BJP16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 272
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJP16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 272
File number(s): MLG 1182 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 14 April 2023 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of Sri Lanka – claims of political involvement – credibility –inconsistent evidence – whether failure to consider evidence – whether impermissible merits review – whether jurisdictional error
PRACTICE AND PROCEDURE – request for further adjournment – exercise of broad discretion – economic and efficient conduct of litigation – interests of justice – case management where significant backlog of unheard migration judicial review cases –understanding of what constitutes jurisdictional error
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 192
Migration Act 1958 (Cth) Pt 7, Div 4, ss 36, , 424A, 425, 425A, 474, 476
Immigrants and Emigrants Act 1948 (Sri Lanka)
Cases cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 238 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221
BJM15 v Minister for Immigration and Border Protection [2021] FCA 786
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594
BJP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 45
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146; (2008) 82 ALJR 1177; (2008) 69 ATR 41
Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11
Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 547; (2013) 136 ALD 547
Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314
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
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 75 ALJR 679
Myers v Myers [1969] WAR 19
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 340
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
TTY167 v Republic of Nauru [2018] HCA 61; (2018) 93 ALJR 111; (2019) 362 ALR 246
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of last submission/s: 22 March 2022 Date of hearing: 28 January and 24 February 2022 Place: Perth Counsel for the Applicant: In person by phone via CISCO Webex with the assistance of an interpreter Counsel for the First Respondent: Mr A Cunynghame via CISCO Webex Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1182 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJP16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
14 April 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The applicant’s application made at hearing on 24 February 2022 and in post hearing submissions filed on 22 March 2022 for a further adjournment of these proceedings be dismissed.
3.The originating application filed 6 June 2016 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Before the Court is an application filed by the applicant, BJP16, on 6 June 2016, pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”), seeking judicial review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) dated 19 May 2016. The Tribunal Decision affirmed a decision of the delegate (“Delegate” and “Delegate’s Decision” respectively) of the then Minister for Home Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant BJP16 a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).
The Court has before it the following materials:
(a)the Judicial Review Application;
(b)the affidavit of BJP16 affirmed on 6 June 2016 (“BJP16’s June 2016 Affidavit”);
(c)the Court Book (“CB”) filed in November 2016 totalling 218 pages and marked as “Exhibit 1”;
(d)the Minister's Outline of Submissions dated 16 April 2020 (“Minister's Submissions”);
(e)the affidavit of BJP16 affirmed on 11 February 2022 (“BJP16’s First February 2022 Affidavit”);
(f)BJP16’s Outline of Submissions dated 11 February 2022 (“BJP16’s Submissions”)
(g)the affidavit of BJP16 affirmed on 11 February 2022 appending a 17 page written submission (“BJP16’s Second February 2022 Affidavit”);
(h)the affidavit of Mr Cunynghame affirmed 22 February 2022 (“Cunynghame Affidavit”)
(i)the Minister’s Supplementary Outline of Submissions dated 22 February 2022 (“Minister’s Supplementary Submissions”);
(j)the transcript of the hearings on 28 January 2022 (“January 2022 Transcript”) and 24 February 2022 (“February 2022 Transcript”);
(k)the affidavit of BJP16 affirmed on 22 March 2022 (“BJP16’s March 2022 Affidavit”); annexing a written submission (“BJP16’s Supplementary Submissions”); and
(l)the various orders made by the Court since the Judicial Review Application was filed.
BACKGROUND
The background to this matter prior to the Tribunal Decision is as follows:
(a)BJP16 is a male citizen of Sri Lanka who arrived in Australia on 10 August 2012 as an unauthorised maritime arrival: CB 4, 6 and 33;
(b)on 16 January 2013 BJP16 applied for the Protection Visa: CB 20-79 (“Protection Visa Application”);
(c)BJP16’s claims to fear harm were set out in a Statutory Declaration dated 16 January 2013 (“Statutory Declaration”) accompanying the Protection Visa Application: CB 66-70;
(d)BJP16’s claims to fear harm can be summarised as follows:
(i)he fled Sri Lanka because he fears for his life on account of his campaign work and support for the United National Party (“UNP”);
(ii)he was involved in an altercation with drunken supporters of the rival Sri Lanka Freedom Party (“SLFP”) in his city, and in 2007 he was attacked at home by SLFP supporters, who cut his hand with a sword and hit him;
(iii)he fled Sri Lanka in 2007 for his safety after receiving advice from a UNP politician in his city (“City Politician”), whom BJP16 had worked for. He went to Kuwait to work but returned to Sri Lanka in 2010 as he thought the situation had improved;
(iv)he supported the UNP endorsed candidate for the Sri Lankan presidency (“Presidential Candidate”) in his city and Colombo in 2010, and he was attacked at home in his city by SLFP supporters and sustained injuries. After this attack he went into hiding in a town further out from his city;
(v)he attended anti-government protests in his city against fuel price rises with fellow members of the city’s Fisheries Society in January 2012. The army and police tear-gassed and beat them at the protests;
(vi)in about September or October 2012, a Sri Lankan navy officer contacted his wife by phone and questioned her regarding BJP16’s whereabouts. The navy officer threatened to kidnap his wife because she was home alone; and
(vii)he fears harm from SLFP supporters and allies because he is a supporter of the UNP, the City Politician and the Presidential Candidate;
(e)on 8 July 2013 the Delegate’s Decision was to refuse to grant BJP16 the Protection Visa: CB 97-127;
(f)on 16 July 2014 BJP16 applied to the Tribunal for review of the Delegate’s Decision: CB 128-130; and
(g)on 14 September 2015 the Tribunal invited BJP16 to attend a hearing on 12 October 2015 (“Tribunal Hearing”), which BJP16 attended with his then lawyer, an observer, and with the assistance of an interpreter. The Tribunal Hearing went for over three hours and forty minutes: CB 140, 162-164.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal found that:
(a)as to BJP16’s actual or imputed political opinion:
(i)BJP16 had not been truthful about his level of involvement in Sri Lankan politics: CB 182 at [21]. The Tribunal summarised BJP16’s evidence given at the Tribunal Hearing: CB 182-185 at [23]-[34]. The Tribunal noted “significant inconsistencies” between BJP16’s claims in the Statutory Declaration annexed to his Protection Visa Application and his evidence at the Tribunal Hearing with regard to his political activities and the claimed attacks and threats against him in the period from 2006 until his departure from Sri Lanka: CB 185 at [35];
(ii)BJP16 was a UNP supporter and accepted that he may have done some campaign-related work for the City Politician, but did not accept that he was anything more than a low-level supporter, or that he would have been identified as a close supporter of the City Politician and the Presidential Candidate, due to inconsistencies in his account: CB 186 at [37];
(iii)there had been some low-level harassment of him by SLFP supporters and allies in the past, particularly during election periods in 2005-2007 and 2010: CB 186 at [37]. Due to his status as a low level supporter and campaign worker the Tribunal did not, however, accept he would be specifically targeted for his political beliefs: CB 186 at [38];
(iv)BJP16 was not attacked by SLFP supporters with a sword, as “his description of the attack at hearing was completely inconsistent” with that in the Statutory Declaration: CB 186 at [39]. Further, it considered that BJP16’s claim to have been singled out for attack while not actively campaigning or working for the UNP, was implausible: CB 186 at [39]. It followed that the Tribunal did not accept that BJP16 was told by the City Politician to leave Sri Lanka and go to Kuwait, nor that he returned to Sri Lanka in 2010 because the Presidential Candidate was running for president: CB 186 at [40];
(v)given the country information about the levels of violence around the 2010 Presidential election, accepted that he may have been harassed by supporters of rival parties and candidates while engaging in “very small, low-level activities such as putting up posters and encouraging people to attend meetings”: CB 186 at [41]. On the basis of “significant” inconsistencies in his account, the Tribunal found that BJP16 was not attacked after the 2010 Presidential election: CB 186-187 at [42]. It followed that the Tribunal also did not accept that BJP16 left his city for a town further out to hide from being attacked, that he was living in fear at this time, or that his attackers had inquired about his whereabouts: CB 187 at [43];
(vi)it accepted that BJP16, as a fisherman, was a member of the city’s Fisheries Society and that his uncle was Chairman of the Fisheries Society. Inconsistencies between BJP16’s Statutory Declaration and his evidence at the Tribunal Hearing led the Tribunal not to accept that BJP16 was involved in the 2012 fuel price protests or that he suffered the claimed harm: CB 187 at [44];
(vii)it did not accept that BJP16 had left his city for Kuwait and later another town to avoid harm in his city, but rather that these were attempts by BJP16 to support himself and his family: CB 187 at [45];
