BKS15 v Minister for Immigration
[2019] FCCA 359
•20 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKS15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 359 |
| Catchwords: MIGRATION – Judicial review – citizen of Sri Lanka – decision of former Refugee Review Tribunal – whether denial of procedural fairness – whether error of law – whether ultra vires – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.56(2) Immigrants & Emigrants Act 1948 (Sri Lanka) Migration Act 1958 (Cth), ss.36, 422B, 424, 424A, 425, 474, 476, 499 Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 |
| Applicant: | BKS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 328 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 25 May 2016 |
| Date of Last Submission: | 25 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 20 February 2019 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr A Burgess |
| Second Respondent: | Submitting appearance save as to costs |
Solicitor for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 328 of 2015
| BKS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
Introduction
By way of an application for judicial review (“Judicial Review Application”) the applicant seeks review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the grant of a Class XA protection visa (“Protection Visa”) to the applicant.
The Tribunal Decision appears in the Court Book (“CB”) at CB 384-400.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Sri Lanka of Tamil ethnicity and the Hindu religion, arrived in Australia as an irregular maritime arrival on 15 July 2012: CB 24-38;
b)on 6 December 2012 the applicant applied for the Protection Visa making the following claims:
i)he is a Tamil fisherman in his home village (“Home Village”) and while the government has relaxed the need for fishing passes since the Liberation Tigers of Tamil Eelam (“LTTE”) were defeated in 2009, fisherman from his Home Village are still required to obtain these passes and the Sri Lankan Navy (“SLN”) causes issues for the fisherman such as intentionally delaying issuing these passes to Tamil fisherman in the morning so that it makes it impossible to work regularly: CB 51;
ii)his brother in law “S”, who also arrived in Australia as an irregular maritime arrival, had the same problems and one day S helped another fishing boat which had run out of fuel and when the Navy found out they suspected S of working for the LTTE and he was told to report to a Sri Lankan Army (“SLA”) camp. S was forced to flee Sri Lanka and the SLN came to the applicant’s house to search for him: CB 51;
iii)the applicant was told to report to a SLA camp where he was interrogated about S and his whereabouts, but the applicant did not know S’s whereabouts and the SLN allowed him to leave but told him to report to the camp the following day. The applicant did not do so. The applicant went into hiding at his sister’s house and when his mother informed him that the SLN came looking for him he made arrangements to leave Sri Lanka: CB 52;
iv)there is no guarantee for the applicant’s life and he believes the SLN will harm him if he were to return to Sri Lanka, and he knows it is possible that the Sri Lankan authorities would abduct him as such incidents happen to Tamils and the Sri Lankan authorities turn a blind eye when Tamil fisherman are targeted by the SLN: CB 52; and
v)he cannot relocate as no matter where he moves he is a Tamil and the Sri Lankan authorities all suspect that Tamils are LTTE members: CB 53;
c)on 14 December 2012 the applicant’s migration agent forwarded a detailed submission and country information to the Delegate for consideration. The submission was not personal to the applicant but rather was a generalised submission forwarded on behalf of a number of Sri Lankan applicants the migration agent was assisting: CB 102-208 and 385-386 at [6]-[8];
d)at an interview with the Delegate the applicant referred to having been arrested in 2009 for breaching curfew and also provided a request for a police clearance certificate and a police clearance certificate (“Police Clearance Certificate”) dated in March and April 2012 respectively: CB 216-217. The Police Clearance Certificate was requested to enable the applicant to apply for work in Qatar;
e)on 17 July 2013 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa: CB 224-248;
f)on 23 July 2013 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 283-288;
g)on 20 September 2013 a submission was forwarded to the Tribunal on behalf of the applicant by his migration agent: CB 293-318, and the applicant attended a hearing before the Tribunal on 10 March 2015 (“Tribunal Hearing”) with the assistance of an interpreter and his migration agent: CB 356;
h)on 10 March 2015 the applicant’s migration agent forwarded a post-Tribunal Hearing submission to the Tribunal: CB 361-377; and
i)on 17 June 2015 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant a Protection Visa: CB 384-400.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)summarised the initial claims of the applicant in his Protection Visa application and the content of the submissions dated 14 December 2012, the submissions dated 20 September 2013 and the post-Tribunal Hearing submissions received on 10 March 2015: CB 385-387 at [4]-[11] and [15];
b)noted that the applicant’s migration agent confirmed the submissions relating to claims of fear due to the applicant being from a former LTTE controlled area and visible scaring do not relate to the applicant: CB 386 at [13];
c)noted that when it asked the applicant what he feared about returning to Sri Lanka he stated he had a problem with the SLA, namely that they do not allow the fisherman to go out to sea at the time they need to, and he was asked to report to the SLA on an occasion and he did not go, so if he returned to Sri Lanka they will “probably take him” and they may beat him as they can do anything to him: CB 386 at [14];
