BGQ15 v Minister for Immigration
[2018] FCCA 71
•18 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BGQ15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 71 |
| Catchwords: MIGRATION – Judicial review – citizen of Sri Lanka – Sinhalese ethnicity – alleged failure to afford procedural fairness – whether findings irrational or illogical – whether failure to consider an integer of claim or a relevant consideration – whether jurisdictional error – whether remittal futile. |
| Legislation: Immigrants & Emigrants Act 1949 (Sri Lanka) |
| Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193 |
| Applicant: | BGQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 301 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 18 May 2016 |
| Date of Last Submission: | 18 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 18 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Robertson |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Ms E Tattersall |
For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That a writ of certiorari issue quashing the decision of the second respondent made on 5 June 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 26 March 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 301 of 2015
| BGQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 3 July 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 5 June 2015 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) dated 18 March 2014 of the first respondent, the Minister for Immigration and Border Protection (“Minister”), to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”). A copy of the Tribunal Decision is at Court Book (“CB”) 175-191.
The applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”) on 4 November 2015.
Background prior to the Tribunal Decision
The background prior to the Tribunal Decision is as follows:
a)the applicant is a Sri Lankan national of Sinhalese ethnicity who arrived in Australia as an unauthorised maritime arrival on 10 August 2012: CB 112;
b)on 25 March 2013, by lifting the bar under s.46A of the Migration Act, the Minister permitted the applicant to lodge a Protection Visa application: CB 112
c)on 9 April 2013, the applicant lodged his Protection Visa application: CB 18-46;
d)in a statement accompanying the Protection Visa application the applicant claimed to fear harm by his father, his father's associates, and the Sri Lankan authorities, if he were to return to Sri Lanka: CB 47-50;
e)the applicant specifically claimed that:
i)his father has never acknowledged him as his son: CB 47 at [3];
ii)his father has physically abused him since he was a small boy and would often beat him for no reason: CB 47 at [6];
iii)the applicant attempted to commit suicide twice as a result of the treatment from his father, and people in his village treated him differently because he is considered a bastard: CB 47-48 at [6]-[7];
iv)in 2009, while the applicant was waiting for a bus, a police vehicle tried to run him down. He avoided being hit but believed the officers were associates of his father and had tried to kill him: CB 48 at [9]; and
v)in 2012 his father tried to kill him by squeezing his neck and the applicant was hospitalised for four days as a result: CB 48 at [10];
f)on 18 March 2014, the Delegate refused to grant the applicant the Protection Visa: CB 111-131;
g)on 26 March 2014 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 132-134;
h)the day prior to the Tribunal hearing, the applicant substantially altered his claims: CB 148-149, stating that his father was involved in narcotics trading (by boat) between India and Sri Lanka. He claimed that around 15 years ago he informed an “uncle” about where his father had concealed drugs and this information was passed on to the police and led to his father's arrest and conviction. His father spent some 13 years in jail and he was released about six months prior to the applicant leaving Sri Lanka. After his father's release, his mother warned him that his father wanted to harm him and she advised him to leave Sri Lanka;
i)the applicant’s application for review of the Delegate’s Decision was heard by the Tribunal on 27 May 2015 (“Tribunal Hearing”), with the applicant and his representative in attendance, together with an interpreter: CB 168; and
j)on 10 June 2015 the Tribunal published and sent to the applicant the Tribunal Decision dated 5 June 2015: CB 172-174, in which the Tribunal affirmed the Delegate’s Decision to refuse to grant the applicant the Protection Visa: CB 175 and CB 185 at [58].
