AXM15 v Minister for Immigration; and Anor
[2016] FCCA 2861
•19 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXM15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2861 |
| Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 420, 424AA, 424A |
| Cases cited: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 |
| Applicant: | AXM15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 485 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 19 September 2016 |
| Date of Last Submission: | 19 September 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 19 September 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr McGlade |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the name of the SECOND RESPONDENT be amended to Administrative Appeals Tribunal.
That the affidavit of Laura Worsley dated 7 September 2016 be disregarded by the Court.
That the Application filed by the APPLICANT on 3 June 2015 be dismissed.
That the APPLICANT pay the FIRST RESPONDENT’S costs in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
No. BRG 485 of 2015
| AXM15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 19 September 2016 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
The applicant is a citizen of Sri Lanka and entered Australia on 18 July 2012 illegally. On 10 December 2012, he applied for a Protection (Class XA) visa under section 65 of the Migration Act 1958. The Minister’s delegate refused to grant that visa. That decision was made exactly one year later on 10 December 2013. The applicant lodged an application for review of the decision, which was dealt with by the Refugee Review Tribunal, which is now known as the Administrative Appeals Tribunal. The tribunal’s decision is dated 1 May 2015. The tribunal affirmed the decision of the delegate.
The applicant subsequently filed an application in the Federal Circuit Court of Australia for judicial review of the tribunal’s decision. The applicant is assisted today by a Tamil interpreter. The application for judicial review sets out various grounds. There is, in fact, an amended application, which is the most recent application, filed 2 March 2016, and the grounds have been set out there. In total, six grounds with some particulars under each ground have been referred to.
Ground number 1 states at the outset as follows:
“The tribunal breached section 424AA(b)(iii) and (iv) of the Migration Act. This section substitutes the s 422B(3) on the application of the exhaustive statements of requirements of natural justice.”
This ground contains various particulars (a) through to (e). I am just going to deal with particular 1(a) at this stage. And the complaint made by the applicant relates to the manner in which it is said the tribunal conducted the hearing. It is said by the applicant that he was emotional and upset and that, in essence, it was not appropriate for the tribunal to continue.
In a decision entitled Minister for Immigration and Citizenship v SZNCR [2011] FCA 369, Tracey J considered this type of argument. It actually needs to be shown that an applicant was unable to give evidence, was unable to present arguments and was unable to answer questions. And not only that, in a decision entitled SZMSA v Minister for Immigration and Citizenship [2010] FCA 345, the Court noted that it is the applicant who bears the onus of establishing that he or she was unfit to take part in the hearing, and the mere fact that a person may suffer from a medical condition or be emotionally upset or suffer psychological stress or some other disorder is actually not sufficient; the person has to actually be unable to give evidence, present arguments and answer questions.
I note, for instance, that the applicant was assisted by his migration agent at the hearing. I note that he was actually able to answer questions at the hearing. I note that neither the applicant nor his migration agent actually sought any form of an adjournment of the hearing, whether during the hearing or prior to the hearing. I note that no break was requested. I note there is actually no evidence that was provided in relation to any particular medical or mental condition suffered by the applicant.
Indeed, the tribunal considered that he was able to meaningfully participate in the hearing. I note paragraph 19 of the tribunal’s reasons where, for instance, it is stated that the tribunal considered that the applicant was able to communicate effectively, that he understood the tribunal proceedings and that he participated in a meaningful way. I do not consider that any jurisdictional error has been established on that ground.
In terms of ground 1(b) – the question of the tribunal’s alleged failure to put documents to the applicant for his comment and so on. That ground states:-
“Tribunal failed to put under s424AA questions relevant to the documents, considering the authenticity of the documents which is critical to favourably consider the application.”
