BLO16 v Minister for Immigration
[2018] FCCA 2871
•10 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLO16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2871 |
| Catchwords: MIGRATION – Application for remedy under s.476 of the Migration Act 1958 (Cth) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming delegate’s decision not to grant applicant protection visa – whether Tribunal misunderstood claim applicant had made and made adverse credibility finding on the basis of such misunderstood claim – whether the Tribunal was bound to put to the applicant certain findings it proposed to make for the applicant’s consideration before the Tribunal made those findings – whether it was reasonably open to the Tribunal to consider country information to the effect that fraudulent documents can be obtained in the applicant’s country – whether it was reasonably open to the Tribunal not to be satisfied that a document on which the applicant relied was genuine – whether the Tribunal conducted itself in such a way as to give rise to a reasonable apprehension of bias – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 424, 425, 476 |
| Cases cited: Abebe v Commonwealth [1999] HCA 14 |
| Applicant: | BLO16 |
| First Respondent: | MINISTER FOR IMMIGRAITON & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1503 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 17 August 2017 |
| Date of Last Submission: | 17 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Solicitor for the Respondents: | Mr R White of Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1503 of 2016
| BLO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Sri Lanka and a Tamil, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Claims for protection
The applicant stated his claims for protection on a number of occasions. These included at an “Irregular Maritime Arrival Entry Interview” on 31 August 2012 (IMAE Interview),[1] in a statement that formed part of the application for a Protection visa the applicant lodged on 27 November 2012 (Statement),[2] at an interview with the delegate on 20 May 2013,[3] and at the hearing before the Tribunal on 12 February 2015.[4] It would be convenient to begin with the claims for protection contained in the Statement which may be summarised as follows:
[1] CB1-14
[2] CB43-47
[3] CB89; CB103-105
[4] CB168. The hearing occurred before the Refugee Review Tribunal.
a)The applicant was born in Colombo, Western Province.
b)In around October 2011 the applicant started working on a local election campaign for a politician (Politician) who was a member of the United National Party (UNP). The applicant decided to help the Politician because the Politician has been known to help Tamils. The Politician and the applicant’s father had been friends for a few years, and the applicant’s father suggested the applicant assist the Politician.
c)By about the third day into the applicant assisting the Politician by putting up posters, being a day in October 2011, a group of about ten Sinhalese arrived in a white van to the place where the applicant and his colleagues were working. The Sinhalese men shouted they had problems with the applicant and his colleagues putting up posters, and they wanted the applicant and his colleagues not to work for the Politician. The applicant’s friend proceeded to put up another poster. The Sinhalese men got out of the van, and it seemed they were going to hit the applicant’s friend. The applicant and his colleagues avoided what the applicant apprehended would be an attack by lying to the group that they would comply with their wishes and would put the posters elsewhere.
d)In December 2011, while riding his pushbike from town, a three-wheeler crashed into the applicant, causing the applicant to fall on the ground. About five Sinhalese men got out of the three-wheeler and punched and kicked the applicant, and then beat the applicant with a rubber belt that was about one metre long. In response to the applicant’s begging the men to tell him why he was being beaten, one member of the group said the applicant was helping a Tamil candidate in the election. In addition, the men demanded to know if the applicant was an important member of the local UNP, and threatened to set the applicant and his family on fire if the applicant were to report them to the police.
e)At about 10 pm on the night of the day in which the applicant was attacked, the applicant and his family heard people banging with wooden sticks on the gate of the applicant’s home. The group banging at the gate yelled in Sinhalese for the applicant to come out, but the applicant hid in the kitchen. The group proceeded to throw rocks at the applicant’s home and, after an hour, went away.
f)The following evening the applicant took an overnight bus to Jaffna to stay with his cousin to escape from being hurt.
g)The applicant stayed with his cousin in hiding. He feared the Sinhalese group from Negombo, or anyone else who was against the applicant’s participation in the local elections, could still find him. In addition, about one week after he arrived at his cousin’s house, the applicant’s cousin screamed because she believed she had seen a “greaseman” on the roof.
h)In June 2012 the applicant’s cousin informed the applicant that his father wished the applicant to return, and the applicant’s father arranged the applicant to take a bus to Negombo. When he returned home the applicant’s parents told the applicant he had to leave the country so that his personal safety would be ensured.
i)The applicant fears he will be harmed or mistreated by the Sri Lankan authorities, and by those who are against the UNP. The applicant also fears he will be harmed or mistreated because he is Tamil, because he will be imputed with a political opinion favourable to the UNP, and because he belongs to the particular social group of failed Tamil asylum seekers.
