BEF15 v Minister for Immigration
[2016] FCCA 2607
•20 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEF15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2607 |
| Catchwords: MIGRATION – Visa – protection visa – whether Tribunal made findings of fact not open to it – whether Tribunal failed to apply the correct test or ask itself the correct question – whether Tribunal failed in duty to invite applicant to attend and present argument – no error demonstrated. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 65, 91R(2), 424A(3)(a) and 425(1) The 1951 Refugee Convention, Article 1A(2) |
| Cases cited: Shrestha v Minister for Immigration and Border Protection [2015] FCCA 2262 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 |
| Applicant: | BEF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 232 of 2015 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 19 April 2016 |
| Date of Last Submission: | 19 April 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 20 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Gordon |
| Solicitors for the Applicant: | Ronald Gordon, Barrister & Solicitor |
| Solicitors for the Respondents: | Ms C Stokes for the Australian Government Solicitors |
ORDERS
The Application dated 26 June 2015 and the Amended Application dated 12 April 2016 are dismissed.
The applicant do pay the first respondent’s costs fixed in the sum of SIX THOUSAND, EIGHT HUNDRED AND TWENTY FIVE DOLLARS ($6,825).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 232 of 2015
| BEF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 21 June 2015 which affirmed an earlier decision of a delegate of the Minister dated 27 March 2014 refusing to grant the applicant a protection visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant originally filed his application on 26 June 2015. This matter came before me on 7 March 2016, at which time Mr Gordon appeared on behalf of the applicant having only recently been instructed. I granted the applicant an adjournment until 19 April 2016 and gave him leave to file and serve an Amended Notice of Application, such further material, including transcript of proceedings, that he wished to rely on, and an outline of submissions, prior to the adjourned date. The applicant filed an Amended Application on 12 April 2016, together with an Outline of Submissions. That application in effect replaced the original grounds of application and the original grounds were not pursued before me. No further material on which the applicant sought to rely was filed.
Argument in this matter proceeded before me on 19 April 2016. The applicant was represented by Mr Gordon.
The applicant relied on his Affidavit of 21 June 2015, which simply annexed a copy of the Decision Record of the Tribunal, and added nothing further of substance. He also relied on the material contained in the Court Book filed by the first respondent.
The first respondent relied upon the materials contained in the Court Book.
The grounds in the Amended Application are as follows:
“1.The Tribunal erred in law by making the following findings that were not open on the evidence before the Tribunal;
a.that the Applicant’s evidence was false and that the Applicant’s girlfriend’s parents did not interfere or forbid their relationship
b.that the Applicant did not meet any of the risk criteria that would lead him to face detention and mistreatment at the hands of the Sri Lankan authorities;
2.The Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question;
3.The Tribunal failed to comply with s.425(1) of the Migration Act 1958.”
Background
The background to this matter has been helpfully summarised in the first respondent’s Outline of Submissions dated 29 February 2016. I do not understand any aspect of the background to this matter to be the subject of dispute and accordingly I have paraphrased the summary below from the first respondent’s outline.
The applicant is a Sri Lankan citizen who arrived in Australia in July 2012 as an unauthorised maritime arrival. He was detained on his arrival.
The applicant’s visa application was lodged on 21 November 2012. The applicant claimed to be at risk of serious harm from the family of his girlfriend. He alleged this was because they believed that he was below her social class by reason of his Tamil ethnicity and the fact that he was an observer of the Hindu religion. In addition to this, he claimed to fear harm from members of the Sri Lankan Army. This was because he was involved in an incident at a cricket match where members of the army assaulted him and detained him for a short period. He also claimed to have a fear of being questioned and detained by the Sri Lankan authorities if he were to be returned to that country because of the fact that he departed illegally.
Tribunal hearing and decision
On 2 April 2014, the applicant applied for a merits review of the decision of the delegate. The Tribunal wrote to the applicant on 7 May 2015 inviting him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case.[1] The hearing was scheduled for 19 June 2015 and proceeded on that day. Prior to the hearing, the applicant provided to the Tribunal a statement,[2] pre-hearing submissions prepared by his migration agent,[3] some supporting documents, and copies of photographs.[4] He was represented at the hearing by a migration agent who was also a solicitor.[5]
[1] Court Book (‘CB’) p 87.
[2] CB p 94.
[3] CB p 96.
[4] CB p 134.
[5] CB p 178.
