruling coalition. For those reasons, the Tribunal considers the applicant faces only a remote chance and therefore is not satisfied the applicant has a real chance of being threatened, assaulted, abducted, killed or facing serious harm from supporters of the TMVP, Pillayan group and any other opposition political party because of his political opinion in support of the TNA, or his membership of the particular social ground of his father’s family, now or in the reasonably foreseeable future if he returns to Sri Lanka.”
Section 36(2)(a) of the Act adopts the definition of a refugee from the definition contained in the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
As noted in the definition contained in the Refugees Convention – there is a requirement that there exists a “well-founded fear of being persecuted”.
In SZMAR v Minister for Immigration and Citizenship [2009] FCA 1530 Barker J stated at paragraph 21:-
“In the Tribunal’s reasons for its decision to affirm the Minister’s delegate’s decision, the Tribunal noted that a person’s fear of persecution for a Convention reason must be “well-founded fear”, which adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a well-founded fear if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it, but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far fetched possibility. A person can have a well-founded fear of persecution even though the possibility of a persecution occurring is well below 50%. The Tribunal drew these principles from a number of authorities, including Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] FCA 18; (2005) 222 CLR 1.”
In SZSUY v Minister for Immigration & Anor [2014] FCCA 1 at page 16 in footnote number 55 His Honour Judge Driver noted:-
“… as the Full Court held in SZQRB v Minister for Immigration and Citizenship (2013) 210 FCR 505 at [246], the concepts of “real chance” and “real risk” are in substance the same.”
The concept of “real chance” – of persecution for a Convention reason – comes from the Refugee’s Convention and is, essentially, incorporated in section 36(2)(a) of the Act. The concept of “real chance” is therefore a concept which is connected to the refugee criteria.
The concept of “real risk” – of suffering significant harm – is a concept which is connected to and forms part of the so called complementary protection criteria contained in section 36(2)(aa) of the Act.
I have come to the conclusion that the applicant’s application for judicial review contained in ground 2 must fail. I do not consider that the Tribunal has misunderstood the difference between the refugee criteria and the complementary protection criteria. I note what the Tribunal had to say in the following paragraphs:-
“3. This review application raises the following issues for the Tribunal to determine:
a. Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Sri Lanka.
b. Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Sri Lanka.
…
8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
…
12. In accordance with Ministerial Direction No. 56 made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (“DFAT”)expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. There are two DFAT country information assessments regarding Sri Lanka, to which the Tribunal has had regard: DFAT Country Report – Sri Lanka (“DFAT Country Report” and DFAT Thematic Report – People with links to the Liberation Tigers of Tamil Eelam (“DFAT Thematic Report”).”
Further, in the paragraphs quoted above in these reasons for judgment from the Tribunal’s decision – namely paragraphs 57 to 61 inclusive – the Tribunal was specifically discussing the applicant’s complementary protection claims.
Under the heading, “conclusions” on page number 17 of the Tribunal’s decision there is contained paragraphs 62, 63 and 64. In those paragraphs it is abundantly clear that the Tribunal was well aware of the separate criterion to be applied for sections 36(2)(a) and 36(2)(aa).
I note the written submissions on behalf of the first respondent contained in paragraphs 96, 97 and 98 of the Amended Outline of Submissions filed 4 May 2016. Those paragraphs state:-
“96. Rather, it is clear that the extent that the Tribunal relied on its refugee claim findings (for the purpose of determining the applicant’s complementary protection claims) was for the purpose of determining the prospect of the applicant being the subject of a real risk of significant harm. But there is no reasonable basis to think that the Tribunal considered that the nexus of such findings to a Convention reason was of any relevance in terms of its evaluation of the applicant’s complementary protection claims.