In relation to that ground, I note at the outset the provisions of section 424AA and section 424A of the Migration Act 1958. It seems to me that there are two aspects to this submission. Firstly, the requirement set out in section 424A notes in subsection (3)(b) (and (ba)) that the section does not apply to information, “that the applicant gave for the purpose of the application for review, or that the applicant gave during the process that led to the decision that is under review”. The relevant subsections state:-
“Information and invitation given in writing by Tribunal
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
So that it was, in fact, in this case, documents provided by the applicant, and such documents are excluded (essentially) from the operation or obligation contained in section 424A.
In any event, one would have to say at the heart of this case is the question of the findings made by the tribunal relating to what it considered to be the applicant’s lack of credit. I note at various parts of the tribunal’s reasons, including between paragraphs 6 and 46. There are adverse credit findings made, references to the fact that the applicant’s evidence was, at times, evasive, hesitant, vague, lacking in details, piecemeal, and in the tribunal’s view, the evidence contained marked inconsistencies.
The Court must consider the question of the documents and the question of whether the tribunal considered the authenticity of the documents and whether within the light of section 424A this view of the tribunal needed to be put to the applicant. In a decision of the High Court, SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1, it was noted that the tribunal essentially does not have to put its subjective thought processes or determinations. Essentially the High Court has said that the word “information” in section 424A does not include the subjective thought processes. So to the extent that the ground actually asserts a failure to put such thought processes, that ground is for that reason also bound to fail.
Ground 1(c) relates to the question of the applicant’s sister in terms of the details provided by the applicant. And the ground seems to be based on the fact that questions were asked even though the tribunal knew that it was a traumatic event. But the reality is that the tribunal is perfectly entitled to ask questions during the hearing so that the tribunal is in a position to determine or to satisfy itself of the claims that are made. In a decision entitled SZQDU v Minister for Immigration and Citizenship [2011] FCA 1389 Cowdroy J made just this point. It does seem to me that this particular ground or complaint is attempting to go to the merits of the decision, which of course is impermissible. There is no jurisdictional error disclosed by this ground.
Ground 1(d) states:-
“The Tribunal rejected the applicant’s application predominantly on his lack of credibility in correctly answering of the time based questions and failed to consider the long process of time between the recall and the incidents as well as events too traumatic for the applicant to recall events that would have possibly supressed his memory.”
The complaint here seems to be that the tribunal failed to consider the long process of time between the incidents that occurred and the time of the questioning by the tribunal. The tribunal in that situation necessarily must be aware that the questions that are being asked relate to matters which on the version provided by the applicant occurred sometime prior. It is not reasonable, it seems to me, to complain that the questions related to events that had occurred sometime previously and then say on that basis if a credit finding is made against an applicant that it was somehow inappropriate.
I do not see that there is any ground to say that there was jurisdictional error established by ground 1(d). In any event, it cannot be said that the primary or the predominant or the only basis for the rejection of the application was because of answers given to time-based questions. I referred earlier to the reasons given by the tribunal in relation to the types of adverse credit findings that were made against the applicant. And not only that. The tribunal at paragraphs 19, 20 and 43 actually said that it took into account the applicant’s stress as well as his mental state and upset. As I say, I do not consider it discloses any jurisdictional error.
Ground 1(e) states:-
“The Tribunal came to a conclusion, because the applicant was not arrested for 3 years (despite being told by the Applicant that he was evading the police by constantly moving residence and authorities had been coming to his home regularly to look for him) the authorities were not looking for him and that he was at no risk and would not qualify under complementary protection provisions. This is like saying that the authorities are not looking for a prisoner having escaped and on the run for years (as happened in Australia).”
It seems to me that ground 1(e) is misconceived. The conclusion described by the applicant there is essentially wrong. The problem for the applicant here is that the primary claim was found essentially to be fabricated by the applicant. You see – the question of the murdering of the applicant’s alleged sister – there is no doubt that an horrific event occurred. The essential conclusion by the tribunal, though, is that it did not believe the applicant when the applicant said that the person involved (the woman who died) – it did not believe that it was his sister. This was a well-known event, apparently, which occurred when quite a number of missionaries were murdered, apparently by the authorities in Sri Lanka. But it was essentially concluded by the tribunal that the applicant’s connection to this event or his connection or relationship to the people involved in the event was a fabrication. In any event, whatever way one looks at it, such an assertion by the applicant is seeking an impermissible merits review.
