BGU15 v Minister for Immigration

[2016] FCCA 2163

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2163

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal failed to consider evidence of applicant – whether decision unreasonable, irrational or illogical – no error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2A), 65, 499(1) & (2A)

Cases cited:

Abebe v The Commonwealth of Australia (1999) 197 CLR 510

Nahi v The Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
SZTMD v Minister for Immigration and Border Protection [2015] FCA 150

Applicant: BGU15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 244 of 2015

Judgment of: Judge Heffernan

Hearing date: 9 March 2016

Date of Last Submission: 9 March 2016

Delivered at: Adelaide

Delivered on: 31 August 2016

REPRESENTATION

The Applicant: In person with interpreter

Counsel for the Respondents: Ms L Helsdon

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Application dated 6 July 2015 is dismissed.

2. The applicant do pay the first respondent’s costs to be agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 244 of 2015

BGU15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’), as it then was, dated 16 June 2015. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth ) (‘the Act’).

2. The applicant was unrepresented before me and appeared with the assistance of an interpreter in the English and Sinhalese languages.  His application raises two grounds as follows:

   “That my RRT review was refused since the RRT found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of me being removed from Australia to Sri Lanka that I would suffer significant harm as a result of my political involvement with the JVP movement in Sri Lanka and also due to the fact as a failed asylum seeker.

   I provided evidence to the contrary that as a consequence of returning back to my home country the alleged offenders who had already caused harm to me would cause me harm once again due to my political involvements with the JVP party in Sri Lanka.  The RRT did not consider this evidence in making a decision.  Accordingly the RRT erred in not giving consideration to the evidence before it as a matter of law.”

Background

1. The applicant is a 28 year old Sri Lankan citizen who arrived in Australia on 15 July 2012 as an unauthorised maritime arrival.  He applied for a protection visa on 31 October 2012. 

2. On 25 March 2014, a delegate of the Minister refused his application for a protection visa.  The applicant applied to the Tribunal for a merits review and appeared before it to give evidence and present arguments on 5 and 15 June 2015.  He did so with the assistance of a registered migration agent.

3. The applicant claimed to fear persecution on his return to Sri Lanka.  This was based on the fact that he was associated with a political party called Janatha Vimakthi Peramuna party (‘JVP’).  He claimed to have assisted them in the elections of 2010 and 2011.  As a consequence, he said that he had been targeted by opponents of JVP.  He had stones thrown at his house.  He was accosted in the street on two occasions.  He claims to have been severely beaten on one occasion.  He claimed his mother had been told that he would be punished if he continued to canvas for JVP.  The harassment continued throughout 2011 and culminated in him being ambushed by a group of people.[1]  He fled to Colombo and then travelled to Australia in June 2012.  He claimed that government officials would not protect him because he belonged to the opposition.[2]  He claimed that he would not be safe anywhere in Sri Lanka because he would inevitably be found by government supporters.[3]

   [1]     Court Book (‘CB’) p 183 at [11].

   [2]     CB p 57.

   [3]     CB p 57.

4. In order to meet the criteria for a protection visa, it was necessary for the applicant to meet one of the criteria in ss.36(2)(a), (aa), (b) or (c) of the Act. Of relevance to the applicant’s claim in this matter was s.36(2)(a), that Australia had protection obligations under convention and protocols relating to the status of refugees and the complimentary protection obligations under s.36(2)(aa).

Tribunal hearing, decisions and reasons

1. The Tribunal invited the applicant to appear before it to give evidence and present argument.[4]

   [4]     CB p 164.

2. The applicant gave evidence, was questioned by the Tribunal about his claims, and put on notice by the Tribunal member of concerns he had with respect to aspects of his claims.  He was then afforded an opportunity to discuss the matters of concern with his representative and he provided further responses after that consultation.  The Tribunal called the matter back on for a second occasion to allow the applicant to respond to information about failed asylum seekers who left the country illegally.[5]

   [5] CB p 189 at [88].

3. The Tribunal made a number of findings of fact in relation to the applicant’s claims, including significant findings adverse to the credit of the applicant.  The Tribunal accepted that the applicant had been involved with JVP and had assisted in three elections.  It found his involvement was limited to a lower organisational level.  The Tribunal accepted that the applicant had become “caught up” in the violence surrounding the election of 2010 and this had included rocks being thrown at his house and being accosted and dragged off his motorbike on one occasion. 

4. The Tribunal did not accept the applicant’s claim to having been ambushed by several men after having been lured to a house to provide an insurance quote.

5. The Tribunal accepted that the applicant had moved to Colombo in 2012 and that he had played cricket professionally there, including against a team from his home town.  It also accepted that from the time of his move to Colombo in early 2012, he had not been politically active.[6]

   [6]     CB pp 197-198.

6. The Tribunal considered the written statement of claims made by the applicant.[7]

   [7] CB pp 183-184 at [18].

7. The Tribunal also considered the written submission provided to it by the applicant’s representative prior to the hearing and a further statutory declaration from the applicant provided on the day of the hearing.[8]

   [8]     CB p 186.