97. This is evident in the premise of the following:
(a) the Tribunal was obviously aware that the complementary protection criteria did not require that significant harm be caused for a Convention reason (refer to paragraphs 93 and 94 above);
(b) the Tribunal noted (at [60]) that “the Tribunal found above [that] the applicant did not have a well-founded fear of persecution on any ground as he does not face a real chance of serious harm”) [emphasis added]. As can be seen, the Tribunal’s emphasis was on the applicant’s lack of risk of serious harm (not its nexus with a Convention reason);
(c) the Tribunal noted (at [60]) that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the refugee criteria and cited the Full Court decision in SZQRB. This is illustrative of the fact that the Tribunal’s focus was on similarity of the tests in connection with their evaluation of the prospects of harm (not its Convention reason nexus)(which was the point the Full Court alluded to in SZQRB); and
(d) the Tribunal commented that “Given the test is the same, for the same reasons set out above in relation to the real chance test, the Tribunal is not satisfied the applicant has a real risk of significant harm”. This illustrates that the Tribunal’s comment that “for the same reasons set out above” is made in the context of the Tribunal’s finding that the “real chance” test and “real risk” test are similar from a prospects of harm perspective. Similarly, the fact that the Tribunal said that it was not satisfied that the applicant was a real risk of significant harm (but without reference to the reason for that alleged harm being caused) is also indicative of the aforementioned point.
98. Third, in relation to the balance of the claims (that is, the claims other than the illegal departee and Tamil claims), the Tribunal did not find that these claims failed for a want of Convention reason nexus. Rather, such claims failed because the Tribunal was not satisfied of the existence of a real chance of serious harm. Put another way, such claims failed for their want of prospects of harm (not their want of Convention reason nexus).”
I accept those submissions made on behalf of the first respondent. I consider that the Tribunal was focusing on the similarity of the two tests (i.e. the refugee criteria and the complementary protection criteria) – but only in relation to the Tribunal’s consideration and evaluation of the prospect of the applicant suffering harm. I do not consider that, in the circumstances of this particular case, that the Tribunal focused on the similarity of the two tests in an inappropriate or unlawful manner. Further, I accept the submission made on behalf of the first respondent that reliance by the Tribunal on its findings relating to the applicant’s refugee claim – when the Tribunal was determining the applicant’s complementary protection claims – was a reliance which was only for the purpose of determining the prospect that the applicant would be the subject of a real risk of significant harm. Further, I accept the submission on behalf of the first respondent that, “there is no reasonable basis to think that the Tribunal considered that the nexus of such findings to a Convention reason was of any relevance in terms of (the Tribunal’s) evaluation of the applicant’s complementary protection claims.”
I note what was said by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. At page 272 the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ) accepted that in an application for judicial review:-
“The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
I also note what was said by His Honour Judge Jarrett in the decision BZAHO v Minister for Immigration and Citizenship [2014] FCCA 2981. In that particular decision His Honour made reference to the decision of His Honour Judge Driver in SZTFZ v Minister for Immigration [2014] FCCA 1861 and also I note what was stated by Robertson J in SZSGA v Minister for Immigration [2013] FCA 774. In BZAHO His Honour Judge Jarrett also made reference to a decision of His Honour Judge Driver in SZFSK v Minister for Immigration [2013] FCCA 7. In BZAHO His Honour Judge Jarrett stated:-
“32. The applicant suggested that the tribunal’s reasoning was in error because the tribunal had fallen into the trap that was identified by Driver J in SZFSK v the Minister for Immigration [2013] FCCA 7 at 97 where his Honour said:
‘[97] Decision makers need to clearly distinguish between statutory provisions which bear on the complementary protection criterion and those which do not. The use of language drawn from an irrelevant provision of the Migration Act at least creates confusion and may point to reviewable legal error. Further, the reliance by the reviewer at [75] on unspecified “findings set out above” is particularly problematic on its face, it appears to be a reference to all of the reviewer’s findings, some of which were clearly irrelevant to the complementary protection criterion (such as a finding of a lack of refugees convention nexus with harm suffered by the applicant).’
In this case the tribunal has sought to clearly distinguish between the statutory provisions which bear on the complementary protection criterion and those which do not. It dealt with each of the claims separately under separate headings in its decision. The reference by the tribunal to the findings of fact “outlined in the preceding paragraphs” and “given the findings of fact outlined above” lacked the precision that Driver J suggested in SZFSK is desirable. I echo his Honour’s concerns that the use of such language leads to an imprecision which may be problematic, however, as Counsel for the first respondent pointed out, in SZTFZ v Minister for Immigration [2014] FCCA 1861 Driver J revisited his remarks in SZSFK and said this:
‘23. As Robertson J held in SZSGA v Minister for Immigration each case must depend on its own facts and, in particular, the reasons of the tribunal in each case. Further, SZSFK does not stand for the proposition that findings of fact made in the course of considering refugee claims cannot be relied upon for the purpose of assessing complementary protection claims.