Ground number 2 states:-
“2. Tribunal erred in law by failure of taking into relevant considerations in making the decision.”
Particulars: (inter alia)
a. The Applicant provided 18 documents that supported his case. The Tribunal failed to consider these documents and relied predominantly on the bad memory recall of the Applicant, to discredit the documents. The Tribunal had not taken into consideration the critical information in all the documents, purely on the basis that the Applicant was unable to recall accurately details description of events. Neither did the Tribunal question the applicant sufficiently to arrive at any decision. The Tribunal took preference to the bad memory recall of the applicant to the corroborating evidence of the events the applicant stated had happened.
b. The Tribunal mentioned only two documents in the interview and did not raise any questions on the others filed to consider the documents.
c. The Applicant in the final stages of the interview informed the Tribunal that he was so distressed throughout his life after the death of his sister, that he attempted suicide while in Rockhampton and was in a coma for one day in a Rockhampton hospital. The Tribunal ember lacked empathy, was casual, without care and unsympathetically advised the applicant to seek medical help. This information that the Applicant was suffering alone would be sufficient for any normal person to understand the vulnerable position of the applicant to accept that the interview was not conclusive.”
It is said that the applicant provided documents supporting his case and that the tribunal failed to consider the documents. At the least, it is said that the tribunal did not consider all of the documents. The applicant himself bears the onus of establishing that the documents were not considered. The tribunal does not in fact have an obligation to comment on every piece of evidence put forward by an applicant. And nor does the tribunal have an obligation to comment on every item of material before it. But it is worth noting that in paragraph 43 of the Tribunal’s decision it is stated:
“The Tribunal has considered the documentary evidence provided, but as discussed above much of it is inconsistent with the applicant’s claim or the applicant had little or no knowledge of events described therein. Further, the letter from the priest fails to mention key aspects of the applicant’s claim such as his involvement in the funeral of the sister. The tribunal has considered his mental state, but does not accept that the applicant could not recall or did not know key aspects of his claims about harm to his family, such his brother being arrested. The tribunal does not accept that he would not know or have enquired about what happened to his family or the investigation, given it forms the very basis of his claim. Further, given the prevalence of fraudulent documents in Sri Lanka and the applicant’s poor evidence and the contrary country information, the tribunal places no weight on the documents.”
It is noted that the Tribunal in fact placed no weight on the documents and the reasons given are contained essentially, or at least summarised in paragraph 43.
The credit findings made against the applicant are relevant again on this point. I note a decision of the High Court in a decision known as Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Paragraph 49 of that decision is relevant and states, inter alia:
“[49] In a dispute adjudicated by adversarial procedures it is not unknown for a party’s credibility to have been so weakened in cross-examination that the Tribunal in fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption…”
The comments made there by McHugh and Gummow JJ are relevant to this matter currently before the Court. The credibility findings made against the applicant were indeed dire. The applicant proffered documents to the Tribunal but the Tribunal could not be satisfied that the documents were genuine and therefore placed no weight on the documents.
I also note a decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303. Paragraph 48 states:
“[48} I acknowledge there is a distinction between referring to something and taking it into account. However, there is no justification for concluding that the baptismal "certificate" was merely adverted to and then discarded as irrelevant. Similarly, it would be wrong to characterise the Tribunal’s reason for according insufficient weight to the baptismal certificate as "bootstrapping". The Tribunal did not rely on its conclusion that the first respondent was not a Christian to dismiss evidence that he had been baptised as a Christian. It pointed out that the evidence about his baptism was all over the place. It pointed to evidence inconsistent with the statement in the certificate that he had been baptised. There is no reason to suppose that it did otherwise than what it said it did, namely accord the document some, but insufficient, weight to overcome its concerns with the first respondent’s unsatisfactory oral evidence. It is true that a genuine certificate attesting to a fact would generally be decisive proof of that fact. However, the Tribunal made no finding about the authenticity of the certificate. On the contrary, it referred to it as an alleged certificate. Counsel for the first respondent accepted that the Tribunal could legitimately conclude that his client’s story was so implausible or so full of problems that it could not be satisfied of the authenticity of the baptismal certificate and for that reason could not give it sufficient weight. In my view, there is no other way to read the Tribunal’s decision. Whilst it might have been preferable that the Tribunal made this clear, such a deficiency in the expression of its reasons does not constitute jurisdictional error: Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham (2000) 168 ALR 407; 58 ALD 609; [2000] HCA 1.”
