AZAET v Minister for Immigration

[2015] FCCA 1426

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZAET & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1426

Catchwords:
MIGRATION – Application to review a decision of the Refugee Review Tribunal – jurisdictional error – claim Tribunal misconceived one aspect of the applicant’s claim for protection – jurisdictional error – no error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 91R, 474, 476

Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24
Craig v South Australia [1995] 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No2) (2004) 144 FCR 1

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant: AZAET

Second Applicant: AZAEU

Third Applicant: AZAEW

Fourth Applicant: AZAEV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: ADG 152 of 2014

Judgment of: Judge Brown

Hearing date: 12 March 2015

Date of Last Submission: 12 March 2015

Delivered at: Adelaide

Delivered on: 18 June 2015

REPRESENTATION

Counsel for the Applicants: Mr Ower

Solicitors for the Applicant: McDonald Steed McGrath

Counsel for the Respondents: Mr Prince

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 5 May 2014 is dismissed.

2. The applicants pay the first respondent’s costs fixed in the sum of SIX THOUSAND SIX HUNDRED AND FORTY SIX DOLLARS ($6,646.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 152 of 2014

AZAET

First Applicant

AZAEU

Second Applicant

AZAEW

Third Applicant

AZAEV

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for the issue of constitutional writs to quash a decision of the Refugee Review Tribunal “the RRT” made on 2 April 2014 not to grant the various applicants concerned protection visas pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.

2. The first applicant (hereinafter referred to as “the applicant”) is a citizen of Sri Lanka, who first entered Australia on 28 November 2008, pursuant to a student visa issued under the Act. 

3. The second respondent is the applicant’s husband and the third and fourth respondent her two children.  The success of each application depends on the success of the applicant’s case.  She is to be regarded as the primary applicant.  It is her position that the decision of the RRT is vitiated by jurisdictional error. 

4. The application was filed on 5 May 2014.  As such, it does not require any extension of time.  The application contained four grounds.  At hearing, counsel for the applicant, Mr Ower abandoned all but one ground of review, which following amendment, is as follows:

   “The Tribunal rejected and misinterpreted the response of the applicant during the hearing and made a wrongful decision and made a jurisdictional error.”

5. Accordingly, the applicant complains that the RRT misunderstood evidence provided by the applicant, during the hearing of her application, which took place on 29 August 2012, which lead it to misconstruing an essential aspect of her claim for refugee status.  In this context, I have been provided with a transcript of the proceedings concerned.[1]

   [1]  See affidavit of Jane McGrath, the applicant’s solicitor filed 5 November 2014

6. The applicant applied for the relevant protection (class XA) visa on 31 October 2012.  This was nearly four years after her first entry to Australia, with her husband and first born child. 

7. The application was supported by a lengthy statement prepared by the applicant. In this statement, the applicant claimed to be a person to whom Australia owed asylum, according to the Refugee’s Convention and the related provisions of section 91R(1) of the Act.

8. In particular, the applicant claimed to be at risk of suffering serious harm as a result of being persecuted for a convention reason, namely that she was a Tamil speaking Muslim, from Sri Lanka, who had been harassed and discriminated in Sri Lanka, because of her religion and the social group to which she belonged. 

9. In the light of the basis on which the RRT determined not to grant the visas in question, it is necessary to outline the applicant’s migration history in Australia and that of her family. 

10. The applicant’s husband first entered Australia on 14 August 2006 pursuant to a TU subclass 572 student visa.  The applicant herself arrived in Australia, as previously indicated, on 28 November 2008, as a dependant of her husband on the same student visa. 

11. The applicant’s husband returned to Sri Lanka between 14 April and 9 May 2009; again departed Australia for Sri Lanka between 4 and 22 March 2010; and on a third occasion departed Australia between 23 March and 10 April 2011.  He has been in Australia since this time.

12. On 23 March 2010 the applicant’s husband lodged an application for a class VC subclass 485 temporary skilled (provisional) visa, whilst in Australia.  The Department of Immigration & Border Protection “the Department” was concerned about the authenticity of an English Language Proficiency Test provided by the applicant’s husband in support of his visa application.  Subsequently the Department made a decision to refuse the skilled visa in question.