The applicant supported his claims by submitting with his application a letter purportedly from the Politician dated 4 August 2012 (Purported Politician’s Letter) stating that the applicant “is a true supporter of our party (United National Party)”, and that the applicant “is an active supporter of our party and he gives all his efforts to me and our party to win the election”.[5]
[5] CB85
Tribunal’s reasons
The Tribunal did not accept the applicant was a witness of truth concerning his claims of past harm or threats, or his stated reasons for travelling to Australia, or his claimed fear of future harm.[6] The Tribunal relied on the following matters:
a)The applicant did not in the IMAE Interview refer to the incident he claimed occurred in October 2011.[7]
b)Before the Tribunal the applicant’s account of the incident he claimed occurred in October 2011 did not have the consistency or details the Tribunal expected it would have had if the event had occurred. The applicant initially stated he could not remember the number of Sinhalese who comprised the group who approached the applicant and his colleagues when they were putting up posters and, when asked to estimate, the applicant said five or six; yet in the Statement the applicant said there were ten people.[8] The applicant said he and his colleagues responded to the Sinhalese group by agreeing to move on, but did not mention what the applicant recounted in the Statement was said to the Sinhalese group, namely that they would put up the posters somewhere else.[9] The applicant was unable to tell the Tribunal why the Sinhalese group told the applicant and his group not to put up the posters, whereas in the Statement the applicant said he believed the Sinhalese told the applicant and his group not to put up posters because they were supporters of the Sinhalese candidate.[10]
c)Before the delegate the applicant was asked whether the applicant or his father had thought of reporting to the Politician the beating the applicant received, and he replied “no”; but before the Tribunal the applicant said the Politician was told about the beating, and the Politician asked the applicant to go the police, which the applicant did not do.[11]
d)The applicant did not let the Politician know he and others were pressured in October 2011 not to put up posters.[12]
e)The Tribunal considered it “unlikely” that the applicant would be attacked in December 2011, two and a half months after the Politician won the election, and in circumstances where the attackers were asking the applicant whether he was an important person working for the election.[13]
f)The applicant gave what the Tribunal found to be “vague, evasive and changed evidence in relation to Jaffna”.[14] The applicant told the Tribunal that he had left his home to travel to Jaffna at around 4-5pm, whereas in the Statement the applicant said he left at 10pm;[15] before the delegate the applicant said he did not know how long he stayed in Jaffna; and in his Statement the applicant said he had stayed there from December 2011 to June 2012.[16]
g)When asked by the Tribunal what had happened in the most recent elections, the applicant said he was not interested. The Tribunal considered that if the applicant had the political interests he claimed he had the applicant would have known a bit more about the politics in his country;[17] and if, as the applicant claimed, he feared the authorities, the Tribunal considered the applicant would want to know who presently is in charge in Sri Lanka.[18] The Tribunal’s concerns were heightened by the evidence the applicant gave before the delegate, and by the Purported Politician’s Letter.[19] It found that the “written evidence provided both in the applicant’s statement and in the letter [that is, the Purported Politician’s Letter] overstate the applicant’s oral evidence”, and that the applicant’s true position on politics was and is as he said to the Tribunal, namely, “he is not interested”.[20] The Tribunal further found that when it “takes into account all other concerns, as well as the country evidence that fraudulent documents can be obtained in Sri Lanka”, it was not prepared to accept the Purported Politician’s Letter is genuine.[21]
[6] CB276, [23], [46]
[7] CB276-277, [25]-[28]
[8] CB277, [29], first dot point
[9] CB277, [29], second dot point
[10] CB278, [28], third dot point
[11] CB278, [30]
[12] CB278, [31], first dot point
[13] CB278-279, [31], second dot point
[14] CB279, [32]
[15] CB279, [33]
[16] CB280, [38]
[17] CB280, [41]
[18] CB280, [41]
[19] CB280, [42]
[20] CB281, [44]
[21] CB281, [44]
Having concluded it did not accept the applicant’s claims of past harm the Tribunal considered whether the applicant will nevertheless face harm if he were to return to Sri Lanka. First, the Tribunal was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future, or a real risk of significant harm, because of his Tamil ethnicity, his place of origin and return, or because he has spent time out of Sri Lanka having travelled to Australia illegally by boat and is presumed to have claimed asylum, or because he will be suspected of links to the Liberation Tigers of Tamil Eelam (LTTE) or to other Tamil or antigovernment organisations or otherwise be of adverse interest to the authorities.[22] The Tribunal relied on what it found were the individual circumstances of the applicant (the applicant’s not having claimed to have had any political involvement in Australia; his having had no interest in Sri Lankan politics; the applicant’s or his family’s not having any LTTE connections, or his ever having been suspected of having such connections; and the applicant’s having departed Sri Lanka illegally); and country information.
