BKB15 v Minister for Immigration
[2018] FCCA 143
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKB15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 143 |
| Catchwords: MIGRATION – Protection visa – grounds of review amounting to an invitation to conduct a merits review – impermissible – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36(2), 36(2A), 91R, 424A Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | BKB15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1627 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 4 December 2017 |
| Date of Last Submission: | 4 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Hodges Legal |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The amended application filed on 5 December 2017 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1627 of 2015
| BKB15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Consequent upon the grant of leave to the applicant to file and serve an amended initiating application, the applicant contended in this case that the Administrative Appeals Tribunal (“the Tribunal”) fell into jurisdictional error for two reasons. The first was that the Tribunal allegedly failed to give the applicant an opportunity to explain inconsistencies in his evidence. The second was that the Tribunal allegedly failed to give reasons for a particular finding.
In seeking protection, the applicant claimed he feared harm –
a)because of his Tamil race;
b)because of his imputed political opinion as a supporter of the LTTE and of his opposition to the government of Sri Lanka; and
c)on the basis that he would be perceived to be opposed to the government by reason of his Tamil ethnicity, his status as a failed asylum seeker and his membership of a particular social group, namely, as a failed asylum seeker seeking to return to Sri Lanka.
The applicant, a Sri Lankan national, entered Australia as an unauthorised maritime arrival on 29 June 2012. On 6 November 2012, the applicant applied for a protection visa. On 4 July 2013 the Minister’s delegate refused to grant the protection visa to the applicant. On 4 July 2013 the applicant applied to the Tribunal for review of the delegate’s decision. On 16 April 2015 the Tribunal heard the applicant and subsequently received material from him. On 29 June 2015 the Tribunal affirmed the delegate’s decision.
The applicant sought judicial review in this court from the Tribunal’s refusal to grant him a protection visa.
Synopsis
For the reasons that follow, in my judgment this application for judicial review should be dismissed.
Short factual narration
Helpfully, Mr Brown of counsel condensed the broad factual basis underpinning the applicant’s claims in this case in written submissions filed 21 November 2017.
The debate before me on 4 December 2017 took a different course than was recorded in the applicant’s outline of submissions filed
20 November 2017. As a result, on his application made ore tenus the solicitor for the applicant was given leave to file and serve an amended application that more closely corresponded with the submissions he was then making. Mr Brown did not object to that course on condition that the amended application was consistent with the submissions the solicitor for the applicant was then making.
The applicant’s claims
In essence, the applicant claimed that in 2004 his brother R was conscripted to fight with the LTTE and that in 2007 the applicant’s family was informed that R had been killed. After being informed of R’s death, the applicant claimed he was approached by the
People’s Liberation Organisation of Tamil Eelam (“PLOTE”) with a request that the applicant join PLOTE. The applicant claimed that he refused and members of PLOTE threatened to shoot him saying that if he did not join they would presume he supported the LTTE.
The applicant claimed he decided to leave Sri Lanka and then worked in Malaysia.
The applicant claimed he returned to Sri Lanka in November 2011 and in April 2012, Singhalese men who he believed were from
Central Investigation Department (“CID”) came looking for him while he was at work, suspecting he supported the LTTE as R did and by reason of the fact that former PLOTE members informed CID the applicant was a supporter of the LTTE.
The applicant said he decided to leave Sri Lanka in June 2012 because CID was looking for him.
In the Tribunal
The Tribunal addressed its consideration of the applicant’s claims between paragraphs 51 and 114 of its reasons. The Tribunal accepted –
a)that the applicant was Tamil and lived in the northern province of Sri Lanka from 1996 (paragraph 52);
b)sometimes the applicant’s recollection of timelines could be inconsistent (paragraph 54); and
c)R was forcibly recruited by the LTTE and in 2007 died of gunshot wounds (paragraph 58).
The Tribunal did not accept a number of the applicant’s claims.