The Tribunal acknowledged having received the pre-hearing submissions and statement of the applicant.[6] The Tribunal noted that the written submission commented upon the country information, as well as making reference to a variety of sources that covered inter-ethnic relationships and imputed political opinions of Tamils, and the ‘failed asylum seeker’ issue.[7]
[6] CB p 186.
[7] CB p 186 at [29]-[32].
It seems that the applicant may have been emotionally affected at the time of the Tribunal hearing, and the Tribunal member indicated that he was prepared to offer the applicant further time if he was upset in order to compose himself.[8] The Decision Record does not record whether the applicant availed himself of this opportunity, but in any event, the Tribunal hearing proceeded as listed.
[8] CB p 187 at [38].
The Tribunal correctly summarised the criteria for a protection visa and the complimentary protection grounds and noted the relevant definition of a refugee in Article 1A(2) of the Refugees Convention.[9]
[9] CB p 184 at [5]-[9].
The Tribunal identified the issue before it as being that the applicant, who was a single male Tamil of the Hindu faith, had entered into a relationship with a young Sinhalese Christian girl who was both younger than him and from a wealthy family. It noted that once the relationship had been discovered, the girl’s family became angry for reason of the ethnic and religious matters I have referred to. It noted that the applicant claimed that members of the girl’s family had assaulted both the applicant and members of his own family. The Tribunal noted that the applicant claimed that his girlfriend is now unwell with cancer and whilst he would like to return to Sri Lanka to be with her, he remains fearful that her family would attempt to cause him serious harm.[10]
[10] CB p 185 at [10]-[15].
The Tribunal also noted other matters of chronology and personal history, as set out in the statutory declaration provided by the applicant, at the time of applying for the protection visa on 20 November 2012.[11]
[11] CB pp 185-186.
The applicant gave evidence at the Tribunal hearing, and the Decision Record of the Tribunal summarised both that evidence and a number of matters of concern that the Tribunal had with respect to it.[12]
[12] CB pp 187–191.
The Tribunal accepted the evidence of the applicant as to the fact of the relationship and the circumstances in which it had commenced. However, it did not accept the applicant’s claim that the girl’s family were anti-Tamil on the basis that they had sent her to a Tamil school. It explained that conclusion in these terms:
“As I put to him at the Tribunal hearing I find the parent’s attitude to Tamils was not one that was antagonistic as they opted to send their daughter to a Tamil school where the vast majority of students were of that racial background and the language for tuition was Tamil.”[13]
[13] CB p 197 at [121].
The Tribunal made significant findings of credit against the applicant. A pivotal aspect of his claims was that he had been attacked and beaten by the girl’s family. The applicant had claimed that when the girl’s family became aware of the relationship, they came to his home as a group attacking him, his brother, and his mother.[14] Subsequent to that attack, the applicant claimed that the girl’s father had attended his family home and threatened a further attack unless the relationship ended. It is that incident, the applicant claimed, which prompted his decision to leave the country. The Tribunal found that there were significant inconsistencies in his account of that version of events. By way of observation, the Tribunal noted that given the significance of that incident to his narrative, the applicant would have been likely to have had a, “reasonable to good recollection of the event”.[15] It was inconsistency in his account of those events and the surrounding circumstances that gave the Tribunal significant concerns as to his credibility.
[14] CB p 197 at [122].
[15] CB p 198 at [124].
In considering its approach to the applicant’s credibility, the Tribunal took into account both the UNHCR Handbook on Procedures and Criteria for determining Refugee Status, as well as a number of relevant decisions of the Federal Court.[16]
[16] CB p 198 at [126]-[130].
The Tribunal summarised a number of inconsistencies in the accounts given by the applicant. It noted that, to allow for the possibility that the applicant had made an oversite in his account before it, it brought certain matters to his attention and asked if he had any other matters that he wished to add. His failure to do so strengthened the view of the Tribunal that the applicant was recounting a fictitious event.[17] The Tribunal also found it implausible that the applicant did not apparently tell his brother in Australia about the incident, and also that he had failed to report the incident to police. The Tribunal summarised its conclusions with respect to this aspect of the claims as follows:
“Having considered the applicant’s inconsistent accounts, the lack of any knowledge of this by his brother who, like him is seeking asylum or challenging a decision made in that regard and that he failed to make any effort to report the matter and seek protection I find the account of the attack is false and tailored to provide a false account of harm.
I give this claim no weight and find that the applicant does not face a real chance of serious harm at the hands of members of his girl-friend’s family.