13. This decision was the subject of a review in the Migration Review Tribunal, which affirmed the Department’s decision, on 26 October 2012.  It was a few days after this that the applicant herself filed the application for a protection visa.  After interviewing the applicant, a delegate of the Minister for Immigration & Citizenship[2] “the Department” determined not to grant the applicant the relevant protection visa on 26 September 2013. 

    [2]  as the Department of Immigration & Border Protection was then known

14. As with her husband, the applicant departed Australia for Sri Lanka on a number of occasions, prior to her application for the protection visa in question.  Firstly, the applicant returned to Sri Lanka between 14 April and 13 June 2009, travelling with her older son born 11 May 2006.  Secondly, she returned to Sri Lanka between 23 February and May 2011, travelling with her two sons, the youngest of whom was born in Australia on 5 September 2009. 

15. The RRT was concerned about the length of time it had taken for the applicant to lodge her application for a protection visa, following her initial arrival in Australia and was further concerned that the applicant, notwithstanding her claims that she had suffered persecution in Sri Lanka, prior to her first departure from that country, had been content to return there on two occasions. 

The nature of the applicant’s claim for protection

1. The applicant is a Tamil speaking Muslim born in Ginihapitiya.  Whilst in Sri Lanka, she lived with her parents in Naragoda.  She claimed her family had been harassed in Naragoda because they were conservative Muslims.  Her father was a teacher, but in 1992 opened a travel agency, specialising in organising Haj and Umra Pilgrimages to Saudi Arabia.  This business was initially successful.

2. The applicant married in December 2004 and thereafter began to wear the burqa.  As a consequence of this, she claims that she came to the notice of Sinhalese hooligans and was harassed and humiliated.  In particular, in 2005, the applicant claims that she was chased by Sinhalese youths.  She was protected by some Tamil youths and a fight broke out, which resulted in police intervention and her arrest.  During this questioning, the applicant claims her burqa was forcibly removed and she was beaten by police. 

3. In mid-2006, the applicant and her husband were further interrogated by police in Colombo and were accused of being associated with the LTTE and gathering funds for them.  Against this background, the applicant and her husband decided that it was prudent for the husband to leave Sri Lanka and for the applicant to follow him, in due course.  As previously indicated, the applicant’s husband arrived in Australia in late 2006. 

4. In January of 2007, the applicant’s father fell out with a Mr Fawzie, who was the Muslim Minister for Urban Development and Haj Delegation Affairs.  As a consequence, the applicant’s father faced restrictions on the number of pilgrims he could assist and his business began to suffer.

5. In addition, the applicant alleges that Mr Fawzie threatened her father that he (Mr Fawzie) would identify the applicant as a supporter of the LTTE and arrange her arrest and imprisonment.  At this time, peace talks between the Sri Lankan Government and the LTTE had broken down. 

6. The applicant claims her fear of being targeted, at the instigation of Mr Fawzie, led to her deciding to join her husband in Australia.  Whilst she was in this country, the applicant’s father was told by Mr Fawzie that he would not permit the applicant and her husband to return to Sri Lanka.

7. As previously indicated, in April of 2009, the applicant returned to Sri Lanka.  At the time, she was pregnant with her second child and wished to have the support of her mother.  Her father had advised her that the civil war was likely to end soon with the defeat of the LTTE.  In these circumstances, she was advised by her father that she would be likely to be safe. 

8. This did not prove to be the case, on the applicant’s case.  She claims that the Sri Lankan Army started to search houses, in the area of her parent’s home, searching for LTTE cadres.  In addition, she and her family were fearful that they would be targeted by local Sinhalese, who were celebrating the defeat of the Tamil Tigers with which she and her family were likely to be associated.  Against this background, the applicant made urgent arrangements to depart Sri Lanka and return to Australia as soon as she could. 

9. In early 2011, as indicated above, the applicant returned to Sri Lanka.  The purpose of her visit was to join her family on a trip to Mecca to attend the Umra.  At this time, she had been advised by her father that Muslims in Sri Lanka no longer faced any difficulties.  However, it is the applicant’s case that her father still faced difficulties with Mr Fawzie, who viewed him as a potential political rival. 

10. The applicant and her family returned from Mecca to Colombo Airport.  On their arrival, the applicant claims she and her husband were detained and interrogated, particularly in regards to allegations that they had each been previously affiliated with the LTTE. 