24. Consistently with the principles set out in the previous paragraph it is not always necessary for the tribunal to give extensive reasons for the rejection of complementary protection claims. This is especially so where the facts giving rise to the complementary protection claims are the same as those upon which refugee claims are based. In particular:
(a) It is sufficient for the tribunal to refer to its previous findings where the effect of those previous findings was that the tribunal did not accept that the events which were said to give rise to the risk of harm actually occurred. This is consistent with the principle that the tribunal has no obligation to give consideration to a claim where the factual premise upon which the claim depends has been rejected, and;
(b) Where the tribunal, in the course of considering an applicant’s refugee claims makes a finding that there is not a real chance of the applicant suffering any harm by reason of a particular matter, it is open for the tribunal to rely on this finding when rejecting a complementary protection claim arising from the same facts. That is, a finding that there is not a real risk of any harm is sufficient to dispose of claims to fear both serious harm under s.36(2)(a) and significant harm under s.36(2)(aa)’.”
The decisions in SZSGA (supra), SZTFZ (supra) and BAZHO (supra) all lend weight to a conclusion that the Tribunal in this case has not misapplied the complementary protection criteria.
Further submissions of the parties
At the hearing on 5 May 2016 the Court requested some further written submissions from the first respondent and from the applicant. I have had regard to all of those further written submissions (dated 19 May 2016 and 9 June 2016 on behalf of the first respondent and 2 June 2016 on behalf of the applicant). The matters raised in the additional written submissions have already been addressed in these reasons for judgment. Nothing in the additional submissions leads the Court to any different conclusion. The applicant has still not identified any jurisdictional error with the Tribunal’s decision. I will, however, make the following comments dealing with some of the additional submissions.
Section 430(1) of the Act provides:-
“430 Tribunal's decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based; and
(e) in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application--indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f) records the day and time the statement is made.”
Pursuant to section 430(1)(d) of the Act the obligation of the Tribunal was to set out the “evidence or other material on which the findings were based”.
I accept the submission made on behalf of the first respondent that the material finding of fact made by the Tribunal was that the applicant faced only a remote chance of harm at the hands of the Sri Lankan authorities in connection with his links to the TNA. The finding in question was based upon the evidence which the Tribunal included in its decision at paragraphs 23 and 24. Paragraphs 23 and 24 of the Tribunal’s decision dated 1 May 2015 have been included above in paragraph 29 of these reasons for judgment.
I am satisfied that the Tribunal has considered the evidence contained in pages 242 and 306 of the Court Book. It is apparent that this evidence was provided to the Tribunal by the Migration Agent acting on behalf of the applicant. This was done in a written submission dated 22 January 2014 and in a further written submission dated 19 January 2015. In the Tribunal’s reasons at paragraph 7 it is stated:-
“[7] The applicant was represented in relation to the review by his registered migration agent, who also represented him before the department. The migration agent provided written submissions to the Tribunal on 22 January 2014 and 19 January 2015. The Tribunal has had regard to the submissions, which are discussed in more detail below.”
As can be seen from paragraph 7 (quoted above) it is stated that, “The tribunal has had regard to the submissions…”
In relation to the country information contained at page 342 of the Court Book I note that it was in fact the Tribunal itself which had discovered that country information and it was considered and/or referred to in two separate parts of the Tribunal’s decision. The subject country information was referred to in footnote 4 of the Tribunal’s decision (contained at page 354 of the Court Book). Furthermore, the evidence contained in page 342 of the Court Book was also canvassed at paragraph 25 of the decision of the Tribunal. I particularly note reference to the fact that, “The tribunal had found reports4…”. Footnote 4 in fact is contained in paragraph 25 of the Tribunal’s decision.