[22] CB292, [101]
Second, the Tribunal considered whether the applicant would face harm because he will return as a failed asylum seeker. The Tribunal was satisfied there is a real chance that on his return to Sri Lanka the applicant will be questioned and investigated by the Sri Lankan government authorities, these being the Department of Immigration and Emigration, the State Intelligence Service, and a unit of the Criminal Investigation Division; but it noted there would be no reason for him to be considered of adverse interest to the authorities.[23] The Tribunal was also satisfied there was a real chance the applicant would be charged with an offence of illegally departing Sri Lanka; he would be held in custody for up to 24 hours or perhaps for a few days pending his transfer to a court; once before the court the applicant will be released on bail with a family acting as guarantor; and later the applicant will be fined between $400 and $1,600.[24] The Tribunal was not satisfied, however, that these matters amount to significant harm;[25] and it was satisfied that the process the applicant will be subjected to will be pursuant to a migration law for which there is no credible evidence is discriminatory in its terms, or in its intention or application.[26]
[23] CB295, [115]
[24] CB295-296
[25] CB296, [118]
[26] CB299, [132]
On the basis of these findings, the Tribunal concluded the applicant does not have a well-founded fear of persecution for the reasons put forward by him or on his behalf.[27] It then considered the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Tribunal repeated the effect of findings it had already made when considering whether the applicant suffered the criterion provided for by s.36(2)(a) of the Act; and concluded it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm.
[27] CB301, [145]
Grounds of application
The application contains four grounds. The applicant, who is not legally represented, confirmed to me that he understood what was contained in his application, and he did not want those grounds to be interpreted to him. The applicant made brief oral submissions. I propose first to consider each of the grounds stated in the application, and then I will deal with the submissions the applicant made at the hearing before me.
Ground 1
The first ground is that the Tribunal “made a legal error by asking itself the wrong question and/or made an irrelevant consideration”. Paragraph (a) of the particulars asserts the applicant made the claim set out in the following passage from the Tribunal’s reasons:[28]
The applicant started working on the election campaign for [the politician] . . . He decided to help [the Politician] because he has been known to help Tamils in the area, in particular with respect to their education. [The Politician] and the applicant’s father had been friends for a few years and his father suggested to him to assist with the campaign. As part of the campaign, the applicant’s job was to help put up posters to support [the Politician].
[28] CB273-274, [13], first dot point.
Paragraph (b) of the particulars asserts the applicant’s agent made a “post-hearing” submission as set out in the following passage from the Tribunal’s reasons:
. . . . even if he was just putting up posters he could still be imputed with a political opinion, his actual involvement should not matter and that one must be careful in assessing knowledge, noting that the applicant did not claim to be involved in politics at a federal level and so his lack of knowledge is understandable.
That appears to reproduce the effect of a submission the applicant’s representative made in a letter dated 7 May 2015,[29] and the effect of a submission the applicant’s representative made in a letter 17 December 2013.[30]
[29] CB210
[30] CB132, [49]
Finally, there is paragraph (c) of the particulars, which is as follows:
Nevertheless, on page 11 the Tribunal asked itself the wrong question and/or made [sic] an irreverent consideration and went on to base a credibility finding on a claim the applicant did not make:
“The Tribunal considers that if the applicant had any political involvement on behalf of the UNP, and if he feared the authorities in his country, he would have been aware for example [that there was now a UNP Prime Minister] undermines the applicant’s claims of political involvement or interest, and his credibility. [sic]
It will be seen that the complaint ground 1 makes is that the Tribunal made an adverse credibility finding in relation a claim the applicant did not make. In particular, ground 1 contends the Tribunal mistakenly understood the applicant to have claimed that he had a political involvement with the UNP that extended beyond assisting the Politician by erecting posters during a local election.
