BJP15 v Minister for Immigration
[2016] FCCA 3075
•29 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJP15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3075 |
| Catchwords: MIGRATION – Review of a decision of the Refugee Review Tribunal (as it then was) – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 424A, 424(A)(1), 424A(2A), 424AA |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | BJP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1622 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 13 September 2016 |
| Delivered at: | Albury |
| Delivered on: | 29 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Dr McBeth |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the First Respondent: | Mr Tran |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1662 of 2015
| BJP15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 19 June 2015, affirming a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa (‘the visa’). The application for judicial review was filed on 15 July 2015. The Applicant proceeded at hearing on an amended application filed on 28 July 2016.
The grounds of the amended application as relied upon by the Applicant are as follows:-
“The decision of the Tribunal is affected by jurisdictional error on the following grounds:
1. The Tribunal denied the applicant procedural fairness, in that the Tribunal failed to put to the applicant the Tribunal’s concerns about the supposed inconsistency of the applicant’s account of his detention and mistreatment in 2010, in the manner required by s424AA, or alternatively s424A, of the Migration Act.
2. The decision of the Tribunal was unreasonable, in that the Tribunal’s findings in relation to the affidavit sworn by the applicant’s mother were unreasonable and were an irrational basis for discounting the credibility of the applicant’s claim of mistreatment in 2010.
3. The Tribunal failed to make an obvious inquiry on an issue of critical fact, namely a further explanation of the context of the letter from the Terrorism Investigation Division.”
The Applicant relies upon his amended application as described above, his affidavit dated 15 July 2014, an affidavit of Mylvaganam Wimaleswaran affirmed on 28 July 2016 and written submissions dated 28 July 2016.
The First Respondent seeks that the application be dismissed with costs. The First Respondent relies upon a response filed on 29 July 2015 and written submissions dated 29 August 2016. There is also in evidence before the Court a Court Book filed on 1 March 2016.
History
The Applicant is a 29 year old Tamil male of Hindu religion. He is a citizen of Sri Lanka. The Applicant previously resided in the Mullaituvu district in the Northern Province of Sri Lanka and lived with his family there until the late 1990s, when the family moved to a displaced persons camp. They returned to the Mullaituvu district in 2001 but were again displaced in 2008. The Applicant lawfully left Sri Lanka in September 2010, travelling to Thailand on a visitor visa using a Sri Lankan passport in his own name and departing from an authorised point. In January 2011 the Applicant travelled to Malayasia and then Indonesia in March 2012. On 22 July 2012 the Applicant arrived in Australia at Christmas Island as an unauthorised maritime arrival.
On 8 January 2013, the Applicant applied for the visa. On 26 March 2014, a delegate of the First Respondent refused to grant the visa. On 28 March 2014 the Applicant applied to the Tribunal for review of the delegate’s decision. The Applicant provided a copy of the delegate’s decision with the application for review. The Tribunal member listened also to an audio recording of the Applicant’s interview with the delegate.
The Applicant appeared before the Tribunal at a hearing on 30 March 2015 to give evidence and present arguments relating to issues arising in his case. He was assisted by his registered migration agent.
The hearing was conducted with the assistance of an interpreter in the Tamil and English languages. Written submissions had already been received by the Tribunal on 27 March 2015 from the Applicant’s migration agent. Both at the hearing and thereafter on 14 April 2015, the Applicant provided further material to the Tribunal. This material included:-
a)a ‘Detention Order’ dated 1 November 2009 concerning the Applicant’s detention in 2009;
b)
an affidavit from the Applicant’s mother dated 15 March 2015 stating that he had been arrested by the Sri Lankan police on 31 October 2009, detained under a detention order dated
1 November 2009, and discharged by the Court on 21 December 2009. The Applicant’s mother also explained the difference in the spelling of the Applicant’s name in the detention order and the court document; and
c)an email from the Applicant’s representatives attaching a document (and a translation) purporting to be a message from the Sri Lankan police dated 31 July 2014 requiring the Applicant’s stepfather to present at an office of the Terrorism Investigation Division (‘TID’) on 14 August 2014 to make a statement.