(viii)that if BJP16 continued to support the UNP, he would not be targeted for harm in his home region, given the UNP’s recent overwhelming support in the area. Further, the Tribunal did not accept that political violence would occur in BJP16’s home area, or that BJP16 would be harmed due to his links with the UNP. The Tribunal considered that the prospect of BJP16 being harmed in the future for his political opinion or activity was remote: CB 191 at [58]; and
(ix)BJP16 did not face a real chance of serious or significant harm by reason of his political opinion, either now or in the reasonably foreseeable future, and that consequently he did not hold a well-founded fear of persecution for this reason: CB 191 at [59]-[60];
(b)as to BJP16’s claims about returning to Sri Lanka as a failed asylum seeker:
(i)
it accepted that BJP16 would be identified as a failed asylum seeker on return:
CB 191 at [61], but did not consider that the Sri Lankan authorities would have any interest in him, and therefore found that he would not be subjected to any detention or interrogation on arrival, other than the standard questioning and procedures described by DFAT in the country information: CB 194 at [69];
(ii)it did not accept that there was a real chance of a state actor being motivated to harm BJP16 at any stage of the re-entry and return process, or the charges, remand or bail process, for having been resident in a Western country or for seeking asylum in a Western country, either individually or cumulatively: CB 194 at [70]. Having regard to BJP16’s circumstances and profile the Tribunal found “[BJP16] does not have such a profile as a Sri Lankan Sinhalese male, UNP supporter who has not provided any basis for being suspected of having actual or imputed LTTE links”: CB 194 at [71]; and
(iii)it concluded that BJP16 did not face a real chance of serious harm returning as a failed asylum seeker from the “West or overseas”, regardless of whether seeking asylum was conceived of as either being an imputed political opinion, or as an identifying characteristic of a particular social group, in any combination with BJP16’s other characteristics: CB 195 at [77];
(c)as to BJP16’s claims about his illegal departure it:
(i)was satisfied that BJP16 will be held for a short period on arrival for questioning and is likely to be charged with an offence under the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I & E Act”) because of his illegal departure: CB 196 [82];
(ii)found that the information before it suggested that BJP16 would be detained for hours, or at most for up to 14 days, and would face a financial penalty due to the manner of his departure: CB 196 at [83];
(iii)found that the I & E Act was a law of general application, that it was not discriminatory on its face or its intent, and that it was not selectively enforced: CB 196-197 at [84];
(iv)found that, having regard to the available country information, the chances of BJP16 being sentenced to any term of imprisonment due to his illegal departure were “remote” and “far fetched”. The Tribunal was also satisfied that BJP16 would be able to pay the financial penalty if required: CB 197 at [85], and found the chances to be remote that BJP16 would spend more than a fortnight in detention on return to Sri Lanka: CB 197 at [87]. Despite the generally poor conditions in Sri Lankan prisons, the Tribunal found the chances remote that BJP16 would face serious harm in this context: CB 197 at [88];
(v)did not accept that Sri Lankan authorities had the intention of seeking to harm BJP16 by placing him in poor, overcrowded prison conditions for any short period of detention. The Tribunal noted that it considered the relevant Departmental PAM3 guidelines on this issue: CB 198 at [91] and [93];
(vi)found that BJP16’s risk of torture or any form of significant harm was remote, in light of the available country information and the short term nature of any detention. Further, the Tribunal found that any other treatment BJP16 may face in Sri Lanka (including a fine, detention and poor prison conditions) would not amount to significant harm, as this would apply to anyone breaching the I & E Act. As such, for the purposes of s 36(2B)(c) of the Migration Act, it was a real risk faced by the population generally and not BJP16 personally, and therefore there was not taken to be a real risk that BJP16 would suffer significant harm: CB 198 at [92];
(vii)concluded that BJP16 did not have a real chance of serious harm or a real risk of significant harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances: CB 198 at [94]; and
(viii)it did not accept there was “any risk or chance” of BJP16 being suspected of having assisted in people smuggling or being a crew member on a people smuggling boat, for reasons of his ethnicity or for any other reason: CB 198 at [96];
(d)as to BJP16’s claimed receipt of a post-departure threat, accepted that, in September or October 2012, a Sri Lankan navy officer contacted BJP16’s wife, questioned her about his location, and threatened to kidnap his wife because she was home alone, but it did not accept that BJP16 would be at an increased risk of harm as a result: CB 198 at [95]; and
(e)
concluded that there was not a real chance of serious harm to BJP16 in Sri Lanka arising from his political activities, political opinion, his ethnicity or religion, his status as a failed asylum seeker or returnee from a Western country or a person who left
Sri Lanka illegally or for any other reason: CB 199 at [97]. The Tribunal also found there were not substantial grounds for believing that there is a real risk that BJP16 will suffer significant harm upon being removed from Australia to Sri Lanka: CB 199 at [98]; and
(f)concluded that BJP16 did not satisfy the criteria for grant of the Protection Visa under s 36(2)(a) or (aa) of the Migration Act and affirmed the Delegate’s Decision not to grant BJP16 the Protection Visa: CB 199 at [99]-[102].
JUDICIAL REVIEW APPLICATION
Single ground of review
The Judicial Review Application was filed in the Court’s Melbourne Registry on 6 June 2016, and set out one ground of review as follows (reproduced unaltered):
The AAT erred in not giving consideration to the evidence that the Applicant being myself had undergone abuse and suffering and trauma in my home country due to my political involvements in my home country. I provided evidence to that regard. In the vent that I am to return back to my home country I would suffer abuse and cruel treatment and even death. I will be persecuted. Also I have provided evidence to the effect that as a failed asylum seeker I will be punished by the home country government officials and would put me in jail. I provided evidence in support of this, however the tribunal member disregarded such evidence. Accordingly, AAT failed to give consideration to the evidence as a matter of law.
BJP16’s June 2016 Affidavit
In BJP16’s June 2016 Affidavit, filed at the same time as the Judicial Review Application, BJP16 said that (reproduced unaltered):
1.I am the Applicant in this Migration Application.
2.On 19th May 2016 the Administrative Appeals Tribunal in AAT Case No. 1412468 refused my application for review. Annexed and marked as “A” is a copy of the decision.
3.I now wish to seek a review of my AAT Decision.
4.I as the Applicant provided evidence to the effect that I had suffered abuse and violence in the hands of the offenders in my home country. If I am to return back I will be persecuted and even killed. Also as a failed asylum seeker I will be put in jail if I return back. The AAT failed to give consideration to the evidence as a matter of law.
5.Accordingly the AAT erred in affirming the delegate’s decision.
Melbourne Registry
Delays in the hearing of judicial review migration cases in the Court’s Melbourne Registry are notorious: AFP21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren, and Rajmohan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1556 at [7]-[8] per Judge Lucev. Thus, although the matter was filed in June 2016, there was no first court date in Melbourne before a Registrar until November 2016, when the Registrar made the usual orders made at migration judicial review first court date (“Registrar’s Orders”), including the following orders:
2The First Respondent file and serve a bundle of relevant documents (Court Book) by 23 November 2016.
3 On or before 28 days before the final hearing, the Applicant file and serve:
a. any amended application including any additional grounds of review with complete particulars of each ground;
b. any affidavits; and
c. written submissions and a list of authorities.
4 On or before 14 days before the final hearing, the First Respondent file and serve written submissions, a list of authorities and any affidavits.
7 The matter be listed for hearing on a date to be advised before Judge Jones.
In accordance with the Registrar’s Orders the Minister filed the CB on 23 November 2016.
Although the Registrar’s Orders provided that the “matter be listed for final hearing on a date to be advised before Judge Jones” it was not until 26 March 2018 that a Notice of Listing was sent to the parties listing the matter for hearing more than a year later on 11 April 2019 before Judge Kirton. Thereafter:
(a)on 27 February 2019 the parties were advised that the hearing had been “re-listed” to a date “to be fixed” and that the 11 April 2019 hearing had “been vacated due to judicial availability [sic]”;
(b)almost nine months later on 13 November 2019 the parties were advised that the “matter is listed for final hearing before Judge Kirton on … 29 January 2020”;
(c)on 7 January 2020 the parties were advised that the “matter had been vacated [sic] and this proceeding has been adjourned to a date to be fixed by the registry”;
(d)on 24 February 2020 the parties were advised that matter had been listed for hearing on 5 May 2020;
(e)in accordance with the Registrar’s Orders the Minister’s Submissions were filed on 16 April 2020 for the then listed 5 May 2020 hearing (BJP16 not having filed any submissions in accordance with the Registrar’s Orders);
(f)on 29 April 2020 the parties were advised that because of the COVID-19 pandemic that the matter was to be relisted to a date to be advised;
(g)on 25 June 2020 the matter was listed for hearing on 26 October 2020 before Judge Mercuri; and
(h)on 22 September 2020 the parties were advised that the hearing on 26 October 2020 “has been vacated and this proceeding has been adjourned to a date to be fixed”.
