AYL15 v Minister for Immigration
[2016] FCCA 2062
•17 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AYL15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2062 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Sri Lankan citizen – unparticularised grounds of review – whether bias – whether wrong issue considered – whether failure to consider relevant material – failure of applicant to attend Tribunal hearing – whether Tribunal hearing invitation complied with statutory requirements – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) Migration Regulations 1994 (Cth), reg.4.35D(3) |
| Cases cited: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 |
| Applicant: | AYL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 240 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 April 2016 |
| Date of Last Submission: | 22 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 17 August 2016 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms E Needham |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 240 of 2015
| AYL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 5 June 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision dated 16 May 2015 of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to affirm the Delegate’s Decision to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). The Tribunal Decision appears at Court Book (“CB”) 295-353.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Sri Lanka, arrived on Christmas Island on 11 April 2012: CB 95. An entry interview was undertaken on 19 April 2012: CB 1-14, and on 28 June 2012 the Minister lifted the bar under section 46A(2) of the Migration Act so as to permit the applicant to apply for a Protection Visa;
b)the applicant lodged the Protection Visa application on 28 June 2012: CB 16-42;
c)the applicant claimed to fear harm as a result of his imputed political opinion, ethnicity and membership of a particular social group of returned Tamil asylum seekers. Specifically, the applicant claimed that:
i)he had worked for approximately 5 months on a boat with his uncle who was abducted in 2006: CB 43 at [2];
ii)in early October 2011 he was taken to the police station by the Criminal Investigation Department (“CID”) and asked to identify people in a photograph with his uncle CB 43 at [3]-[5]. The applicant was later released after a member of the regional council attended the police station: CB 43-44 at [6];
iii)the CID attended at the applicant’s house the next day asking if he had worked with his uncle and if he had worked on a boat with him. The applicant again accompanied the CID to a police station and was shown a different set of photographs and asked to identify the men in the photograph, which he could not: CB 44 at [7]-[8];
iv)following his release, the applicant’s mother advised him to leave Sri Lanka, and he flew from Colombo to Ghana via Bangkok on his own passport but was detained by police in Ghana after he gave an airport officer a fraudulent passport. He was released after paying a bribe and returned to Sri Lanka: CB 44-45 at [9]-[12];
v)upon returning to Sri Lanka the CID again questioned the applicant about people associated with his uncle, threatened him and accused him of being a “Tamil Tiger”. He again fled to Bangkok on his own passport, but when his agent said he was going to Ghana he refused and returned to Sri Lanka: CB 45 at [14]-[15]; and
vi)he remained in hiding for three months before making arrangements to come to Australia: CB 45 at [16];
d)on 17 August 2012 the Delegate refused to grant the Protection Visa: CB 94-105;
e)on 25 September 2012 the applicant applied for review of the Delegate’s Decision by the Tribunal: CB 107-112;
f)in the Tribunal proceedings the applicant claimed that it was his first cousin, rather than his uncle who he had worked with and who was subsequently abducted in 2006: CB 115-116;
g)on 27 May 2013, the Tribunal affirmed the Delegate’s Decision: CB 180-193;
h)on 14 April 2014 this Court remitted the matter to the Tribunal by consent on the basis that the Tribunal had failed to consider the applicant’s claim of being imprisoned as a result of his illegal departure: CB 194-195;
i)in the second Tribunal proceedings the applicant raised further claims that:
i)unidentified men had attended his family home on two occasions to ask about him and that neighbours had advised they had been questioned by Sinhalese men in relation to the applicant’s whereabouts: CB 199 at [12]-[13]; and
ii)he faced harm as a member of a particular social group of Tamil fishermen: CB 204-205;
j)on 30 June 2014, the Tribunal again affirmed the Delegate’s Decision: CB 239-271;
k)on 22 December 2014 this Court again remitted the matter to the Tribunal by consent, on this occasion on the basis that the Tribunal had failed to consider the applicant’s claim to fear persecution as a member of a fisherman caste: CB 272-273;
l)on 7 January 2015, the Tribunal acknowledged remittal of the proceedings and advised the applicant of the reconsideration of the application for review of the Delegate’s Decision: CB 275- 279;
m)on 9 February 2015, the applicant was invited to a hearing before the Tribunal (“Tribunal Hearing”) to give evidence and present arguments relating to the issues arising in his case, with the Tribunal Hearing scheduled on 26 March 2015: CB 280-284; and
n)the applicant did not attend the Tribunal Hearing: CB 287-289.