11. During her interrogation, the applicant claims that she was ordered to remove her burqa and was threatened and humiliated by her interrogators.  Following her interrogation, she was held in custody with other women suspected of having LTTE dealings in the past. 

12. The applicant claims that she was held in custody for a period of around three weeks.  During this period, she was interrogated and assaulted severely, including being raped, beaten and kicked. 

13. The applicant claims that her father arranged for her release from custody and later disclosed to her that he had information which indicated that Mr Fawzie had arranged for her and her husband’s arrest at the airport.  Against this background, urgent arrangements were made for the applicant and her husband to leave Sri Lanka and return to Australia. 

14. It is the applicant’s case that she did not wish to disclose her rape in Sri Lanka because she was a married Muslim woman with three children.  Rather, she was hopeful that she and her family could obtain residency in Australia through an application for skilled migration visas.  However, as a consequence of the refusal of her husband’s skilled visa application, she was forced to seek protection in Australia. 

15. It is the applicant’s case that she cannot return to Sri Lanka because the officers who raped her in 2011 will be able to identify her, then find and kill her because they fear that the applicant will disclose what they have done to her to their own detriment. 

16. In support of her claim, the applicant provided extensive country information, which indicated that Tamils and Muslims had experienced a significant level of harassment, in Sri Lanka, in the period 2009-2010.[3]

    [3]  See casebook at pages 31-41

The applicable legal framework

1. The decision not to grant the applicant the visa is a privative clause decision as defined by section 474 of the Act. This stipulates that any administrative decision, relating to the granting or otherwise of a visa, pursuant to section 65 of the Act is a final and conclusive one.  As such, it is not to be called into challenge or reviewed in any court. 

2. However, the High Court of Australia in Plaintiff 157/2002 v Commonwealth of Australia[4] has held that the provisions of section 474 do not prevent judicial review of decisions of the MRT, which are affected by jurisdictional error or have been made in bad faith.

   [4]  See Plaintiff 157/2002 v Commonwealth of Australia [2003] 195 ALR 24

3. Accordingly, in refugee and migration cases, where it is established that an error of jurisdiction has occurred, pursuant to section 476 of the Act, this court has the same jurisdiction as the High Court under paragraph 75 (v) of the Constitution and may issue a prerogative writ quashing a decision, if an error of jurisdiction is demonstrated.

4. An administrative tribunal exceeds its powers and thus commits a jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a conclusion, in a way, that affects the exercise or purported exercise of the power conferred upon it.[5]

   [5]  See Craig v South Australia [1995] 184 CLR 163

5. The High Court has held that the failure of a tribunal, such as the RRT, to respond to a substantial, clearly articulated argument relying on established facts, propounded by an applicant before it, amounts to a failure to accord natural justice to that applicant, which amounts to a failure, on the Tribunal’s part, to exercise the jurisdiction conferred upon it.[6]

   [6]  See Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 394, 408

6. The applicant claims to be entitled to the protection of Australia because she is a refugee, as defined by article 1A(2) of the Refugee’s Convention which defines a refugee as any person who:

   “… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The applicant’s submissions on judicial review

1. It is the submission of Mr Ower, counsel for the applicant, that the RRT has misunderstood the applicant’s claim for protection, particularly her articulated concern regarding Mr Fawzie.  It is thus contended that the RRT has fallen into error and has therefore not properly exercised the review jurisdiction conferred upon it. 

2. This contention rests on how the RRT has purportedly summarised the applicant’s various claims.  In particular, Mr Ower relies on the following passages of the RRT decision:

   “In summary, the applicant has claimed that she and her husband first found themselves in trouble with Sri Lankan authorities in 2005.  The applicant claimed that this was because of her manner of dressing as a Muslim which led to an incident of harassment where those harassing and those who were supporting got into a fight and all were taken in for questioning.  More seriously, she claimed that there was harm and accusations because of a suspected involvement with a terrorist separatist movement involved in long-standing conflict with the Sri Lankan government, in her case, because of a belief she was assisting LTTE members to get visas to go overseas and, her husband because he was suspected or arranging funding for the LTTE.