The Tribunal did not accept that –
a)the applicant’s failure to outline his case at his entry interview could be explained on the basis that he was “young”;
b)R was a captain in the LTTE, that his picture was on a pro-LTTE website or that R’s recruitment by the LTTE caused him or his family any difficulties with Sri Lankan authorities (paragraph 58);
c)
the applicant was approached by PLOTE, or that the applicant had become a person of interest to various Sri Lankan organisations or the Sri Lankan army, or that there was a real chance that the applicant would be seriously harmed by any of those organisations in the reasonably foreseeable future or
that any fear of persecution on that basis was well-founded
(paragraph 64);
d)the applicant’s family was accused of supporting the LTTE as the applicant’s family would have been questioned about their involvement if the family was suspected of supporting the LTTE (paragraph 65) ;
e)PLOTE provided information to the CID, or that the CID came looking for the applicant before he left Sri Lanka or after he left Sri Lanka (paragraph 66);
f)the applicant’s brother-in-law was taken and held for two months or that the applicant’s failure to mention such an event was due to the fact that the applicant was not asked about it (paragraph 67);
g)there was a real chance that the applicant would be regarded as having links to the LTTE (paragraph 68);
h)the applicant would be suspected of having links to the LTTE solely on the basis that he was Tamil or that Sri Lankan authorities regarded all Tamils as LTTE supporters or that the applicant would be imputed with anti-government political opinion solely on the basis of his Tamil ethnicity (paragraph 72);
i)the applicant would be under scrutiny because he had a brother in the LTTE who died seven years earlier (paragraph 77);
j)the country information established that Sri Lankan authorities regarded asylum seekers as LTTE supporters (paragraph 78);
k)
questioning the applicant amounted to serious harm within the meaning of s.91R of the Migration Act 1958 (Cth) (“the Act”) or serious harm within the meaning of ss.5 or 36(2A) of the Act or that the applicant will be taken to the forest and beaten or
killed or that authorities wanted to take revenge against him
(paragraph 79); or
l)the applicant would be imputed with the political opinion of supporting the LTTE and opposing the Sri Lankan authorities (paragraph 80).
The Tribunal concluded that the harm the applicant feared was not Convention-based persecution with the consequence that the Tribunal found that the applicant was not a refugee.
The Tribunal did not accept that the applicant was entitled to complementary protection for the reasons given between paragraphs 93 and 108 of its findings.
After considering the applicant’s claims cumulatively, the Tribunal concluded that the applicant did not meet the refugee criterion in ss.36(2)(a) or 36(2)(aa) of the Act and that the applicant did not satisfy the criterion in s.36(2) with the consequence that the Tribunal affirmed the decision not to grant the applicant a protection visa.
In this court
Being dissatisfied with the decision of the Tribunal, on 16 July 2015 the applicant filed an application for judicial review in this court.
A registrar of this court made interlocutory orders on
24 November 2015 pursuant to which the parties advanced this case to the hearing on 4 December 2017. On that day the solicitor for the applicant informed me that he had prepared an amended application on which he relied. That document had not reached the court file and
Mr Brown of counsel for the Minister told me he had not received the document either. The solicitor for the applicant made verbal submissions on the basis that those verbal submissions did not go beyond what he assured me was the detail of the amended application. On that basis I permitted him to proceed.
Lengthy as the amended application is, it is necessary to set out in terms which I do hereunder –
Ground 1
The Tribunal committed jurisdictional error by failing to afford the applicant the opportunity to explain inconsistencies in his evidence.
Particulars
a. The failure to afford the applicant the opportunity to explain inconsistencies in his evidence constitutes a denial of procedural fairness: SZUJN v Minister for Immigration and Border Protection [2016] FCCA 362.
b. The High Court stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47]:
“[W]here … there are specific aspects of an applicant’s account, that the tribunal considers may be important to the decision and may be open to doubt, the tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.”
c. At [23], the applicant claimed that he was approached by the Libertarian Organisation of Tamil Eelam (PLOTE) in 2007 and was asked to join them and that they threatened to shoot him when he refused to do so.
d. At [24], the applicant claimed that, in April 2012, men from the CID came looking for him because they suspected that he supported the LTTE.
e. The applicant claimed that the suspicion arose from his brother’s involvement with the LTTE and because the PLOTE members told the CID that he was a supporter of the LTTE.
f. The 2012 UNHCR Guidelines outlines six risk profiles which should be taken into account, the relevant ones in the applicant’s case are:
i. (2) Former LTTE combatants or “cadres”
ii. (6) Persons with family links or who are dependant on or otherwise closely related to persons with the above profiles
g. It is submitted that, as a result of his brother’s involvement in the LTTE, which the Tribunal at [58], the applicant fits squarely within category 6 outlined above.
h. The “family link” profile is not one which requires the applicant to be imputed with LTTE connections or sympathies. It simply requires a family link with a person imputed with LTTE connections.
i. At [53], the Tribunal expressed concern in relation to the credibility of the applicant’s claims.
j. At [60], the Tribunal referred to the applicant’s answers at his entry interview in relation to the claim above, that upon return from Malaysia he was threatened by the ‘other movement’ which he later clarified to be ‘EPDP, EPRLF, TELO and PLOTE and also the army’.
