BKV18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 456
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 456
File number(s): MLG 733 of 2018 Judgment of: JUDGE TAGLIERI Date of judgment: 31 May 2023 Catchwords: MIGRATION – protection visa application – application for judicial review – whether the Tribunal made irrational findings as to the nature and chance of harm faced by the first applicant in Sri Lanka – whether the Tribunal constructively failed to conduct the review – whether the Tribunal failed to properly consider the first applicant’s claims – whether the Tribunal constructively failed to consider the risk of harm in the event of a change of government in Sri Lanka – jurisdictional error established – application for review allowed Legislation: Migration Act 1958 (Cth) s 476) Cases cited: CPE15 v Minister for Immigration [2017] FCA 591
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
MZZNK v Minister for Immigration and Border Protection [2015] FCA 217
Oxford English Dictionary (online at 29 May 2023) ‘authoritative’ (def 2)
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of hearing: 8 May 2023 Place: Melbourne Counsel for the Applicants: Dr McBeth Solicitor for the Applicants: Wimal and Associates Counsel for the First Respondent: Ms Smith Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 733 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKV18
First Applicant
BKW18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
31 may 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 13 March 2018.
2.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicants’ application for review according to law.
3.First respondent pay the applicants’ costs in the fixed sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
This judgment relates to an application for judicial review filed 22 March 2018 concerning a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”). On 13 March 2018, the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the Applicants protection visas (“the reviewable decision”).
The Second Applicant is the daughter of the First Applicant. Her application is dependent on the factual claims made by the First Applicant and how they were treated by the Tribunal.
The Application for judicial review came before me on 8 May 2023 for hearing. At the hearing, the Applicants and the First Respondent were both represented by counsel.
BASIS OF TRIBUNAL DECISION
The Tribunal found that the First Applicant was a generally credible witness,[1] but rejected the First Applicant’s claims based on a fear of harm arising out of his media profile or as a result of his political activities in Sri Lanka.[2]
[1] Tribunal reasons at [35].
[2] Tribunal reasons at [46], [64], and [71].
In respect of the First Applicant’s claim to fear harm due to his media profile, the Tribunal found that:
(a)The First Applicant had a career in the media and television production;[3]
(b)The First Applicant’s work showed ‘a range of perspectives on challenging social justice issues’ and he had ‘been active in critiquing Sri Lankan social and political policy’;[4]
(c)Those in the media critical of the Rajapaksa regime had been subject to attacks, police raids, arrest, and abduction;
(d)The First Applicant’s work in the media was not consistent with the agenda of the Rajapaksa regime;[5]
(e)The current Sirisena regime has improved media freedoms,[6] and the frequency of attacks against journalists had decreased since 2015;[7]
[3] Tribunal reasons at [38].
[4] Tribunal reasons at [39].
[5] Tribunal reasons at [43].
[6] Tribunal reasons at [44].
[7] Tribunal reasons at [45].
In respect of the First Applicant’s claim due to fear of harm based on his political activities, the Tribunal found that:
(a)The First Applicant had been a political advisor during the 2005 presidential elections[8] and a candidate in the 2014 provincial elections;[9]
(b)The First Applicant was subject to ‘low-level’ threats and violence from Rajapaksa’s supporters during the 2014 election campaign,[10] and that the Rajapaksa-aligned authorities did not provide assistance or protection;[11]
(c)As a result of political changes and improvements in the human rights situation in Sri Lanka since the Applicants’ departure, the First Applicant was not at risk of harm due to his political activities, even in conjunction with his media profile;[12] and
(d)A return of the Rajapaksa regime or a deterioration of human rights conditions under the Sirisena regime was pure speculation.[13]
[8] Tribunal reasons at [48].
[9] Tribunal reasons at [49].
[10] Tribunal reasons at [51], [56], and [53].
[11] Tribunal reasons at [53].
[12] Tribunal reasons at [58].
[13] Tribunal reasons at [64].