d)noted it had concerns as to the applicant’s credibility given the inconsistencies in his evidence since his original entry interview, however, it was prepared to give the applicant the benefit of the doubt and drew no adverse credibility findings from any inconsistencies in the applicant’s evidence: CB 387 at [19];
e)discussed and accepted the applicant’s evidence of an incident with the SLA in 2009 where, upon returning from working in a hotel, the SLA took him into custody and questioned him for one week in relation to whether he had any links to the LTTE, and after his release the applicant was provided with a court document which stated he had no connection with the LTTE: CB 387-388 at [20];
f)noted the applicant was able to apply for, and receive, a Sri Lankan passport in 2010 and found he was not of any ongoing adverse interest to the SLA after the incident in 2009, and the applicant himself confirming nothing occurred to him after this time until the incident in 2012 with S: CB 387-388 at [20];
g)upon the applicant stating that after the incident with S in 2012 he went into hiding for one and a half months before returning home for approximately one week, questioned the applicant why he would return home if he feared for his safety to which he said, and the Tribunal accepted, he only did so in order to catch the boat and the boat was delayed: CB 387 at [21];
h)accepted, though noting the claims were vague, that he was approached and taken for questioning about S and any links to the LTTE in 2012, that he then went into hiding as a result , that he left Sri Lanka illegally in fear for his safety, and his mother had been visited by the SLA once since he left Sri Lanka: CB 388 at [22];
i)noted the applicant provided oral evidence consistent with country information concerning the processes at the airport and the procedures in relation to the offence of departing Sri Lanka illegally under the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”), and that when asked why he was concerned given he had confirmed to the Tribunal that S had not been harmed when he was briefly detained upon return and nothing has happened to him upon returning to the Home Village, the applicant responded that if he was required to sign-in with the police like S then he would be happy, but if he was able to arrive and just go home then the SLA could do anything to him, and that S is safe because he has to check-in with the police: CB 388-389 at [24];
j)did not accept the SLA would not pursue an investigation into a person with suspected LTTE links simply because a person is required to sign in with police, but rather, on the evidence, that nothing has happened to S since his return to Sri Lanka because S was not of any ongoing interest to the SLA in relation to suspicion of, or imputed links with, the LTTE, or for leaving the area and failing to return to a camp after initial questioning, and did not accept the applicant was of any ongoing interest for reasons of suspected or imputed LTTE links now or in the reasonably foreseeable future: CB 388-389 at [24];
k)accepted that the country information referred to in the applicant’s submissions indicated that Tamils suffered disproportionately at the hands of the authorities during the civil war, and there is evidence of continuing targeting of some Tamils with particular profiles since the end of the civil war, and while noting the applicant’s migration agent’s submissions critique of what was contained in the Department of Foreign Affairs and Trade (“DFAT”) country information, noted the applicant’s oral evidence of the experiences was generally consistent with that information and the information was current and authoritative: CB 389-390 at [28]-[31];
l)considered the submissions and country information in respect to Tamils who originate from the Home Village and the destruction of traditional fisheries, and referred to the applicant’s oral evidence that his father has been for 30 years, and continues to, earn a living as a fisherman in the Home Village, and that S has returned to the Home Village and now works as a fisherman, leading the Tribunal to conclude there was no real chance the applicant’s livelihood would be threatened to the point where it was not possible to subsist or that there is a real chance that he will suffer serious harm arising from his work or identification as a fisherman: CB 390-391 at [32];
m)was not satisfied, referring to country information, the applicant:
i)would suffer persecution from paramilitary groups: CB 391 at [33]; or
ii)was of ongoing interest to the Criminal Investigation Department (“CID”): CB 391 at [34];
n)did not accept, having regard to country information, that the applicant was perceived as having previously real or perceived links to the LTTE: CB 391 at [35], and that the Sri Lankan government was now not concerned with past membership or sympathy with the LTTE by those Tamils from the north of Sri Lanka, but rather those Tamils who pose a threat of destabilisation in post-conflict Sri Lanka: CB 391 at [36];
o)having regard to country information, and specifically a UK Migration Tribunal decision and the United Nations High Commissioner for Refugees (“UNHCR”) “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka” dated 21 December 2012 (“UNHCR Eligibility Guidelines”), was not satisfied on the evidence before it that Tamils were at risk on the basis of their ethnicity alone, or because they came from a particular part of Sri Lanka: CB 391-392 at [36]-[37];
p)did not accept the post-Tribunal Hearing submission from the applicant that the continuing vigilance against a resurgence of the LTTE places the applicant at risk of facing harm: CB 391-392 at [37];
