BKH15 v Minister for Immigration
[2016] FCCA 546
•7 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKH15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 546 |
| Catchwords: MIGRATION – Review of decision of the former Refugee Review Tribunal – refusal of a protection visa – applicant claiming political persecution in Sri Lanka – applicant not believed – Tribunal relying upon information taken from a visitor visa application – information not put to the applicant pursuant to s.424A or s.424AA of the Migration Act 1958 (Cth) – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 424AA, 425, 499 |
| AZK15 v Minister for Immigration [2015] FCA 144 Minister for Immigration v SZLFX (2009) 238 CLR 507 |
| First Applicant: | BKH15 |
| Second Applicant: | BKI15 |
| Third Applicant: | BKJ15 |
| Fourth Applicant: | BKK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1973 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Turner Coulson Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 26 June 2015 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1973 of 2015
| BKH15 |
First Applicant
| BKI15 |
Second Applicant
| BKJ15 |
Third Applicant
| BKK15 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 26 June 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are four applicants who are a mother, her husband and their two children. The relevant claims for protection were made by the first applicant, the applicant mother. References in this judgment to “the applicant” are intended to be references to her.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a 48 year old national of Sri Lanka. She first arrived in Australia on a visitor visa on 24 November 2013 which expired on 24 December 2013[1]. On that date the applicant applied for a protection visa, with the second, third and fourth applicants named as dependents[2]. The visa application was refused by a delegate on 28 August 2014[3]. On 21 September 2014, the applicant applied for review of that decision with the Tribunal[4]. She was invited to, and attended, a hearing (with the second and third applicants) on 11 June 2015[5].
[1] Court Book (CB) 441 [2]
[2] CB 1-152
[3] CB 248-261
[4] CB 262-264
[5] CB 399-400
Applicant’s claims
The applicant moved to Italy in 1991, where she met the second applicant. They were married in Sri Lanka, and raised their two children in Italy. The applicant returned to Sri Lanka in 2004 to care for her mother (with her children – the third and fourth applicants), they remained there until 2011. While in Sri Lanka the Applicant assisted a friend campaign on behalf of a political candidate, Arundika Fernando (Arundika). In July 2010, the applicant’s car was stopped and shot at, the driver died and the applicant and her friend were questioned by police. The police believed the shooting was politically motivated. The applicant returned to Sri Lanka in 2012, and was threatened by police to make a statement which would have framed a political opponent of Arundika (police statement). Her family was later threatened with death after men broke into her home, kidnapped her and she was beaten until she agreed to sign the statement. Shortly after this incident the applicant and her family returned to Italy. However, when back in Italy the applicant and her family received threats from the mafia, and were told to return to Sri Lanka to assist the police with their investigation. The applicants then applied for tourist visas for Australia, which were granted in August 2013. The applicants travelled to Australia via Sri Lanka, so the mafia would not know that Australia was their intended destination. They entered Sri Lanka on 2 October 2013 and departed for Australia on 24 November 2013.
Findings and reasons
The Tribunal affirmed the decision of the delegate on 26 June 2015.
The Tribunal found the applicants to be residents of Sri Lanka[6].
[6] CB 446 [19]
The Tribunal found the applicant was not a credible witness and had fabricated all her claims for the purpose of pursuing protection in Australia. It reached this finding on the basis of the following:
a)the applicant had failed to provide any credible evidence supporting her claim that the shooting incident occurred, or connecting her to any such event. The Tribunal did not accept the arrest warrants or police statement, produced in post-hearing submissions, to be genuine or supportive of her claim that the shooting and related events occurred[7];
b)the applicant had given confusing and conflicting evidence at the hearing and in her written statement[8];
c)the applicant lacked knowledge about Arundika and his political opponent she had been asked to frame. The Tribunal did not accept the applicant’s explanation for this – that she had no interest in politics – given that the actions of one against the other had caused a direct threat to her life[9];
d)the applicant had given implausible evidence. The Tribunal did not accept the applicant’s parents would remain in Sri Lanka after witnessing how the applicant had been treated by police, if these claims were true[10];
e)the applicant gave fanciful, vague and unconvincing evidence in relation to the threats received from the Italian mafia, her travel history following the threats, and her delay entering Australia and applying for a protection visa[11];
f)the applicant gave contradictory evidence in relation to her English language skills[12].
