BDE16 v Minister for Immigration
[2018] FCCA 2175
•24 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDE16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2175 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – error of law – procedural fairness. |
| Legislation:: Migration Act 1958 (Cth) |
| Cases cited: Craig v South Australia [1995] HCA 58; 184 CLR 163; 69 ALJR 873; 131 ALR 595; 82 A Crim R 359; 39 ALD 193 NABE v Minister for Immigration and Multicultural Affairs (No. 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476; 77 ALJR 454; 195 ALR 24; 72 ALD 1 WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | BDE16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 995 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 23 March 2018 |
| Date of Last Submission: | 23 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 24 August 2018 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondents: | Mr Petrie |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The application filed on 12 May 2016 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 995 of 2016
| BDE16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the tribunal”) made on 23 April 2016. The tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse the applicant a protection (class XA) visa (“the visa”) under section 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant’s application essentially raised two grounds of appeal, namely:
a)the tribunal’s decision was affected by an error of law; and
b)the applicant was denied procedural fairness.[1]
[1]The applicant’s application filed 12 May 2016 at page 3.
The application also contains a further ground in the following terms:
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.[2]
[2] Page 3 of the applicant’s application filed 12 May 2016.
Orders were made by consent in this proceeding on 12 October 2016 which provided, among other things, that the applicant file and serve any amended application with proper particulars and written submissions
28 days prior to the hearing.
The applicant did not file any written submissions nor did he file any amended application or proper particulars of the grounds of any application.
The applicant’s claims
The applicant is a Sri Lankan citizen and arrived in Australia on
13 August 2012 as an irregular maritime arrival.[3] He applied for the visa on 12 April 2013.[4][3] Court book pages 1 to 16 and page 49.
[4] Court book pages 17 to 105.
The applicant attended an interview with a delegate of the first respondent on 30 October 2013[5] and provided, via his agent, further country information.[6]
[5] Court book page 112.
[6] Court book pages 119 to 143.
In summary, the applicant made the following claims:
a)he is a Tamil male of Christian faith from Jaffna District in Sri Lanka. He fled Sri Lanka because he feared the Criminal Investigation Department (“the CID”) and the Sri Lankan army who were allegedly harassing and threatening him because of his suspected involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”) due to his ethnicity. The applicant said he was regularly questioned by these organisations, including in relation to his brother-in-law who had previously fled Sri Lanka.[7]
b)on one occasion in 2011, the applicant claimed that he was hit with a rifle by a member of the CID who was enquiring about the applicant’s brother-in-law. The CID allegedly threatened to kill him. The applicant stated he then left Jaffna and went to his mother-in-law’s house in Batticaloa, where he remained hiding for two to three months. When he returned, the applicant claimed that the CID required him to report to the local army camp three to four times a week, which he did between October 2011 and July 2012 at which point he left Sri Lanka for Australia.[8]
[7] Court book page 162.
[8] Court book page 346 paragraph [11].
A delegate of the Minister refused to grant the applicant the visa.[9] The delegate accepted that the applicant was a Sri Lankan Christian Tamil from Jaffna District and that he may have experienced some problems with some authorities in Sri Lanka but as he stayed for a period of time in the army camp soon after the war ended and was then permitted to leave the camp, this suggested that he was not of particular interest to the authorities.[10]
[9] Court book pages 157 to 178.
[10] Court book page 165.
Relying substantially on country information, the delegate found the applicant would not be persecuted in Sri Lanka by reason of his Tamil ethnicity alone.[11] Nor did the delegate accept that the applicant had a well-founded fear of persecution based on imputed political opinion in support of the LTTE.[12] In addition, the delegate found that while the applicant would probably be questioned upon his return, he did not accept the applicant had a well-founded fear of persecution on the basis of having sought asylum in Australia.[13]
[11] Court book page 167.
[12] Court book pages 169 to 170.
[13] Court book pages 170 to 173.
The delegate also considered whether the applicant met the criteria for a protection visa under the complementary protection grounds in section 36(2)(aa) of the Act and concluded that he did not.[14]
[14] Court book pages 174 to 177.
The applicant applied to the tribunal on 24 December 2013.[15]
[15] Court book pages 183 to 189.
By letter dated 24 March 2015, the applicant was invited to a hearing before the tribunal scheduled for 15 April 2016.[16]
[16] Court book pages 209 to 215.