Minister’s Submissions
In the Minister’s Submissions filed 16 April 2020 the Minister submitted that:
(a)the Tribunal considered BJP16’s claims to fear harm as a result of his political involvement in detail at CB 182-191 at [20]-[60], and this consideration included a summary of the discussion between BJP16 and the Tribunal concerning BJP16’s claims to fear harm as a result of his political opinion: CB 182-185 at [23]-[34];
(b)the Tribunal had regard to BJP16’s Statutory Declaration provided in support of his Protection Visa Application: CB 180 at [30];
(c)the Tribunal summarised BJP16’s evidence, including, for example, the impact of the recent elections in Sri Lanka on BJP16’s claims to fear harm: CB 181 at [15];
(d)the Tribunal considered BJP16’s claims in relation to fearing harm as a failed asylum seeker and made detailed findings in relation to them: CB 191-195 at [61]-[78];
(e)the Tribunal did not disregard BJP16’s evidence as contended in his Judicial Review Application. Rather it had regard to it but was not satisfied that any of it established that BJP16 faced a real chance of serious harm or real risk of significant harm on return to Sri Lanka;
(f)the Tribunal’s findings were open to it on the evidence before it for the reasons it gave, and it cannot be said that no other rational or logical decision maker could not have drawn the same conclusion: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”). While BJP16 may not agree with the Tribunal’s findings, this is not indicative of jurisdictional error in the Tribunal Decision. It is trite law that the weight to be afforded to evidence is a matter for the Tribunal, and the Court cannot engage in impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ ; and
(g)no jurisdictional error arises.
Perth Registry
In June 2021 the matter was reallocated to the Perth Registry of the Court, and on 16 June 2021 the parties were advised that the matter had been listed for hearing on 28 January 2022 (“January 2022 Hearing”) before the Court as presently constituted. On 7 July 2021 the parties were advised that the matter had been listed for a directions hearing on 23 July 2021. At the directions hearing on 23 July 2021 BJP16 did not appear, and orders (“July 2021 Orders”) were made in his absence, including the following orders:
2.Order 3 of Registrar Buljan’s Orders of 9 November 2016 be set aside and order in lieu that the Applicant to file and serve:
(a) any amended application; and
(b) affidavits;
by 23 September 2021.
3. Order 4 of Registrar Buljan’s Orders of 9 November 2016 be set aside and order in lieu that the First Respondent to file and serve:
(a) any amended response;
(b) affidavits; and
(c) any further written submissions by 23 November 2021.
Neither party filed any additional materials pursuant to the July 2021 Orders.
January 2022 hearing
On the morning of the January 2022 Hearing, in support of a request for an adjournment (“Adjournment Request”), BJP16 sent by email to the Court’s Melbourne Registry an affidavit, and copies of a medical certificate, medication prescriptions and a doctor’s referral letter.
BJP16 did not appear at the January 2022 Hearing. The Adjournment Request was opposed by the Minister. The Court granted the Adjournment Request, observing in an ex tempore judgment: BJP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 45 at [15]-[16] per Judge Lucev, as follows:
Having regard to those matters and having contemplated them and balanced them, the Court also takes into consideration the fact that if the matter is adjourned it may be that BJP16 has some time to recover from the alleged medical condition. It may be that he has time to file submissions as the Court will make further orders in that regard, and for the Minister to respond to those submissions, so that the Court is in a position where it has proper written submissions from both parties, which it does not presently have. And in those circumstances the Court, it must be observed very, very reluctantly, is prepared to adjourn the matter for a short period. The orders that the Court therefore proposes to make are to allow for an adjournment but the Court stresses that it is of the utmost importance that BJP16 file written submissions in this matter.
If BJP16 is not fit to appear at the adjourned hearing on 24 February 2022 or simply does not appear, it is the Court’s intention to determine the matter on the basis of either the written submissions which have been filed or, if no written submissions are filed, on the papers on the Court file in any event. In that regard the Court also has regard to the fact that there is but a single ground of review which effectively asserts that the Tribunal disregarded or failed to consider the evidence and that, on the face of the matter, the matter is not a particularly complex one.
The Court made the following orders at the January 2022 Hearing (“January 2022 Orders”):
1.The hearing of the matter be adjourned to 10.00am AWST/1.00pmAEDT on 24 February 2022.
2.The Applicant pay the First Respondent’s costs of today in the sum of $1178 by 28 February 2022.
3.The Applicant file and serve a written outline of submissions in relation to the substantive application by 17 February 2022.
4.The First Respondent file and serve any written outline of submissions in reply by 22 February 2022.
5.If the Applicant does not appear for whatever reason at the adjourned hearing on 24 February 2022:
(a)and has filed written submissions pursuant to order 3 above, the matter will be determined having regard to those written submissions; or
(b)and has not filed written submissions pursuant to order 3 above, the matter will be determined in any event on the basis of the materials otherwise filed.
BJP16’s February 2022 filings
BJP16 subsequently filed on 12 and 14 February 2022:
(a)BJP16’s First February 2022 Affidavit;
(b)BJP16’s Submissions; and
(c)BJP16’s Second February 2022 Affidavit.
BJP16’s First February 2022 Affidavit
In BJP16’s First February 2022 Affidavit, BJP16 said that:
(a)he was notified to do written submissions before the January 2022 Hearing;
(b)that he could not do his written submissions due to the COVID-19 pandemic crisis, and his health issues;
(c)he was not stable financially to afford solicitors to prepare the submissions done and, further, he was having health issues, namely “anxiety and stress”; and
(d)he requested that the Court consider his written submission.
BJP16’s Submissions
BJP16’s Submissions (of 17 pages) were as follows:
(a)at [1]-[4] they set out the background to BJP16’s Judicial Review Application;
(b)at [5]-[9] they set out the legal framework in relation to the granting of a Protection Visa;
(c)at [10]-[11] they set out a brief summary of the Delegate’s Decision;
(d)at [12]-[15] they set out BJP16’s background which is essentially a repetition of his claims for protection and the reasons why he travelled to Australia;
(e)at [16]-[22] they set out alleged jurisdictional errors in the Delegate’s Decision, and:
(i)a summary of the evidence before the Delegate; and
(ii)a further brief summary of the Delegate’s Decision;
(f)at [23]-[29] they set out alleged jurisdictional errors in the Tribunal Decision and a summary of the evidence before the Tribunal, as follows:
23. “The Tribunal did not understand that everything happened over a period of 12 years and since then the applicant’s circumstances changed a lot of times due to which he had been facing several problems”. In early times, the applicant was stressed as he lost his elder brother due to which his father was in dilemma. His father became a mental patient and he had to look after him. Later he got married and he had to look after his wife and children while being a supporter of UNP.
He was attacked numerous times, he had been hiding and protecting himself & his family since 2005, he faced injuries while protecting himself, he lost his brother due to politics which caused health issues to his father and eventually he became a mental patient.
All of this happened several times and quickly that it became difficult for the applicant to remember everything and handle the situation on his own.
24.“The Tribunal did not understand that the applicant was in stress, depression and injured all this while which ultimately indicates that he had been through hard times in the past”. The Tribunal has been insensitive in interviewing the applicant and considering his claims. He had been through so much he might have forgot some of the dates. The Tribunal did not give him the benefit of doubt instead noted all the points and affirmed the decision based on it.
25.“The Tribunal expected the applicant to know all the details of the incidents occurred and Sri Lanka and provide evidence of the same.” The incidents occurred almost 10 – 15 years ago in Sri Lanka and the applicant had provided all the information to the respected Tribunal member briefly but providing all the information in detail, expect the dates and events to be precise and provide some evidence for it all together for proving that he has a risk of harm in Sri Lanka is impractical, impossible, insensitive and inappropriate. The Tribunal member should have given the benefit of doubt to the applicant by showing some sensitivity to the case.
26. “The delegate did not understand that the applicant made the efforts of getting a valid passport and travel to Australia but due to threat calls received by [the City Politician], the applicant decided to leave the country illegally through a boat.” The applicant could not express his emotions and gave a detailed explanation about his child’s health. His child was unwell due to which he moved back from [city] to [city]. He was deciding to travel validly by air but due to threat calls received by [the City Politician] he got scared and feared that he might get persecuted if he travels by air due to which he changed his plans and reached Australia through a boat.