8. The Decision Record shows a detailed discussion and consideration of the oral evidence given to the Tribunal by the applicant at the hearing.[9]  It relied on a significant amount of country information as to the post-election violence of 2010 and the political climate in Sri Lanka since that time.[10]

   [9]     CB pp 186-191.

   [10]    CB pp 191-195.

9. Significant findings of credit made against the applicant included:

   a)That the claim with respect to having been lured into an ambush was fabricated after his arrival in Australia, for the purpose of strengthening the basis of his claim to having fled to Colombo in January 2012;[11]

   b)That the applicant’s account of his presence in Colombo being discovered after a cricket match against his home side placing him at risk of serious harm, was not accepted[12] and it was inherently implausible that he would engage in a high profile activity like professional cricket if he was genuinely in fear for his life;[13] and

   c)That the applicant had on the day of the hearing fabricated a further claim that his parents had met people, possibly associated with the authorities, who threatened to harm him on his return.[14]

   [11] CB p 196 at [134].

   [12] CB p 197 at [137].

   [13] CB p 196 at [135].

   [14] CB p 197 at [143].

10. The Tribunal considered in some detail the applicant’s status as a failed asylum seeker and the potential consequences of his return to Sri Lanka as an illegal departee.  This included a consideration of relevant country information.  It concluded that he faced no real chance of serious harm, either as a failed asylum seeker or due to the potential consequences of his illegal departure.[15]  It found that he faced no real chance of serious harm whilst in Colombo now or for the foreseeable future.[16]

    [15] CB p 204 at [200].

    [16] CB p 199 at [163].

11. The Tribunal found that the applicant did not meet the criteria of s.36(2)(a) of the Act. It considered separately the issue of complimentary protection obligations and concluded that there were not substantial grounds for believing as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka, there was a real chance of him sustaining significant harm.

Submissions

1. The applicant made brief oral submissions before me.  In essence, he repeated the matters raised in his grounds of application.  He felt that the Tribunal did not look properly at his evidence and the materials submitted on his behalf.  He felt that the Tribunal did not accept his evidence that he had been threatened and assaulted.  He submitted that it was unreasonable for the Tribunal not to have accepted his evidence.  It was not possible, he submitted, for him to live in another part of the country in 2011.  When he was asked what aspects of his evidence he said the Tribunal had not considered, he submitted that it was the document with respect to his political involvement.[17]

   [17]    CB p 83 – Letter from K. Jayarathna, a member of the local government of Devinuvara (undated).

2. The first respondent submitted that the grounds raised by the applicant and his oral submissions amounted to no more than a claim on the merits.  It pointed to the Decision Record, which showed that the letter from Mr Jayarathna had indeed been considered and relied on by the Tribunal to support an inference that the applicant was not a person of adverse interest to the authorities.[18]

   [18]    CB pp 187-188 at [63]-[64] and p 198 at [155].

3. The effect of the first respondent’s submission was that all of the claims and materials relied on by the applicant were given proper consideration and that the findings it made were open to it.

4. The first respondent also raised one matter not addressed by the applicant.  This was to do with the question of the Tribunal’s compliance or otherwise with Ministerial Direction No. 56 (‘MD 56’), PAM 3: Refugee and Humanitarian – Complementary Protection Guidelines (‘PAM 3’) and s.499(2A) of the Act.  It submitted that even though the Tribunal had not specifically mentioned MD 56 and PAM 3 when dealing with the complementary protection considerations,[19] it did have regard to detailed and relevant country information.  It also specifically referred at an early stage of its reasons to its obligation to take into account PAM 3 in accordance with MD 56 to the extent they were relevant to the decision under consideration.[20]  For this reason, the Minister submitted that it was implicit that the Tribunal had complied with this obligation.

   [19]    CB p 205.

   [20] CB p 183 at [9].

Consideration

1. In my view, a fair reading of the Tribunal’s reasons demonstrates that it considered and addressed all of the claims made by and on behalf of the applicant.  Having done so, it rejected them.  As far as the applicant’s submission that the Tribunal failed to consider the potential for harm to him should he return to Sri Lanka because of his actual or imputed political opinions and past political involvement is concerned, I reject that submission.  This was considered at length by the Tribunal.[21]

   [21]    CB pp 186-189.

2. It is well established that it is not the role of the Court on judicial review to engage in a fact finding exercise about the merits of an applicant’s case.  It is not an error of law, or a jurisdictional error, for a Tribunal to make a wrong finding of fact.[22]  As the Full Court of the Federal Court said in Nahi[23]:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants' case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   [22]    Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 137.

   [23]    Nahi v The Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10].

3. Those comments are appropriate to this matter.  The applicant is clearly unhappy with the decision of the Tribunal.  For the most part, his argument appears to be a disagreement with the outcome and accordingly, a merits based argument.  This Court cannot conduct a rehearing of the merits of the applicant’s case.  It is not for this Court to substitute its own view of the facts for that of the Tribunal, even if it disagrees with the outcome.