It is apparent from the passage quoted in paragraph (c) of the particulars that the Tribunal did consider the applicant claimed he had a political involvement with the UNP beyond simply assisting with the erection of posters. In my opinion, however, it was reasonably open to the Tribunal to have understood the applicant to have made a claim to that effect. First, in the Statement the applicant gave reasons why he decided to help the Politician. Those reasons included the Politician’s being known to help Tamils, and in particular in education, and the applicant’s wanting “to participate in the election to ensure that the Tamils in the area would continue to receive such assistance”.[31] That suggests the applicant had an interest in the UNP that went beyond rendering assistance by erecting posters.
[31] CB43, [3]
Second, the applicant supported his application for a Protection visa by submitting the Purported Politician’s Letter which stated that the applicant “is a true supporter of our party (United National Party)”, and that the applicant “is an active supporter of our party and he gives all his efforts to me and our party to win the election”. It is true that the applicant, through his representative’s letter dated 7 May 2015,[32] submitted that the applicant asked his parents to obtain the Purported Politician’s Letter from the Politician for the purpose of the Politician confirming that the applicant assisted the Politician “as described in his application”, and that to the extent the Purported Politician’s Letter overstated the applicant’s involvement, the Tribunal should take the letter “only as it was intended – to confirm that the Applicant indeed assisted [the Politician] with his campaign”. The Tribunal referred to that submission, but it did not accept it. It was reasonably open to the Tribunal not to accept the submission. The Purported Politician’s Letter could not reasonably be read in the manner the applicant’s representative submitted it ought to be read; or, at the very least, it could not only have reasonably been read in the manner the applicant’s representative submitted it ought to be read.
[32] CB210
The Tribunal relied in two ways on its finding that the applicant claimed he was involved with the UNP in the manner that was represented in the Statement and the Purported Politician’s Letter when assessing the applicant’s credibility. First, the Tribunal considered that the applicant’s claimed involvement with the UNP as stated in the Statement and in the Purported Politician’s Letter overstated what the applicant said to the Tribunal about his interest in politics. In other words, the Tribunal found that what, on the one hand, was represented in the Statement and the Purported Politician’s Letter and what, on the other hand, the applicant represented in his oral evidence, were inconsistent. Second, the Tribunal considered that had the applicant been involved with the UNP in the manner claimed in the Statement and the Purported Politician’s Letter, it was reasonable to expect the applicant would know that there was a UNP Prime Minister. It was reasonably open to the Tribunal to so reason when assessing the applicant’s credibility.
Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows:
The Tribunal made a legal error in failing to put its finding to a post hearing submission to the applicant for comment.
Particulars
(a)At footnote 4 on page 11 the Tribunal found that:
“The Tribunal has not had to make a finding on this submissions [sic] as it has not accepted, as set out below, his claims. However it does note the changed political circumstances and even if it had accepted that he had had, or was imputed with, low level involvement, then the DFAT assessments do not suggest that he would face a real chance of serious harm or real risk of significant harm.”
It is not clear what finding the ground claims the Tribunal ought to have put to the applicant “post hearing” for the applicant’s comments. There are two possibilities. One is the Tribunal’s conclusion that it did not accept the applicant’s claims of past harm. The second possibility is the Tribunal’s finding that even if it had accepted the applicant had or would be imputed with “low level involvement” in politics, country information in the form of “the DFAT assessments” did not suggest the applicant faced a real chance of serious harm or real risk of significant harm.
Whichever of the two possible findings (Findings) is the finding ground 2 claims the Tribunal ought to have put to the applicant, the Tribunal was not required to put propositions to the effect of the Findings to the applicant for his comments in advance of the Tribunal making them. Neither of the Findings is reasonably capable of being characterised as “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under the review”, as these words appear in s.424A of the Act. That is so because the Findings are two of a number of determinations the Tribunal made in the course of its decision; and the notion of “information” for the purposes of s.424A of the Act “does not encompass the tribunal’s subjective appraisals, thought processes or determinations”.[33] Further, the requirement imposed by s.425 of the Act that the Tribunal invite the applicant to appear before it for the purpose of giving evidence and presenting arguments does not require the Tribunal to give notice to the applicant of the possibility of its making either or both of the two Findings. The Findings related to issues which, given the reasons for which the delegate decided not to grant the applicant a Protection visa, the applicant ought reasonably to have been aware were issues before the Tribunal;[34] and for that reason the Tribunal was not required to give the applicant notice of them. Finally, a “decision-maker would not be otherwise obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”[35]
[33] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26, at [18], quoting from the judgment of Finn and Stone JJ in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at pages 476-477
[34] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
[35] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [24] quoting from the judgment of Northrop, Miles and French JJ in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd at (1994) 49 FCR 576.