27.“The Tribunal did not consider the evidence provided regarding the fuel price hike which happened in February 2012 instead stated that the claim was fabricated/embellished.” [footnote omitted] The applicant provided the photos of the fuel price hike protest taken by his friend to the Tribunal but the respected Tribunal member was concerned about the absence of the applicant’s photo while protesting.
The tribunal did not consider that the photos were taken by his friends and the same photos were not available on google or on any websites which clearly indicates that the claim was not embellished, it was not considered that providing evidence of that protest after 3-6 years was a very difficult thing but still, he made efforts and presented the evidence before the authorities. Also, in an extremely violent protest it is very difficult to get pictures or take some videos but still the applicant presented something which is definitely better than nothing. Hence, a jurisdictional error was asserted by the Administrative Appeals Tribunal.
28.“The Tribunal did not notice that during all this while, the police and army were misusing their powers and caused several problems but still the Tribunal was questioning the applicant that why can’t he go back to Sri Lanka.” The police and the army have been misusing their powers. The applicant’s wife received a threat call from a navy officer stating that he might want to kidnap the applicant’s family if he does not get any information about the applicant’s whereabouts. Also, during the protest the police officers were being biased and were bribed to hit some targeted people.
It should have been noticed and considered by the respected Tribunal member that it is a misuse of power by the authorities of Sri Lanka and hence, it proves a valid point that there is a real risk of harm if the applicant travels to Sri Lanka. The applicant and his family will not be safe therefore, they should be given a chance to stay in Australia as per the claims, evidence, statements, information and grounds provided.
29.“The applicant showed his scars and injuries to the respected Tribunal member but still it was considered that his claims were embellished.”
The applicant has scars on his hands and legs which he showed it to the Tribunal member. He provided some information that his hand was cut, his leg was hit several times but he was saved, he got 17 sutures on his body and provided the evidence for the same. They accepted the claim and the evidence but did not give weight to it while affirming a decision.
(g)at [30]-[31] they set out a summary of the conclusions in the Tribunal Decision.
BJP16’s Second February 2022 Affidavit
BJP16’s Second February 2022 Affidavit repeated the content of BJP16’s First February Affidavit and annexed a copy of BJP16’s Submissions, which had already been filed.
Minister’s Supplementary Submissions
In the Minister’s Supplementary Submissions filed on 22 February 2022, the Minister submitted that:
(a)at [16]-[21] of BJP16’s Submissions BJP16 alleges a number of jurisdictional errors in the Delegate’s Decision, in relation to which:
(i)this Court has no jurisdiction, as the Delegate’s Decision is a primary decision: Migration Act, s 476(2)(a) and (4);
(ii)it is well established that if the Tribunal Decision is itself not flawed, it cures any defects or irregularities in the Delegate’s Decision: Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344; (2004) 211 ALR 261; (2004) 80 ALD 534 (“Zubair”); Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58; (2005) 143 FCR 314; and
(iii)in circumstances where jurisdictional error does not arise in the Tribunal Decision the Court should reject these grounds of review;
(b)at [23]-[25] of BJP16’s Submissions BJP16 asserts, in summary, that he had difficulty in recalling the incidents of harm against him in the past because they occurred over a long period of time, and that the Tribunal was insensitive to BJP16 in this regard and should have given him the benefit of the doubt instead of expecting the precise details of his claims. In this regard:
(i)the Tribunal complied with its procedural fairness obligations under Div 4 of Pt 7 of Migration Act. By invitation dated 14 September 2015 to BJP16’s representative, BJP16 was invited to attend the Tribunal Hearing on 12 October 2015, in compliance with ss 425 and 425A of Migration Act, which he attended with the assistance of his representative and an interpreter: CB 136-141 and 162-164. BJP16 was on notice from the Delegate’s Decision and the Tribunal’s questioning at the Tribunal Hearing that the credibility of his claims would be the determinative issue on the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”). Further, BJP16 sent pre and post-Tribunal hearing written submissions to the Tribunal, which the Tribunal considered: CB 143-159 and 169-171, 181 at [15], 182 at [17] and 190 at [55]. No breach of s 425 of the Migration Act is apparent;
(ii)there was no information the Tribunal was required to put to BJP16 pursuant to s 424A of Migration Act. In the Tribunal Decision, the Tribunal relied on country information, BJP16’s written claims to the Department and BJP16’s written and oral evidence to the Tribunal. These matters fell within the exceptions in ss 424A(3)(a), (ba) and (b) of the Migration Act. No breach of s 424A of the Migration Act has occurred;
(iii)the Tribunal considered and accepted that BJP16 may have misremembered details or dates in his claims and took this into account when assessing the evidence before it: CB 185 at [36]. The Tribunal, however, did not accept that this explained the concerns with BJP16’s evidence in light of the significant inconsistencies in his evidence and vague and undetailed answers to the Tribunal’s questions, noting also that BJP16’s explanations for inconsistencies in his evidence also changed materially before the Tribunal. These findings were open to the Tribunal for the reasons it gave;
(iv)the findings set out at [23]-[25] of BJP16’s Submissions in essence challenge the Tribunal’s factual findings on BJP16’s credit. The Tribunal referred to correct legal principles on assessing credibility: CB 179 at [9]-[11], but held significant concern with the credibility of BJP16’s claims: CB 182 at [21], 185 at [35], 186 at [37] and [39], 186-187 at [42] and 187 at [44]. In determining whether BJP16 met the criteria for the Protection Visa, the Tribunal was required to resolve questions of credit, attribute weight to particular evidence, and consider the inherent probability or improbability of claimed events: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Adverse credibility findings may involve jurisdictional error on account of legal unreasonableness, or by dint of being made without a logical, rational or probative basis: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 (“CQG15”) at [38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109; (2016) 154 ALD 221 at [83(d)] per Griffiths, Perry and Bromwich JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641 at [30] per Kenny, Kerr and Perry JJ; BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189; (2020) 281 FCR 594 at [71] per Murphy J. In the present case the Tribunal’s findings do not meet that “demanding standard”: TTY167 v Republic of Nauru [2018] HCA 61; (2018) 93 ALJR 111; (2019) 362 ALR 246 at [24] per Gageler, Nettle and Edelman JJ;
(c)at [26] of BJP16’s Submissions BJP16 alleges that the Delegate [scil Tribunal] did not understand that BJP16 made efforts to get a valid passport and travel to Australia, but that due to threat calls received by the City Politician, BJP16 decided to leave the country illegally on a boat. In his Statutory Declaration supporting his Protection Visa Application BJP16 claimed that the City Politician told BJP16 that he had received threats and that BJP16 should leave Australia for his safety: CB 22 at [14]. The Tribunal referred to this Statutory Declaration: CB 179-181 at [13], and it cannot be successfully argued that the Tribunal overlooked BJP16’s Statutory Declaration: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French CJ, Sackville and Hely JJ. Further, the claim was subsumed into a finding at a higher level of generality in circumstances where the Tribunal had considered BJP16’s claims regarding his relationship with the City Politician and made findings at CB 186 at [38] in which it did not accept that BJP16 received any threats whilst working for the City Politician: at CB 187 at [45] and CB 191 at [58], nor that BJP16 faced harm as a result of his work with the UNP or would do so if he continued to support the UNP on return: WAEE;
(d)at [27] of BJP16’s Submissions BJP16 asserts that the Tribunal did not consider the photographs he provided of a fuel hike protest taken by his friends. The Tribunal clearly considered the evidence and the Tribunal Decision records its discussion of the photographs with BJP16 at the Tribunal Hearing: CB 185 at [34]. The Tribunal gave no weight to the photos insofar as they were said to demonstrate that BJP16 attended the protest in circumstances where BJP16 did not appear in the photo: CB 187 at [44]. The Tribunal accepted that the fuel protest occurred in 2012 but did not accept that BJP16 attended the protest, finding his evidence in relation to his attendance was inconsistent: CB 187 at [44]. These findings were open to the Tribunal for the reasons it gave. By this ground BJP16 impermissibly invites the Court to reach a different factual finding to that reached by the Tribunal;
(e)at [28] of BJP16’s Submissions BJP16 alleges the Tribunal did not notice that during all this while, the police and army were misusing their powers and caused several problems, but the Tribunal still questioned BJP16 as to why he cannot go back to Sri Lanka. This ground amounts to a request for impermissible merits review. The Tribunal noted changes in Sri Lanka since BJP16 had departed, and that the party he supported was at the time of the Tribunal Decision in power and that BJP16 would now be returning to a place that strongly supported the political party he supported. The Tribunal found that he would be able to express his political opinion and continue to support his party: CB 190-191 at [57]; and
(f)at [29] of BJP16’s Submissions BJP16 alleges that he showed his scars and injuries to the Tribunal but still the Tribunal considered his claims to be embellished. The ground does not identify any jurisdictional error, and again, at its highest, amounts to a request for impermissible merits review. The Tribunal considered BJP16’s scars and the associated claim that the scars were caused by an attack by members of the opposing political party: CB 182-183 at [26]. The Tribunal found that BJP16 provided vague and inconsistent evidence with respect to the claimed attack and therefore did not accept the claim: CB [186] at [39], a finding open to the Tribunal for the reasons it gave.