In coming to this finding I have considered the independent material his adviser has provided at pp.9 and 10 of the submission of 17 June 2015 and note that the state not prohibit or sanction intercaste or interethnic relationship though the parents may.
As discussed above I find evidence he has provided is false and I am not satisfied that his girl-friend’s parents have interfered or forbidden the relationship, particularly in light of their tolerance and preparedness to have their daughter study and freely mix with and learn with Tamils in the Tamil language.”[18]
[17] CB pp 198 – 199 at [133].
[18] CB p 199 at [138]-[141].
With respect to the incident at a cricket match, the Tribunal found that it was possible that the applicant had been involved, and that the applicant may have been detained for a few hours, but it concluded that the whole incident, if it in fact occurred, was an isolated incident which did not come within the ambit of s.91R(2) of the Act. It found that the episode did not amount to serious or persecutory harm.[19]
[19] CB p 199 at [142]-[145].
With respect to the applicant’s membership of minority groups of Tamil ethnicity and followers of the Hindu faith, the Tribunal found that the applicant had not suffered serious harm by reason of his race and that he would not in the reasonably foreseeable future. It was not satisfied that the applicant faced a real chance of serious harm by reason of his religion as a Hindu at the present time or in the reasonably foreseeable future.[20]
[20] CB p 200.
With respect to the consequences of returning to Sri Lanka as an illegal departee, the Tribunal noted country information and concluded that he would be subjected to some questioning on return with a possibility of arrest and a short period of detention with a fine being imposed. The Tribunal found that this would be as a result of laws of general application that were not applied with discrimination against those who were alleged to have breached the law. It concluded that the application of the relevant law would not involve an intent to harm the applicant, or inflict cruel or inhumane treatment, degrading treatment, punishment or torture. For that reason, it concluded that the consequences for the applicant on his return as an illegal departee did not fall within the ambit of s.91R(2) of the Act, and it did not give rise to a real chance of serious harm, now or in the reasonably foreseeable future.[21]
[21] CB pp 200–202.
The Tribunal considered the complimentary protection obligations and concluded that the potential treatment of the applicant on his return did not give rise to a real risk of ‘significant harm’ within the meaning of s.36(2A) of the Act.[22]
[22] CB pp 203–204.
Accordingly, the Tribunal concluded that the applicant was not owed protection obligations or complimentary protection obligations and for that reason affirmed the decision of the delegate not to grant him a protection visa.[23]
[23] CB p 204.
Applicant’s submissions
Ground one of the application is particularised in two subparagraphs. I will refer to the submissions on this ground as being with respect to ground one (a) and one (b).
With respect to ground one (a), in which the applicant complained that the Tribunal made an error of law by making findings of fact which were not open on the evidence before it, Mr Gordon submitted that with respect to the finding of the Tribunal that the evidence of the applicant was false and that the applicant’s girlfriend’s parents did not interfere or forbid their relationship, there was no evidence before the Tribunal to make this finding. He submitted that there was no reasonable basis for the member to have concluded that that evidence was false. Similarly, he submitted that there was no reasonable basis for the Tribunal to conclude that there was a lack of antipathy towards the applicant from the parents simply because they had sent their daughter to a Tamil school.
Mr Gordon referred the Court to the case of Shrestha[24] and submitted in effect that because findings as to credit can be impressionistic, an erroneous or unreasonable finding as to credit can have a domino effect that pervades the Tribunal’s thinking with respect to all of the claims and evidence.
[24] Shrestha v Minister for Immigration and Border Protection [2015] FCCA 2262.
With respect to ground one (b), Mr Gordon submitted that there was no evidence on which the Tribunal could make a finding that the applicant would not face a risk of the type identified on his return to Sri Lanka. The effect of his submission was that the Tribunal had simply noted country information and then reached the bald conclusion that the applicant did not satisfy the protection or complimentary protection obligations. He submitted that the Tribunal erred in not putting these matters specifically to the applicant.
With respect to ground two, Mr Gordon submitted that the Tribunal embarked upon a simplistic approach to the evidence and claims of the applicant in coming to the conclusion that he did not require protection. He submitted that the Tribunal did not consider whether because of the relationship with his girlfriend, the applicant was in ‘harms way’. For that reason, he submitted that the Tribunal asked itself the wrong question. He submitted that the evidence that the applicant had suffered harm and was at risk of further harm, was uncontradicted. Accordingly, the question the Tribunal should have asked itself was whether if the applicant went back to Sri Lanka, he would suffer the same sort of harm that he had suffered before he left, and whether he would be subject to further harm by reason of him being in a relationship with a Sinhalese girl.