GROUNDS FOR REVIEW
There are two grounds of review relied upon as set out in the Amended Application filed 11 April 2023. The grounds are particularised and it is unnecessary to set them out in full. Instead it is sufficient to summarise that they assert jurisdictional error by way of:
·Ground 1: Irrational findings as to the nature and chance of harm faced by the First Applicant in Sri Lanka based on his claims, or constructive failure to conduct the review;[14] and
·Ground 2: Failure to properly consider the First Applicant’s claims or, alternatively, a constructive failure to consider the risk of harm in the event of a change of government.
[14] Particulars of ground provided in the Amended Application filed 11 April 2023 at page 4.
COMPETING CONTENTIONS AS TO JURISDICTIONAL ERROR
The asserted errors in Ground 1 relate to how the Tribunal dealt with the country information concerning the risk of harm deriving from the First Applicant’s media profile and/or political involvement in Sri Lanka, in circumstances where it accepted the First Applicant’s evidence as credible.[15]
[15] Applicant’s written submissions filed 11 April 2023 at [11] and [12], [15] to [21], and [24] to [30].
Ground 2 is based on a contention that the Tribunal did not appreciate and deal with the First Applicant’s case that the risk of harm on return to Sri Lanka was in part due to the fluidity and fragility of the political situation and parties in government. It asserts that the Tribunal did not undertake the predictive exercise required of it by established legal principles.[16]
[16] Applicant’s written submissions filed 11 April 2023 at [36] to [43].
The First Respondent submits the asserted errors were not made because in regard to Ground 1:
(a)The Tribunal reconciled the various country information before it in the context of the First Applicant’s circumstances, but was not persuaded that the First Applicant’s claims, to the extent that they were credible, met the statutory requirements giving rise to protection;[17]
(b)It found that improvements in the political freedoms, human rights and security were open on the evidence and the Tribunal, noting that although it found the First Applicant to be generally credible, also found that he had embellished some evidence; and
(c)The manner in which the Tribunal dealt with the various country information was not illogical. Instead, it evaluated all information, but ultimately preferred to rely on that contained in the 2017 Department of Foreign Affair and Trade (“DFAT”) report, which it was entitled to do.[18]
[17] First Respondent’s written submissions filed 24 April 2023 at [26] to [32].
[18] Tribunal reasons at [33] to [41].
In regard to Ground 2, the First Respondent submitted that the Tribunal took the correct approach in conducting a forward-looking assessment of risk, and relied on what it considered to be probative country information to make its findings about future conditions in Sri Lanka in the foreseeable future.
In particular, the First Respondent says that the Tribunal did not refuse to consider what the situation in Sri Lanka would be if Rajapaksa returns to government, but instead properly determined that it was pure speculation to make findings about what would likely happen in the foreseeable future. As such, it applied the correct test and the Applicants are inviting the Court to undertake impermissible merits review.[19]
[19] Especially in the First Respondent’s written submissions filed 24 April 2023 at [46] to [49].
In oral submissions, both Counsel expanded upon their written submissions and addressed the Tribunal’s written reasons in detail. They urged the Court to look to different parts of its written reasons to illustrate why their contentions should be preferred.
COURT REVIEW
A review to this Court is authorised by s 476 of the Migration Act 1958 (Cth). In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
EVALUATION AND CONCLUSION
I have reached the conclusion that Ground 1 fails, but Ground 2 succeeds. My reasons for so concluding are as follows.
Ground 1
The asserted irrationality and consequent failure to conduct the review were said to arise in three ways.[20] I address each in turn and stating why each way is rejected.
[20] See Applicant’s written submissions filed 11 April 2023 at [11] to [14], also expanded on orally at the hearing.
First, it is said that the Tribunal failed to deal with and reconcile conflicting country information which indicated that abuses amounting to serious harm were still occurring after the change in government in 2015.
The Tribunal referred to three sources of information to inform itself about the claims of harm by the First Applicant concerning:
(a)His role as a journalist, artist and media personality engaged in social activism; and
(b)His candidacy in the 2014 Western Provincial council election and his political profile.
The three sources were:
(a)The First Applicant’s evidence and findings arising from that;[21]
(b)The 2017 DFAT report (“the DFAT report”);[22] and
(c)The 2016 Department of State Human Rights Report (“the US report”).[23]
[21] Tribunal reasons at [37] to [39].