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)found the applicant to be an unreliable witness: CB 177 at [10], and in relation to his claims of previous harm:
i)did not accept that the applicant attempted to commit suicide given the inconsistencies in his evidence: CB 177 at [13];
ii)did not accept that a police vehicle attempted to run the applicant down, given the inconsistencies in the applicant's evidence about when this incident occurred: CB 177 at [14];
iii)did not accept that the applicant was assaulted by his father's cronies in 2012, firstly, because the applicant changed his evidence from his being strangled by his father to his being assaulted by his father’s cronies, and claiming that it was a “technical difference”: CB 177-178 at [15]-[16]; and secondly, the applicant's concession that he provided a false letter from the hospital supporting his original claim of strangulation by his father: CB 178 at [16];
iv)did not accept that the applicant was beaten up by the police as claimed in his entry interview, given his contradictory evidence to the Tribunal that he had never been beaten up by the police: CB 178 at [17]-[18];
v)did not accept the applicant's father was a drug dealer or that the applicant was instrumental in providing information that saw his father imprisoned, given the late submission of this claim and the Tribunal's overall assessment of the applicant as an unreliable witness: CB 179 at [22];
vi)did not accept that the applicant was abused by his father his whole life or that he feared harm arising from his father's associates or that villagers treated him differently as a result of his father's belief that he was not his son: CB 178 at [23]; and
vii)accepted that the applicant left Sri Lanka illegally, but given its credibility concerns did not accept the boat on which he left was skippered by his uncle or that the applicant helped drive the boat or supply it with provisions: CB 179 at [26];
b)considered relevant country information and:
i)accepted the Sri Lankan authorities would assume that the applicant was a failed asylum seeker if he returned to Sri Lanka: CB 180 at [29];
ii)did not accept that the applicant fell into one of the categories of persons who might be at risk upon return to Sri Lanka: CB 180-181 at [30]-[31]; and
iii)did not accept that any questioning upon return amounted to serious or significant harm: CB 181 at [32];
c)accepted that the applicant would be questioned and may be prosecuted under the Immigrants & Emigrants Act 1949 (Sri Lanka) (“I&E Act”) as a result of his illegal departure: CB 182 at [37]-[39];
d)accepted that the applicant may be remanded for one to several days pending bail: CB 182-183 at [41], and would likely face a penalty of a fine: CB 182 at [38]; and
e)accepted that prison conditions in Sri Lanka are poor and overcrowded: CB 183 at [45], but found that the I&E Act did not amount to persecution as it is a law of general application CB 182 at [40]. Furthermore, it did not accept that any pain or suffering caused to the applicant by the conditions in prison would be intentionally inflicted or intended to cause humiliation such as to amount to significant harm CB 183 at [47].
Grounds of review
The Amended Judicial Review Application set out four grounds for judicial review. At hearing only grounds 1, 2 and 3 of the Amended Judicial Review Application were pursued, ground 4 having been abandoned. The three grounds pursued by the applicant are set out and considered below.
Consideration
Jurisdictional error required
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Such an error will only constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”); Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Jurisdictional error may also arise by reason of a breach of the procedural fairness required by provisions of the Migration Act: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”).
Ground 1
Ground 1 of the Amended Judicial Review Application is as follows:
The Tribunal failed to accord the applicant procedural fairness when making it’s findings at [26].
Particulars
a. The Tribunal found that:
i. that the boat on which the applicant left Sri Lanka was not skippered by his uncle as claimed;
ii. that the applicant did not help drive the boat as he had claimed;
iii. that the applicant did not help supply provisions to the boat as he had claimed;
iv. that the applicant’s uncle had not been imprisoned for people smuggling offences as claimed;
b. However, during the hearing, the Tribunal did not put to the applicant that it did not accept or was considering not accepting this [his] claims in this regard.
The paragraph in question in the Tribunal Decision: CB 179 at [26], is as follows:
The Tribunal accepts the applicant’s consistent claims that he left Sri Lanka illegally however given the Tribunal’s adverse credibility findings it does not accept that the boat was skippered by his uncle. It follows that it does not accept that his uncle is in prison in Sri Lanka for skippering the boat. Further it does not accept that the applicant helped to drive the boat or supply it with provisions the day prior to departure.
