BAZ15 v Minister for Immigration
[2016] FCCA 1929
•27 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAZ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1929 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – whether the Tribunal’s decision was affected by bias – whether the Tribunal’s decision was unreasonable or irrational – whether the Tribunal failed to give the applicant an opportunity to present evidence – alleged bias – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 476. |
| Applicant: | BAZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1633 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 27 July 2016 |
| Date of Last Submission: | 27 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 27 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Legal Aid Commission of NSW |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The amended application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the amount of $6,767.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1633 of 2015
| BAZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 18 May 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country.
The applicant unlawfully entered Australia on 10 August 2012 as an irregular maritime arrival. The applicant applied for a protection visa on 18 January 2013. The applicant was of Tamil ethnicity. In summary, the applicant fears persecution on the grounds of his Tamil ethnicity, an imputed political opinion as a supporter of the LTTE, and his membership of a social group of men who assisted the LTTE, as well as a Tamil from a particular area and a Tamil who is a failed asylum-seeker. The applicant identified particular alleged incidents.
The delegate found that there were credibility issues in relation to the applicant’s evidence and did not accept that the applicant was of interest to the authorities because of his missing niece nor suspected as an LTTE supporter. The delegate did not accept that the applicant faced problems from authorities while he was in Sri Lanka for any of the Refugee Convention reasons. The delegate did not accept the applicant’s claims that he was of interest to the authorities. The delegate found that the applicant did not have a well-founded fear of persecution. The delegate was not satisfied that Australia had protection obligations to the applicant because there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country there would be a real risk that the applicant would suffer significant harm.
The applicant applied for review on 6 January 2014. By letter dated 11 February 2015 the applicant was invited to attend a hearing on 6 March 2015. The applicant attended on that date to give evidence and present arguments and was assisted by his migration representative. Prior to the hearing the applicant had completed a response to hearing, which was dated 2 March 2015. On 4 March 2015 prior to the hearing further information was provided by the migration agent to the Tribunal.
On the date of the hearing and prior to the commencement of the same a further communication was sent by the applicant’s migration agent dated 6 March informing the Tribunal that the applicant’s cousin in Sri Lanka had been recently shot dead. The letter referred to “see attached article”. The letter said:
These events can be explored more thoroughly at the hearing, as they have a direct bearing on our client’s fears should he return to Sri Lanka.
There is a reference to the funeral to be held “today”, being 6 March 2015, and that the applicant was upset “but would like to continue with the hearing today”. The attached article referred to a person who was identified as a father of three children being shot dead on Tuesday night. The incident apparently occurred at the victim’s home. There is a reference to the victim’s illegal telecast of the Indian Sun channel and the running of a meal shop. The NPC opposition leader disclaimed that the person who was shot had worked with them. At the hearing neither the applicant nor his migration agent advanced the significance of the applicant’s cousin being shot dead in relation to the applicant’s fears.
Following the hearing on 17 March 2015 further material was provided to the Tribunal. On 20 March 2015 the applicant’s migration agent provided further submissions to the Tribunal and referred to the cousin being shot dead as being a new claim raised by the applicant and noting that the Tribunal had been informed of that incident prior to the hearing. The migration agent’s letter noted:
This evidence was not explored by the Tribunal at the hearing.
More accurately it might have been said that this issue was not advanced by either the applicant or the migration agent at the hearing. The letter proceeded:
We ask that this evidence be considered, as it is directly relevant to our client’s fears of serious harm in Sri Lanka.
There was no evidence adduced by the agent or the applicant explaining how or why the shooting of the alleged cousin was relevant to his fears of harm in Sri Lanka. The letter requested that if there were concerns about the evidence the matter should be the subject of a further opportunity for the applicant to explore that matter and identified the obligation of the Tribunal to give genuine, proper and realistic consideration to all the applicant’s claims. The letter continued:
As we have advanced previously, this information of the death of our client’s cousin is also relevant, as it resulted in the applicant being distracted and upset during the hearing.