[7] CB 446-447 [21] – [25]
[8] CB 447 [28]
[9] CB 448 [31]
[10] CB 448 [34]
[11] CB 449-450 [38] – [44]
[12] CB 451 [45]
The Tribunal also considered information provided by the applicant in relation to corruption in Sri Lanka and found that while this information may have been true it was not satisfied this corruption was in any way connected to the applicant[13].
[13] CB 448 [32], 449 [36]
The Tribunal gave little weight to the evidence of the second and third applicants, noting that the second applicant had an interest in supporting the claims made by the applicant, and that the third applicant would be open to the influence of her parents due to her age and vulnerability[14].
[14] CB 451 [47]
The judicial review application
These proceedings began with a judicial review application filed on 16 July 2015. The applicants continue to rely upon that application. The application contains seven particularised grounds as follows:
1. The Tribunal took account of an irrelevant consideration.
Particulars
a. The Tribunal found that it was required to take into account the policy guidelines of the Department of Immigration & Border Protection dur to the operation of Ministerial Direction No. 56 made under the Migration Act 1958 (the Act) s.499
b. That Direction is an invalid exercise of the power contained in s.499 of the Act because it elevates an administrative policy to a legislative requirement without the operation of Parliament. It, therefore, offends the Separation of Powers principle.
2. The Tribunal’s decision is affected by apprehended bias
Particulars
a. The Tribunal improperly dismissed, or gave no weight to, the evidence and submissions provided by the Applicant after the hearing.
b. The Tribunal at [25] found
“The applicant has failed to provide a reasonable explanation as to how she was then able to supply a copy of the alleged Statement in post-hearing submissions.”
The Applicant was never asked for an explanation.
3. The Tribunal failed to inform the Applicant of all the issues that it would consider in its review
Particulars
a. The Tribunal considered that because evidence was provided after the hearing, its probative value was diminished.
b. The Tribunal failed to advise the Applicant that this would be an issue.
4. The Tribunal’s decision was irrational and illogical.
Particulars
a. The Tribunal found at [32]
“In making these findings the Tribunal has considered post-hearing submissions made by the applicant, including those regarding Arundika Fernando being involved in police and broader corruption, and corruption in Sri Lanka generally. Whilst finding these articles credible, and accepting that Arundika Fernando may have been involved in corruption, and that there may be levels of corruption in Sri Lanka generally, the Tribunal is not satisfied that there is any connection to the applicant.”
b. It is not necessary for material to have a direct connection to an applicant for it to be relevant to an applicant’s case.
If an applicant can point to similar conduct by others leading to a particular result it can assist an applicant’s claim that by engaging in similar conduct the applicant will meet the same fate.
5. The Tribunal failed to apply the “Real Chance” test
Particulars
a. The Tribunal found [33]
“The applicant stated that she had marks and cuts on her back from the beating and her mother treated her wounds with an indigenous treatment”
and rejected it because [34]
“One difficulty that the Tribunal has with this evidence is that the applicant’s parents then remained in Sri Lanka.”
b. This reasoning, and the failure of the Tribunal to even investigate the claim by viewing the Applicant’s back, indicates that the Tribunal was not prepared to accept that even a small chance that the Applicant suffered the beating she claimed could amount to a real chance.
6. The Tribunal denied the Applicant Procedural Fairness
Particulars
a. The Tribunal at [34] and [39] based its findings on speculation and guess work rather than reasonably probative evidence.
b. Such an error is a denial of procedural fairness.