Tribunal Decision
On 16 May 2015 the Tribunal proceeded in accordance with s.426A of the Migration Act and made the Tribunal Decision without taking further steps to allow the applicant to appear before it: CB 297 at [12]. The Tribunal proceeded in that manner as it was satisfied that:
a)the Tribunal Hearing invitation complied with the statutory requirements: CB 296- 297 at [8];
b)there was no evidence to suggest that the applicant had sought or intended to seek an adjournment or postponement of the Tribunal Hearing: CB 297-298 at [12]; and
c)there was nothing to suggest any unfairness to the applicant in the Tribunal proceeding to make the Tribunal Decision: CB 297-298 at [12].
In the Tribunal Decision, the Tribunal:
a)accepted that the applicant was of Tamil ethnicity: CB 303 at [30], and that as a fisherman he may have spent time in areas controlled by the Liberation Tigers of Tamil Eelam (“LTTE”): CB 303 at [31] but, having regard to the country information, did not accept he faced a real chance of serious harm for those reasons: CB 304 at [34];
b)further accepted that the applicant’s uncle disappeared in 2006, and that the applicant may have been questioned by the CID as to whether he had any knowledge of the persons appearing in photographs, with his uncle but it did not accept that his uncle had any link with the LTTE and found that the applicant’s evidence before the previously constituted Tribunals to be vague and highly speculative: CB 304 at [36];
c)considered that the evidence indicated that the applicant was not a person of interest to the Sri Lankan authorities: CB 305 at [36];
d)did not accept that any of the applicant’s activities while living in Sri Lanka, travelling overseas, or his activities in Australia would give rise to an actual or imputed pro-LTTE, or pro-Tamil separatist or anti-government political opinion, or that the applicant would suffer serious harm for reasons of an actual, or imputed, political opinion, now or in the reasonably foreseeable future: CB 305 at [37];
e)found that the CID had accepted the applicant’s lack of knowledge about his uncle’s whereabouts and the lack of knowledge of the identity of those appearing in photographs with his uncle, and was therefore satisfied that the applicant would not be perceived to have been withholding relevant information or evidence from the Sri Lankan authorities: CB 306 at [38];
f)did not accept that the applicant’s protection claims would be disclosed to the Sri Lankan authorities and, relying on country information, did not accept the applicant would face harm due to being perceived as disclosing details about Sri Lanka, or the Sri Lankan government or authorities whilst overseas: CB 306 at [39];
g)in relation to the applicant’s illegal departure found, that the applicant would be a first time offender: CB 306 at [41]; and as a result he would be questioned and charged: CB 306 at [40]; may be remanded for one to several nights pending bail: CB 313 at [68]; and would be fined: CB 306-307 at [42]. Ultimately, however, the Tribunal found that the enforcement of the Sri Lankan departure laws (the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I&E Act”)) did not amount to persecution as they are laws of general application: CB 307 at [43];
h)relying on country information and considering the applicant’s submissions (and country information referred to therein) in the second Tribunal proceedings, did not accept the applicant would face persecution as a member of the particular social group of Tamil fisherman or be imputed with a pro-LTTE political opinion because he is a Tamil fisherman or a member of the karaiyar caste: CB 308-310 at [48]-[54];
i)further did not accept that the applicant would face serious or significant harm as a consequence of returning to Sri Lanka as a failed Tamil asylum seeker from a western country: CB 310 at [55];
j)accepted that a record may be kept of the applicant being questioned by the CID, but found that the record “is most likely to state the applicant was questioned and that he could not identify those in the relevant photographs, and that he did not possess any useful information which might be of assistance to the CID” and accordingly, the fact that he was previously questioned did not elevate the risk he would be targeted for harm upon return: CB 310-311 at [56];
k)considered the applicant’s chance of serious harm cumulatively, and did not accept that the applicant faced a real chance of serious harm: CB 311 at [57];
l)in relation to the complementary protection criteria, did not accept that:
i)the imposition of a fine would amount to significant harm: CB 312 at [66]; and
ii)any pain or suffering caused to the applicant by the conditions in prison (due to his illegal departure) would be intentionally inflicted or intended to cause humiliation to amount to significant harm: CB 313 at [70].