The Tribunal identified the relevant law and summarised in an orthodox fashion in detail the applicant’s claims and evidence and the inconsistencies in the evidence by the applicant that supported adverse credibility findings by the Tribunal. The Tribunal found the applicant was not a witness of truth. That adverse finding was open on the material before the Tribunal. The Tribunal made reference to the applicant prevaricating and inventing evidence. The Tribunal also found in relation to the applicant not being a witness of truth:
And because he has lied to the Tribunal about the true reasons he left Sri Lanka, the Tribunal disbelieves these claims he has made about his cousin.
That was a reference by the Tribunal to the applicant having boarded a boat with his cousin. The Tribunal then referred to the representative advising the Tribunal that a cousin had been shot dead a few days prior to the hearing. The Tribunal referred to the media report that was provided and made reference to it identifying a person was shot dead by unidentified people. The Tribunal correctly identified that the applicant asserted that this was a new claim, being the death of his cousin, in relation to the review, in respect of which the Tribunal noted:
Even though no evidence was put forward as to how this related to the applicant’s fears of harm in Sri Lanka.
The Tribunal referred to particular evidence of the applicant that was the subject of inconsistencies, and the Tribunal referred to the applicant having given evidence that his cousin was looking after his wife and children and that his cousin was to be cremated on the day of the hearing. The Tribunal noted that the applicant said nothing further about his cousin and his relationship to the applicant’s protection claims. The Tribunal noted that it took the applicant to country information and in response to the invitation to comment the applicant said that his cousin was shot dead on 3 March 2015 and was to be cremated on the same day of the hearing. The Tribunal noted that nothing further about this alleged cousin was advanced by the applicant or the representative.
The Tribunal referred to the submission subsequently received from the applicant’s migration representative that the shooting of the cousin was relevant to the applicant’s fear of harm in Sri Lanka and noted that the letter “said nothing more about that”. The Tribunal referred to the letter requesting that if the Tribunal had concerns about the matter that these should be put to the applicant. The Tribunal noted that the applicant was possibly seeking in some way to link the person who was shot, who was described as a cousin, to the adverse interest that the applicant claims the Sri Lankan authorities hold in relation to him. The Tribunal noted the limited evidence in relation to the person who was shot. The Tribunal noted that the only person who could explain how that affected the applicant would be the applicant himself. The Tribunal made reference to the fact that the applicant could easily have advanced claims about that at the hearing, including instructing his representative at the hearing about them, if indeed there were any such claims.
The Tribunal identified that a difficulty for the applicant was that even if he did advance claims about the alleged cousin and how they posed a risk for him:
…for the reasons given above, the Tribunal would have disbelieved them.
The Tribunal had found and made reference to its finding that the applicant was not a witness of truth. It was in those circumstances that the Tribunal found that the applicant did not have a well-founded fear of persecution for any Convention reason. The Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country that there is a real risk the applicant will suffer significant harm. The Tribunal concluded that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958.
The amended application identifies the following grounds.
1. The Tribunal acted in breach of s. 425(1) of the Migration Act.
Particulars
(a) The Tribunal failed to give the applicant an opportunity to present evidence and argument about a claim that the applicant sought to advance being;
(i) The murder of a person said to be his cousin shortly before the hearing, and,
(ii) The relevance of that event to his circumstances.
2. The Tribunal's decision was affected by a reasonable apprehension of bias.
Particulars
(a) The Tribunal stated at paragraph 50 of its decision that even if the applicant had advanced claims about the murder of the person said to be his cousin, and how that posed a risk to him, it would not have believed him.
(b) The Tribunal reasoned at paragraph 45 of its decision, that because that the applicant's claims were so discredited no purpose would be served by calling the parents-in-law.
Mr Karp of counsel, on behalf of the applicant, confirmed that only grounds 1 and 2(a) were pressed and that ground 2(b) and 3 were abandoned. The Court notes that there was no substance in relation to grounds 2(b) and ground 3. In relation to ground 1, Mr Karp of counsel took the Court to the transcript, as well as the findings in the Tribunal’s reasons and the communications that the Tribunal had received prior to and after the hearing concerning the cousin. Mr Karp of counsel submitted that on the transcript, there were two occasions when it was alleged the applicant had been shut down in relation to evidence referable to his cousin. I do not accept that the transcript supports any such finding.