Applicant’s submissions
The applicant submitted there was a denial of procedural fairness, in relation to the finding in the Tribunal Decision at CB 179 at [26] because of the following:
a)at no time did the Tribunal appraise the applicant of the fact that it did not consider his evidence relating to his departure from Sri Lanka to be credible;
b)it is incumbent on the Tribunal to give to the applicant clear particulars that it did not believe the applicant’s respective claims where that could form part of the reason for affirming the Delegate’s Decision;
c)the Tribunal encouraged a belief that the evidence was accepted in the manner and form in which it asked questions of the applicant. The only questions asked by the Tribunal Member about the uncle were:
i)a statement that the uncle organised the trip, which the applicant agreed with and elaborated on;
ii)a statement that the uncle did not own the boat, which the applicant agreed with and elaborated on; and
iii)a statement that the uncle was the skipper of the boat; and
d)based upon the excerpt of the transcript of the Tribunal hearing (“Tribunal Hearing Transcript”) provided to the Court, the Tribunal suggested it had accepted the evidence of the applicant in relation to his uncle and his evidence in relation to his assistance in driving the boats.
The Tribunal Hearing Transcript is Annexure A to the affidavit of Patricia Ng Phaik Kim affirmed on 3 November 2015 (“Ms Kim’s Affidavit”), and consists of 14 numbered pages, with each page including line numbers. The evidence relied upon by the applicant is an extract from the Tribunal Hearing Transcript at pages 11, line 25, to 12, line 24, as follows:
AS [Applicants]: We have left Sri Lanka as if we are going fishing and we left illegally, 5 of us. The moment I arrive there they will arrest me. My uncle also tried to come in another boat and he was arrested and he is still in jail. My father is so powerful and my life will be in danger because of that too.
TM [Tribunal Member]: I mean, certainly having left Sri Lanka illegally, the country information indicates that you may face penalties or you may be prosecuted under the Sri Lankan laws in particular the Immigrants and Emigrants Act and most Sri Lankans who return to Sri Lanka having left illegally are questioned by the police on return and they are charged under the Immigrants and Emigrants Act. They usually are transported by police to the magistrate’s court in Negombo and they can remain in remand and then they’re taken before a Magistrate and the most likely penalty is a fine and for returnees who were merely passengers on a people smuggling venture, they’re not given custodian [custodial] sentences for departing illegally but they’re given a fine. And the fines are between 500 Sri Lankan Rupees and 57,000 Sri Lankan Rupees. And in most of these cases, the returnees are granted bail on personal recognisances and a family member is required to act as a guarantor. So on the basis of the country information, my view is that you would likely be prosecuted under that act [Act] and that you would be required to pay fine. Do you have anything to say about that?
AS: When I came with my uncle and 3 of my friends, the navy, Sri Lankan Navy took down our names and our ID cards on that day had with them. So my uncle had to return and a few others are still in prison.
TM: But your uncle was the organiser of the trip on your evidence.
AS: There was the owner of the boat called Ericson and uncle was the skipper.
TM: So the owner of the boat was Ericson, is that right?
AS: Yes.
TM: And your uncle was the skipper?
AS: Ericson didn’t join us. He’s back in Sri Lanka. He’s there. He didn’t join us but uncle was the leader of the team. Ericson is quite safe because Ericson can say I just gave the boat for them to go fishing, not to go to Australia. So uncle is the one responsible. Ericson was paid a lot of money and he knows that he may not get the boat back, so uncle is now technically the leader of the boat.
TM: You also have indicated that you fear returning to Sri Lanka because you’ve sought asylum here in Australia.
AS: I’m not aware of the Sri Lankan laws but I believe they would be angry that we tried to go illegally to another country and both of them, so I believe they would harm me. Most of those who came in boats were Tamils, LTTE people so they would think we were supporting them. We don’t know their political details but we just know that they all try to come here and live here.
Minister’s submissions
The Minister submits that:
a)it cannot be maintained that the Tribunal failed to accord the applicant procedural fairness;
b)the applicant was clearly on notice that his general credibility was directly in issue given that:
i)the Delegate did not consider the applicant's claims to be credible: CB 120; and
ii)at the Tribunal Hearing the Tribunal raised various inconsistencies with the applicant and stated:
Alerted you to my concerns about the discrepancy in the evidence lead me to have concerns about your credibility as a weakness [witness] to tell the truth.
Tribunal Hearing Transcript, page 10, line 33;
Well it leads me to have concerns about your truthfulness, given that you'll be giving different accounts of what's happened to you.