On 2 April 2015, the applicant’s agent provided the tribunal with written submissions[17] in which, among other things, new claims for protection were raised,[18] namely:
a)he said the Sri Lankan authorities had visited his family home on multiple occasions, including after his departure from the country. The applicant claimed that the authorities had stated to someone in his family home that the applicant must report to the authorities on his return to Sri Lanka;[19]
b)he claimed that he was forced to dig bunkers for the LTTE in the final stages of the Sri Lankan civil war, along with other residents of his village. He claimed that this was entirely involuntary and that he otherwise did not provide any support to the LTTE;[20] and
c)he claimed that he was injured by a bomb shell blast which left a visible scar on his leg. He claimed that if this scar was discovered by the authorities, he would be exposed to harm because the authorities would assume him to be a member of the LTTE.[21]
[17] Court book pages 220 to 229 attaching country information.
[18] Court book pages 220 to 299.
[19] Court book page 220 at paragraph [3].
[20] Court book page 221 at paragraph [5].
[21] Court book page 221 at paragraph [6].
The applicant, together with his agent, attended an interview with the tribunal on 15 April 2015. The applicant was also assisted at this interview by a Tamil interpreter.[22]
[22] Court book pages 302 to 304.
On 23 April 2016, the tribunal affirmed the decision not to grant the applicant a protection visa.[23]
[23] Court book pages 314 to 333.
The tribunal’s reasons
The tribunal summarised the applicant’s claims at paragraph 11 of the decision record dated 23 April 2016.[24]
[24] Court book page 316 at paragraph [11].
The applicant confirmed his fear of returning to Sri Lanka on the basis of the following:
a)he is a young Tamil male;
b)his imputed political opinion, the LTTE; and
c)being a returned asylum seeker.[25]
[25] Court book page 317 at paragraph [15].
The applicant also confirmed that he had no political involvement or involvement with the LTTE and had not been arrested or detained.[26]
[26] Court book page 317 at paragraph [16].
The tribunal noted significant inconsistencies between the applicant’s initial written claims in his statement of claims and his oral evidence.[27]
[27] Court book page 318 at paragraph [22].
The tribunal considered the applicant’s response, namely that he had given a complete statement in his written statement and a summary in his oral evidence but did not accept that this fully explained the difference between the two accounts.[28]
[28] Court book page 318 at paragraph [23].
In any event, the tribunal then indicated that even if it accepted all of the applicant’s evidence regarding his past experiences, this did not necessarily constitute serious or significant harm. The tribunal indicated that it was not satisfied that the applicant was of any interest to the authorities, nor did it accept that:
a)after leaving the camp, the authorities went to his house to interrogate him or repeatedly asked his wife about his whereabouts;
b)he went into hiding from the authorities; or
c)the authorities continued to attend his house looking for him or to enquire why he went to Australia.[29]
[29] Court book page 319 at paragraph [24].
The tribunal found these claims to be an embellishment to strengthen the applicant’s claims for protection.
The tribunal also considered country information in relation to the applicant’s claims[30] and concluded that the applicant did not come within any of the categories identified by the United Nations High Commissioner for Refugees (“the UNHCR”) or Upper Tribunal who would be at real risk of persecution on return to Sri Lanka.[31] In doing so, the tribunal acknowledged that these lists are not exhaustive or a presumption of eligibility, rather that it is required to consider the applicant’s particular circumstances. In this regard, the tribunal accepted that the applicant had been questioned, hit in the stomach with a rifle and threatened that he would be taken and shot towards the end of the war, but the tribunal ultimately found that at that time most of the Tamil population was suspected of LTTE connections and that country information from the Department of Foreign Affairs and Trade (“DFAT”) indicated that those suspected of LTTE connections were held in rehabilitation camps.[32]
[30] Court book page 323 at paragraphs [25] to [37].
[31] Court book page 324 at paragraph [38].
[32] Court book page 324 at paragraph [39].
The tribunal considered the ‘new claims’ made by the applicant in the submissions filed on his behalf on 2 April 2015 but did not accept them.[33]
[33] Court book page 324 at paragraphs [40] to [42].
The tribunal did not accept that the applicant would be of interest to the authorities in Sri Lanka due to his Tamil ethnicity or an imputed political opinion connecting him to the LTTE either directly or because of his brother-in-law who left Sri Lanka.[34]
[34] Court book page 325 at paragraphs [44] to [45].
Although the applicant did not raise any particular claim resulting from his religious beliefs, as the applicant had listed his religion as being Catholic, the tribunal also considered whether this provided a basis for a claim to protection. After considering the country information, it concluded that it did not.[35]
[35] Court book page 325 at paragraphs [46] to [47] and page 326 at page [47] to [48].