m)found that the applicant did not satisfy the criteria for the grant of a Protection Visa in s.36(2)(a) or (aa) of the Migration Act: CB 312 at [72]-[73]; and
n)affirmed the Delegate’s Decision: CB 314 at [75].
Further reference is made to particular paragraphs and passages in the Tribunal Decision, where necessary, below.
Judicial Review Application - grounds
The Judicial Review Application relies on the following grounds:
1.Jurisdictional error.
2.Bias based on conscious or unconscious prejudice by ignoring relevant material.
3.Identifying a wrong issue based on a wrong question.
Objections to the applicant’s affidavits
The applicant filed affidavits in these proceedings on 18 November 2015 (“Applicant’s November 2015 Affidavit”) and 29 March 2016 (“Applicant’s March 2016 Affidavit”).
The Minister objected to the annexures to the Applicant’s November 2015 Affidavit and March 2016 Affidavits being read on the basis of relevance.
The Applicant’s November 2015 Affidavit annexes two documents marked IA and IB.
Document IA is dated 16 September 2015, that is four months after the Tribunal Decision was made. It is said to be an “Advance Unedited Version” of the Report of the Office of the United Nations High Commissioner for Human Rights on promoting reconciliation, accountability and human right in Sri Lanka (“UNHCHR Report on Sri Lanka”), but it is only the summary of that report on a single page. The summary (which is 9 lines in total) refers to violations and abuses of human rights and related crimes during the armed conflict in Sri Lanka, and to human rights related developments in Sri Lanka since March 2014, and indicates that the UNHCHR Report on Sri Lanka concludes with recommendations including the establishment of a special court to try war crimes and crimes against humanity committed by all parties to the armed conflict.
Document IA was not before the Tribunal, and is therefore irrelevant to these proceedings which require the Court to judicially review the Tribunal Decision based upon the materials that were before the Tribunal. In any event, the summary set out in the UNHCHR Report on Sri Lanka does not advance the applicant’s case because it is at an extremely high level of generality, and does no more than assert alleged violations and abuses of human rights and related crimes during the armed conflict in Sri Lanka, and suggests the establishment of a special court to deal with those matters “allegedly committed” during that armed conflict. That armed conflict, the Court notes, was one which came, on the materials put before the Tribunal by the applicant’s representative, to a “dramatic conclusion” in May 2009: CB 165-166 at [6], some two years before the incidents the subject of claims by the applicant. In the circumstances, document IA is irrelevant and inadmissible in these proceedings: Evidence Act 1995 (Cth), s.56(2) (“Evidence Act”), and will be struck out of the Applicant’s November 2015 Affidavit.
Document IB is a single page (numbered 7) from a typed report which has no detail of its provenance or its publication date (but which probably is part of the UNHCHR Report on Sri Lanka). Document IB deals with violations related to the deprivation of liberty, enforced disappearances and torture and other forms of cruel, inhuman or degrading treatment in Sri Lanka, but in the context of the armed conflict in Sri Lanka which ended in May 2009 and its immediate aftermath. There is no evidence that this document (whatever it might actually be) was before the Tribunal, and, again, it is therefore irrelevant to judicial review by this Court of the Tribunal Decision. Document 1B is more detailed than document 1A, but in light of the Tribunal’s finding that the applicant was not a person of interest to the Sri Lankan authorities: CB 305 at [36], or to be imputed with pro-LTTE opoinions: CB 308-310 at [48]-[54], its content is, in any event, irrelevant to the applicant’s claims, and therefore inadmissible in this Court: Evidence Act, s.56(2). In the circumstances, document IB will be struck out of the Applicant’s November 2015 Affidavit.