k. At [61], the Tribunal notes that, in contrast to his entry interview, in his protection visa application, the applicant was sure which group approached him.
i. In his Protection visa statement, the applicant claimed that he was threatened by members of PLOTE following his brother’s death in 2007 [CB 65, paragraph 9] and that members of the CID came looking for him in 2012 [CB 66, paragraph 14]
l. The Tribunal found that the lack of mention of the CID in the applicant’s entry interview and the confusion as to who he was threatened by was a ‘significant discrepancy’ in the applicant’s evidence.
m. However, the Tribunal failed to ask the applicant to expand on the aspects of his account which it doubted, which were significant to its ultimate decision, and to ask the applicant why his account should be accepted.
Ground 2
The Tribunal committed jurisdictional error by failing to give reasons for a particular finding.
Particulars
a. At [58], the Tribunal made the following finding:
i. “The Tribunal does not accept that the applicant’s brother’s recruitment by the LTTE has caused him or the family any difficulties with the Sri Lankan authorities”.
b. The Tribunal made this finding in the context of discussing the applicant’s brother’s forcible recruitment to the LTTE, which the Tribunal accepted.
c. The Tribunal did not discuss the difficulties the applicant alleged he and his family had with the Sri Lankan authorities, or the reasons for not accepting that there were any difficulties, and so the Tribunal failed to give reasons for the above finding.
Ground 1
The principal proposition in ground 1 was that the Tribunal failed to give the applicant the opportunity to explain inconsistencies in his evidence and thereby fell into jurisdictional error.
The particulars subjoined to that ground contained a mix of submission, propositions of law and details alleged to support the ground advanced. For example, particular (a) and (b) of ground 1 were propositions of law, not particulars of the ground alleged.
Other particulars recited what the Tribunal did rather than explain how the contention advanced represented an alleged failure by the Tribunal to provide the applicant with an opportunity to explain those alleged inconsistencies. For example, in particular (c), the applicant referred to the Tribunal’s observations at paragraph 23 of its reasons. Likewise, in particular (d) the applicant referred to the Tribunal’s observations at paragraph 24 of its reasons. Without citing a paragraph number, in particular (e) the applicant referred to his claim arising from his brother’s involvement with the LTTE.
Pausing at that point, none of those particulars subjoined to paragraphs (a) to (e) gave any insight into the way in which the applicant made any attempt to demonstrate the validity of his principal proposition, namely, that the Tribunal fell into jurisdictional error by failing to give the applicant the opportunity to explain inconsistencies in his evidence. None of the matters asserted in grounds 1(a) to (e) demonstrated jurisdictional error in my view, nor even raised a proper ground for any such conclusion.
In ground 1(m) the applicant asserted that the Tribunal failed to ask the applicant to expand on the aspects of his account which the Tribunal doubted and to ask the applicant why his account should be accepted. Without understanding to which account the applicant referred,
that subparagraph of ground 1 was a little abstract. It seemed that the contention in ground 1(m) related to the information recorded between subparagraphs 1(f) and 1(l). It also seemed that (and I say “it seemed” because the point was not well advanced, despite the amended application being prepared by the applicant’s solicitor) that the applicant’s real grievance lay in the fact that the Tribunal did not invite the applicant to expand on matters that it said it doubted. The applicant highlighted the Tribunal’s finding that a lack of mention of the CID in the applicant’s entry interview was a significant discrepancy in the applicant’s evidence.
In other words, a fair reading of the particulars subjoined to ground 1 of the applicant’s amended application gave no particular insight into the nature of the alleged jurisdictional error.
Assuming that the applicant’s real grievance lay in his complaint that the Tribunal failed to ask him to expand upon an account of events that the Tribunal doubted, it is trite to point out that the Tribunal’s function is inquisitorial in nature and that the Tribunal was not required to give a running commentary of its thought processes as the evidence unfolded. The High Court’s decision in SZBYR v Minister for Immigration and Citizenship[1] (“SZBYR”) is but one authority on that issue.
[1] [2007] HCA 26.
The written submissions produced on behalf of the applicant filed
20 November 2017 took the matter no further. Without making any particular connection with the facts of this case, the applicant relied on the decision of the High Court in Plaintiff S157/2002 v Commonwealthof Australia.[2] The written submissions were not at all well-constructed.
[2] (2003) 211 CLR 476.