[22] Tribunal reasons at [40].
[23] Tribunal reasons at [41].
I do not accept that the Tribunal failed to reconcile conflicting country information in so far as it relates to the claims made about the First Applicant’s role as a journalist, artist and media personality. I consider that the Tribunal’s findings and reasons at [38] to [46] demonstrate a clear weighing of all the sources of evidence about the claims made, accepting some evidence from the First Applicant, but not all, and ultimately giving greater weight to the information in the DFAT report.
It is evident that the Tribunal was aware of and did consider the evidence from the First Applicant about continuing incidents of harm to journalists, but was clearly influenced in its fact finding by the First Applicant’s own admission that he had a successful career in journalism and supported himself comfortably right up until he left Sri Lanka.[24]
[24] Tribunal reasons at [43].
Further, the Tribunal also specifically referred to the evidence of the First Applicant and that contained in the US report about continuing incidents after he had left Sri Lanka,[25] but overall was persuaded by evidence that there had been improvements to social freedoms under the Sirisena government and placed more weight on this when assessing the nature and risk of harm to the First Applicant. In doing so, the Tribunal did not fail to take into account the US report as the reference to country information at [45] of the reasons can be understood to be a reference to the contents of the report cited at [41] of its reasons.
[25] Tribunal reasons at [41] and [45].
The conclusion of the Tribunal at [46] of its reasons was reasonably open on the evidence before the Tribunal and has not been demonstrated to be irrational, noting the high standard of the test for irrationality.[26]
[26] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [135].
It is evident from the Tribunal’s reasons that it also considered the additional claim based on the First Applicant’s participation in the 2014 election along with his political profile cumulatively based on advocacy concerning social freedoms and his role as a journalist, artist and media personality.[27]
[27] Tribunal reasons at [47] to [56].
The Tribunal made at least seven favourable findings based on the First Applicant’s evidence about his political involvement and profile and the impact of this, concluding that he had a moderate anti-government political profile.[28]
[28] Tribunal reasons at [56].
The Tribunal then concluded, in effect, that the relevant harm to which the Applicant was exposed was from the previous Rajapaksa government and its supporters/agents. However, because of the change in government and the preferred country information which showed an improvement in freedoms and protections, there was no real chance or real risk of the First Applicant being harmed by Rajapaksa’s supporters or agents in the foreseeable future.[29]
[29] Tribunal reasons at [62].
Contrary to that asserted in the Applicants’ written submissions at [12] and the oral submissions at the hearing, this conclusion was reconciled, in my view, by it preferring to give greater weight to the country information in the DFAT report. This is self-evident from the Tribunal’s reasons at [62].
The third of three ways the Tribunal is said to have made irrational findings relates to written submissions of the Applicants at [11] and [12]. It is said that the Tribunal considered itself bound by and hence deferred to the information contained in the DFAT report. These submissions rely on the Tribunal’s use of the term “authoritative” at [60], [62] and [77] of the reasons for decision.
I consider that in the context in which the Tribunal used the term “authoritative” and the weighing of the competing evidence as discussed at [22] of these reasons, it is sufficiently clear that the Tribunal was simply indicating that it gave greater weight to country information contained in the DFAT report because it considered it more reliable. The weight attributed to the various country information and how this was evaluated and balanced with all the evidence was strictly for the Tribunal and not the Court.[30]
[30] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 at [48]
Further, it is incorrect to interpret “authoritative” in the way the First Applicant submits because I consider the Tribunal was using the expression in accordance with the ordinary English meaning of authoritative, being “Of a text, statement, institution, etc.: possessing due or acknowledged authority; widely accepted or respected; definitive”.[31]
[31] Oxford English Dictionary (online at 29 May 2023) ‘authoritative’ (def 2).
Ground 1 fails for all the above reasons.