Tribunal Hearing Transcript, page 10, line 47;
c)the applicant was further on notice that the Tribunal specifically did not accept the credibility of his claims to have been more than a passenger on the boat. This is demonstrated by the Tribunal's reference to country information that “for returnees who were merely passengers on a people smuggling venture, they're not given … [custodial] sentences for departing illegally but they're given a fine”: Tribunal Hearing Transcript, page 11, line 37, read in conjunction with the statement that, “[s]o on the basis of the country information, my view is that you would likely be prosecuted under … [the I&E Act] and that you would be required to pay fine”: Tribunal Hearing Transcript, page 11, line 43; and
d)the applicant was therefore on notice that his claims generally, as well as his specific claims to have been more than a passenger on the boat, may not be believed by the Tribunal.
Consideration of ground 1
Adverse credibility findings might involve jurisdictional error where they deny an applicant procedural fairness or are made on an illogical or unreasonable basis: SZVAP & Anor v Minister for Immigration & Border Protection & Anor [2015] FCA 1089; (2015) 233 FCR 451; (2015) 67 AAR 376 at [20]-[21] per Flick J; Minister for Immigration & Citizenship v SZRKT & Anor [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [78] and [119]-[121] per Robertson J. That is, the error must be one going essentially to the jurisdiction of the Tribunal: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J; SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [27]-[31] per Flick J.
The observations of Tamberlin and RD Nicholson JJ in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [67] are pertinent where, as the majority in the Full Court of the Federal Court, they said:
Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be “implausible” or “highly unusual” does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
Credibility findings are otherwise essentially matters of fact “par excellence” for the Tribunal and not reviewable by the Court on an application for judicial review: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J (“Durairajasingham”).
In SZBEL the High Court held that the Tribunal had failed to afford the appellant a sufficient opportunity to give evidence or make submissions about two of the three determinative issues arising in relation to the decision under review: SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The High Court went on to make further observations concerning procedural fairness, including the following at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ:
First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
Although s.422B of the Migration Act confirms the obligations on the Tribunal set out in the Migration Act are an exhaustive statement of the requirements of natural justice, the obligations referred to in SZBEL are derived from s.425(1) of the Migration Act which is part of Part 7, Division 4 of the Migration Act. Thus, although Part 7, Division 4 of the Migration Act is said to contain an exhaustive statement of the requirements of the nature justice hearing rule, s.425 of the Migration Act still has to be applied in the manner outlined by the High Court in SZBEL.
At least four issues arise from the foregoing exposition of the law in relation to whether in this case the Tribunal’s adverse credibility findings might involve jurisdictional error by reason of a denial of procedural fairness.
The first issue is whether the Delegate was satisfied that the applicant was more than a passenger on the boat, and whether the Delegate put in issue the applicant’s credibility either generally (as a whole) or specifically with respect to this point.
The second issue is whether the Tribunal has raised concerns about the applicant’s evidence at the Tribunal hearing and given a clear explanation that the applicant’s credibility was in issue.
The third issue is whether what the Tribunal said to the applicant at the Tribunal Hearing by way of concerns about his evidence or his credibility being in issue made it obvious that what was said by the applicant about his experiences, either as a whole, or in relation to what occurred specifically vis-a-vis his being a passenger on the boat, was in issue.
The fourth issue is whether the applicant had an opportunity to put to the Tribunal whatever he wished to say regarding his claims concerning the issues in relation to what occurred on the boat.
Finally, in relation to this argument, the Court notes that the Tribunal is not obliged to put to the appellant every matter of concern to it regarding his claims to fear harm: that is, the Tribunal did not have to identify the significance of its questions or give a running commentary on his evidence: SZBEL at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ; Minister for Immigration & Citizenship v Applicant A125 of 2003 & Anor [2007] FCAFC 162; (2007) 163 FCR 285; (2007) 243 ALR 691; (2007) 98 ALD 246 at [88]-[89] per Emmett, Weinberg and Lander JJ.