   The applicant claimed this came about because of a conflict between her father and a former close friend who, fearing competition in elections made false accusation of LTTE association.[7]

   [7]  See casebook at page 110 [107]-[108]

3. It is Mr Ower’s contention that, in this passage, the RRT has erroneously conflated or confused the applicant’s concerns about what occurred to her and her family in two distinct instances, which occurred in 2005 and 2007 respectively.  In particular, the RRT has indicated that the applicant’s father’s problems in respect of Mr Fawzie first arose in 2005, when it was clearly her case that these difficulties arose in 2007. 

4. In this regard, Mr Ower has highlighted a number of exchanges between the RRT and the applicant, during the hearing of 29 August 2012, when the applicant clearly indicated that it was in 2007 that Mr Fawzie indicated to her father that the authorities suspected that his daughter was a Tamil Tiger and Mr Fawzie might use this as a means of targeting the applicant. 

5. Essentially, it is Mr Ower’s submission that the RRT has significantly misunderstood the nature and full extent of the applicant’s various claims for protection from 2005 onwards.  This is implicit from the above passage, which suggests that the applicant’s concerns largely relate to Mr Fawzie and commenced in 2005, when this is clearly not her case. 

6. In addition, Mr Ower points to the statement provided by the applicant in support of her initial application for refugee status.[8]  In this statement, the applicant indicates that it was around January 2007 that her father began to face problems from Mr Fawzie. 

   [8]  See casebook at page 44

7. Mr Ower submits that it is apparent that the Tribunal has erroneously tried to link the harassment suffered by the applicant in 2005 with the harassment said to originate with Mr Fawzie, when it is clearly the applicant’s case that these two incidents are separate. 

8. It is this misinterpretation, which Mr Ower contends constitutes a jurisdictional error and which is the basis of the application for judicial review.  In support of this contention, Mr Ower relies on what was said by the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No2)[9] as follows:

   “… a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.”

   [9]  See NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No2) (2004) 144 FCR 1 at 20

The Minister’s submissions on judicial review

1. Mr Prince, counsel for the Minister, submits that the applicant’s contention is based on an unfair excision of the passage in question from the RRT’s reasons as a whole, which when read in their entirety disclose no such misconception of the applicant’s case, but rather indicate that the RRT has considered each and every aspect of it but has elected to reject it, largely on the basis of its assessment, of the applicant’s credibility.

1. It is Mr Prince’s submission that this was the jurisdictional task conferred upon the RRT.  In particular, it was charged with determining the credibility of the various claims raised by the applicant.  As such, the reasons of the RRT disclose no error of jurisdiction.

The findings of the RRT

1. The RRT accepted that the applicant and her family are of Tamil ethnicity and Suni Muslim by religion.  It also found that each was of Sri Lankan nationality. 

2. The reasons of the Tribunal occupy some 25 pages.  Over the course of those various pages, the RRT has placed various headings.  Under the heading consideration of claims and evidence, the RRT has attempted to summarise the applicant’s various claims for protection.  This aspect of the decision occurs prior to the passage on which Mr Ower places particular emphasis and which purports to be a summary of those claims. 

3. In particular, in my view, a fair reading of this earlier portion of the reasons indicates that the Tribunal was fully aware that what purportedly occurred to the applicant in 2005, when she was harassed, whilst wearing the burqa and her allegations regarding her later difficulties with Mr Fawzie, were temporarily distinct. 

4. In particular, the Tribunal recorded the following:

   “Around January 2007, her father started facing problems with Mr Fawzie, Muslim Minister of Government for Urban Development and Hajj Delegation Affairs.  Minister Fawzie threatened her father that he would have the applicant arrested for her and her husband’s LTTE associations.  Therefore her father advised her to flee Sri Lanka and join her husband in Australia.”[10]

   [10]  See casebook at page 102 at [41]

5. In addition, the Tribunal recorded in some detail the applicant’s belief as to why she and her husband had allegedly been arrested at Colombo Airport in 2007 and the relationship of this incident to Mr Farwzie.  It was recorded that Mr Farwzie held a grudge against the applicant’s father and, as a consequence wanted to destroy the family.