Of course, this submission ignores the fact that the Tribunal did not accept the account of the attack on him by his girlfriend’s family. Mr Gordon submitted that the Tribunal should have asked itself whether there would be harm to the applicant if he returned and not to focus on whether or not he had been harmed in the past. The problem with this submission is that in this matter, an assessment of the likelihood of any harm to the applicant in the future at the hands of the girl’s family is inextricably linked to the question of whether or not they had displayed the attitudes attributed to them by the applicant, and whether they had in the past acted on them in the violent manner he asserted.[25]
[25] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at [575]-[576].
With respect to ground three, Mr Gordon complained that whilst the country information stated that the applicant would be likely to get bail if he was arrested on his return to Sri Lanka, this matter was not raised with him. For that reason, the conclusion of the Tribunal was not informed by the particular circumstances of the applicant and did not therefore reflect the reality of whether or not he would be able to obtain bail. Mr Gordon submitted that the Tribunal looked at this question entirely in the abstract.
First respondent’s submissions
For the first respondent, Ms Stokes submitted that ground one (a) was an impermissible challenge to the factual findings of the Tribunal. In other words, it was a ground that sought this Court to conduct a merits review. Ms Stokes submitted correctly, that a mere preference for a different result when the question is one in which reasonable minds may come to different conclusions, is not a sufficient reason for overturning a decision on review. It was not necessary for the Tribunal to have rebutting evidence before it rejected the evidence of an applicant on any matter, and the real question was whether or not the conclusion it reached was unreasonable, irrational or illogical. In this matter, the Tribunal considered the evidence and reached a conclusion that was open to it and it could not be said that no other fact finder could not have reached the same conclusion. She submitted that, this was so, even though the Tribunal made some strong findings adverse to the credit of the applicant.
With respect to ground one (b), Ms Stokes submitted that it was correct for Mr Gordon to submit that there was no evidence before the Tribunal that the applicant fell within any of the categories of persons identified in the country information of being at risk of harm. She made the pertinent submission that this was because the applicant did not make any claim that he was at risk in relation to any of those categories. It was not, she said, for the Tribunal to make claims on behalf of the applicant. It was entirely for the applicant to put whatever evidence he chose to do so to advance his claims.[26] Procedural fairness did not require the Tribunal to stimulate elaborations that the applicant did not choose to give, or to act as his ‘nurse maid’.[27] Ms Stokes submitted that it is well established by authority that the Tribunal is only required to deal with claims that squarely arise on the material before it.[28]
[26] Abebe v The Commonwealth of Australia (1999) 197 CLR 510.
[27] Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [199]-[200].
[28] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [60].
With respect to ground two, Ms Stokes submitted that this was also an unvarnished attempt to challenge the factual findings of the Tribunal, and for that reason, must fail. Ms Stokes submitted that the factual and credit findings were open to the Tribunal, and that given the Tribunal did not accept that the applicant was at risk of harm for the reasons claimed now or in the foreseeable future, the Tribunal could not be satisfied that the criteria for the visa had been met, and that it had no alternative but to affirm the decision under review.
With respect to ground three, Ms Stokes submitted that the Tribunal was not obliged to bring matters of country information to the attention of the applicant. In any event, the applicant was aware of the relevant categories identified in the country information by virtue of the decision of the delegate. The relevant issues raised in the country information were canvassed in the country information referred to by the applicant in his own written submissions, and Ms Stokes drew the attention of the Court to footnote number 40 at page 119 of the Court Book. That footnote specifically referred to a decision of the Upper Tribunal of the United Kingdom which dealt with the categories of persons who were at risk. For that reason, there was no denial of procedural fairness.
Further, the first respondent submitted that the Tribunal did not make any finding that the applicant would be bailed if he was arrested on his return. It merely noted that he would be on remand for a maximum of 15 days. Ms Stokes referred me to the decision of SZTAP v Minister for Immigration and Border Protection[29] which held that the failure to put an issue as to whether a family member would provide a surety to the appellant was not a breach of s.425(1) of the Act, as the finding was not critical to the Tribunal’s findings and was not considered by the Tribunal as important to its decision. In this case, the Tribunal found that the applicant would be held on remand and that this did not amount to serious harm. In summary, Ms Stokes pithily submitted that simply because there was a ‘one-liner’ in the country information, it did not mean that that matter was crucial and had to be put separately to the applicant.
[29] [2015] FCAFC 175.