In relation to the first issue the Delegate made no findings in relation to the question of whether the applicant was a passenger on the boat he says was skippered by his uncle, let alone whether the applicant was more than a passenger on that same boat. The Delegate’s credibility findings deal with three issues only: firstly, the applicant’s problems with his father and his father’s alleged mistreatment of him; secondly, the father’s alleged endeavour to strangle the applicant in 2012; and, thirdly, the incident involving the police vehicle allegedly attempting to run the applicant over: CB 117-120. In relation to what is said to be overall credibility the finding actually made by the Delegate is not one as to overall credibility, but one that the information supplied about the three issues referred to immediately above was not credible. There was no finding by the Delegate that the applicant lacked credibility generally, or overall: CB 120. In those circumstances, the Delegate’s Decision did not put the applicant on notice that his credibility in relation to issues concerning whether he was more than a passenger on the boat, and by whom the boat was skippered, were in issue. Given the Court’s findings above the Minister’s submissions that the applicant was on notice that his general credibility was directly in issue cannot be made out. The Delegate made limited and specific findings as to the credibility of the applicant’s claims, and those findings did not touch upon the claims made by the applicant in relation to his role, or that of his uncle, in relation to the boat.
The second, third and fourth issues identified above can conveniently be dealt with collectively. The extract from the Tribunal Hearing Transcript relied upon by the applicant and set out at [10] above does not grapple with the central issue underlying the applicant’s claims: namely, that if his account were to be accepted, he would return to Sri Lanka not as a failed asylum seeker or illegal departee, but an illegal departee who had participated in people smuggling. The questions asked by the Tribunal as set out in the extract relied upon by the applicant do not ask the applicant to expand upon those aspects of the account that the applicant gave which are critical to a determination of whether or not the applicant was more than a passenger on the boat, and hence possibly perceived to be involved in people smuggling. The Tribunal Hearing Transcript does not otherwise reveal that the Tribunal asked the applicant to expand upon the specific aspects of his account in relation to the operation of the boat, nor does it indicate that the Tribunal asked the applicant to explain why the account should be accepted.
The submission by the Minister that the applicant, a 26 year old (at the time of the Tribunal Hearing) non-English speaking ethnic Sinhalese Sri Lankan who left school at the age of 13 and had worked in a delivery business, as a mason doing building work, and as a fisherman prior to leaving Sri Lanka, ought to have appreciated that the Tribunal putting to him country information that indicated that persons who were passengers in people smuggling ventures would not be given custodial sentences but given a fine, and that it was the Tribunal’s view that that was what would occur in the applicant’s case, was intended to convey that the applicant’s credibility, specifically or generally was in issue, expects too much of a person in the applicant’s position. Further, it does not meet the test outlined in SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ of asking the applicant to expand upon aspects of his account and asking the applicant to explain why his account should be accepted, as opposed to the Tribunal telling the applicant what it thinks might happen to him if he returned to Sri Lanka.
Like the Delegate, the Tribunal made findings in relation to the applicant’s credibility on the claims made by the applicant and in the context of those claims came to an “overall assessment of the applicant as an unreliable witness”: CB 179 at [22]. The Tribunal’s overall assessment of the applicant as an unreliable witness however had regard to the applicant’s claims, other than his claims in relation to his departure from Sri Lanka on the boat allegedly skippered by his uncle: CB 177-179 at [10]-[23]. The Tribunal not only did not ask the applicant to expand upon specific aspects of his account of his departure on the boat, or to explain why the account should be accepted, before making findings on credibility, but rather simply set out the claims with respect to the departure from Sri Lanka on the boat and indicated that by reason of the otherwise adverse credibility findings made in relation to the non-boat issues the Tribunal did not accept that the boat was skippered by the applicant’s uncle or that the applicant helped to drive the boat or supply it with provisions the day prior to departure. The nature of the questions asked by the Tribunal could not: see [10] above, on any reasonable interpretation, be said to have put anyone, let alone a non-English speaking ethnic Sinhalese Sri Lankan workman who had left school at 13, on notice of the critical issues in dispute concerning the applicant’s account of the boat operation. In order to deal with those matters in the manner envisaged by SZBEL would not have required the Tribunal to indicate that the questions were significant, or that the issues were more significant than other issues, or to give a running commentary on the applicant’s evidence.