The Applicant’s March 2016 Affidavit annexes:
a)a copy of a media article from “The Island Online” dated 10 February 2016 and which appears to have been downloaded on 11 February 2016 (“The Island Online Article”); and
b)a document titled “Fact Book - Sri Lanka’s Prevention of Terrorism Act” (“Fact Book Extract”).
Neither of the documents were before the Tribunal.
The Island Online Article post-dates the Tribunal Decision by almost ten months. It relates to a four day visit in February 2016 to Sri Lanka by the United Nations Human Rights Commissioner. The Island Online Article could not therefore have been before the Tribunal, and is therefore irrelevant to the issue of judicial review of the Tribunal Decision. In any event, it is in very general terms, and, particularly in light of the Tribunal’s finding that the applicant was of no interest to the Sri Lankan authorities and was not to be imputed with pro-LTTE opinions, is of no assistance to the applicant. Because The Island Online Article is irrelevant to the Court’s judicial review function in these proceedings, and therefore inadmissible: Evidence Act, s.56(2), it will be struck out of the Applicant’s March 2016 Affidavit.
In relation to the Fact Book Extract it consists of:
a)a statement attributed to the International Commission of Jurists concerning the nature of the powers conferred by the Prevention of Terrorism (Temporary Provisions) Act 1978 (Sri Lanka) (“POT Act”); and
b)various extracts from various sections of the POT Act.
Again, given that the Tribunal concluded, as a matter of fact, that the applicant was of no interest to the Sri Lankan authorities and was not to be imputed with pro-LTTE opinions, the provisions of the POT Act are irrelevant to the Court’s judicial review function. Alternatively, the applicant invites the Court to substitute its own view in relation to the application of the POT Act to the applicant, which can only require the Court to arrive at a different view as to whether the applicant would be of interest to the Sri Lankan authorities, and as to the basis for that interest. To undertake that task, is to engage in fact-finding for the purposes of merits review, which is not a permissible task for this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). In the circumstances, the Fact Book Extract is therefore irrelevant, and inadmissible: Evidence Act, s.56(2), and it will be struck out of the Applicant’s March 2016 Affidavit.
Judicial Review Application – additional grounds
As part of the Applicant’s March 2016 Affidavit the applicant attaches a statement which arguably asserts additional grounds of judicial review, as follows:
a)at [2] that the Tribunal Decision was affected by jurisdictional error by reason that the Tribunal applied the wrong test and was biased (“Ground 4”);
b)at [3] that the applicant falls into the category of persons suspected of certain links with the LTTE and therefore is at risk if forcibly returned to Sri Lanka, in terms of the UNHCR Eligibility Guidelines (“Ground 5”);
c)at [4] and [5] that CB 298-299 at [13(b), (d), (e) and (j)], CB 301-302 at [27], CB 303 at [31], CB 304-305 at [36], CB 306 at [40], CB 307 at [43], CB 309 at [49], CB 309 at [50] and CB 310 at [53] of the Tribunal Decision point to a degree of bias and lack of procedural fairness in the making of the Tribunal Decision (“Ground 6”); and
d)at [6] that the applicant was not present at the Tribunal Hearing, nor represented, and that this was due to a miscommunication (“Ground 7”).
As indicated above, the Court will consider these assertions as grounds 4, 5, 6 and 7 respectively.
Consideration
Jurisdictional error required
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
Ground 1
Ground 1 is an unparticularised assertion of jurisdictional error by the Tribunal. An unparticularised assertion of jurisdictional error cannot succeed: see WZAVL v Minister for Immigration & Anor [2015] FCCA 2388 at [26] per Judge Lucev (and cases there cited) and WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J.
Ground 1 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 2
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 17 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”).
The applicant has made no attempt to comply with the requirement that this serious allegation of bias be firmly and distinctly made and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Further, there is no evidence:
a)that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any proper evaluation of materials relevant to the making of the Tribunal Decision: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided: Ex parte H at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
Ground 2 is not therefore, in its terms, made out.