q)noted that the applicant told the Tribunal that nothing had happened to him after the incident in 2009 up until the incident involving S in April 2012: CB 392 at [38];
r)did not accept that the applicant:
i)had a particular profile or imputed profile giving rise to a real chance that he would suffer serious harm by reason of his Tamil ethnicity, or because he was a young Tamil male from the Home Village: CB 392 at [38];
ii)is, or would be, perceived or imputed as having links to the LTTE because he is a Tamil, or a Tamil or a young Tamil male from the Home Village: CB 392 at [39]; and
iii)that his political opinion or imputed political opinion would be perceived as being opposed to the Sri Lankan government on the basis of him being a Tamil, or a young Tamil male, from the Home Village: CB 392 at [39];
s)considered whether there was a real chance the applicant will be harmed as a result of his departure from Sri Lanka and for being a failed asylum seeker returning to Sri Lanka from a western country, and referred to the applicant’s evidence that S had returned, was held in jail for one week, and was released and nothing had happened to him in jail or subsequently, and that the applicant stated he would be happy for the same to happen to him: CB 392 at [42];
t)accepted that the applicant departed Sri Lanka unlawfully in 2012 in breach of the I & E Act: CB 393 at [43], and that there was a real chance the applicant would come to the attention of authorities upon return to Sri Lanka, and may be arrested at the airport for breaching the I & E Act, brought before a magistrate to apply for bail and possibly held in a prison for a number of days awaiting a bail hearing, but that that was the non-discriminatory enforcement of a law of general application as the country information indicated Sinhalese and Muslim returnees are treated in the same way, and there are no substantiated reports of any mistreatment of returnees: CB 393-394 at [44]-[55] and [47]-[48];
u)considered submissions that the imposition of different fine amounts are evidence the I & E Act is arbitrarily applied, prison conditions are unsanitary, and there is a possibility of a custodial sentence being imposed on the applicant, and found that different fine amounts indicates the exercise of judicial discretion in setting the amount of the fine allowed for under the I & E Act, that the prison conditions would not be experienced for a Convention reason, and that the chance of the applicant receiving a custodial sentence is remote as the information suggests those who were involved in people smuggling are subject to this penalty and the general penalty for passengers like the applicant was a fine, which the applicant had not said he would be unable to pay, nor that he would be refused bail for another reason: CB 393-94 at [46] and [49]-[50];
v)considered the submission that the applicant’s personal and circumstantial attributes, such as his being Tamil, originating from a Tamil area in northern province of Sri Lanka, and being a Tamil fisherman, could exacerbate the applicant’s risk of harm and found, having weighed all the evidence and submissions and the applicant’s personal circumstances, both individually and cumulatively, it was not satisfied there was a real chance the applicant would suffer persecution on return to Sri Lanka for the reasons he claimed: CB 395 at [53]-[55];
w)considered the complementary protection criteria and referred to the findings it previously made that the applicant was not a person of interest to the Sri Lankan authorities, however, that there was a real risk he would be identified and placed in remand at the airport upon his return: CB 396 at [59]-[60];
x)rejected the submission that imprisonment and fines are not alternative sanctions under the I & E Act, or that those convicted can anticipate at least one year in prison, referring to the country information that indicated that if arrested, the applicant will not be sentenced to imprisonment, and found the chance of him receiving a custodial sentence for illegal departure is remote: CB 396 at [61]; and
y)for similar reasons was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm: CB 396-397 at [61]-[64].
The Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 384 and 397 at [67].
Judicial Review Application
The Grounds
The applicant filed a Judicial Review Application in this Court on 16 July 2015 seeking, amongst other orders, an injunction restraining the Minister from relying on the recommendation of the “Independent Protection Assessment Review”. The applicant was not the subject of an Independent Protection Assessment Review, and for that reason the application for an injunction to restrain reliance on an Independent Protection Assessment Review must fail.
The three grounds of review (Grounds 1, 2 and 3 respectively) in the Judicial Review Application are as follows:
1. Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra-virus
Filed with the Judicial Review Application was an affidavit affirmed by the applicant on 16 July 2015 annexing a copy of the Tribunal Decision. It is unnecessary to further refer to this affidavit in these Reasons for Judgment.
By virtue of an order made by a Registrar of this Court on 30 September 2015 (“Registrar’s Orders”) the applicant was provided an opportunity to:
a)file any amended application, giving complete particulars, and any additional affidavit evidence by 2 November 2015; and
b)file a written outline of submissions 42 days prior to the hearing.
The applicant’s substantive affidavits
On 5 April 2016 the applicant filed an affidavit affirmed 27 March 2016 (“April 2016 Affidavit”) which provided as follows:
2) I submit that the decision of the Tribunal was affected by jurisdictional error by reason that the tribunal applied the wrong test and was biased.