The passages relied upon in the Tribunal Hearing Transcript at page 10 by the Minister for the submission that the Tribunal raised concerns about the applicant’s truthfulness with him in sufficiently general terms to put the applicant on notice that his overall credibility was in issue cannot be accepted. In context, the applicant had not to that point had any discrepancies in his evidence concerning the boat issue put to him. Further, the Tribunal’s “concerns”: Tribunal Hearing Transcript at page 10, lines 33 and 47, are so broadly, and arguably vaguely, expressed, as to not properly put in issue the applicant’s overall credibility, particularly when taken in the context that there had been no “discrepancy in the evidence”: Tribunal Hearing Transcript, page 10, line 33, identified by the Tribunal in relation to the applicant’s role in respect to the boat, nor any hint that that might be the case. Further, and as explained above, when the Tribunal came to deal with the issue of the applicant’s role on the boat the matter was not dealt with in terms which could reasonably lead anyone, let alone the applicant in his particular circumstances, to consider that what was being sought was an account of specific aspects of the applicant’s claims, or an opportunity to expand upon the applicant’s account of his role, in relation to the operation of the boat.
In all of the above circumstances, the Court is of the view that the Tribunal Decision is affected by jurisdictional error by reason of a denial of procedural fairness in making the findings at CB 179 at [26] in relation to the applicant’s role on the boat. Ground 1 of the Amended Judicial Review Application is therefore made out.
Ground 2
Ground 2 of the Amended Judicial Review Application is as follows:
The findings made by the Tribunal at paragraph 26 were irrational, illogical and not based on findings or inferences of fact supported by logical grounds
Particulars
a. Before the Delegate and at the Tribunal the applicant had advanced claims that his uncle had skippered the boat, he had assisted to drive the boat, had supplied the boat with provisions in anticipation of the voyage and that his uncle had now been imprisoned for people smuggling offences.
b. The Tribunal then proceeded to find against the applicant in relation to all of these claims without any logical basis or evidence upon which to do so with reference solely to the Tribunal’s findings as to credibility as being the basis to dismiss these claims.
Applicant’s submissions
The applicant submits:
a)the Tribunal’s findings at CB 179 at [26] were irrational, illogical and not based on findings or inferences of fact supported by logical grounds;
b)the basis for the disbelieving the applicant’s evidence in relation to his departure from Sri Lanka was solely that the Tribunal had earlier made an adverse credibility finding;
c)there must be a logical path of reasoning, of which general findings in relation credibility can and likely will form part, to support a finding for it to be logical and rationale otherwise the Tribunal is placed in a position whereby an adverse finding in relation to credibility become immune from challenge; and
d)the Tribunal dismissed the applicant’s claims solely on the basis of its credibility findings against him and gave no reasons for the dismissal of aspects of the applicant’s claims in circumstances where it gave no indication to the applicant during the hearing that it did not believe his evidence.
Minister’s submissions
The Minister submits that:
a)a finding of fact will be considered irrational or illogical if no rational or logical decision-maker could have arrived at the finding on the same evidence: Re Minister for Immigration & Multicultural Affairs & Anor; Ex Parte Eshetu & Anor [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [40]-[44] per Gleeson CJ and McHugh J and [130]-[132] and [147] per Gummow J; Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [130] per Crennan and Bell JJ (“SZMDS”). Accordingly, the “correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”: SZMDS at [133] per Crennan and Bell JJ. It has been established that a Court should not lightly find that reasoning is irrational or illogical: SZMDS at [40] per Gummow ACJ and Kiefel J, and “to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it”: Minister for Immigration & Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 119 ALD 446 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ;
b)in this matter it is evident that the Tribunal gave careful consideration to the evidence before it. It is clear that:
i)there were discrepancies and inconsistencies in the applicant’s evidence: CB 177-178 at [13]-[14] and [17]; and
ii)the applicant had admitted to making untrue claims and submitting false documents: CB 177-178 at [15];
c)the applicant makes no complaint about the Tribunal's other factual findings. It was those individual findings that provided the logical basis for the Tribunal's view that the applicant was an unreliable witness: CB 177 at [10] and further rejection of the claim that his uncle had skippered the boat: CB 179 at [26];
d)the rejection of the applicant's claim at [26] was based on comprehensive adverse credibility findings, which were open to the Tribunal for the reasons that it gave and were a matter for it par excellence: Durairajasingham at [67] per McHugh J; and
e)in any event, the finding in question was not a jurisdictional fact and accordingly, even if it were accepted that the Tribunal had fallen into error no jurisdictional error arises: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 (1989); CLR at 35-36 Mason CJ.