On the first occasion, the Tribunal was asking the applicant a question about why certain people were trying to take action against the applicant and the applicant, in an unresponsive manner, referred to his cousin who was looking after his wife and children and that at 2 o’clock today they were going to cremate the body. The response was clearly unresponsive. The Tribunal member said:
Could you please answer my question?
The Tribunal member restated the evidence that had been given and went back to the issue of the unanswered question. On no fair reading of the transcript could it be said that the Tribunal member was closing the applicant down in relation to a matter that he was seeking to raise. Rather, the Tribunal member was trying to test and explore with the applicant the evidence that he had given in relation to his claim. The second occasion on which it was alleged the Tribunal had closed down the applicant was after that applicant had been taken to the country information and was asked what he would like to say. The applicant said that in March 2015 his brother had been shot dead and was being cremated at 2 o’clock. The Tribunal member said: “Yes. Anything else?” It was contended that the “Yes. Anything else?” was a direction to address a different topic. I reject that submission. “Yes. Anything else?” was a genuine opportunity for the applicant to expand on any claim he wished to advance relating to his brother.
The Tribunal member also provided an opportunity for the applicant’s representative to raise any matters. The representative did refer to the issue concerning the shooting of the cousin by correcting the applicant’s evidence that he had said his brother had been shot and that it was his cousin who was shot. Nothing else was said about that topic by the applicant’s representative. The Tribunal member repeated the opportunity to make submissions and the applicant raised that because the cousin was being cremated, he was not in a very good mood and was depressed today because of the cremation and the recent incident about his cousin and was not in the right mood. Nothing was said by the applicant as to the significance of the shooting of the alleged cousin in relation to his fears and claims.
On the transcript, it is apparent the applicant had a genuine opportunity to expand on his fears or claims concerning his cousin at the hearing. The applicant did not do so. The transcript identifies that a further opportunity was given as to whether there was anything else that the applicant wanted to say about the case that the applicant or representative may have felt was not covered that day and the applicant did say something further.
It is common ground that the issue in relation to ground 1 is whether the applicant had a meaningful hearing. On the evidence before the Court, the applicant had a meaningful hearing and a genuine opportunity to advance his claims and evidence and to be heard in relation to those claims and evidence. Ground 1 fails to make out any jurisdictional error.
In relation to ground 2(a), Mr Karp of counsel sought to link the findings of the Tribunal in relation to the applicant’s credit and that if he had advanced claims relating to the cousin, that they would have had a credibility difficulty with the alleged conduct of the Tribunal shutting the applicant down during the hearing. For the reasons I have given, the Tribunal did not engage in any conduct that shut the applicant down. The conduct of the Tribunal in requiring the applicant to address the question being asked and also in asking the applicant whether there was anything else is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, independent and impartial mind to the determination of the matter on its merits.
I do not accept that there is anything in the transcript that supports any allegation of bias by the Tribunal. On the face of the transcript, the applicant was given a proper opportunity to advance his claims and evidence and to be heard. The adverse finding by the Tribunal in relation to the hypothetical position of the applicant’s evidence about the cousin was reasoning that was open to the Tribunal. The Tribunal made comprehensive adverse credibility findings in relation to the applicant’s evidence in respect of which the Tribunal had found the applicant had invented evidence and had lied to the Tribunal. It was in those circumstances that it was open to the Tribunal to say that if there had been some greater articulation of the cousin claim, the Tribunal would have had a credibility issue with that evidence. The observation by the Tribunal in that regard was a rational and logical observation in the context of circumstances where the applicant had not developed any further relationship between the shooting of the alleged cousin and his fears.
The findings by the Tribunal in relation to the applicant’s limited evidence about his cousin and the problem that he would face as a matter of credibility is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, independent and impartial mind to the determination of the matter on its merits. Bias is an allegation that must be clearly alleged and strictly proven. No case of bias is proven. Ground 2 fails to make out any jurisdictional error.
The amended application is dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 2 August 2016
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