3) In terms of the UNHCR eligibility guidelines for assessing protection needs from asylum seekers from Sri Lanka specific mention is made to the fact that persons suspected of certain links with the Liberation Tigers of Tamil Elam are at risk if forcibly returned to Sri Lanka. I fall into this category of persons.
4) Reference in this regard is made to the following paragraphs of the Refugee Review Tribunal: 14, 20, 22, 28, 36, and 41.
5) I submit that these paragraphs point to a degree of bias and lack of procedural fairness in coming to a decision in my case.
6) I submit document 1, which refers to the visit of the UN Human Rights Commissioner to Sri Lanka, and document 2 which is excerpts from the Prevention of Terrorism Act, which was not examined by the tribunal.
The two documents referred to in the April 2016 Affidavit at [6] were annexed thereto and are referred to hereunder as “Document 1” and “Document 2” respectively.
On 25 May 2016, the day of the hearing, the applicant filed a further affidavit sworn 25 May 2016 (“May 2016 Affidavit”) whereby he made a number of “submissions” as to why the Tribunal was wrong, and annexed three further documents, referred to hereunder as “Document 3”, “Document 4” and “Document 5” respectively. The Court will refer to Documents 1, 2, 3, 4 and 5 collectively as the “Documents”.
When the matter came on for hearing the applicant handed a bundle of documents to the Court which were marked as Exhibit 1. Exhibit 1 was an unstamped copy of the May 2016 Affidavit, and therefore any further reference to Exhibit 1 is unnecessary.
The applicant requires leave to rely upon the April 2016 and May 2016 Affidavits given he had failed to file those affidavits in accordance with the Registrar’s Orders.
To the extent the April 2016 Affidavit at [2]-[5] contained submissions or particulars, the Minister responded to those in the Minister’s Written Submissions filed 4 May 2016. In respect of the “submissions” in the May 2016 Affidavit, the Court invited the Minister to respond to those at hearing. For that reason, to the extent the April 2016 Affidavit and May 2016 Affidavit can be treated as submissions in support of the Judicial Review Application, the Court has treated them as such.
The Minister objected to the Court accepting the Documents into evidence on the basis of relevance.
The Documents are as follows:
a)Document 1 was an online news article dated 10 February 2016 titled “Prez. PM assure Hussein: Sri Lanka will meet UNHRC commitments”;
b)Documents 2 and 4 are identical and are an extract of a number of provisions of the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”);
c)Document 3 contains two web articles, the first dated 10 May 2016 titled “UN experts urge Sri Lanka to adopt measures to fight torture and strengthen justice system” and 7 May 2016 titled “UN official says torture continues in post was Sri Lanka”. The source of the articles is “Xinhua”; and
d)Document 5 is a news article from TamilNet dated 15 January 2016 titled “Coerced confessions determine Tamil prisoners’ fate”.
For the following reasons the Court cannot have regard to the Documents:
a)it is a well-established principle that while there is no prohibition on receiving new evidence in judicial review proceedings, ordinarily the Court should exercise “resistance to the admission of fresh evidence”: MZXLD v Minister for Immigration & Citizenship [2007] FCA 1912 at [10] per Gordon J;
b)it is not open to the Court on a judicial review application to consider material which was not put before the Tribunal, and in this case Documents 1, 3 and 5 post-date the Tribunal Decision, and therefore could not have been before the Tribunal in any event and thus have no bearing on establishing jurisdictional error in the Tribunal Decision: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J;
c)the applicant was provided an opportunity to submit evidence and material to be relied upon to the Tribunal, and if he wished to have relied upon Document 2 he could, and should, have provided Document 2 to the Tribunal at the Tribunal Hearing. The Court notes that, in any event, the applicant’s migration agent made submissions on the POT Act: see for example, CB 172-174, 196, 311 and 373. That the applicant did not take advantage of the opportunity provided by the Tribunal to put Document 2 to the Tribunal was a matter for the applicant: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383;
d)in the May 2016 Affidavit at [4] the applicant stated it was “most unfair” that the Minister objected to Court receiving Documents 1, 3 and 5 as “[a]t present the Sri Lankan government and armed forces fear that there will be resurgence of a Tamil revolt and the cases of human rights abuses and disappearances are increasing”. The applicant is effectively inviting the Court to admit new evidence for the purpose of disagreeing with a factual conclusion reached by the Tribunal as opposed to bearing on some jurisdictional error: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at [27] per McKerracher J; and
e)the Documents mistake the role the Court undertakes on judicial review and seek to invite impermissible merits review contrary to the principles in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (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.