Essentially the court concluded that extensive reasons are not required when a Tribunal concludes that no weight should be given to particular documents. I do not consider that ground number 2 establishes any jurisdictional error.
In relation to ground 2(c) I should point out that this seems to be again a reference back to the manner of the conduct of the Tribunal hearing and I have already made comments in relation to that and reached a conclusion that the conduct of the hearing by the Tribunal was not inappropriate. It certainly does not establish a ground or a basis for jurisdictional error.
Ground number 3 states:-
“3. The Tribunal took into consideration irrelevant information to make a decision.
Particulars: (inter alia)
a. The Tribunal took particular note of the newspaper report that described the applicant sister’s death, based upon the information presented by the applicant’s other sister which differed from the statement of the applicant and therefore the applicant was not telling the truth. The Tribunal filed to note that the statement in the paper was a hearsay and its truth was not verified, whereas the statement by the applicant is not a hearsay. The Tribunal concluded that the woman who had the same surname as the Applicant is not his sister.”
Essentially, the ground complains that the tribunal took particular note of a newspaper report from the New York Times. But I do note that in fact a Tribunal is permitted to consider whatever material that it wishes during the course of the review provided that the material is not for some reason prohibited or forbidden. This point was made in SZTBJ v Minister for Immigration & Anor [2015] FCCA 580 in a decision of His Honour Judge Lloyd Jones. The Tribunal, of course, is not bound by any technicalities linked to or connected with the rules of evidence. Indeed, it is not bound by the rules of evidence.
In this regard I note section 420(a) of the Migration Act1958. The applicant seemed upset at the weight that was provided to the newspaper report, but it is worth pointing out, of course, that matters of weight are matters for the Tribunal. This is not a merits review in this court. Whether or not hearsay evidence is taken into account is irrelevant if the rules of evidence are not applicable. In the present case it is also worth noting that the Tribunal in this case was confronted with an applicant about whom the Tribunal had formed (one would have to say) very adverse credit findings, and the reference to the New York Times article would have to be viewed in that light. I cannot see that there is any ground of jurisdictional error established there.
Ground number 4 seems to go back, or is linked with ground 1(d) talking about the types of questions that were asked and the fact that they were time-based questions. I do not consider that this complaint establishes any jurisdictional error for the reasons that I stated earlier. Here we have an applicant about whom the Tribunal concluded his presentation of his evidence was evasive and hesitant, vague, lacking in details, piecemeal, etcetera. In fact, in paragraphs 20, 25 and 29 of the Tribunal’s decision specific references are made to what is referred to as inconsistencies in the applicant’s evidence.
As I stated earlier in relation to the ground 1(d), the fact that a decision-maker is asking questions relating to some events which allegedly occurred or did occur some long periods of time prior to the time of the question is a fact which obviously has to be taken to be known by the person asking the questions. It is not a proper complaint. It is certainly not a complaint which one could say in this case amounted to jurisdictional error.
Ground number 5 states:-
“5. The Tribunal failed to consider the bad emotional state of the applicant when she raised the matter of the applicant sister’s death and instead of terminating the interview and adjourning to another time or date, or at least changed the topic to allow him to recover, proceeded to question him on the same subject and cause further emotional injury to him, to the extent he was not answering the question, but stammering and sobbing throughout the interview. The Applicant states that the interview was unjust, cruel and totally unacceptable and the contents should not be used to make the decision.”