Like ground 1, ground 2 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [19] above.
Ground 2 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 3
Subject to exercising its power in a manner which does not manifest jurisdictional error, it is for the Tribunal to consider the claims made by the applicant: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321, and to identify the material that it finds relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs[2003] FCAFC 184; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
In this matter the Tribunal considered the claims made by the applicant, and in so doing did not identify a wrong issue based on a wrong question, or, ask itself the wrong question. The Tribunal:
a)correctly identified the relevant law: CB 315-317;
b)set out, considered and made findings in relation to the applicant’s claims, evidence and materials in a very detailed manner: CB 298-313 at [13]-[71]; and
c)drew conclusions that were reasonably open to it on the evidence and materials before it: CB 313-314 at [72]-[75], for the reasons it gave.
Like grounds 1 and 2, ground 3 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [19] above.
Ground 3 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 4
The allegation that the Tribunal “applied the wrong test and was biased” is unparticularised, and the Court repeats [19] above in relation to the lack of particularisation and [21]-[22] above in relation to allegations of bias. As to the submission that the Tribunal “applied the wrong test” that submission cannot be sustained in circumstances where the Tribunal correctly identified the relevant law: CB 315-317, and fully set out, considered and made findings in relation to the evidence and materials in a very detailed manner: CB 298-313 at [13]-[71], and did so in a manner which in the Court’s view applied the correct tests to the Tribunal’s consideration of the claims, evidence and materials put forward by the applicant, together with relevant country information, in light of the relevant law correctly identified by the Tribunal.
Ground 4 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 5
It is well established that the selection and weight given to country information (such as the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka (“UNHCR Elgibility Guidelines”)) is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ (“NAHI”). The Tribunal had regard to the UNHCR Elgibility Guidelines: CB 303 at [31]-[32], and also considered the applicant’s claims that he would be imputed with pro-LTTE opinions: CB 303 at [30]-[37]; CB 307-310 at [46]-[54]. The Tribunal expressly found:
a)that it did not accept that the applicant was a person of interest to the Sri Lankan authorities: CB 305 at [36]; or
b)that the applicant was a person who would be imputed with pro-LTTE opinions by the Sri Lankan authorities: CB 308-309 at [48]-[51], that being a matter which the Tribunal said it had “carefully considered”: CB 308 at [47].
Ground 5 is therefore no more than a request for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, insofar as ground 5 may be seen as a claim that the Tribunal failed to consider the above issues such a claim is not made out.
For the sake of completeness the Court notes that it is not the case that the Tribunal failed to consider the POT Act. The Tribunal made reference to the POT Act in the country information annexed to the Tribunal Decision: CB 321, 325 and 328 and the Tribunal did not accept that the applicant:
a)was a person of interest to the Sri Lankan authorities: CB 305 at [36];
b)would be jailed: CB 306 at [39]; or
c)would be detained as a result of any outstanding criminal charges: CB 308 at [45].
Ground 5 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 6
The allegations of bias and a lack of procedural fairness in relation to the various paragraphs and sub-paragraphs of the Tribunal Decision set out in ground 6 must also fail for a lack of particularisation, and the Court repeats what is said at [19] above in that respect. In any event, the allegations of a lack of procedural fairness and bias in relation to the enumerated paragraphs cannot stand because in relation to the Tribunal Decision at:
a)CB 298-299 at [13(b), (d), (e) and (j)] (and the whole of [13] generally) simply repeat the applicant’s claims, and do so accurately, and therefore cannot give rise to the application of any test, let alone the wrong test, or any allegation of bias, and therefore do not establish any jurisdictional error in the Tribunal Decision;
b)CB 301-302 at [27] does no more than:
i)set out the questions or issues which the Tribunal might have discussed and explored with the applicant if he had have attended at the Tribunal Hearing; and
ii)observed that it was “relevant” that the Delegate, and two members of the former Refugee Review Tribunal who had had the benefit of questioning and observing the applicant in relation to the earlier Refugee Review Tribunal decisions, had found that “aspects” of the applicant’s claims lacked credibility.