For those reasons, the Documents are not relevant to the Court’s task on the Judicial Review Application, and are, therefore inadmissible: Evidence Act 1995 (Cth), s.56(2), and the Court will not therefore consider the Documents as evidence in addressing the grounds of the Judicial Review Application, but the Court may consider relevant parts of them as submissions: see [15] above.
Applicant’s submissions
At hearing the applicant handed to the Court the May 2016 Affidavit and when asked if there was anything he wished to say he said there was nothing further to add: Transcript, page 2. The submissions made in the May 2016 Affidavit are, in summary, as follows:
a)the Tribunal did not follow the rules of “natural justice” or “fair play” in assessing the country situation as it was influenced predominantly by the DFAT reports, and did not balance the evidence by paying attention to reports from other international organisations such as Amnesty International, Asia Watch and the latest reports of the United Nations High Commission for Refugees (“UNHCR”);
b)the Tribunal was biased because it acted under directions given by the Minister to follow Guidelines established by the Department of Immigration & Border Protection (“Department”);
c)there was an “error of law on the face of the record” in the Tribunal only examining the provisions of the I & E Act and not the provisions of the POT Act which is a draconian law giving the armed forces of Sri Lanka total immunity to take persons into detention and denying a person access to the normal rules in regard to bail and recourse to the courts of law, and that this is contrary to s.36(2)(a) of the Migration Act;
d)that “[w]hat” the Tribunal “has followed … amounts to a review of delegated legislation on the grounds of ultra vires as … [the Tribunal] has pre-empted the actions [of] the judiciary of Sri Lanka and the security forces by stating that … [the applicant] will be lightly treated and not be punished or harassed when the legal framework points to the fact that … [the applicant] can be jailed or detained for long periods, especially if … arrested under the … [POT Act]”;
e)the Tribunal accepted that the applicant was once arrested and detained on the basis that he had connections with the LTTE, and if he were to now return to Sri Lanka as a failed asylum seeker it will only reinforce the fact that he had fled the country due to the fear that he had connections with the LTTE; and
f)the Tribunal committed jurisdictional error by exceeding and failing to exercise proper jurisdiction under the Migration Act and did not follow the obligations laid down under s.422B of the Migration Act.
Minister’s submissions
The Minister’s submissions were as follows:
a)there was no denial of procedural fairness as the Tribunal invited the applicant to attend the Tribunal Hearing and at the Tribunal Hearing discussed with the applicant the issues arising for consideration in the matter, and complied with its obligation under the Migration Act;
b)the weight given to country information is a matter for the Tribunal, and in any event the applicant’s representative provided submissions to the Tribunal with respect to country information and the Tribunal referred to that country information and those submissions in the Tribunal Decision, including the UNHCR Eligibility Guidelines;
c)the Tribunal has correctly identified the relevant legislation to be applied in the matter and applied those statutory provisions and the correct test to the applicant’s claims and evidence, hence there is no error of law on the face of the record;
d)the applicant made submissions to the Tribunal about the POT Act, however, the Tribunal did not accept the applicant was of any ongoing interest to the Sri Lankan authorities or that he would suffer persecution for the reasons claimed;
e)there is nothing identified to support there being any arguable ground of the legislation being ultra vires, and the Court is being invited to engage in impermissible merits review;
f)there is no evidence that the Tribunal was biased and none of the paragraphs referred to give rise to anything in the nature of a reasonable apprehension of bias; and
g)the complaints in the April 2016 Affidavit at [4] constitute no more than a request for impermissible merits review based on the applicant’s dissatisfaction with the Tribunal Decision.
Consideration
Jurisdictional error required
The Tribunal Decision may be set aside upon judicial review by this Court if it involves jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, that is, where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in 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, the authority or powers given to the Tribunal under the Migration Act: 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 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”). This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
The Court notes that because the applicant is a self-represented litigant, the Court ought to remain alert to the possibility of legal error in the Tribunal Decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J.
Ground 1
Ground 1 asserts that the Tribunal did not follow the rules of natural justice (or procedural fairness as it is more commonly called). The basis for the assertion of a denial of procedural fairness appears to be as follows:
a)a lack of procedural fairness (as well as bias) in coming to the Tribunal Decision having regard to the following paragraphs of the Tribunal Decision: CB 386 at [14], 387-388 at [20], 388 at [22], 389-390 at [28], 391 at [36] and 392 at [41]: April 2016 Affidavit at [4]-[5];
b)the May 2016 Affidavit suggests that the Tribunal:
i)denied the applicant procedural fairness because it relied predominantly on DFAT sources and not on other sources: May 2016 Affidavit at [1]; and
ii)was biased because it acted under directions given by the Minister to follow Guidelines established by the Department: May 2016 Affidavit at unnumbered paragraph after [1]; and
c)a denial of procedural fairness in relation to the Tribunal Hearing itself (it being assumed that this is what is meant by Ground 1 when read alone).