7. The Tribunal failed to carry out its statutory duty.
Particulars
a. The Tribunal had the Applicant’s movement records which were the reason, or part of the reason for affirming the decision.
b. The Tribunal failed to:
(i) give the Applicant clear particulars of the information;
(ii) explain why it was relevant; and
(iii) invite the Applicant to comment on the information.
I have before me as evidence the book of relevant documents filed on 31 August 2015 and the affidavit of Mary Elinor Corkhill made on 15 March 2016 and filed in court by leave on the same day. Ms Corkhill’s affidavit introduces a transcript of the hearing conducted by the Tribunal.
The applicants and the Minister made both written and oral submissions, which I have found of assistance.
Consideration
Ground 1 – an irrelevant consideration?
The applicants take issue with [17] of the Tribunal decision where the Tribunal stated[15]:
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[15] CB 446
The applicants’ proposition that the Guidelines are an irrelevant consideration is put on a protective basis as they concede that their argument cannot succeed in this Court. The Court is bound by authority that direction no 56 is not an invalid exercise of power under s.499 of the Migration Act[16]. Further, the Guidelines need to be taken into account only to the extent that they are relevant and, given the Tribunal’s findings, I do not see any relevant application of them in this case[17].
[16] see SZTRU v Minister for Immigration [2015] FCA 170 per Katzmann J at [43]-[48]; SZUSP v Minister for Immigration [2015] FCA 1260 per Gilmour J at [48]-[53]
[17] see SZTMD v Minister for Immigration [2015] FCA 150 per Perram J at [6]-[19]; AZK15 v Minister for Immigration [2015] FCA 144 per Jagot J at [42]-[48]
Ground 2 – apprehended bias
The applicants contend that the Tribunal improperly dismissed, or gave no weight to, evidence and submissions provided by them after the hearing. At [25][18] the Tribunal said:
The Tribunal also considered the post hearing submissions in relation to the Statement that the applicant allegedly gave to the police on 27 February 2010. However, the Tribunal notes that during the hearing the applicant said that she had not been provided with a copy of the Statement given to the police on 27 February 2010, (20 minutes on hearing recording). The applicant has failed to provide a reasonable explanation as to how she was then able to supply a copy of the alleged Statement in post-hearing submissions. Having considered the applicant’s circumstances overall and all of the evidence before the Tribunal, the Tribunal has given this limited weight and is not satisfied that the document is genuine.
[18] CB 447
The second ground claims that the Tribunal’s decision is affected by apprehended bias. It will be a rare case where apprehended bias can be demonstrated from the Tribunal’s reasons alone[19], and the attribution of little or no weight to supporting evidence because of concerns about an applicant’s credit is not evidence of bias[20]. The applicant’s submissions claim that the Tribunal’s failure to ask for an explanation as to why she was able to obtain her alleged statement to the police in her post hearing submissions[21] indicates it had a closed mind. As the post-hearing submission was made after the hearing this argument lacks force. The Tribunal simply noted an apparent contradiction raised by the applicant’s post-hearing submissions. This is not evidence of apprehended bias.
[19] Minister for Immigration v SZNPG [2010] FCAFC 51, (2010) 115 ALD 303 at [18] per North and Lander JJ
[20] SZNPG at [25], [37]
[21] as noted by the Tribunal at CB 447 [25]
It is plain from the transcript[22] that the Tribunal put the applicants upon notice at the hearing of its fundamental credibility concerns, including the lack of documentary support for the applicants’ claims. The applicants were given the opportunity to make a post hearing submissions addressing the applicants’ concerns, but the Tribunal was not given any notice that further evidence was to be submitted after the hearing. It is tolerably clear that the Tribunal had taken at least a preliminary view about the review application by the end of the Tribunal hearing. The provision of further documents (including a document the applicant had claimed at the hearing she could not provide) after the hearing compounded the Tribunal’s concerns rather than overcame them. In my opinion, there was nothing in the Tribunal’s reasons that would cause a fair minded observer, aware of all of the relevant circumstances, to apprehend that the Tribunal might not have brought an unprejudiced mind to bear upon the review.