The Applicant’s Claims
In a Statutory Declaration provided by the Applicant dated
19 December 2012, the Applicant set out his protection claims as relevantly summarised by the Tribunal in its Statement of Decision and Reasons dated 19 June 2005 (‘the Decision Record’) at paragraph 12:-
“a. Since 2009, the applicant has been suspected by the Sri Lankan authorities of being involved with the Liberation Tigers of Tamil Elam (the LTTE). He escaped from the refugee camp in Vavuniya where he and his family were being held. He just climbed the fence and went to live with his cousin in Vavuniya. His cousin’s younger brother had been killed fighting the LTTE (sic).
b. The authorities detained the applicant when he was with his cousin in around September or October 2009. They thought he was his cousin’s younger brother. They took him to the local police station and into a house where they tortured him by hanging him upside down and beating him with pipes. He was held in custody for three months, having been taken back to the police station after being held at the house for one week. He was taken before a court in December 2009 and the court discharged him.
c. In 2010 he was detained and questioned again by the Sri Lankan Criminal Investigation Division (the CID). They were questioning people in Mullaitivu about the LTTE and rounding up young Tamils in the area. The applicant had never been involved with the LTTE and he denied any involvement. He was released after his parents showed the authorities a letter from his school and the court discharge letter showing he was not connected to the LTTE.
d. After that the applicant was still randomly questioned by the CID and asked to work with them to identify LTTE members. They remained convinced he has an LTTE past and the CID continue to go to his house.
e. The applicant fears he will be killed, tortured or otherwise mistreated after being detained by the Sri Lankan authorities because they suspect him of being connected with the LTTE. The CID ignores the court discharge orders and continues to be convinced he is an LTTE member.”
On the basis of the above provided history and relevant documents provided in support of his protection claims, the Applicant claimed to fear persecution by the Sri Lankan authorities because of his suspected involvement with the Liberation Tigers of Tamil Elam (LTTE). At the Tribunal hearing, the Applicant relied upon his written submissions received by the Tribunal on 27 March 2015 which claimed that he had a well-founded fear of persecution on account of his Tamil race, his imputed political opinion as being opposed to the Sri Lankan government and supporting the LTTE, and his membership of the particular social groups “young Tamil men in Sri Lanka”, “young Tamil men suspected of having links with the LTTE” and “returnee asylum seekers from a Western country who fled Sri Lanka and travelled from Indonesia to Australia unlawfully.”
At the hearing, the Applicant claimed for the first time in the protection assessment process that:
a)the Sri Lankan security forces had forced him to deny that he had been tortured when he was released from detention in 2009; and
b)he had been forcibly recruited by the LTTE but had escaped from the LTTE.
Essentially because the Applicant had never raised these claims previously, the Tribunal did not accept them. The Tribunal doubted the credibility of the Applicant.
On 29 June 2015, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa.
Tribunal Decision
The Tribunal accepted the Applicant’s claim that he was beaten and tortured in late 2009 while he was held by the Sri Lankan security forces. The Tribunal went on to say at paragraph 42 of the Tribunal’s Decision Record:-
“42. … I also accept that he was held by the local security forces for approximately one week, as he claims, before being formally detained. These claims are consistent with the country information about the heightened tensions and targeting of local Tamil populations in former LTTE controlled areas at the end of the civil war. I also accept that, given the reference in the detention order to the applicant “having come out from the IDP camp in an illegal manner”, the applicant did not leave the IDP camp with permission. I am willing to accept that the applicant lived with a cousin or other relative in Vavuniya after leaving the IDP camp. Given the country information about the number of young Tamil men who were members of the LTTE in and around Mullaitivu, I am also willing to accept that the cousin the applicant lived with had a sibling who had been a member of the LTTE. I also accept, as consistent with the available country information, that the applicant was required to report regularly to the local authorities after his release from detention in December 2009.”