It is convenient to begin with a consideration of whether there was a denial of procedural fairness in relation to the Tribunal Hearing itself: Ground 1. In that regard the Court observes as follows:
a)pursuant to s.425 of the Migration Act the applicant was invited to, and indeed attended, the Tribunal Hearing: CB 352-356;
b)the Tribunal provided to the applicant a meaningful opportunity to present his claims and evidence, and the applicant’s migration agent provided written submissions before and after the Tribunal Hearing, and the Tribunal confirmed it had regard to all of these materials and the applicant’s oral evidence when making the Tribunal Decision: CB 102-208, 293-318 and 361-377;
c)the applicant was assisted by an interpreter at the Tribunal Hearing, which had a duration of over two hours: CB 356-359, and during which the applicant gave oral evidence and was assisted by his migration agent, and there is nothing to suggest there was any issue or matter that inhibited the applicant from partaking and giving evidence and providing arguments in support of the Protection Visa application: SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
d)there was no information or material the Tribunal was required to put to the applicant pursuant to s.424A of the Migration Act and to the extent the Tribunal sought the applicant to expand upon aspects or comment on what the country information stated it did so: CB 388-389 at [21] and [23]-[24]; and
e)the Tribunal noted that the applicant was vague in relation to specific dates and details and that the Delegate had made an adverse credibility finding, however, the Tribunal was prepared to extend the benefit of the doubt to the applicant and was prepared to overlook the inconsistencies between the applicant’s oral evidence and previous Protection Visa application processes: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [73] per Kirby J; Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J.
It follows from the above observations that the Court has been unable to identify any denial of the procedural fairness obligations owed by the Tribunal to the applicant in relation to the Tribunal Hearing process.
In respect to the applicant’s submission that the Tribunal placed undue and unfair reliance on the DFAT reports, it is well accepted that the choice of and weight given to country information are for the Tribunal to determine: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ. Nonetheless, the Tribunal did in fact also have regard to country information the applicant’s migration agent referred to in the various submissions, and in that regard in the Tribunal Decision expressly referred to or cited:
a)the UNHCR Eligibility Guidelines at CB 390 at [29]-[31], 391 at [36], 392 at [41] and 393 at [45];
b)the 2012 and 2013 Human Rights Watch reports: CB 389 at [27], 391 at [35] and 392 at [41];
c)the report of a United Nations Expert Panel from March 2011: CB 391 at [35];
d)a report from October 2012 in Lankasri News: CB 392 at [41]; and
e)reports from the Danish Immigration Service, the United Kingdom Home Office and the United States State Department: CB 394 at [48]-[49] and footnotes 4 and 5.
The Court notes the submissions to the Tribunal from the applicant’s migration agent refer to DFAT reports and provided extracts of country information from Amnesty International: see for example, CB 197-200 and 301. The Tribunal confirmed it had regard to those submissions, and in the Tribunal Decision it also referred to many of the other sources cited in the applicant’s submissions: see CB 390-391 at [31]-[35], 392 at [41], 393-394 at [46]-[47], 394 at [50], 395 at [53] and [56], 396 at [58]-[59] and [61], and 397 at [63]. The Tribunal noted that the applicant’s migration agent critiqued certain DFAT reports and, while unnecessary to do so, explained at CB 390 at [31] that:
The Tribunal has taken into consideration the post hearing written submission’s critique of the DFAT Country Report and Thematic Report. The Tribunal notes the DFAT Report and Thematic Report are generally consistent with the UNHCR Eligibility Guidelines and the findings in the Upper Tribunal decision and also consistent with the applicant's oral evidence in relation to the experiences of his brother-in-law on his return to Sri Lanka. The Tribunal considers the DFAT Country Report and DFAT Thematic Report are current and authoritative sources on the situation in Sri Lanka.
It is apparent that the Tribunal utilised the DFAT reports as but one of many sources of country information, which it was entitled to do: NAHI at [11] per Gray, Tamberlin and Lander JJ. The applicant is simply seeking to cavil with country information with which he disagrees.
While having already observed that the Tribunal may choose and weigh the country information before it, and that the accuracy of the country information is generally a matter for the Tribunal and not the Court: NAHI at [10]-[11] per Gray, Tamberlin and Lander JJ, the Tribunal was also under no obligation to make inquiries pursuant to s.424 of the Migration Act, and need only seek information it considers relevant: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In all the above circumstances, the extent to which the Tribunal relied upon DFAT reports does not evidence either a want of procedural fairness or bias (having regard to the law with respect to bias as set out at [34] below).