[22] pages 49-53
Ground 3 – did the Tribunal fail to inform the applicants of all of the issues?
The applicants contend that the Tribunal erred in failing to inform the applicants that the provision of further material after the hearing would be an issue in the review. In my opinion, there is no substance to this ground.
The third ground claims that the Tribunal failed to inform the applicant of all issues in the review, but the particulars and the applicant’s submissions simply note that the Tribunal gave less weight to information provided after the hearing. This does not indicate that the Tribunal failed to comply with s.425 of the Migration Act. The Tribunal does not have to give the applicant a running commentary or advance notice of its ultimate reasoning[23].
[23] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [48]
Again, the transcript reveals that there was a thorough discussion at the Tribunal hearing of the Tribunal’s credibility concerns. The Tribunal was not put in a position where it could indicate to the applicants any concerns it might have entertained about the provision of further evidence because the only indication given to the Tribunal was that the applicants’ representative would make a post hearing submission.
Ground 4 – irrational or illogical reasoning?
By this ground, the applicants take issue with [32][24] of the Tribunal decision where the Tribunal said:
In making these findings the Tribunal has considered post-hearing submissions made by the applicant, including those regarding Arundika Fernando being involved in police and broader corruption, and corruption in Sri Lanka generally. Whilst finding these articles credible, and accepting that Arundika Fernando may have been involved in corruption, and that there may be levels of corruption in Sri Lanka generally, the Tribunal is not satisfied that there is any connection to the applicant.
[24] CB 449
In my opinion, this ground does not rise above a dispute over the merits over the Tribunal’s reasoning. The applicants did not make any serious attempt to explain how the Tribunal’s factual finding can render the Tribunal’s decision irrational or illogical within the principles established by the High Court in Minister for Immigration v SZMDS[25]. In my opinion, the Tribunal’s reasoning at [32] is something about which reasonable minds can differ.
[25] (2010) 240 CLR 611 at [130]-[131] and [135]
Ground 5 – the real chance test
The Tribunal found at [33][26]:
The applicant also stated that she had marks and cuts on her back from the beating and her mother treated her wounds with an indigenous treatment.
and rejected it at [34][27] because
One difficulty that the Tribunal has with this evidence is that the applicant’s parents then remained in Sri Lanka.
[26] CB 448
[27] CB 448
The applicants contend that this reasoning, and the failure of the Tribunal to investigate the claim by viewing the applicant’s back, indicated that the Tribunal was not prepared to accept that even a small chance that the applicant suffered the beating she claimed could amount to a real chance.
The applicants, in effect, assert that the Tribunal needed at least to look at the marks upon the applicant’s body in order to determine the real chance of the applicant suffering harm should she return to Sri Lanka.
I reject that contention. I accept that the applicant said at the hearing that she had marks on her body[28] and I accept that the Tribunal declined to look at them. This needs to be viewed in the context of the Tribunal’s overall reasoning in which it comprehensively rejected the credibility of the applicant. While an examination of the applicant’s body may have enabled the Tribunal to establish that she had marks upon her body, it would not have assisted the Tribunal (in the context of this case) to determine what caused those marks. The case can be distinguished from SZTDZ v Minister for Immigration & Anor[29] where the applicant claimed to have had a bullet lodged in his skull which, at a minimum, would, if confirmed, have established that the applicant in that case had been shot.
[28] see transcript, page 52
[29] [2005] FMCA 1392
Ground 6 – procedural fairness
The applicants’ contend that the Tribunal at [34][30] and [39][31] based its findings on speculation and guesswork rather than on reasonably probative evidence which amounts to a denial of procedural fairness[32].
[30] CB 448
[31] CB 449
[32] Minister for Immigration v Pochi (1980) 44 FLR 41 and Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139
I reject the applicants’ contention.