This ground relates again to ground 1(a) about the Tribunal hearing and the emotional state of the applicant at the time. I have already given reasons as to why I consider that the hearing was conducted in an appropriate manner, and I have referred to cases which are relevant relating as they do to the question as to whether or not a person is actually unable to participate. That was not the case here. The applicant was able to participate and had the assistance of a migration agent. For the reasons already stated in relation to these issues, this ground does not disclose any jurisdictional error on the part of the Tribunal.
Ground number 6 states:-
“6. Complementary Protection Provision:
In considering the Complementary protection provisions under the Migration Act, the Tribunal failed to consider the traumatic events suffered by the applicant in deciding that the applicant had credibility issues and that had no genuine fear of return to Sri Lanka despite the fact that he attempted suicide three times and admitted to hospital.
Particulars
a. There is a complaint against the authorities on the group assassination the members of an NGO organisation which includes the sister of the applicant. This complaint was made by the international organisation and both the applicant and his family are witnesses. The investigations are still continuing and the applicant’s evidence will be crucial to the findings. The applicant was already been targeted by the authorities while he was in Sri Lanka, make him flee to Qatar so as to let the matter die, but on return was pursued by the authorities that led him flee to Australia. The tragic events suffered by the Applicant and the seeking of him by the authorities is strong evidence even to a layman that the applicant will be detailed, arrested upon arriving in Sri Lanka, and made to disappear without trace. This practice still goes on. There is a change of Presidency but not government.”
This is the complementary protection point. Sections 36(2)(a) and (2)(aa) of the Migration Act 1958 state:-
“36. Protection visas--criteria provided for by this Act
…
(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 because the person is a refugee; 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…”
This particular ground relates to section 36(2)(aa) of the so-called complementary protection obligations and involved a consideration as to whether there would be a real risk of significant harm to the applicant should he return to Sri Lanka. I note here paragraphs 82, 83, 84 and 93 of the Tribunal’s decision. Those paragraphs state:-
“82. 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.
83. For reasons set out above, the tribunal has not accepted the applicant’s claims about the being the brother of Romila, who was killed in 2006 massacre, or that authorities questioned or threatened him or harassed, or that his father made a human rights complaint or that the authorities threated or put pressure on his father or family to drop the investigation or that authorities are looking for him or will have an interest in him. The tribunal does not accept he faces any real risk of harm in this regard in the future.
84. The tribunal does not accept that there is a real risk that the applicant will suffer signifncant harm on the basis that he is a Tamil male or young Tamil male from the East or because he sought asylum or because of his extended presence in Australia. The tribunal does not accept the applicant will be considered to have any adverse political profile as a result of seeking asylum in Australia or a western country, or his extended presence in Australia. Having regard to definition of ‘significant harm’ in s.36(2A) the tribunal does not accept the applicant faces a real risk of arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
…
93. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a). “
83 really is crucial; it actually states, “for the reasons set out above”, so it refers back to all of the earlier reasons. The Tribunal has not accepted the applicant’s claims about being the brother of Romila, who was killed in a 2006 massacre, or that authorities questioned or threatened him or harassed him.
So paragraph 83 makes it clear that the Tribunal did consider the applicant’s claims and the so-called alleged traumatic events that he suffered in relation to what could be called his primary claim. The Tribunal did consider this and made it clear in paragraph 83, “for the reasons set out above”. Those particular words are crucial.
The Tribunal took this into account in considering whether or not the applicant was owed protection obligations pursuant to the so-called complementary protection criteria set out in section 36(2)(aa) of the Migration Act. I do not consider that this ground has established any jurisdictional error.
The application will be dismissed with costs fixed in the sum stated.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 15 December 2016
CORRECTION
Matter number on coversheet corrected from BRC 485 of 2015 to BRG 485 of 2015
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
-
Jurisdiction
-
Standing
0
8
2