In the circumstances, the observations of the Tribunal with respect to the non-attendance of the applicant are matters of fact and observation by the Tribunal and are therefore factual observations which this Court ought not interfere with on merits review: Wu Shan Liang. Further, they are matters in respect of which no jurisdictional error arises insofar as the applicant failed to attend the Tribunal Hearing for the reasons given in respect of Ground 7 below: see [37]-[42] below. In respect of the observations as to previous decisions of the Delegate and two different members of the former Refugee Review Tribunal, in circumstances where the applicant did not attend the Tribunal Hearing, those observations, noting accurately as they do that the Delegate and members of the former Refugee Review Tribunal found aspects of the applicant’s claims lacked credibility, were relevant as part of the factual matrix, and do not constitute jurisdictional error in circumstances where the applicant did not attend the Tribunal Hearing. Further, the Tribunal Decision is, as the Court has observed above: see [26(b)] above one which set out, considered and made findings in relation to the applicant’s claims, evidence and materials in a very detailed manner: CB 298-313 at [13]-[71], and the findings which it has made and the conclusions which it has reached, stand independently of any observations made concerning the Delegate and other members of the Refugee Review Tribunal in earlier decisions of the Refugee Review Tribunal;
c)CB 303 at [31] finding that “having regard to the relevant country information … the weight of the information indicates to the Tribunal’s satisfaction that originating from, or having lived or worked in, an area that was previously controlled by the LTTE does not in itself result in the applicant facing a real chance of serious harm now or in the reasonably foreseeable future if he returns to Sri Lanka” is a finding by the Tribunal open to it on the country information, which country information is, in relation to its selection and weight a matter for the Tribunal: NAHI at [11]-[13] per Gray, Tamberlin and Lander JJ, and no jurisdictional error is therefore established;
d)CB 304-305 at [36] where the Tribunal:
i)again made findings by reference to country information, those findings were open to it, and therefore not susceptible to judicial review by this Court: NAHI at [11]-[13] per Gray, Tamberlin and Lander JJ; and
ii)otherwise based its findings upon evidence concerning the applicant’s capacity to acquire a valid passport in his own name, and to depart to Sri Lanka for Ghana, Singapore and Thailand, as being confirmatory that he was not a person of interest to the Sri Lankan authorities, which was, on that evidence, a finding open to the Tribunal,
and, in the above circumstances, no jurisdictional error arises;
e)CB 306 at [40] the finding that an applicant who departs Sri Lanka in breach of the I&E Act, and the Tribunal’s acceptance that the applicant will be questioned at the airport in Colombo and charged with an offence under the I&E Act, evinces no jurisdictional error, it being a factual finding which, in combination with the subsequent finding: CB 307 at [43], that the I&E Act is a law of general application, and therefore not one which gives rise to a well-founded fear of persecution on the part of the applicant, also does not give rise to jurisdictional error;
f)CB 307 at [43] the Tribunal’s conclusions that the I&E Act is a law of general application not giving rise to persecution under the Refugee’s Convention, and that in the applicant’s circumstances, and having regard to relevant country information (the latter being a matter for the Tribunal: NAHI at [11]-[13] per Gray, Tamberlin and Lander JJ), and in the absence of any evidence to the contrary, the Tribunal’s finding that the applicant would be granted bail and released, and ultimately fined rather than imprisoned, and that none of the steps or outcomes in the procedure in the enforcement of the I&E Act amounted to serious harm to the applicant, was a finding reasonably and rationally open to the Tribunal on the evidence and materials before it (and in particular the country information), and therefore established no jurisdictional error;