Consideration
With respect to ground one (a), in my view, it was open to the Tribunal to make the findings that the applicant had been untruthful in his evidence, both as to the attack on him and his family, and that there had been threats made by the father of his girlfriend. It considered and rejected the evidence of the applicant. It was not required to accept uncritically the evidence that he gave. It was a matter for the Tribunal as to what evidence it accepted. This Court has no general role to review findings of fact.[30] Matters of credit have been described as being, “par excellence” within the ambit of the Tribunal.[31]
[30] AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [38].
[31] Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
I am not satisfied that the findings as to credit, encompassed in the rejection of the applicant’s evidence on those matters, were extremely illogical or irrational, “or lacking a basis in findings or inferences of fact supported on logical grounds.”[32] There was, in my view, nothing unreasonable, illogical or irrational about either the approach taken by the Tribunal to the applicant’s evidence, or the conclusions it reached. The findings were open on the evidence.
[32] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [52].
As to the complaint particularised as ground one (b), that it was not open to the Tribunal to find that the applicant did not meet any of the risk criteria identified in the country information that would lead him to face detention and mistreatment at the hands of the authorities, this is answered, as Ms Stokes submitted, by the fact that there was no evidence before the Tribunal that he came within any of those categories.
I am not satisfied that the Tribunal erred by making findings that were not open to it. No jurisdictional error has been demonstrated in ground one and I dismiss it.
With respect to ground two, this is in my view, an invitation to the Court to engage in a merits review. The ground is expressed in terms of a failure by the Tribunal to properly apply the law and or to ask itself the correct question. In the manner in which it was approached by the applicant in both his written outline and in oral submissions, it was in my view, in reality an attempt at a merits review. Judicial review is not a merits review. As the Full Court of the Federal Court has noted in the case of Pilbara[33]:
“It is not this Court’s function to resolve the difficult and complex matters of judgment raised by the evidence resolved by the Tribunal. This Court’s role in reviewing the decision of the Tribunal is to ensure that the decision of the Tribunal accords with the law.”
[33] Pilbara Infrastructure Pty Ltd and Anor v Australian Competition Tribunal and Ors (2011) 193 FCR 57.
Those comments are appropriate to an application for judicial review conducted by this Court. As noted by the Court in Pilbara, the Courts must be on “guard against the ‘slide into impermissible merit review’”, and the Court must prevent an applicant from attempting to “shoehorn arguments about the merits of a Tribunal’s conclusions into categories such as no evidence, illogicality, or unreasonableness ...”[34]
[34] Pilbara ibid, p 62 at [17].
The applicant submitted that his evidence was uncontradicted. The pertinent fact is not that the evidence was uncontradicted, but that it was not believed.
I am satisfied that the Tribunal correctly interpreted and applied the law and that it did not fail to ask itself the right question at any stage of proceedings. No jurisdictional error is demonstrated with respect to this ground.
As far as ground three is concerned, the Tribunal complied with its obligation under s.425(1) of the Act to invite the applicant to appear before it and give evidence and present arguments relating to the issues that arose from the decision on review. There is nothing in the Decision Record that suggests the manner in which the Tribunal hearing unfolded, or the approach taken by the member to considering the issues, somehow rendered the invitation to attend the hearing hollow. The applicant was clearly on notice of the relevant issues by virtue of the decision of the delegate.[35] By virtue of s.424A(3)(a), the Tribunal was not required to draw the attention of the applicant to those portions of the country information complained of by his counsel. The applicant’s submission as to the assumption made by the Tribunal that the applicant would be admitted to bail does not reflect the decision actually made by the Tribunal. It made no finding that the applicant would be admitted to bail. This submission was an attempt to bring the applicant within the reasoning of the Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069. For the reasons that I have identified, and as submitted by the first respondent, the failure to raise with the applicant an ability to be admitted to bail in this matter was not a breach of s.425(1) of the Act. The Tribunal found that any checks the applicant might face and any charges that might be laid against him, would not be with discriminatory intent and would be as a result of laws of general application.[36] It found that the treatment would not amount to significant harm and that there was no reason to believe that as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk of significant harm.[37] I can detect no error in that approach. The question of bail was clearly not seen by the Tribunal as critical to its decision.[38] No jurisdictional error has been established with respect to this ground.
[35] SZBEL v Minister for Immigration (2006) 228 CLR 152.
[36] CB p 203.
[37] CB pp 203-204.
[38] SZTAP, op cit at [79]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 20 October 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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