February 2022 Hearing
The adjourned January 2022 Hearing resumed on 24 February 2022 (“February 2022 Hearing”). BJP16 attended the February 2022 Hearing by phone with the assistance of an interpreter (also by phone).
At the February 2022 Hearing:
(a)having had the nature of jurisdictional error outlined to him by the Court, BJP16:
(i)submitted that he was not happy with the Tribunal Decision; and
(ii)reiterated factual claims made in support of his Protection Visa Application; and
(iii)submitted that he had significant health and sleeping issues, was a very sick person, and had attempted suicide, but was currently working;
(b)when asked if he had anything specific to say about what jurisdictional errors there were in the Tribunal Decision said that he:
(i)did not read or write English, and had a person helping him; and
(ii)could not sleep more than three hours a night, was taking five different medications, had lost his appetite, and was confused, unable to focus and very tired;
(c)the Court having invited Mr Cunynghame to make oral submissions on behalf of the Minister, BJP16 then claimed to be suffering severe dizziness, and the Court adjourned for 31 minutes, and upon resumption indicated it would not require BJP16 to reply to the submissions being made on behalf of the Minister unless BJP16 felt he was able to do so;
(d)BJP16 continued to complain that he was going to faint, had severe dizziness and that he wanted a further adjournment, in response to which the Court indicated that once the submissions on behalf of the Minister had finished the Court would adjourn, and that the Court would arrange for a Registrar to send a copy of the February 2022 Transcript to BJP16, and that BJP 16 could file a written reply;
(e)the Court did not adjourn, and heard the remainder of the submissions on behalf of the Minister; and
(f)having heard the submissions on behalf of the Minister, the Court then made orders at the hearing (“February 2022 Orders”) as follows:
1.As soon as reasonably practicable, a Registrar of this Court send to the Applicant a copy of the transcript of the hearing today by email to the following email address: [redacted].
2.By 24 March 2022 the Applicant file and serve a written reply to the oral submissions made by Mr Cunynghame on behalf of the Minister at the hearing today.
3.If the Applicant does not file and serve a written reply in accordance with Order 2 the Court may proceed to determine the matter on the basis of the materials otherwise filed and the submissions otherwise made at the hearing today.
4.The matter otherwise stand adjourned to a date to be fixed for delivery of Reasons for Judgment.
5. Costs of today be reserved.
BJP16’s March 2022 Affidavit
BJP16’s March 2022 Affidavit was filed on 22 March 2022 and annexed BJP16’s Supplementary Submissions.
In the body of BJP16’s March 2022 Affidavit BJP16 adverted to his suffering from anxiety and stress (at [4]) and requested that due to his “exceptional circumstances and my condition under humanitarian grounds” that consideration be given to providing him with “a different date to attend the hearing” (at [6]).
In BJP16’s Supplementary Submissions BJP16:
(a)referred to his attendance by telephone at the February 2022 Hearing: p 1;
(b)said that there were problems with his network during the hearing, and that he (and the Court) had indicated that sometimes there were problems hearing the interpreter: p 2;
(c)complained that he had not been provided with a copy of the Cunynghame Affidavit: pp 2-3;
(d)reiterated his serious health issues: pp 3-4;
(e)said, at p 4, in relation to the question of jurisdictional error in the Tribunal Decision as follows:
Hon. Judge Lucev has asked him about the jurisdictional errors made by the Administrative Appeals Tribunal but the applicant is not educated enough, does not know the meaning of jurisdictional errors so he cannot explain where the Tribunal has gone wrong and what has happened in the past but applicant request Hon. Judge Lucev to consider the written submissions for answers and evidence for reference. The applicant is unaware of the term jurisdictional errors due to which he requests Hon.Judge Lucev to give benefit of the doubt to him, consider his exceptional circumstances and remit the matter to the Administrative Appeals Tribunal.
(f)requested the Court to “make a decision … based on my exceptional circumstances which have been elaborately explained in the written submission” and to “remit this matter to the … Tribunal for further review”: p 4.
CONSIDERATION
The requirement for jurisdictional error
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal:
(a)identifies a wrong issue;
(b)asks the wrong question;
(c)ignores relevant material; or
(d)relies on irrelevant material,
in such 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, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: 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 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
To constitute jurisdictional error the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ as follows:
Materiality was explained in Minister for Immigration & Border Protection v SZMTA (2019) 264 CLR 421 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL, as may legal unreasonableness: as to which see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J. Bias, either actual or apprehended, may also result in the setting aside of a Tribunal decision: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 65 ALD 1; (2001) 75 ALJR 679; MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [32]-[50] per O’Callaghan and Colvin JJ.
The onus is upon BJP16 to establish jurisdictional error in the Tribunal Decision: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 109; (2019) 373 ALR 196 at [38] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 1047; (2017) 252 FCR 352; (2017) 347 FLR 173 at [47] per Griffiths, White and Bromwich JJ.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision,
or to determine BJP16’s claim for protection: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The request for a further adjournment
In considering BJP16’s request for a further adjournment of the hearing the Court has a broad discretion to grant or not grant an adjournment: Myers v Myers [1969] WAR 19 at 21 per Jackson J; AFN15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1688 at [5(a)] per Judge Lucev, exercisable having regard to the overarching civil practice and procedure provisions under s 192 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Having regard to the economic and efficient conduct of the litigation, case management and the interests of justice generally (as to the latter see AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 238 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[98] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, BJP16’s request for a further adjournment must be dismissed for a number of reasons set out hereunder.
First, the matter has been in the Court’s lists for seven years, and whilst the delays prior to the January 2022 Hearing were no fault of BJP16, it is nevertheless the case that it has gone on too long and there comes a point where first instance litigation must be brought to an end, and this case has reached that point.
Second, if the matter were to be adjourned there would be a further significant delay until at least early 2024 before the matter could in the normal course be re-listed. That delay would serve no apparent purpose in circumstances where BJP16:
(a)filed, in accordance with the January 2022 Orders, BJP16’s Submissions, which are 17 pages long and described in BJP16’s Supplementary Submissions as being “elaborately explained”;
(b)attended the February 2022 Hearing and made some oral submissions; and
(c)filed BJP16’s Supplementary Submissions, in accordance with the February 2022 Orders, the intention behind which was that BJP16 file written submissions in an endeavour to overcome any issues that BJP16 felt arose (either procedurally or as to the state of his health) in the February 2022 Hearing,
and it is consequently difficult to see what else BJP16 might usefully say in relation to the question of jurisdictional error in the Tribunal Decision.
Third, in light of the opportunity already afforded BJP16 to be heard and to make submissions, case management considerations weigh against the exercise of the discretion to grant an adjournment, particularly so when this Court already has a backlog of more than 15,000 unheard migration judicial review cases dating back to 2016.
Fourth, the assertion that BJP16 does not understand what is meant by jurisdictional error is no reason to grant an adjournment. The Court notes that BJP16’s Submissions assert jurisdictional errors in the Tribunal Decision. At the February 2022 Hearing the Court did its best to explain the nature of jurisdictional error to BJP16: February 2022 Transcript, pp 2-3, and there is no basis for concluding that BJP16’s understanding of what constitutes jurisdictional error will be assisted by a nine to twelve month adjournment. Ultimately, it has to be recognised that jurisdictional error is difficult to understand and explain, as was observed in Federal Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146; (2008) 82 ALJR 1177; (2008) 69 ATR 41 at [129] per Kirby J, as follows:
Jurisdictional error is nearly impossible to explain to lay people even though the Constitution (including the central provisions of s 75(v)) belongs to them. Most non-lawyers would regard it as a lawyer’s fancy.
Fifth, and finally, even on a rough and ready preliminary assessment of the prospects of the Judicial Review Application succeeding, it is apparent that it has no reasonable prospects of success: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62] per Mortimer J; BJM15 v Minister for Immigration and Border Protection [2021] FCA 786 at [45]-[46] per Colvin J.
There was therefore no adjournment of the February 2022 Hearing, and there will be no further adjournment of these proceedings generally, and the application by BJP16 for a further adjournment of the proceedings is to be dismissed.