g)CB 309 at [49] and [50] the Tribunal’s finding that a particular study concerning caste distinctions in Sri Lanka was not one which demonstrates that Sri Lankan authorities equate members of a particular fisherman caste with the LTTE, or that the Sri Lankan authorities impute to members of that fisherman caste (of which the applicant was said to be a member) support for the LTTE, was a factual matter for the Tribunal to determine on the basis of the study which the applicant’s representative cited to the Tribunal, and which formed part of the country information for consideration by the Tribunal. In the circumstances the weight to be attributed to that country information was a matter for the Tribunal: NAHI at [11]-[13] per Gray, Tamberlin and Lander JJ, and, in any event, for the Court to substitute its view of the particular study as it applies to members of the particular fisherman case in Sri Lanka would simply be to substitute its view of the merit for the Tribunal’s view of the merit, which is not permissible: Wu Shan Liang, even if there be, although it was not particularised, a factual error in the Tribunal Decision, for “[w]hatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal”: NAHI at [10] per Gray, Tamberlin and Lander JJ; WZANI v Minister for Immigration & Citizenship [2009] FCA 526 at [23] per Barker J, and therefore establishes no jurisdictional error; and
h)CB 310 at [53] where the Tribunal found that Tamil fishermen or members of the particular fisherman caste are not generally targeted or persecuted, and therefore do not face a real chance of persecution or a real risk of significant harm in the reasonably foreseeable future as Tamil fishermen from Udappu, is a finding based upon the country information which appears at CB 309-310 at [52], and in particular a 2012 report by the Australian Department of Foreign Affairs and Trade (“DFAT”) confirming that whilst security checks may still be carried out on boats before they leave to go to sea, DFAT is not aware of any reports of Sri Lankan Tamils being mistreated if they are caught illegally fishing. Therefore, the finding made by the Tribunal at CB 310 at [53] appears open on the country information before the Tribunal, and therefore establishes no jurisdictional error: NAHI at [11]-[13] per Gray, Tamberlin and Lander JJ.
In all of the above circumstances, ground 6 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 7
There was no error in the Tribunal proceeding to hear the review application under s.426A of the Migration Act. The Tribunal Hearing invitation sent complied with the relevant statutory requirements, in that it:
a)invited the applicant to appear before the Tribunal to give evidence and present arguments: Migration Act, s.425(1);
b)provided notice of the specified day, time and place of the Tribunal Hearing: Migration Act, s.425A(1);
c)was sent to the applicant’s representative by one of the methods in s.441A of the Migration Act, namely, by facsimile transmission: Migration Act, ss.425A(2)(a) and 441A(5)(a); and
d)provided a period of time to the applicant exceeding the prescribed period of fourteen days from when the invitation was received: Migration Regulations 1994 (Cth), reg.4.35D(3).
Therefore, by virtue of s.441C(5) of the Migration Act the representative and, by operation of s.441G(2) of the Migration Act, the applicant, was taken to have received the Tribunal Hearing invitation at the end of the day on 9 February 2015.
In exercising its discretion to proceed in accordance with s.426A of the Migration Act the Tribunal appropriately considered the relevant background of the matter and the evidence before it. The Tribunal:
a)noted that it had sent the Tribunal Hearing invitation by facsimile to the applicant’s registered recipient and migration agent: CB 297 at [7];
b)noted the statutory scheme adverted to in [37] above;
c)observed that when neither the applicant nor his representative appeared at the Tribunal Hearing that the Tribunal checked the Tribunal Hearing invitation letter and found that it was issued in accordance with s.441A of the Migration Act, and that it was sent by facsimile to the facsimile number provided by the applicant’s representative, and went so far as to check that the facsimile transmission records indicated a successful transmission in that regard: CB 296-297 at [8];
d)noted that the Tribunal Hearing invitation letter as issued complied with the prescribed period of notice required, and that the relevant day, time and place of the Tribunal Hearing had been included therein: CB 296-297 at [8];
e)noted that the Tribunal Hearing invitation letter explained the requirement for the applicant to make a request to the Tribunal in the event that the applicant was unable to attend the Tribunal Hearing or in the event that a postponement was required, and that it also explained that the Tribunal may make a decision without taking any further action to allow or enable the applicant to appear before it if the applicant did not appear: CB 296-297 at [8];
f)was satisfied that the Tribunal Hearing invitation letter complied with the relevant statutory requirements and that the power to proceed to make a decision under s.426A of the Migration Act was engaged: CB 296-297 at [8];
g)considered whether to take any action to allow or enable the applicant to appear before it: CB 297 at [9], and in that regard noted that:
i)on 24 February 2014 the applicant’s representative telephoned and spoke to a Tribunal officer and advised that the applicant had informed the applicant’s representative that the applicant would be appointing another representative: CB 297 at [9];
ii)otherwise, the Tribunal had not received any notification from the applicant’s representative (a registered migration agent), or from the applicant himself, or from anyone else, to indicate that the applicant had changed his representative: CB 297 at [9];
iii)noted that SMS reminder messages were sent to the applicant’s mobile telephone on 19 and 25 March 2015 reminding the applicant of the Tribunal Hearing which had been scheduled: CB 297 at [10];
iv)on 30 March 2015 at the request of the presiding member of the Tribunal, an officer of the Tribunal telephoned the applicant’s representative in relation to the failure to appear at the Tribunal Hearing on 26 March 2015: CB 297 at [11];
v)noted that the Tribunal officer was advised on 30 March 2015 by the representative that the applicant had advised the representative that he was engaging a new representative, and that as a consequence of that advice, the representative had written to the applicant and informed him that they would no longer be representing the applicant, and at the same time forwarded to the applicant at his last registered address a copy of the Tribunal Hearing invitation letter: CB 297 at [11];
vi)the representative advised the Tribunal officer that the applicant had not advised as to who his new representative was: CB 297 at [11]; and
vii)the representative also advised the Tribunal officer that the applicant’s mobile telephone numbers in the representative’s records corresponded to the same telephone numbers to which the Tribunal’s SMS Tribunal Hearing reminders were sent: CB 297 at [11];
h)considered the evidence and found no evidence to suggest that the applicant sought or intended to seek an adjournment or postponement of the Tribunal Hearing, and found that there was nothing to suggest that the applicant would not have requested a postponement of the Tribunal Hearing as scheduled if that was his intention, and further noted the applicant’s familiarity with the review process as a consequence of the earlier hearings before the former Refugee Review Tribunal: CB 297-298 at [12]; and
i)found that in the circumstances there was nothing to suggest any unfairness to the applicant in the Tribunal proceeding to make the Tribunal Decision without allowing or enabling the applicant to appear before it: CB 297-298 at [12].
The applicant’s ground refers to his not appearing or being represented as a result of “miscommunication”. The only “miscommunication” evident in the materials before the Court is the applicant’s failure to communicate with the Court as to the identity of his new representative, or if he was representing himself to advise the Court accordingly. Miscommunication, or, more accurately, a failure by the applicant, or any new “representative” that he had engaged, to communicate with the Tribunal does not, in the circumstances outlined by the Tribunal, constitute jurisdictional error.
Having regard to the factual context presented, it cannot be said that Tribunal’s decision to proceed with the Tribunal Hearing in the applicant’s absence was unreasonable in the sense referred to in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181. Unlike in AZAFB v Minister for Immigration & Border Protection [2015] FCA 1383 (see also Kaur vMinister for Immigration & Border Protection[2014] FCA 915; (2014) 141 ALD 619), where the applicant filed written submissions prior to the Tribunal Hearing, the applicant in this case did not at any stage “engage” with the review process: SZTXE v Minister for Immigration & Border Protection [2015] FCA 493 at [20] per Flick J. The applicant did not file any evidence or submissions, nor did he contact the Tribunal to seek an adjournment, or otherwise. In such circumstances, the decision by the Tribunal to proceed under s.426A of the Migration Act was intelligible, justifiable, and not unreasonable.
Ground 7 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Conclusion and order
The Court has concluded that:
a)none of the grounds of review, in either the grounds of the Judicial Review Application, or the additional grounds in the Applicant’s March 2016 Affidavit, have been made out;
b)no jurisdictional error has been established in the Tribunal Decision, and the Tribunal Decision is therefore a privative clause decision within the meaning of s.474 of the Migration Act; and
c)it follows from (a) and (b) that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 17 August 2016
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