In his submissions before me on 4 December 2017, the solicitor for the applicant contended that if the Tribunal purported to apply guidelines or make decisions based on guidelines, the Tribunal was required to correctly quote them and deal with them. The applicant went further to say that the Tribunal failed to give reasons as to why it ignored or did not deal with the matters that arose on the basis of the
2012 UNHCR guidelines. The solicitor for the applicant contended that the Tribunal purported to rely on the 2012 version of the
UNHCR guidelines then said that those guidelines were the latest version of them. Expressed differently again, the solicitor for the applicant submitted that the Tribunal, in coming to the conclusion that there was no risk to the applicant on his return to Sri Lanka, did not give reasons why the risk category as asserted did not apply to the applicant.
In answer, the Minister contended that by operation of s.424A of the Act and the observations of the High Court in SZBYR, the Tribunal was not required to put inconsistencies to the applicant in respect of the evidence he gave.
I agree. The Tribunal was not so required.
Next, the Minister submitted that the Tribunal dealt with each claim made by the applicant and in the course of that, correctly interpreted and applied the relevant provisions of the Act and Migration Regulations1994 (Cth) so as to reach findings that were open.
The Minister contended that those findings were rational and reasonable, invoking the principal set out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[3] Minister for Immigration and Multicultural Affairs v Eshetu[4] and Minister for Immigration and Citizenship v SZMDS.[5]
[3] (1996) 185 CLR 259.
[4] (1999) 197 CLR 611.
[5] (2010) 240 CLR 611.
The Minister further submitted that in large measure the Tribunal rejected the applicant’s claims based on credibility findings, which were open and which were rational and reasonable. To the extent that the Tribunal relied on country information, the choice of and weight to be given to country information was a matter for the Tribunal, as was held in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[6]
[6] [2004] FCAFC 10.
In my view none of the particulars subjoined to ground 1 were made out. I was not able to conclude that the submissions of the applicant’s solicitor were correct when he submitted that the Tribunal dealt with incorrect guidelines.
No jurisdictional error was demonstrated by ground 1.
Ground 2
As with ground 1, the particulars subjoined to ground 2 (especially the first two) gave no insight into the way the applicant said that the Tribunal fell into jurisdictional error by failing to give reasons for the particular finding that the applicant impugned. At its highest, ground 2(c) contained the contention that the Tribunal did not discuss the difficulties the applicant said he and his family had with Sri Lankan authorities.
Mr Brown submitted that ground 2 was in reality an invitation for the court to undertake a merits review. He contended that the Tribunal was given the task of determining the risk of harm to the applicant in the future if he were to return to Sri Lanka. Mr Brown submitted that, necessarily, that involved an examination of events in futuro. On behalf of the applicant it was put that the Tribunal did not accept that the applicant’s brother’s recruitment by the LTTE caused him or his family any difficulties with the authorities and, necessarily, that was a retrospective examination rather than a prospective examination of events.
To my mind, the applicant’s contentions ignored the fact that, in reality, the applicant was inviting me to undertake a merits review of the matters to which the Tribunal gave proper forensic consideration.
The Tribunal was required to assess a variety of matters for the purposes of its consideration of the applicant’s claims to protection for a Convention reason and as well as his claims for complementary protection. The Tribunal did precisely that. I do not accept that the Tribunal looked retrospectively in assessing the risk of harm to the applicant. The Tribunal’s assessment of the matters that it considered for the purposes of paragraph 58 of its reasons lead to the conclusion that it did not accept that the brother’s recruitment by the LTTE had caused him or his family any difficulties with the Sri Lankan authorities in the past. Naturally, that provided a springboard for its reasoning about the risk to the applicant in the future. The findings in paragraph 58 were among the matters that the Tribunal took into account in the other findings that it made, especially those recorded in paragraph 68 of its reasons.
Mr Brown’s submissions on point were best encapsulated in the following terms at page 29 of the transcript of this proceeding –
This is what has happened in the past, which, of course, as copious authorities say, the past is a guide to the future. And one can well understand here, the claim is, “I’m going to face a real risk of persecutory harm on account of my brother’s association with the LTTE.” The first step the tribunal would be interested in is, “Well, has it caused you any harm in the past? Has it caused you or your family any harm in the past?” And – you know, often, that might be used as a stepping stone to, well, no harm in the past. Country information. No real risk in the future. So, there, the tribunal says, “Has not caused him or the family difficulties with the Sri Lankan authorities.”
As a matter of logic, the argument is unassailable.
In my view, ground 2 was without merit.
Conclusion
Both grounds of review failed.
I dismiss the amended application and order the applicant to pay the Minister’s costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 25 January 2018
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