However, the Tribunal rejected the following claims made by the Applicant:-
a)that the Criminal Investigation Division (CID) or other Sri Lankan forces had come to the Applicant’s home since his release from detention in December 2009 looking for him;
b)that the Applicant had been arrested, detained or seriously harmed by the CID or anyone else after his release from detention in 2009;
c)that the Applicant or his family had ever provided any support for or assistance to or otherwise ever been connected with the LTTE, or been opposed to the current Sri Lankan government; and
d)that the Applicant has breached, or was suspected of breaching, Sri Lankan departure laws.
The Tribunal, in paragraph 43 of the Tribunal’s Decision Record gave significant weight to the fact that the Applicant’s mother’s affidavit did not refer to the claimed period of detention of the Applicant by the CID in 2010. The Tribunal said the following:-
“43. …I do not accept the applicant’s claim that he was taken again by the CID in 2010. As put to the applicant at the hearing, I give significant weight to the fact that there is no reference in the affidavit from his mother made in March 2015 (see 18 [b]) to the applicant having been detained by the CID in 2010. I find that if the applicant had been detained and tortured by the CID his mother would have referred to this in the affidavit. I do not accept the applicant’s claim that this affidavit was produced solely in order to explain the different spelling of the applicant’s names in some of the documents he provided about his detention in 2009. I find it highly implausible that if the applicant had been detained and tortured by the CID in 2010 his mother would have chosen not to refer to it in an affidavit prepared for the purposes of an assessment in Australia of the applicant’s claims to be owed protection.”
The Tribunal also found there to be “inconsistency in the applicant's claims about what happened to him in 2010”, such inconsistencies emerging from his initial account at his entry interview and his account before the Tribunal. The Tribunal found also at paragraph 65 of the Decision Record that:-
“if the Sri Lankan authorities had any ongoing suspicions of the applicant being connected with the LTTE...he would have been required to undergo some form of rehabilitation after ... he would [also] not have been released from detention in late 2009.”
In relation to the post-hearing material, the Tribunal accepted that the Applicant's stepfather was required to give a statement to the TID, but it did not accept that “this document is evidence that the applicant is of interest to the TID or any other part of the Sri Lankan security forces”, noting that the Applicant “has not provided any information about why his stepfather was required to make a statement at that time” and “whether his stepfather attended at the time he was required and made a statement or any consequences of him either having or not having done so”.
The Tribunal concluded that it did not accept that the Applicant faced a real chance of serious harm capable of amounting to persecution under s.91R of the Act due to his ethnicity, actual or imputed political opinion or membership of any particular social group or any other reason, considered both individually and cumulatively, in the reasonably foreseeable future if he returned to Sri Lanka. The Tribunal concluded also that the Applicant did not meet the requirements for complementary protection.
Consideration
The Applicant’s first ground of review is that the Tribunal denied him procedural fairness by failing to put its concerns to him about the supposed inconsistencies in his accounts about detention and mistreatment in 2010 “in the manner required by s.424AA, or alternatively s.424A, of [the Act]”.
Section 424AA of the Act states as follows:-
“Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
Section 424A of the Act further states as follows:-
“Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).”
As the Applicant’s written submissions confirm, the Tribunal did in fact raise during the hearing a concern about the inconsistency in the Applicant’s accounts about his detention and mistreatment in 2010. The Applicant’s more confined complaint is that the Tribunal, in alleged non-compliance with s.424AA of the Act (or alternatively s.424A of the Act):-
a)failed to ensure that the Applicant understood the “information” being put to him;
b)failed to invite him to comment or respond to the “information”; and
c)failed to advise the Applicant that he may seek additional time to comment or respond to the “information”.
The Applicant argues that the failure of the Tribunal to comply with any of paragraphs (i), (ii) or (iii) of s.424AA(1)(b) constitutes jurisdictional error, as those procedures are mandatory once a Tribunal has elected to invoke s.424AA in relation to information of a sort that is covered by ss.424A and 424AA[1].
[1] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; SZTLC v Minister for Immigration and Citizenship [2008] FMCA 384 (Driver FM).
Alternatively, the Applicant argues if the consequence of non-compliance with s.424AA(1)(b) is that the Tribunal does not get the benefit of s.424A(2A), then it will still be mandatory to comply with s.424A(1), and failure to do so will constitute jurisdictional error[2].