4. To the extent that the applicant’s complaints encompass a complaint that he should have been believed on matters that were decided adversely to him on the basis of credit, that does not advance his argument in this matter.  As the High Court has stated, a finding on credibility, “is the function of the primary decision-maker par excellence”.[24]  A finding as to credit is a finding of fact.

   [24]    Minister for Immigration: Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

5. This is of course subject to the principle that a finding of fact or as to credit which is seriously irrational or illogical or otherwise unreasonable in the legal sense will be affected by jurisdictional error.  In this regard, the applicant submits that on all of the evidence before it, it was unreasonable of the Tribunal not to accept his claims and grant him a visa.  His complaint was both as to the reasoning of the Tribunal and the ultimate outcome.  Reasonableness is an essential element of lawful decision making.[25]

   [25]    Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

6. As the Full Court of the Federal Court has recently said:

   “The proper elucidation and explanation of the concepts of jurisdictional error and legal unreasonableness does not depend on definitional formulae or on one verbal description rather than another.”[26]

   [26]    Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [2].

7. Two contexts in which the concept of legal unreasonableness are employed are where a ‘recognised species’ of jurisdictional error is identified and where the outcome itself demonstrates legal unreasonableness even though a specific jurisdictional error has not been identified.[27]

   [27]    Stretton, op cite at [6].

8. In Stretton’s case, having noted that no single test or formula could adequately encompass the concept of legal unreasonableness, Allsop CJ observed that an assessment of whether a decision is legally unreasonable is assisted by looking at all of the descriptions and explanatory phrases identified in the leading cases on the topic.  He continued:

   “… Any criticism that these explanations are circular and vague is to be met by attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision.  The terms, scope and policy of the statute and the fundamental values that attend the proper exercise of power – a rejection of unfairness, of unreasonableness and of arbitrariness; equality; and the humanity and dignity of the individual – will inform the conclusion, necessarily to a degree evaluative, as to whether the decision bespeaks an exercise of power beyond its source.”

9. And later:

   “… The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power.  The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.”[28]

   [28]    Stretton, op cite at [11].

10. The task identified above does not permit this Court to decide whether the matter by imposing its own view of reasonableness on the decision of the Tribunal. The task is to perform the process of characterisation identified above. The findings of the Tribunal cannot be said to have been outside the range of possible lawful outcomes as a proper exercise of the power in s.65 of the Act. A fair reading of the Tribunal’s reasons does not suggest to me that it lacks a rational and intelligent foundation. I am not satisfied that it was arbitrary, capricious, or lacking in common sense. It does not appear to me to be plainly unjust. The Tribunal considered the evidence of the applicant on its face and in light of country information. It rejected important aspects of the applicant’s claims and made significant findings of credit against him.

11. A finding of unreasonableness should not be lightly made and requires more than a strong disagreement with the decision reached.  The Tribunal in this matter gave consideration to all of the claims and arguments put by and on behalf of the applicant.  I reject the applicant’s submissions that the findings and the decision of the Tribunal were affected by unreasonableness.  In addition, in my view, they were not irrational or illogical and were based on findings of fact supported by logical grounds.  The findings were clearly open to the Tribunal. 

12. I turn now to the issue raised by the first respondent, namely the requirement to consider the matters contained in PAM 3. Section 499(1) of the Act empowers the Minister to give written directions to any person performing functions or exercising powers under the Act with respect to the performance of those functions or exercise of those powers. The Tribunal must comply with any directions that the Minister publishes.[29]  Pursuant to MD 56 it was necessary for the Tribunal to take into account the guidelines in PAM 3 where the Tribunal was of the opinion that they are relevant.  The question of their relevance is a matter for the Tribunal to determine.[30]

    [29]    Section 499(2A) of the Act.

    [30]    SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 at [20].

13. As I have noted, the Tribunal made specific reference at the outset of its reasons[31] to the requirement to consider the PAM 3 guidelines to the extent that they were relevant.  Whilst the Tribunal did not specifically mention the PAM 3 guidelines when dealing with the complimentary protection obligations, it did take into account a significant amount of country information which dealt specifically with the topics of illegal departure and the status of failed asylum seekers.  I accept the submission of the first respondent that it can be inferred from its reasons that the Tribunal took into account the PAM 3 guidelines to the extent that it regarded them as relevant.  The Tribunal found that any detention to which the applicant would be subjected as a consequence of his illegal departure, would be temporary and up to a period of two weeks duration.[32]  It gave consideration to the question of prison conditions in Sri Lanka[33] In determining the question of complimentary protection obligations, the Tribunal referred to the definition of significant harm in s.36(2A) of the Act. I am prepared to infer that in reaching its decision with respect to complimentary protection obligations, the Tribunal was aware of, understood, and did take into account the guidelines in PAM 3.

    [31] CB p 183 at [9].

    [32] CB p 204 at [195], p 205 at [205].

    [33] CB p 104 at [195].

1. I find that the applicant has not established jurisdictional error.  I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 31 August 2016