The alleged jurisdictional errors
It is convenient to commence a consideration of the alleged jurisdictional errors by reference to those set out in BJP16’s Submissions, and then to the sole ground in the Judicial Review Application, and then to BJP16’s Supplementary Submissions.
Alleged jurisdictional errors – BJP16’s Submissions
Alleged jurisdictional errors in the Delegate’s Decision
The alleged jurisdictional errors in the Delegate’s Decision: BJP16’s Submissions at [16]-[21], are not matters within the jurisdiction of this Court, the jurisdiction of which in migration judicial review matters is limited to the determination of whether there were jurisdictional errors in the Tribunal Decision: Migration Act, ss 474 and 476(2)(a) and (4). Further, and in any event, the Tribunal conducting merits review can cure any defects or irregularities found in a Delegate’s Decision, and does so where (as the Court has ultimately found here) the Tribunal Decision is not affected by jurisdictional error: Zubair at [27]-[28] and [32] per Finn, Mansfield and Gyles JJ; Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 340 at [95] per Judge Lucev. The very task that the Tribunal undertook in this matter was to review the Delegate’s Decision, and for the reasons otherwise set out in these Reasons for Judgment, the Tribunal Decision is free from jurisdictional error and cured any defects in the Delegate’s Decision.
This allegation does not establish jurisdictional error in the Tribunal Decision.
Alleged insensitivity to difficulty in recollecting incidences of harm
The allegation that the Tribunal was insensitive to BJP16 by failing to recognise that he had difficulty in recollecting incidents of harm against him in the past, and which had occurred over a long period of time, and that it should therefore have given BJP16 the benefit of the doubt instead of expecting precise details from BJP16 with respect to these claims: BJP16’s Submissions at [23]-[25], is not, in the Court’s view, a proper ground of judicial review as it does not, on its face, allege a discernible jurisdictional error. In any event, the Tribunal found that there were significant inconsistencies in BJP16’s evidence, and made a number of adverse credibility findings accordingly: CB 182 at [21], 185 at [35], 186 at [37] and [39], 186-187 at [42] and 187 at [44], all of which were open on the evidence. Credibility findings may give rise to jurisdictional error because of legal unreasonableness, illogicality or irrationality: CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ. Here BJP16 complains about the determination of a factual issue or issues and the weight given thereto. That determination is the task of the Tribunal. Disagreement, even emphatic disagreement, with the Tribunal findings does not constitute jurisdictional error, and the assertion that BJP16 ought to have been given the benefit of the doubt is simply a request for impermissible merits review of the Tribunal Decision, contrary to long-standing and established principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ.
BJP16 does not suggest that the findings made are legally unreasonable, illogical or irrational, but rather that he ought to have been given the benefit of the doubt by the Tribunal in the assessment of the evidence he gave to the Tribunal. Nothing in what was put to the Court by BJP16, or otherwise available to the Court in the materials before it, suggests that BJP16 meets the relevantly stringent tests for the establishment of:
(a)legal unreasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [113] per Gageler J; Pandey at [41(j)] per Wigney J; or
(b)illogicality or irrationality, in relation to which, if probative evidence can give rise to different processes of reasoning and if 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 unreasonable, simply because one conclusion has been preferred to another possible conclusion: SZMDS at [135] per Crennan and Bell JJ.
The Tribunal set out the relevant law concerning the attribution of weight and the assessment of credibility in Protection Visa cases: CB 179 at [9]-[11], and having regard to that law, and the evidence and materials before it, the Tribunal weighed and assessed the whole of the evidence and materials carefully before making both credibility and general evidentiary findings.
The Minister also made submissions in relation to this assertion on the basis that BJP16 may have intended to assert that there was a denial of procedural fairness by the Tribunal, or that there was a failure to put to BJP16 information as required by s 424A of the Migration Act. In the Court’s view neither of these matters falls within, nor arises from, the assertion or assertions made by BJP16 in BJP16’s Submissions at [23]-[25]. In any event, there was:
(a)no denial of the requirements of procedural fairness for the purposes of Div 4 of Pt 7 of the Migration Act in relation to the matter in circumstances where:
(i)the Tribunal advised BJP16 of, and invited him to attend, the Tribunal Hearing: CB 136-141;
(ii)BJP16 attended the Tribunal Hearing with a lawyer and an observer, and had the assistance of an interpreter: CB 162-164;
(iii)BJP16 was on notice of the issues, particularly with respect to credibility, both from the Delegate’s Decision and because of what was said by the Tribunal to him at the Tribunal Hearing: CB 107-108, 110 and 112; and
(iv)BJP16 had and took the opportunity to make submissions before, during and after the Tribunal Hearing: CB 143-159 and 169-171, 181 at [15], 182 at [17] and 190 at [55]; and
(b)no information, for the purposes of s 424A of the Migration Act, that the Tribunal was required to put to BJP16.
It follows that this allegation (alleged insensitivity to difficulty in recollecting incidences of harm) does not establish jurisdictional error in the Tribunal Decision.
Failure to understand efforts to get a passport and threat calls received by the City Politician
At [26] of BJP16’s Submissions BJP16 alleges that the Tribunal (he says Delegate but the placement of [26] is under the heading of asserted jurisdictional errors by the Tribunal) did not understand that BJP16 had made efforts to obtain a valid passport and intended to leave Sri Lanka by air, but that due to threat calls received by the City Politician, BJP16 decided to leave Sri Lanka illegally by boat.
The Tribunal was plainly aware of the Statutory Declaration: it set it out fully at CB 179-181 at [13], including the following paragraph at CB 181:
[The City Politician] told me that he had received threats against his life as a result of supporting [Presidential Candidate] He told me that boats were leaving for Australia and that I should leave for my safety.
Under the heading “Actual or imputed political opinion” the Tribunal went on to consider, at length, BJP16’s evidence, including the content of the Statutory Declaration, observing at CB 185 at [35] that:
I have considered the evidence of the applicant. As set out, there were significant inconsistencies between his claim in his statutory declaration and his evidence at hearing … I have considered his various explanations for the inconsistencies but these were unconvincing, and in some cases the explanations themselves changed materially.
The Tribunal went on at CB 185-186 at [36] and 186 at [38] as follows:
Largely due to the consistency of this claim, I accept that the applicant may have been a supporter of the UNP, and to have done some low-level work for [the City Politician], such as putting up posters and attending rallies; for payment, to support his family given his father was unwell, and for food as well as a way to demonstrate his support of the UNP. I accept that some members of his family may also support the UNP. I do not accept that he was considered anything more than a low-level supporter of [the City Politician] or [the Presidential Candidate] or anyone else.
I do not accept that the applicant received any threats specifically working for [the City Politician], or for the election of [Presidential Candidate]. Whilst I accept that he may have done some every [sic] low-level work for [the City Politician] such as putting up posters and attending meetings, I do not accept that this would have led to him being associated with or considered significant to [the City Politician] or his campaign and supporting the UNP, because on the evidence I accept, I find he was such a low level supporter that he would not have been specifically targeted, whilst accepting that whilst in the process of doing his low-level work for the UNP, especially around election time, he may have faced some low-level harassment.
The Tribunal was obviously aware that BJP16 left Sri Lanka illegally by boat: CB 191 at [61] and 195 at [79].
The Tribunal ultimately found that BJP16 did not face a real chance of serious harm arising out of his political opinion, and did not have a well-founded fear of persecution for this reason: CB 191 at [59].
The Tribunal is required to engage in an “active and intellectual process directed at the claim or criteria”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [45]-[46] per Lindgren, Rares and Foster JJ. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: WAEE at [46] per French, Sackville and Hely JJ. While the Court can infer a failure to consider a claim if the Tribunal did not expressly mention a claim in the Tribunal Decision, it must read the reasons in the Tribunal Decision as a whole, and such an inference ought not too readily be drawn where the reasoning in the Tribunal Decision is otherwise comprehensive and the issue has at least been identified at some point: WAEE at [47] per French, Sackville and Hely JJ. Further, it may be unnecessary to make a finding on a particular matter where it is subsumed in findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ, and see EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304 at [36] per Perry, Derrington and Wheelahan JJ.
At 23 pages and 102 paragraphs the Tribunal Decision is a comprehensive consideration of the essential issues raised by BJP16 in support of his claims for a Protection Visa. There can be no doubt that the Tribunal actively engaged in an intellectual process directed at BJP16’s claims and the Protection Visa criteria: Lafu at [45]-[46] per Lindgren, Rares and Foster JJ.