Ground 2
The First Respondent contends that the Tribunal did not err in its consideration of the nature and likelihood of the risk of harm should the Rajapaksa government return. The First Respondent contends that the Tribunal:
(a)Correctly identified its function;[32]
(b)Conducted a forward-looking assessment of whether the First Applicant faced a real chance of serious harm in the foreseeable future if returned to Sri Lanka;[33] and
(c)Considered the claim that the Rajapaksa government might return[34] and found that any return to government of Rajapaksa or his supporters is “pure speculation”.[35]
[32] First Respondent’s written submissions filed 24 April 2023 at [44]; Tribunal reasons a [19].
[33] First Respondent’s written submissions filed 24 April 2023 at [45]; Tribunal reasons a [57].
[34] First Respondent’s written submissions filed 24 April 2023 at [46]; Tribunal reasons at [63].
[35] First Respondent’s written submissions filed 24 April 2023 at [46]; Tribunal reasons at [64].
Counsel for the First Respondent directed the Court to the content of the DFAT report relied upon by the Tribunal and referred to at [58] of the Tribunal’s reasons, particularly sections 2.34, 2.35 and 2.36. She stated that the material supported the position that the First Applicant is a person without linguistic barriers and with financial resources, such that he could have protections and enforce human rights. This was said to be demonstrative of the Tribunal making a logical connection between this information and the Tribunal’s reasons and conclusion at [62].
That is not obvious at all in my view, and the mere reciting of sections within the DFAT report does not of itself show proper consideration of the claimed fear of harm in the event of a change of government. In any event, acceptance of the submission is no answer to Ground 2 of the review in my view because the Tribunal had clearly relied on the improvement in the political situation since the Sirisena government came to power to address the nature and likelihood of harm and its fact finding at [62] and [63] of the reasons. The findings are stated to be premised on the current state of the government as informed by the 2015 and 2017 DFAT reports available at the time of decision. This is apparent from the Tribunal’s references to “current government” and “current political situation”.
The Tribunal was conscious that the First Applicant’s claims extended to what would happen in the event of a return to influence or power by Rajapaksa, it had before it information about the nature of government and elections in Sri Lanka, which evidenced democratic political systems and five year terms of government.[36] By the time of the Tribunal hearing, the Sirisena government had been in power for over three years and on its acceptance of the DFAT information elections were probable by 2020 at the latest.
[36] Tribunal reasons at [58].
It is plain in my view that the Tribunal did not engage in an intellectual process of evaluating what the likelihood and nature of harm to the First Applicant would be consequent to another election within about two years. This is plain from the terms of the reasons at [64] wherein the Tribunal stated:
However, the Tribunal does not consider the material before it indicates that a return of the Rajapaksa regime or deterioration of the human rights conditions in Sri Lanka under the current Sirisena government is anything other than pure speculation…
In circumstances where it had information which it had itself acknowledged the diversity of the government coalition and the influence of the Rajapaksa party,[37] and accepted that the First Applicant had in fact experienced harm both physical and psychological due to his political beliefs contrary to the ideology of Rajapaksa and his supporters, there was an obligation to look forward to actively consider the chance of the return to prevalence of that ideology in a known period of about two years. That prospect is distinguishable from the meaning of “pure speculation” as it is understood in the authorities cited by the First Respondent in my view, particularly because the Tribunal had accepted the First Applicant had experienced actual harm prior to leaving Sri Lanka when Rajapaksa’s ideology was prevalent.
[37] Tribunal reasons at [63].
The factual circumstances before the Tribunal which warranted consideration of the future as described at [37] of these reasons:
·Did not involve guesswork or were so far into the future that they did not arise for consideration; and
·Were sufficiently proximate to the likely timing of a return to Sri Lanka had the application for review not been made.[38]
[38] CPE15 v Minister for Immigration [2017] FCA 591 at [60]; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [42].
Given the affirmative and favourable findings about past harm experienced by the First Applicant due to his political views in particular, and that there can be little doubt they were relevant to assessment of the harm in the predictable and defined period in the future, I consider the failure by the Tribunal described at [37] and [38] of these reasons is plainly material because an alternate decision maker might reasonably arrive at a different decision.[39]
[39] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
CONCLUSION
As Ground 2 has succeeded, the matter should be remitted to the Tribunal for redetermination by another member and the relief sought is granted.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate: T Sherwood
Dated: 31 May 2023
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