[2] SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; SZMMP v Minister for Immigration and Citizenship [2009] FCA 233 [55] (Lander J)
The assumption upon which this ground of review is based, as submitted by the First Respondent, is that the Tribunal’s perception of inconsistency in the Applicant’s accounts of his detention and treatment in 2010 constituted “information” for the purposes of ss.424A and 424AA. However as further submitted by the First Respondent, the Tribunal’s view was not “information”, and thus those provisions are not engaged. If this is accepted, the ground is fundamentally misconceived.
“Information” has the same meaning in both ss.424A and 424AA.[3]
The term “information” is not defined in either provision. However, in SZBYR v Minister for Immigration and Citizenship, Gleeson CJ, Gummow, Callinan, Heydon and Grennan JJ stated that:-“if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1 ) . ... Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
…the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.” [4]
[3] SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at 432.
[4] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18].
The Applicant’s first ground of review must fail. That the Tribunal had doubts about the Applicant’s material or perceived there to be inconsistencies within it did not constitute “information” for the purposes of ss.424A and 424AA.
The Applicant’s second ground of review is that the Tribunal's decision was unreasonable, in that its findings in relation to the Applicant’s mother’s affidavit “were unreasonable and were an irrational basis for discounting the credibility of the applicant's claim of mistreatment in 2010”.
The Applicant argues that the conclusion by the Tribunal that the Applicant’s mother’s affidavit was not prepared for the sole purpose of explaining the discrepancy in spelling of the Applicant’s name, is irrational, it is said. The Applicant argues that the affidavit is extremely succinct and addresses no other topic. It does not address the details of the Applicant’s treatment during detention in 2009; rather, it mentions that episode of detention only by reference to the names and dates in the documents that were sought to be explained.
The Tribunal accepted the Applicant’s claim to have been detained and tortured in 2009. The Applicant argues that it was irrational for the Tribunal to find that the mother’s affidavit ought to have been taken as an opportunity to corroborate the Applicant’s claims to have been detained in 2010, when the absence of any mention of conditions of detention, torture, or any other mistreatment in 2009 was not criticised. It was put by the Applicant that it was irrational for the Tribunal to rely on omissions from the affidavit to find that the Applicant’s claims about 2010 could not be believed, while simultaneously accepting his claims about 2009.
In Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] Nicholson J, Kiefel and Downes JJ agreeing, found “the weight to be accorded to factors to be considered by the Tribunal was a matter for it. It was for the Tribunal to identify such material as it found relevant to its reasoning and to give it appropriate weight.”
The relevant test was set out by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [132] to [133]:-
“the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion…
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.”
There is nothing irrational in accepting that the Applicant was detained in 2009 but not in 2010. The Applicant has not demonstrated any unreasonableness or illogicality in the Tribunal's reasoning. The Tribunal found that it was “highly implausible” that his mother would not have mentioned the Applicant’s detention in 2010 had it occurred. That is especially so given that the affidavit was to be used to support the Applicant’s claim for protection. This was a finding open to the Tribunal on the material before it. The Tribunal made this finding as one of a number of findings including the Applicant’s inconsistent evidence, and concluded the Applicant was not detained in 2010.
The Applicant’s third ground of review is that the Tribunal “failed to make an obvious inquiry on an issue of critical fact, namely a further explanation of the context of the letter from the Terrorism Investigation Division”.
Why the Applicant’s stepfather was required to give a statement to the authorities, was not a “critical fact” in the relevant sense. The Applicant and his representative had in any event an opportunity to explain the relevant circumstances surrounding the letter at the hearings and after being told of the Tribunal’s concerns. The Tribunal considered all the material put before it by the Applicant and made findings open to it.
There is, as submitted by the First Respondent, nothing to suggest an omission by the Tribunal that rises to the level of unreasonableness or a constructive failure to fulfil the Tribunal’s review function.
The application for review shall be dismissed with costs in accordance with the Schedule Scale of Costs under the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 29 November 2016
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