The particulars to this ground simply assert that the Tribunal’s findings at [34][33] and [39][34] were based on “speculation and guesswork”. The Tribunal does not need rebutting evidence before deciding that a particular claim is not made out[35]. The Tribunal’s reasons provide rational reasons for discounting the evidence provided by the applicant. Once the Tribunal considered that the applicant was not credible it was not bound to accept her oral evidence or the supporting documentary evidence presented by her[36]. The Tribunal’s findings were open to it, and so cannot be said to be based on “guesswork and speculation” and cannot involve a breach of procedural fairness[37].
[33] CB 448
[34] CB 449
[35] Selvadurai v Minister for Immigration (1994) 34 ALD 347 (FCA/Heerey J) at 348
[36] Minister for Immigration v SZNSP (2010) 184 FCR 455 (FC) at [23-40] per North and Lander JJ, [50] per Katzmann J
[37] see similarly SZUSP at [22-26]
Ground 7 – a breach of statutory duty?
At [30][38] of its reasons the Tribunal said:
The third factor considered by the Tribunal was the applicant’s lack of knowledge regarding both Palitha Bandara and Arundika Fernando (whilst acknowledging that the second applicant had some knowledge of these two politicians). That is, during the hearing the applicant was asked to provide evidence of the current circumstances of either or both of these public figures, but was unable to provide any credible evidence. As raised by the Tribunal during the hearing, a simple Google search revealed information about both men and their current circumstances.
[38] CB 448
The applicants contend that the Tribunal breached its statutory duty by failing to provide them with notice of the information obtained by the Tribunal and inviting their response to it. This is put as a breach of s.424A (or s.424AA) of the Migration Act. I reject that contention. The google search conducted by the Tribunal simply revealed information about two men the subject of the applicants’ claims in order to establish that information about them was readily obtainable. The information obtained by the Tribunal did not in its terms constitute a rejection, denial or undermining of the applicants’ claims[39]. The information did not require disclosure pursuant to s.424A(1) of the Migration Act[40].
[39] see SZBYR v Minister for Immigration (2007) 235 ALR 609 at [17] and Minister for Immigration v SZLFX (2009) 238 CLR 507 at [22]
[40] see also Minister for Immigration v SZTJF [2015] FCA 1052 per Yates J at [29]-[32]
In my opinion, however, the Tribunal’s use of the applicant’s movement records is of a different character. At [44][41] the Tribunal said:
The Tribunal also considered the fact that the applicants entered Australia 24 November 2013 and delayed in applying for Protection for a period of one month, in that they lodged the applications on 24 December 2013. The Tribunal finds this delay indicates that the applicant circumstances were not as claimed, and that she has fabricated her claims. On a related point, the Tribunal notes the applicant’s written statement records that she travelled to Australia with the intention of applying for a Protection visa, but during the hearing she gave conflicting oral evidence by stating that she only decided to apply for Protection once she had entered Australia. The Tribunal finds this conflicting evidence indicates that the applicant is fabricating her evidence for the purpose of applying for protection. Once again the Tribunal acknowledges the applicant’s submissions that she had only basic English, and that she did not read or know what was contained in her Statutory Declaration. However, this has been dealt with elsewhere.
[41] CB 450
Plainly, the information obtained about the applicant’s entry into Australia was information about her personally. The information obtained by the Tribunal undermined the applicant’s credibility because it indicated that she had delayed seeking protection. In my opinion, this was information requiring disclosure pursuant to s.424A(1) of the Migration Act. It is common ground that the information was not disclosed either in writing or orally at the hearing in terms which satisfied s.424AA. It follows, in my opinion, that the applicants are correct in that the Tribunal breached its obligation of disclosure in relation to that information.
Conclusion
The applicants’ partial success in relation to the final ground in their application is sufficient to establish jurisdictional error. The error was not immaterial. It affected the Tribunal decision because it bore upon the Tribunal’s adverse credibility finding, in particular the finding that the applicant had fabricated her claims. There were, of course, other reasons why the Tribunal reached that conclusion but the question of delay was one material part of those reasons. The applicants should therefore receive the relief they seek.
I will hear the parties as to costs.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 April 2016
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