The Tribunal dealt specifically with the question of whether any threats had been made against BJP16, and found that it did not accept that any threats were made against him in relation to his work for the City Politician or the Presidential Candidate: CB 186 at [38]. The Tribunal also found that BJP16 was such a low-level political supporter of the UNP that he would not have been specifically targeted by political opponents: CB 186 at [38].
In the circumstances, the question of whether any threat had been made against the City Politician was irrelevant, and also one which was subsumed by findings of greater generality: WAEE at [47] per French, Sackville and Hely JJ, namely that BJP16 was not a person who faced a real chance of serious harm arising out of his political opinion, in part because no threats had specifically been made against him, and, it can be inferred, that none would be made because he was such a low-level political supporter: CB 186 at [36], [38] and [59].
It follows that this allegation (failure to understand efforts to get a passport and threat calls received by the City Politician) does not establish jurisdictional error in the Tribunal Decision.
Fuel protest
At [27] of BJP16’s Submissions BJP16 asserts that the Tribunal did not consider the evidence regarding the “fuel price hike … in February 2012”, but rather found that the claim was “fabricated/embellished”.
The Tribunal considered the evidence regarding the fuel price hike protest of February 2012 at CB 185 at [34] and 187 at [44] where it said:
I then discussed with the applicant his claims to have attended a protest about fuel prices. He said that his uncle was chairman of the fisheries society. He said that every village has a meeting, and all fishers must attend that meeting. He said that in 2012 fuel prices went up so all the villagers went out and had a protest against that. I asked what had happened. He said that while they were protesting the police and army wanted to stop the protest so they fired tear gas and chased them away to disperse the protest. I asked if anything had happened to him and he said that he was beaten by the police and army and suffered from the tear gas. He said that some people became unconscious someone [sic] poured water on his face and he ran away, he said they were protesting for 3 weeks until they got a good response, and whenever they had a protest there were harassed by the army and police. I asked if he had protested at other times. He said yes, he had gotten involved in political protests as well and he was attending all the fisheries meeting, I asked when the protest he was describing had happened. He said in 2012. I asked if he could be more specific and he said between May and June. I noted that I could find a reference to fuel price protests in [city name redacted] from January to March 2012. He then said that the protest was in February. I asked had he not said that he was hiding himself at this time and he said he was, before he left Sri Lanka to come to Australia. I asked if this demonstration in 2012 had been public and he said it had been. I asked how then he could have gone to a public demonstration, but be in hiding. He said that the protest was in [city], close to his aunt’s house, and because of his uncle he had to participate in that. I noted that if I did not accept these explanations it may lead me to doubt that he was in hiding, or went to the protest and was harmed as claimed. He said he certainly was participating in the protest. Later in the hearing the photographs presented at the hearing were referred to. I asked him to describe these and he said that this was the protest against the fuel hike, the police came and put teargas. I asked if he had taken these and he said no, one of his friends had taken them. I noted that this could indicate to me that his friend was near the protest but not necessarily him. I asked if he was in any of the photos. He said, no, you could not see him here as he was on the other side. I asked how then I could be sure that he was there, if they were not taken by him or showed him. He said that when the police and army came he went to the other side. I noted that I was not sure that these helped in establishing that he was at the protest.
I accept that the applicant, as are most fishers, is a member of the fisheries society and I am willing to accept that his uncle was the chairman. But I do not accept that any harm has come to the applicant from these facts. I accept that there was a fuel protest in 2012, but I find that the applicant has claimed to have been in hiding at this time, and that such hiding would be inconsistent with him attending a public protest where a large number of villagers would be present. He also changed his evidence on when in 2012 this protest occurred, I am not sure therefore that the applicant was at this protest, but even if I accept he was, I do not accept that he was beaten by the police and army and suffered from the tear gas, including he claimed, becoming unconscious – this is inconsistent with his statutory declaration and his description of these events was vague and not, I consider, a recounting of his lived experience. I note that he has provided photos, but stated at the hearing that these were taken by a friend and that he could not be seen in them. I therefore give these photos no weight in establishing that the applicant was there, or that he suffered the harm he claims to have. I do not accept that the applicant attended any other political protests to do with the 2012 fuel crisis or any other reason.
The Tribunal was not required to accept uncritically any and all claims made by BJP16: Minister for Immigration and Ethnic Affairs v Guo & Anor [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J, nor possess rebutting evidence before finding that his assertions were not established: Selvadurai v Minister for Immigration & Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J. The Tribunal was also not obliged to refute, line by line, relevant material: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, nor was the Tribunal required to expressly refer to each and every individual piece of evidence provided by BJP16 or make findings regarding each of those pieces of evidence: Yusuf at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ; WAEE at [46] per French, Sackville and Hely JJ.
It is evident, however, from CB 182 at [16] (“the applicant provided several photographs, which I discussed with him at hearing”), and CB 185 at [34] and 187 at [44] set out at [59] above, that the Tribunal expressly considered both the oral and photographic evidence provided by BJP16 in relation to the fuel price hike protest in February 2012. BJP16’s claim that the Tribunal “failed to consider this evidence provided” is not made out on the facts. The Tribunal was aware of and considered the photographs, noting that they were said by BJP16 to have been taken by one of his friends. The Tribunal, however, did not accept that the photographs established that BJP16 was present at the fuel price hike protest because none of the photographs showed that he was present. That was a rational approach and a logical finding open to the Tribunal on the evidence, and certainly not a finding that no rational or logical decision-maker could have arrived at: SZMDS at [130]-[131] and [135] per Crennan and Bell JJ. Moreover, that finding was buttressed by the inconsistent evidence that BJP16 gave as to whether he was in hiding or at the fuel price hike protest. Against that background these assertions by BJP16 amount to no more than an impermissible request for the Court to undertake merits review: Wu Shan Liang, CLR 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows that this allegation (about participation in the fuel price protest) does not establish jurisdictional error in the Tribunal Decision.
Misuse of power
At [28] of BJP16’s Submissions BJP16 asserts that the Tribunal failed to observe that there was “all this while” a misuse of power by the police and army in Sri Lanka which would prevent his return to Sri Lanka and which constituted a real risk of harm to BJP16 if he were to return to Sri Lanka.
In the Statutory Declaration, as set out in the Tribunal Decision at CB 181, BJP16 says that:
There is no one in Sri Lanka who can protect me from the harm that I fear. The police, army and government all support each other. The police will not protect me against the government supporters. This is why I do not make a complaint to police. I knew that I would get no help and thought that it would make things even more dangerous for me.
…
I am also now afraid because I have left Sri Lanka unlawfully by boat to seek asylum. I am certain I will be arrested upon return, and that I will be interrogated and jailed. Even if I am allowed to leave the airport I am sure I will be tracked down by CID wherever I am. As a supporter of [the Presidential Candidate] and [the City Politician] my problems with the army will be worse.
On 5 October 2015 BJP16’s then lawyers provided a detailed pre-Tribunal Hearing submission to the Tribunal: CB 144-156. In that submission it was put that BJP16 may be imprisoned if returned to Sri Lanka because he had departed illegally by boat, and that his illegal departure, together with his past UNP associations, altercations with SLFP supporters, and his involvement in the fuel price hike protests, would mean he would have an imputed political opinion and a higher political profile on return to Sri Lanka: CB 148-154.
At the Tribunal Hearing BJP16 said “once he landed he would be investigated by CID and did not know what the decision at the court would be, that some have been imprisoned and some had to report every month for 5 years”: CB 196 at [82].
The Tribunal engaged in an extensive consideration of the chance of BJP16 suffering significant harm on his return to Sri Lanka by reason of his illegal departure: CB 195-199 at [79]-[98], and in particular at CB 196-197 at [83]-[87] found that:
I have considered the applicant’s responses to this information and the punishment that he claims he may face on returning to Sri Lanka after illegally departing. I find that the applicant will be released on bail, and may have reporting conditions attached to him, but that such reporting conditions will not lead to him being harmed or seriously or significantly harmed. I do not consider on the country information and his accepted circumstances that applicant will be remanded for an extended period on return to Sri Lanka due to the manner of his departure from Sri Lanka in 2012.
I accept the applicant will be charged under Sri Lankan law due to his unlawful departure from Sri Lanka. I find that the information suggests that those who breach the law by departing illegally are generally held briefly (for hours or at most up to fourteen days) on remand then bailed pending hearing, and the face a financial penalty and not a custodial sentence). I find that the Immigration and Emigration Act applies generally to those who breach the provisions, including the imposition of the penalties for breaching this Act. I find that the applicant’s brief remand by the authorities for questioning, charging, and then awaiting a bail hearing will not of itself constitute systematic and discriminatory conduct, that s.91R(1)(c) is not met and therefore the conduct is not persecution.