6. The basis of this grudge was said to be that Mr Farwzie had become resentful of the success of the travel agency operated by the applicant’s father and had erroneously believed that he (the father) might run for office in Mr Farwzie’s electorate.  It was also recorded by the Tribunal that the applicant had asserted Mr Farwzie was aware that she had been detained in 2005 and her fingerprints taken.[11]

   [11] Ibid at page 104 [65] – [71]

7. Accordingly, it appears to me that the Tribunal was aware that the claims of persecution relating to 2005 and 2007 were distinct episodes.  However, in this context, the Tribunal had difficulty in accepting the assertion that Mr Farwzie would later target the applicant and her husband rather than her father.

8. In my estimation, the Tribunal accurately summarised the applicant’s various claims for protection in its reasons.  The passage in which Mr Ower assert the Tribunal has either conflated or misconceived an aspect of the applicant’s claim is prefaced by the comment that it is a summary of her various claims.  The Tribunal’s recounting of the matters occupies some eight or nine pages of the reasons.

9. In my view, it is neither reasonable nor fair to read this particular paragraph in isolation and then criticise it for being an inaccurate summary.  Nor can it be fairly assumed, from one paragraph alone, that the reviewer has necessarily misconceived the claim in question because the purported summary or précis of evidence is not as felicitously expressed as it might possibly be.

10. In my view, the oft quoted comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang[12] are apposite:

    “… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised under over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the decisions-maker, upon proper principles into a reconsideration of the merits of the decision.”

    [12]  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

11. The Tribunal did not find the applicant to be a credible witness.  In particular, whilst accepting that there might have been a falling out between the applicant’s father and Mr Fawzie, which in turn might have led to him (the father) receiving less referrals for his travel agency, the Tribunal did not accept that the applicant and her husband would have returned to Sri Lanka, on two occasions, if, as they claimed, they had originally left that country because of a fear of being targeted by Mr Fawzie.

12. The Tribunal also rejected the applicant’s claim that she and her husband had been targeted by the Sri Lankan authorities in 2005 as the member considered it implausible that, if this were the case, the husband would have returned there in 2010 to undertake an IELTS test and she herself would have visited in 2009, whilst conflict between the LTTE and the Sri Lankan Government was at its peak, for family support in her pregnancy.

13. In addition, the Tribunal found implausible the applicant’s claim regarding her targeting and arrest at the Colombo Airport in 2011, given that her family had chosen to return to Sri Lanka to attend the Umra in Saudi Arabia and had not come under notice whilst initially transiting through the country and had never been previously been checked for associations with the LTTE at the airport.

14. In summary, the Tribunal found as follows:

    ·The applicant’s husband came to Australia in 2005 to study, not to escape persecution in Sri Lanka;

    ·The applicant came the following year to be with her husband and for no other reason;

    ·In 2009, she returned to Sri Lanka, whilst conflict between the LTTE and the Sri Lankan Government was high.  At which stage she was of no interest to the Sri Lankan authorities;

    ·The decision of the applicant’s husband to return to Sri Lanka, in 2010, to undertake an IELTS test there rather than in Australia is further evidence of the fact that he was not fearful of returning to Sri Lanka;

    ·The applicant had concocted her claims of being detained and maltreated in 2011 solely for the purpose of obtaining a protection visa;

    ·Mr Fawzie had not made false claims against her that she was an LTTE associate.

15. On this basis, the Tribunal rejected the applicant’s claims for protection in Australia.  It did so on the basis that the applicant was not found to be a credible witness and her account of what had allegedly occurred to her from 2005 onwards, in Sri Lanka, was implausible.

16. In my view, these findings were reasonably open to the Tribunal, whose function it was to make findings of fact, including those relating to credibility.  As McHugh J said in Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [13] findings on credibility are a function of the primary decision maker “par excellence”.  As such, it is not open to a court carrying out a review function to substitute its own findings in respect of matters of credit.

    [13]  See Re the Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]

17. Accordingly, I can find no jurisdictional error in the reasons of the Tribunal concerned in this matter.  In my view, the Tribunal gave proper consideration to all aspects of the applicant’s claim for protection raised by her.

18. It must follow therefore that the application should be dismissed.  Costs should follow the dismissal, in the amount sought by the first respondent, namely $6,646.00, which is the amount fixed by relevant scale of costs established by the Federal Circuit Court Rules.

19. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date: 18 June 2015