Consideration of ground 2
Given the Court’s finding in relation to ground 1 it is probably strictly unnecessary to determine ground 2. However, because of the finding in ground 1 that there was jurisdictional error by reason of a denial of procedural fairness it is evident that the evidence upon which the Tribunal acted was evidence which was likely incomplete. As such the Tribunal Decision was based on evidence and findings infected by the jurisdictional error found in relation to ground 1. In the circumstances, the Court does not need to make any further finding with respect to ground 2.
Ground 3
Ground 3 of the Amended Judicial Review Application is as follows:
The Tribunal failed to consider an integer of the applicant’s claim and/or failed to take into account a relevant consideration.
Particulars
a. The applicant consistently maintained, before the delegate and the Tribunal, that he assisted his uncle had skippered the boat, he had assisted to drive the boat, had supplied the boat with provisions in anticipation of the voyage and that his uncle had now been imprisoned for people smuggling offences;
b. During the hearing, the applicant gave evidence that when leaving Sri Lanka the Sri Lankan Navy “took down our names and our ID cards on that day”: see Transcript page 11, line 45 – 50.
c. By virtue of:
i. the imprisonment of the applicant’s uncle (his relative) for people smuggling offences;
ii. the fact that based on the applicant’s evidence that the Sir Lankan navy ‘took down their names’ when they were leaving (in relation to which the Tribunal made no factual finding);
the Tribunal was obliged to, but failed to, to consider whether upon his return the applicant might be considered to have been a people smuggler or someone involving in people smuggling and thereafter would detained, interrogated, charged and imprisoned on people smuggling offences.
Applicant’s submissions
The applicant submits:
a)the claim that is said to arise was a claim that by reason of his relationship with his uncle, that the applicant may be imputed as a people smuggler upon his return;
b)the Tribunal is required to consider any claim made by an applicant, being “... a substantial, clearly articulated argument relying upon established facts”, and a decision made without considering all of the claims falls into jurisdictional error as it fails to complete the exercise of the jurisdiction conferred upon it.: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop CJ; Yusuf; Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at [18], [19] and [21] per Wilcox and Madgwick JJ, and at [50] per Hill J; and
c)the Tribunal failed to make any finding in relation to evidence that the applicant’s name had been taken by the Navy and the claim arising from such that the applicant may, if he were to be returned to Sri Lanka be imputed and identified as a people smuggler or a person who assisted people smugglers.
Minister’s submissions
The Minister submits that:
a)to the extent that it might be accepted that a claim that the applicant would be imputed as a people smuggler upon return to Sri Lanka due to his relationship with his uncle arose on the material it was considered by the Tribunal by and dealt with by a finding of a higher level of generality by:
i)reference to the claims that his uncle skippered the boat or was the organiser of the boat: CB 179 at [24];
ii)reference to the claim that his uncle had been imprisoned for illegally smuggling people into Australia: CB 179 at [24]; and
iii)the finding that the applicant's uncle had not skippered the boat and was not in prison for skippering the boat: CB 179 at [26]; and
b)any claim of the applicant could not have survived the Tribunal's finding and accordingly no jurisdictional error is revealed.
Consideration of ground 3
It is plain that the Tribunal at least referred to parts of the evidence relevant to the applicant’s claims that he might have been considered to have been a people smuggler or a person involved in people smuggling: CB 179 at [24] and [26]. As with ground 2, however, any resultant findings were infected by the jurisdictional error found in relation to ground 1, that is, the denial of procedural fairness to the applicant. The findings upon which the Minister relies as extinguishing any claim by the applicant with respect to his possibly being a people smuggler, or involved in people smuggling, are findings infected by the jurisdictional error in ground 1, and thus not able to be relied upon by the Minister in relation to ground 3. In the circumstances whilst the Court considers it strictly unnecessary to decide upon ground 3, if it were necessary to do so, the Court would find that ground 3 had been made out because there was a clearly articulated argument in relation to which the Tribunal failed to make any proper findings of fact based upon evidence which was not infected by the jurisdictional error in ground 1.