In the paragraph numbered 25 (the contents of which are included above in these reasons for judgment in paragraph number 29) the Tribunal went on to canvass, consider and/or deal with the evidence and the particular circumstances of this case in the light of the country information contained in the report in question (from page 342 of the Court Book).
I am satisfied that the Tribunal has appropriately considered the evidence contained at pages 242, 306 and 342 of the Court Book.
My view in that regard is strengthened by the following case authorities. I note what was stated by Black CJ in Norvill v Chapman (1995) 57 FCR 451 at 462 where His Honour stated, inter alia:-
“The meaning of “consider” used as a transitive verb referring to the consideration of some thing is given in the Oxford English Dictionary, 2nd ed, as “to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of…”
Further, I note what was stated by French (as His Honour then was), Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 at paragraph 46 where their Honours stated, inter alia:-
“It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”.
Furthermore, in Muralidharan v Minister for Immigration and Ethnic Affairs (1995) 40 ALD 265 at 269 Whitlam J stated:-
“In the present case the primary application comprised 145 pages. The tribunal is not obliged to record verbatim the material before it, especially where much of it is referred to in the delegate's primary decision that is under review. The tribunal said that the applicant's reasons for claiming refugee status were “fully described in his primary application and the application for review”. It ought not to be assumed that the tribunal has ignored the burden of those submissions. The absence of any reference in the tribunal's statement to a specific item of evidence does not necessarily mean that it has not considered that evidence. It is also quite unrealistic to overlook the reliance placed upon material by the applicant before the tribunal: Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38.”
Whitlam J’s comments in the decision of Muralidharan (supra) are apposite in the present case.
I have concluded that the Tribunal did not overlook the evidence contained at pages 242, 306 and 342. In any event, even if the Tribunal had overlooked such evidence – I accept the submission made on behalf of the first respondent that such a failure would not amount to jurisdictional error. I note what was stated by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at paragraph 53 where Black CJ, French (as His Honour then was) and Selway JJ stated:-
“53. It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’ Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473 at 481 [35] per McHugh J.”
Further, I note that in Minster for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at page 39 Mason J (as His Honour then was) stated, inter alia:-
“ (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc. v. Governor-General (1981) 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at pp 225, 230, 232-233. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury
Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at p 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".Further, in the context of a Refugee case – the relevant matter which the Tribunal is bound to consider is, according to the Full Court of Federal Court in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 – the question of what might happen to an applicant if he or she is returned to their country of origin. The circumstances, matters and evidence which a Tribunal takes into account is a matter for the Tribunal. In this regard I note (again) the decision in Li Shi Ping (supra) where it was stated at page 236:-
“…The decision of what material from the range of relevant material was to be taken into account was generally one for the decision-maker alone and it was only when material which must be taken into account is ignored that the decision was reviewable.”
Accordingly, the overlooking of evidence (if it does occur) is not an error of law. It amounts to an error of fact only. Such an error is within the Tribunal’s jurisdiction. In this regard I note a decision of Brennan J (as His Honour then was) in Waterford v Commonwealth (1987) 163 CLR 54 at pages 77-78 where His Honour noted:-
“…There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.”
The proposition which flows from the authorities referred to was neatly encapsulated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 at paragraph 28 where North and Lander JJ (with whom Katzmann J agreed) stated:-
“However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant’s claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.”
As to the issue raised on behalf of the applicant concerning the final sentence of paragraph 47 of the decision of the Full Court of the Federal Court in Applicant WAEE – I have come to the conclusion that the issue in question (the so called “TNA – LTTE claim”) was adequately dealt with by the Tribunal. In this regard I draw attention to the reasons for judgment contained herein, in particular, in paragraphs 38, 39, 40, 41, 42 and 43. Further, I accept the written submissions on behalf of the first respondent (filed 9 June 2016) – including, for present purposes, the submission contained in paragraph 38 where the first respondent stated, inter alia:-
“38. …the Tribunal considered whether the applicant would be persecuted by the Sri Lankan authorities because of his TNA links on any basis. It, therefore, became unnecessary for the Tribunal to specifically refer to the so-called “TNA-LTTE” integer…because findings of greater generality were made.”