In the April 2016 Affidavit, the applicant referred to the Tribunal displaying bias. To the extent the applicant alleges the Tribunal was biased in the sense of predominantly relying on the DFAT reports, that has been addressed above: see [28]-[30] above. The applicant has failed to identify if he is alleging the Tribunal displayed actual or apprehended bias, but rather he points to a number of paragraphs he alleges reflect bias by the Tribunal. These can be summarised and dealt with as follows:
a)at CB 386 at [14] the Tribunal simply recounted the evidence the applicant provided at the Tribunal Hearing as to why he feared going back to Sri Lanka, namely, there was a problem with the SLA and that he thinks they would take him and maybe beat him;
b)at CB 387-388 at [20] and 388 at [22] the Tribunal accepted the applicant’s claims that he was questioned over links with the LTTE in 2009 and that he was approached and questioned in 2012 in relation to S and any links to the LTTE. It specifically noted that while the claims were vague, it would nevertheless extend the benefit of the doubt to the applicant in accepting his evidence on those matters;
c)at CB 389-390 at [28] the Tribunal found that while the applicant was detained and questioned in 2009, and questioned again in 2012, it did not accept that he was of any ongoing interest to the SLA or SLN in relation to suspicion of, or imputed, links to the LTTE, while also accepting the country information and submissions that there was some evidence of Tamils with particular profiles attracting adverse attention from the SLA following the civil war;
d)at CB 391 at [36] the Tribunal referred to country information concerning the circumstances in Sri Lanka and what those sources (including the UNHCR Eligibility Guidelines, a source which had been referred to by the applicant’s migration agent in written submissions: see [28(a)] above) identified in relation to persons at real risk of serious or significant harm; and
e)at CB 392 at [41] the Tribunal referred to the written submissions provided by the applicant’s migration agent concerning systemic monitoring of failed asylum seekers and noted the reports referred to pre-dated other information, and in particular related to those with real or imputed links to the LTTE, and that the applicant had been found by the Tribunal to not be of ongoing interest or as having, or being suspected of having, real or imputed links to the LTTE.
There is no evidence in the paragraphs referred to at [33] above:
a)that indicates the Tribunal had a pre-existing state of mind which disabled it from undertaking or rendered it unwilling to undertake any proper evaluation of the relevant materials before it which were relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The applicant’s complaint of bias constitutes no more than a request for impermissible merits review based on the applicant’s dissatisfaction with the Tribunal’s findings: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Mere disagreement with the findings made in the Tribunal Decision, or the ultimate outcome of the Tribunal Decision in affirming the Delegate’s Decision, does not support a contention or claim that the Tribunal committed a jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [4] per Jacobson J.
The applicant’s allegation of bias arising from the Tribunal’s alleged application of guidelines which the Tribunal had been directed to consider by the Minister, does not establish bias on the part of the Tribunal. That is because, to the extent that any guidelines the subject of such a direction are applied they apply because they are to be applied in accordance with the law: Migration Act, s.499, which deals with Ministerial directions to the Tribunal. In this case, however, there is no evidence that the Tribunal dealt with any guidelines developed by the Department which the Tribunal was obliged to consider applying, and therefore the issue of bias does not arise, save for the fact that the Tribunal acknowledged receiving the post-Tribunal Hearing submission from the applicant’s migration agent referring to guidelines on the assessment of credibility. There is otherwise no evidence as to the manner in which the Tribunal dealt with those guidelines, but, in any event, it is irrelevant because the Tribunal made no adverse findings as to the applicant’s credibility: see [4(d) and 26(e)] above.
It follows from the above that no jurisdictional error in the Tribunal Decision is established by Ground 1 with respect to either any alleged denial of procedural fairness or any alleged bias.
Ground 2
Having regard to the submissions in the May 2016 Affidavit it appears the applicant is suggesting that the “error of law” on the face of the record was that the Tribunal did not consider the effect of the POT Act on the applicant. It is true that the Tribunal did not refer to the POT Act expressly in the Tribunal Decision.
The applicant’s submissions referred to the POT Act on a number of occasions: see CB 121, 133, 155, 160, 172, 174, 311 and 370. What was put in those submissions was that:
a)the POT Act was still in force in Sri Lanka;
b)the POT Act provided the Sri Lankan authorities with extensive powers of arrest and detention;
c)until 2010 the POT Act primarily affected Tamils; and
d)during the civil war the POT Act was used to detain a significant number of Tamils on suspicion of being LTTE suspects.