The tribunal considered the applicant’s claim that he faced fear as a result of being a returned asylum seeker[36] and whilst accepting that the applicant would likely face questioning upon his return to Sri Lanka and may be charged and convicted under Sri Lanka’s departure laws, it did not find that these are laws of general application or that the applicant would be adversely treated because of his ethnicity, imputed political opinion or any other convention reason.[37] In considering this claim, the tribunal had regard to substantial country information.[38]
[36] Court book page 326 at paragraphs [50] to [53]; page 327 at paragraphs [53] to [58]; page 328 at paragraph [58]; ad page 329 at paragraphs [58] to [61].
[37] Court book page 329 at paragraphs [59] and [63].
[38] Court book page 326 at paragraphs [50] to [53]; page 327 at paragraphs [55] and [58]; page 328 at paragraph [58]; and page 329 at paragraphs [58] to [61].
The tribunal also considered the applicant’s claims separately and cumulatively.[39]
[39] Court book page 329 at paragraph [62].
The tribunal concluded that the applicant did not meet the requirements of either the refugee criteria in section 36(2)(a) of the Act or the complementary protection criteria in section 36(2)(aa) of the Act.[40]
[40] Court book page 330 at paragraphs [66] to [68].
Proceedings in this court
At the hearing, the applicant who represented himself with the assistance of a Tamil interpreter, was asked to state in his own words what he believed were the error (or errors) in the tribunal’s decision. In response, the applicant said:
Some asylum seeker who have returned to my country, they are being imprisoned and I lived in a LTTE controlled area. They did not consider these facts. Because I lived under a LTTE controlled area during the final battle, I’m more serious threat than others. I lived under extremely dangerous situation during the final days of the war, and that’s why I’m extremely worried.[41]
[41] Transcript page 2 at lines 45 to 46; and page 3 at lines 1 to 3.
At the conclusion of the oral submissions on behalf of the Minister, I again asked the applicant if there was anything he wished to say in response to which he responded:
I’m happy to accept if the war didn’t take place what I said was false, but the war did take place, so I do not accept anything he said … because it is a fact there was a war. So I was affected by the war, and that’s a fact.[42]
[42] Transcript page 7 at lines 26 to 27; and at lines 31 to 32.
Ground one
The first ground of review is that:
The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.[43]
[43]Page 3 of the applicant’s application filed 12 May 2016.
As stated above, orders were made on 12 October 2016 permitting the applicant to file and serve an amended application properly particularised. The applicant did not do so.
The Minister’s primary submission is that the applicant’s failure to particularise his ground of review is sufficient to enable the court to dismiss it.[44] There is some merit to this proposition.
[44] WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969 and WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Notwithstanding this primary submission, the Minister submitted in any event, the tribunal’s reasons did not disclose any jurisdictional error.
Tribunal’s decision is affected by error of law
The tribunal’s decision is one to which section 474 of the Act applies.
Section 474 limits the judicial review to questions of jurisdictional error. As noted by their Honours Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476; 77 ALJR 454; 195 ALR 24; 72 ALD 1 (footnotes excluded):
Once it is accepted, as it must be, that s474 is to be construed conformably with Ch III of the Constitution, specifically, s75, the expression “decision[s]… made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision… made under this Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.[45]
[45] Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476; 77 ALJR 454; 195 ALR 24; 72 ALD 1 at [76].
It is well settled that in considering the tribunal’s reasons, this court ought not construe them ‘minutely and finely with an eye keenly attuned to the perception of error’ in reference to the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (“Wu Shan Liang”).[46]
[46] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [272].
In Wu Shan Liang, the majority considered the role of a reviewing court in a judicial review application. In this context, the majority, in considering the reasoning of the court below, said:
… The Court continued: “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status, must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision (footnotes excluded).[47]
[47] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [272].
In Wu Shan Liang, the Honourable Justice Kirby also helpfully set out a series of principles which should guide a judge conducting judicial review of an administrative decision maker’s reasons. In particular, he said:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.[48]
[48] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [291].
As stated, the applicant has not expressly identified any specific error of law which he relies upon.