Minister’s further submission
The Minister submits that even if the Court were to find that the Tribunal had erred in the manner complained of in grounds 1, 2 and 3 it would be futile to remit the matter in circumstances where the rejection of the applicant's claims cannot have affected the Tribunal Decision.
The Tribunal relevantly made findings that:
a)the harm feared by the applicant was not Convention based persecution in circumstances where any prosecution would amount to the enforcement of a law of general application which is not discriminatory on its terms and is applicable to all persons in Sri Lanka: CB 182;
b)a period in prison does not give rise to a real risk that the applicant would suffer significant harm within the meaning of s.36(2A) or s.5 of the Migration Act in circumstances where the poor prison conditions in Sri Lanka are due to a lack of resources rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation: CB 184 at [47]; and
c)thus, even if the Tribunal had accepted that the applicant would face arrest and jail as a result of the I&E Act any such harm could not meet the definition of either serious or significant harm for the purpose of the Migration Act.
Consideration of Minister’s further submissions
In circumstances where the Tribunal denied the applicant procedural fairness on the basis set out in relation to ground 1 above, it is not clear that the Tribunal Decision could not have been affected by the Tribunal’s failure to afford the applicant procedural fairness. Nor is the Court satisfied that the grant of relief could not possibly make a difference to the Tribunal’s eventual deliberations: SZOOR v Minister for Immigration & Citizenship & Anor [2012] FCAFC 58; (2012) 202 FCR 1; (2012) 289 ALR 463; (2012) 127 ALD 1 at [96] per McKerracher J (“SZOOR”). The issue is not whether a re-hearing by the Tribunal might be futile, but whether a court cannot be certain that it will be futile: Lee v Minister for Immigration & Citizenship [2007] FCAFC 62; (2007) 159 FCR 181; (2007) 241 ALR 363; (2007) 94 ALD 559 at [53] per Besanko J, that is, to return to SZOOR at [96] per McKerracher J “whether … the grant of relief could not possible make a difference” to the eventual outcome before the Tribunal. In the absence of evidence arising from the failure of the Tribunal to allow the applicant to deal with specific aspects of his account that the Tribunal doubted, or to explain why it is that his account should be accepted, it is not possible for this Court to predict what evidence would have been given, and what factual findings would have been made by the Tribunal in relation to that evidence (and it is of course no part of the Court’s role to make such factual determinations: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”)). The Court cannot be satisfied that further evaluation of the issue of whether the applicant might have been, or been perceived to be, a people smuggler by reason of his alleged role on the boat in the light of evidence given as a result of a proper opportunity to put the applicant’s account before the Tribunal might not have led to different findings in relation to that issue. A different finding in relation to that issue would then have required the Tribunal to deal with what might happen to the applicant upon his return to Sri Lanka not as a returned failed asylum seeker or an illegal departee facing a fine or brief period of remand on bail, but as an actual or perceived people smuggler, possibly facing a lengthy period of imprisonment in Sri Lanka. There can be no doubt that the evidence thus far considered by the Tribunal has resulted in findings heavily weighted against the applicant, and if the matter returns to the Tribunal the Tribunal’s ultimate determination may or may not be the same, but that determination is part of the Tribunal’s function, not the function of this Court on judicial review: Wu Shan Liang CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Border Protection v Angkawijaya & Ors [2016] FCAFC 5; (2016) 236 FCR 303; (2016) 149 ALD 69 at [68] per Kenny and Griffiths JJ.
In all the above circumstances, the Court rejects the Minister’s further submissions that it would be futile to remit the matter to the Tribunal.
Conclusion and orders
The Court has concluded that:
a)the Tribunal Decision is affected by jurisdictional error;
b)it is not satisfied that it will be futile to have the Tribunal re-hear the matter; and
c)having regard to (a) and (b) above the applicant should be afforded prerogative relief by way of writs of certiorari and mandamus.
The Court will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 18 January 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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Jurisdiction
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