Further, I note and accept the submission contained at paragraph 53 of the first respondent’s submissions filed 9 June 2016 wherein it is stated:-
“53. In saying the abovementioned matters, it is easy to lose focus of the fact that the Tribunal did, in fact, deal with all aspects of the persecution of TNA supporters by the Sri Lankan government in its reasons. If this Court agrees with that submission, it becomes unnecessary to consider whether the “TNA-LTTE” claim integer was clearly raised on the materials before the Tribunal.”
As to whether or not the decision of the Tribunal was unreasonable I note what was stated by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Stretton (2016) 329 ALR 491. Wigney J stated at paragraph 92:-
“The critical point is that, in reviewing a decision on the ground of legal unreasonableness, the Court’s role is strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power. In circumstances where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally and factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification. If there is an evident, transparent and intelligible justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 ; 139 ALD 181 ; 297 ALR 225 ; [2013] HCA 18 at [76], [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 ; 308 ALR 280 ; 139 ALD 50 ; [2014] FCAFC 1 at [44]–[45]), or if the decision is within the “area of decisional freedom” of the decision-maker (Li at [28], [66], [105]; Singh at [44]), it would be an error for the Court to overturn the decision simply on the basis that it would have decided the matter differently. Unfortunately, and with the greatest respect to the primary judge, it is difficult to escape the conclusion that that is what occurred here.”
Therefore the Court must consider whether another decision maker could reasonably have come to the same conclusion reached in the decision under challenge. Noting what was stated by the Full Court in Stretton I have come to the conclusion that the decision of the Tribunal in the current case cannot be said to have been unreasonable in the legal sense. On the material available – it cannot be said that another decision maker could not have reasonably come to the same conclusion. I accept the submissions of the first respondent in this regard contained in the supplementary outline of submissions provided by the first respondent 19 May 2016.
In addition, I agree with the submission made on behalf of the first respondent that, given the lack of prospects of success of the “unreasonableness” point – it would not be appropriate for the Court in this case to adopt the approach which was referred to by the Full Court in Gomez v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 543 at paragraph 23 where Hill, O’Loughlin and Tamberlin JJ made reference to a decision of Carr J in Kianfar v Minister for Immigration and Multicultural Affairs [2001] FCA 1754. In the decision of Kianfar the primary Judge had identified a ground of appeal which had not been identified by the applicant. The primary Judge regarded the matter as being of such importance that he remitted the matter back to the Tribunal for further consideration. Given the conclusion I have reached in relation to the question of the ground of unreasonableness – this is not the type of case where it is appropriate for this Court to adopt the approach referred to in Gomez (supra) and Kianfar (supra).
In my view, there is nothing in the decision of SZSSC v Minister for Immigration and Border Protection (2014) 142 ALD 150 which assists the applicant in this case. I agree with the submissions made from paragraphs 74 – 77 inclusive of the supplementary written submissions on behalf of the first respondent (filed 19 May 2016) in this regard. The Court has already come to the conclusion that the Tribunal, in this case, has in fact considered all relevant matters of substance.
As to the submissions made on behalf of the applicant that persons with TNA links were attributed profiles as supporters of the LTTE – the conclusions of the Tribunal (in particular those referred to in paragraphs 23, 24 and 40 of the Tribunal’s decision) indicate that the Sri Lankan authorities do not work on the basis that persons with TNA links are attributed as supporters of the LTTE.
As to paragraph 30 in the Tribunal’s decision and the applicant’s submissions concerning that paragraph – it will be apparent from these reasons for judgment that I have come to the conclusion that the Tribunal has appropriately dealt with the so called TNA-LTTE claim. In this regard I note in particular paragraphs 23 and 24 of the Tribunal’s decision.
Conclusion
The Court has had regard to all of the submissions on behalf of the applicant and the first respondent (including the applicant’s further written submissions filed 2 June 2016 and, of course, the first respondent’s further written submissions filed 9 June 2016). The applicant has not been able to demonstrate jurisdictional error on the part of the Tribunal. The application must be dismissed with costs.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 2 September 2016