I find the chances to be remote and far fetched on the country information that the applicant will be sentenced to any term of imprisonment due to his illegal departure. I accept that the applicant will face a financial penalty as prescribed under the Act, I consider that the applicant will be able to pay the lawful financial penalty imposed for this illegal departure.
I have considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been determined to have illegally departed Sri Lanka. I do not consider the imposition of a fine, or the process of being charged and possibly convicted, constitutes serious or significant harm.
Having regard to the applicant’s background, his ability to readily establish his identity (as he has done in the course of the protection visa application) and the presence of family in Sri Lanka, and noting the Immigrants and Emigrants Act bail provisions encompass bail on personal recognisance and without requirement of financial surety, I find the chances remote that the applicant will spend more than a very short period (of hours or at most days, to a fortnight) remanded in custody awaiting bail, after his return to Sri Lanka.
Additionally, the Tribunal, having had regard to the country information in relation to torture or mistreatment of returnees to Sri Lanka: CB 197-198 at [89]-[91], concluded at CB 198 at [92] that:
Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, I find that the risk he will be subject to torture or any other form of significant harm is remote …
The Tribunal:
(a)concluded that BJP16 would not be singled out or intentionally harmed by the Sri Lankan authorities while on remand, and did not accept that there was “any intention on behalf of the authorities to significantly harm” BJP16 “while being detained”: CB 198 at [93];
(b)found that there was “no intention on the part of the authorities to inflict pain, suffering or humiliation” on BJP16: CB 198 at [93]; and
(c)concluded that in the circumstances BJP16 “does not have a real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or on combination with his other circumstances”: CB 198 at [94].
The question of what might happen to BJP16 on return to Sri Lanka, and in particular how he would be treated by the Sri Lankan authorities, was the subject of express findings and conclusions by the Tribunal arising logically and rationally from the evidence and materials before it, which findings and conclusions were not findings and conclusions that no rational or logical decision-maker could have arrived at them: SZMDS at [130]-[131] and [135] per Crennan and Bell JJ. The assertions made by BJP16 therefore amount to no more than an impermissible request for the Court to undertake merits review: Wu Shan Liang, CLR 272 per Brennan CJJ, Toohey, McHugh and Gummow JJ.
It follows that this allegation (about the misuse of power) does not establish jurisdictional error in the Tribunal Decision.
Scars and injuries
At [29] of BJP16’s Submissions BJP16 says that he showed his scars and injuries to the Tribunal, but the Tribunal still considered that his claims were embellished.
There is no doubt that BJP16 alleged that SLFP supporters had come to his aunt’s house and attacked him and that his hand had been cut and his wrist broken, and that he showed “scars on his hand” to the Tribunal: CB 182-183 at [26]. There can be little doubt that the Tribunal doubted the alleged cause of these injuries, suggesting that they might have been incurred in the course of BJP16’s occupation as a fisherman, and then going on to find that his account of the alleged attack “concerned” the Tribunal, and that “his description appeared vague and inconsistent with his statutory declaration”: CB 182-183 at [26]. With respect to the alleged attack the Tribunal concluded at CB 186 at [39] that:
I do not accept that the applicant was attacked by members of the SFLP who cut his hand with a sword and broke his wrist several months after January 2007, in 2005-2006 or at any time, nor that [sic] the house he was staying at. I accept that the applicant has sustained these injuries but I am not satisfied that this physical evidence indicated that he has sustained these injuries in the manner claimed, his evidence about this attack was vague, and appeared to correlate with the attack he claimed happened in 2010 in his statutory declaration, despite him describing it at the hearing as the first attack he had endured and placing it somewhere between 2005-2007. His description of the attack at hearing was completely inconsistent with that in his statutory declaration and after considering his explanations for this discrepancy I do not accept that and find that this event did not occur, in addition, given my findings about the political work he did, and how his role would have been perceived by UPFA/SFLP members/supporters, I find his claim to have been singled out for attack whilst not campaigning / doing works for the UNP to be implausible.
The Tribunal thus explained its reasons for why it considered the claims by BJP16 regarding his scars and how these were caused were vague and inconsistent. The Tribunal’s conclusion that this event did not occur, or that it was not satisfied that the physical evidence indicated that BJP16 had sustained these injuries in the manner claimed: CB 186 at [39], was open to it on the facts and evidence before it. Once again, these findings and conclusions were not findings and conclusions that no rational or logical decision-maker could have arrived at: SZMDS at [130]-[131] and [135] per Crennan and Bell JJ, and the assertions made by BJP16 amount to no more than an impermissible request for the Court to undertake merits review: Wu Shan Liang, CLR 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
It follows that this allegation (about scars and injuries) does not establish jurisdictional error in the Tribunal Decision.
Sole ground of the Judicial Review Application
In the sole ground of the Judicial Review Application BJP16 asserts a failure by the Tribunal to give consideration to the evidence that BJP16:
(a)had undergone abuse and suffering and trauma in Sri Lanka due to his political involvement, and that if he were to return to Sri Lanka he would suffer abuse and cruel treatment and even death; and
(b)as a failed asylum seeker he would be punished and jailed if he returned to Sri Lanka.
There is no doubt that a complete failure to consider relevant evidence in relation to a claim made by an applicant for a Protection Visa can constitute jurisdictional error: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 547; (2013) 136 ALD 547. There was, however, no such failure in this case.
In relation to BJP16 allegedly having undergone abuse and trauma due to his political involvement, those issues, and the evidence in relation to them, were extensively considered by the Tribunal, as is evident from:
(a)[42]-[45], [47]-[52], [55]-[56], [58]-[59], [61] and [72]-[74] above; and
(b)more broadly, the Tribunal Decision at CB 182-191 at [20]-[60], and the Tribunal’s consideration of BJP16’s actual or implied political opinion and claims made by BJP16 in relation thereto, including consideration of country information on electoral and political violence in Sri Lanka,
and it cannot be said or concluded that there was a failure to consider BJP16’s claims or the evidence in relation thereto.
In relation to the treatment of BJP16 as a returning failed asylum seeker, and the possibility of his being punished and jailed in relation thereto (and more particularly as a person who had departed Sri Lanka illegally), those issues, and the evidence in relation to them, were extensively considered by the Tribunal, as is evident from:
(a)[63]-[70] above; and
(b)more broadly, the Tribunal Decision at:
(i)CB 191-195 at [61]-[78] in relation to BJP16 returning to Sri Lanka as a failed asylum seeker; and
(ii)CB 195-199 at [79]-[99] in relation to BJP16 returning to Sri Lanka having departed illegally,
such that it cannot be said or concluded that there was a failure to consider BJP16’s claims or the evidence in relation thereto.
The mere failure of the Tribunal to agree with the claims made by an applicant, and the applicant’s disagreement – no matter how emphatic that disagreement – with the outcome of the Tribunal’s consideration of an applicant’s claims, does not establish jurisdictional error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ.
The sole ground of the Judicial Review Application is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
BJP16’s Supplementary Submissions
Nothing in BJP16’s Supplementary Submissions alleges a specific jurisdictional error in the Tribunal Decision. To the extent that BJP16 seeks therein that the matter be remitted to the Tribunal on the basis of “my exceptional circumstances … elaborately explained” in BJP16’s Submissions it suffices to observe that the test for jurisdictional error: as to which see [26]-[30] above, is not “exceptional circumstances”.
To the extent that BJP16’s Supplementary Submissions complain about:
(a)network issues and BJP16’s health issues in relation to the February 2022 Hearing:
(i)nothing turns on those issues for the purpose of a determination of jurisdictional error in the Tribunal Decision; and
(ii)the purpose of ordering that BJP16 be provided with a copy of the February 2022 transcript, and that he file BJP16’s Supplementary Submissions, was to allow him to deal, in writing, with anything further that he wished to put to the Court, whether arising out of any perceived difficulties in relation to the February 2022 hearing, or otherwise: February 2022 Transcript, pp 8-9; and
(b)not receiving the Cunynghame Affidavit, nothing turns on that as it was an affidavit attesting to the service of documents, an issue on which nothing relevant turns in these proceedings,
and it follows that nothing in BJP16’s Supplementary Submissions establishes jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)BJP16’s application, made at hearing on 24 February 2022 and in post hearing submissions filed on 22 March 2022, for a further adjournment of these proceedings be dismissed;
(b)the single ground of the Judicial Review Application has not been made out and does not establish jurisdictional error in the Tribunal Decision; and
(c)no jurisdictional error arises from any of the matters referred to in BJP16’s Submissions or Supplementary Submissions,
and it follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 April 2023
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