In the post-Tribunal Hearing submission the applicant made the following submission:
…the Thematic Report states that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE throughout the country. This paragraph further states that those who the Sri Lankan authorities consider to be of interest to them such persons’ names are placed in an electronic data base (watch list) and are monitored. As the Prevention of Terrorism Act remains in place and the Sri Lankan authorities continue to remain sensitive to the potential re-emergence of the LTTE it is likely that such an environment would expose our client to Convention related harm if he is returned involuntarily.
It was not necessary for the Tribunal to expressly refer to the POT Act because of the Tribunal’s finding that the applicant was not a person of adverse interest to the Sri Lankan authorities, that the applicant’s cousin was not of adverse interest to the Sri Lankan authorities, and that there was no suspicion on the part of the Sri Lankan authorities that the applicant had any real or imputed links to the LTTE, or that the applicant did in fact have any real or imputed links to the LTTE, those being findings of greater generality that subsumed the need for the Tribunal to consider the application of the POT Act to the applicant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“WAEE”) at [47] per French, Sackville and Hely JJ.
The Tribunal also made a finding that the applicant faced no real chance of harm on the basis of his Tamil ethnicity or being a young Tamil male and that the country information indicated there are currently no official laws or policies that discriminate on the basis of ethnicity or language, and there is only a low level of discrimination in the implementation of laws and policies: CB 390 at [29]. The Tribunal made reference to the prison conditions in Sri Lanka at CB 394 at [49], and concluded that the cramped and uncomfortable conditions apply generally, and that there was, on the part of the Sri Lankan authorities, no intention to inflict pain or suffering on people while in prison: CB 396 at [60]. Further, the applicant’s claims that he feared persecution by reason of his being a Tamil fisherman, bearing an imputed political opinion supporting the LTTE, being a young Tamil male originating from the North or East of Sri Lanka, and being a failed asylum seeker returning from a western country, were rejected by the Tribunal.
On the basis of the findings made in respect of the applicant’s profile and the other matters referred to above the Court considers that the fact the POT Act was not mentioned in the Tribunal Decision does not mean the Tribunal has not considered it, but rather that it was not material as the premise or premises on which the applicant’s submissions suggested he may be at risk were rejected: WAEE at [47] per French, Sackville and Hely JJ. WZATA v Minister for Immigration & Anor [2016] FCCA 305 at [53] per Judge Lucev.
Otherwise, having considered the Tribunal Decision as a whole, the Court considers the Tribunal has applied the appropriate legal principles and statutory provisions in assessing the applicant’s claims and evidence in support of the Protection Visa. There is no error of law on the face of the record, or otherwise, and Ground 2 is not made out and does not establish any jurisdictional error in the Tribunal Decision.
Ground 3
With respect to Ground 3, it appears the applicant is submitting that the “delegated legislation” he refers to relates to the Tribunal’s findings in respect of the I & E Act and the circumstances the applicant may face on his return to Sri Lanka if he was prosecuted under the I & E Act or the POT Act. Ground 3 is entirely misconceived and must fail. Firstly, the I & E Act and the POT Act are not “delegated legislation” and consideration of their application to the circumstances is not “ultra-virus”, rather it can be inferred that it was an integer of the applicant’s claim that he feared harm as a failed asylum seeker having departed Sri Lanka illegally and may be subject to the provisions of the I & E Act and the POT Act. The Tribunal was therefore required to consider if the applicant faced a real risk or real chance of harm and this required it to make findings as to what would occur in the reasonably foreseeable future if the applicant was returned to Sri Lanka.
The Tribunal noted the applicant would be subject to a law of general application, that is, the I & E Act, and that he may be detained in prison for a number of days, however, in most circumstances he would be released on bail and face a fine: see [4(s)-(y)] above. The Tribunal has not pre-empted the actions of the Sri Lankan judiciary or made a finding that the applicant will be “lightly treated”. Rather, the Tribunal has undertaken the statutory task imposed on it under the Migration Act of considering whether the applicant faced a real chance or a real risk of harm if he returns to Sri Lanka, and it concluded, based on the country information, that the applicant did not face a real chance or a real risk of harm if he returns to Sri Lanka. The applicant is simply seeking, impermissibly, to cavil with the merits of the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Insofar as the POT Act is concerned it was unnecessary for the Tribunal to consider its application to the applicant for the reasons set out above: see [38]-[43] above, and therefore no issue arises with respect to it for the purposes of Ground 3.
No jurisdictional error in the Tribunal Decision is therefore established by Ground 3.
Otherwise
The Minister’s submissions complained about a lack of particularisation of the Judicial Review Application. However, in light of the submissions made in the April 2016 and May 2016 Affidavits, which provided some, albeit minimal, particulars, the Court has formed the view that the matters for consideration were sufficiently particularised or identified to enable the Court to properly consider them.
Conclusion and order
The applicant has failed to establish any jurisdictional error in the Tribunal Decision and the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 20 February 2019
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