In his written submissions, the Minister helpfully points the court to the comments by Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia [1995] HCA 58; 184 CLR 163; 69 ALJR 873; 131 ALR 595; 82 A Crim R 359; 39 ALD 193 (“Craig”), in which they said that an error of law will constitute a jurisdictional error on the part of a tribunal where the error:
…causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material to, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion.[49]
[49] Craig v South Australia [1995] HCA 58; 184 CLR 163; 69 ALJR 873; 131 ALR 595; 82 A Crim R 359; 39 ALD 193 at [14].
I accept that a fair reading of the tribunal’s reasons in the sense contemplated in Wu Shan Liang[50] does not disclose any jurisdictional error in the sense identified in Craig[51].
[50] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259.
[51] Craig v South Australia [1995] HCA 58; 184 CLR 163; 69 ALJR 873; 131 ALR 595; 82 A Crim R 359; 39 ALD 193.
As is evident from the summary of the tribunal’s findings above, the tribunal considered each of the applicant’s claims in detail, including the applicant’s primary claim that he had been harassed because of his ethnicity, his imputed political opinions and the potential for him to be at risk if he returns as a failed asylum seeker. Ultimately, after weighing the evidence before it including country information, the tribunal did not accept the applicant’s claims that he was of particular interest to the authorities. In particular, the tribunal identified and relied upon the fact that there were a number of inconsistencies in the applicant’s claims over time.
To the extent that the tribunal relied upon country information, it is well accepted that it is a matter for the tribunal as to what weight is to be given to such information.[52]
[52] See for example NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13].
In addition, the tribunal also considered the ‘new claims’ which were raised on behalf of the applicant in written submissions dated
2 April 2015.[53]
[53] Court book page 324 at paragraph [40].
The tribunal’s findings in respect of the applicant’s claims were reasonably open on the basis of the material available to it.
The applicant did not identify any otherwise unarticulated claims, nor are any such claims readily apparent from the material before the tribunal which the tribunal did not deal with.
As noted above, although no express claim was made on the grounds of the applicant’s religion, the tribunal considered whether he might have a protection claim on this basis and concluded that he did not. The principles articulated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27[54] therefore do not arise in this case.
[54] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 at [48]-[49], and [55]-[63].
I find that the tribunal’s decision is not affected by jurisdictional error on the basis of any error of law.
Failure to provide procedural fairness
Section 422B of the Act relevantly provides:
(1)This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
Section 425 of the Act provides that if, among other reasons, the tribunal forms the view that it cannot decide the review in the applicant’s favour on the basis of the material before it, the tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising from the decision under review.
In this case, pursuant to section 425 of the Act, the applicant was invited to and attended a hearing before the tribunal.[55] The applicant was assisted at that hearing by his representative and an interpreter.[56] In addition to the actual hearing itself, the applicant’s representative also provided extensive written submissions to the tribunal prior to the hearing.[57] It is apparent from the tribunal’s decision record that the tribunal member provided the applicant with ample opportunity at the hearing to discuss his claims and the evidence before the tribunal.[58]
[55] Court book pages 209 to 215.
[56] Court book pages 302 to 304.
[57] Court book pages 220 to 299.
[58] See for example court book page 317 at paragraphs [12] to [18]; page 318 at paragraphs [18] to [23]; page 319 at paragraph [24]; page 322 at paragraph [30]; page 323 at paragraph [32]; and page 327 at paragraph [57].
It is also apparent from the decision record that to the extent that there was information that the tribunal considered would be the reason or part of the reason for affirming the decision under review, this was put to the applicant in the course of the hearing and he was given an opportunity to reply in accordance with section 424AA of the Act.[59]
[59] See for example court book page 318 at paragraphs [19] to [23]; and page 319 at paragraph [24] of the tribunal’s decision record.
I am satisfied that the tribunal has complied with the procedural fairness requirements for such proceedings.
Having regard to these matters, I find that there is no proper basis on which it might be said that the applicant was denied procedural fairness.
For each of these reasons, ground one is not made out.
Ground two
The applicant’s second ground of review is ‘I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.’[60]
[60] Page 3 of the applicant’s application filed 12 May 2016.
As stated above, notwithstanding the orders made providing the applicant with an opportunity to file an amended and properly particularised claim, the applicant did not file any further material nor did he provide any further particulars in relation to this ground.
This ground does not identify any jurisdictional error on the part of the tribunal. As noted by his Honour Gilmour J in WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, ‘failure to particularise a ground of review is sufficient basis for it to be dismissed’.[61]
[61] WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]. See also WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] upheld in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.
It follows that the applicant’s second ground for review does not disclose or particularise any jurisdictional error and must be dismissed.
Conclusion
As neither of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 24 August 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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