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The Tribunal made a legal error in considering at page 11 that “the country evidence that fraudulent documents can be obtained in Sri Lanka” and mistakenly concluding that the letter from [the Politician] was not genuine without any attempt to verify its genuineness.
This ground makes two and, perhaps, three contentions. The first is that it was not open to the Tribunal to rely on country information to conclude that fraudulent documents can be obtained in Sri Lanka. I do not accept that contention. As was said by the Full Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10:[36]
i.There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. . . . . It is not . . . an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review.
[36] Gray, Tamberlin, Lander JJ, at [11]
The second contention made in ground 3 is that it was not open to the Tribunal not to accept that the Purported Politician’s Letter was genuine without the Tribunal making an inquiry of its genuineness. I do not accept that contention. It “is for the applicant for a protection visa to establish the claims that are made”;[37] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”.[38] The “function of the Tribunal . . . is to respond to the case that the applicant advances”;[39] and the Tribunal “is required to deal with the case raised by the material or evidence before it”.[40] Although in some circumstances where the existence of an easily ascertainable critical fact may be determined by the making of an obvious inquiry,[41] the Tribunal may be required to undertake such inquiry, such circumstances were not present before the Tribunal. The authenticity of the Purported Politician’s Letter was not by itself a critical fact; and I am not satisfied that the authenticity of the Purported Politician’s Letter could easily have been ascertained by the making of an obvious inquiry.
[37] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[38] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ)
[39] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[40] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]; ((Black CJ, French and Selway JJ)
[41] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, [25]
A third contention which ground 3 could reasonably be taken to make is that it was not reasonably open to the Tribunal not to accept that the Purported Politician’s Letter was genuine. If ground 3 is intended to make that contention, I do not accept it. In addition to relying on country information to the effect that the fraudulent document can be obtained in Sri Lanka, the Tribunal said it took into account “all other concerns”.[42] That is a reference to the matters it had already set out in its reasons on which it relied for not accepting the applicant is a witness of truth, including its finding that the Purported Politician’s Letter overstated the applicant’s oral evidence. It was reasonably open to the Tribunal to rely on those concerns together with the country information that showed that fraudulent documents can be obtained in Sri Lanka, to conclude it was not satisfied the Purported Politician’s Letter was genuine.
[42] CB281, [45]
Ground 3, too, fails.
Ground 4
Ground 4 is as follows:
The Tribunal made a legal error in denying the applicant a fair hearing by reasons [sic] of there being a reasonable apprehension of bias.
Particulars
(a) The fact-finding by the Tribunal was performed in a manner which in major respect was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision;
(b) The findings of fact to which the fair-minded and informed person might reasonably have regards in forming the apprehension include:
i.The Tribunal’s finding on the Tribunal’s own assertion relating to the applicant [sic] political involvements and interest in the UNP when the applicant made no such claim on page 11;
ii.The Tribunal’s credibility finding on the applicant’s political involvement and interest in the UNP when the applicant made no claim to be involved or interested in the UNP on page 11;
iiiThe Tribunal’s finding in relation to the applicant’s post hearing submissions that he was of “low level involvement” in accordance with DFAT assessments and therefore would not face a real chance of serious harm or a real risk of significant harm without putting the finding to the applicant for comment on page 11;
iv.The manner in which the Tribunal considered the country evidence that fraudulent documents in Sri Lanka in finding that the letter from [the Politician] was not genuine without any attempt to verify its genuineness; and
v. The manner in which the Tribunal considered the country evidence that fraudulent documents can be obtained in Sri Lanka in finding that the letter from [the Politician] was not genuine caused the applicant to be treated less favourably than another person in a similar situation because of his race, colour, descent, national or ethnic origin or immigrant status.
Ground 4 relies on the principles dealing with reasonable apprehension of bias; and, as is apparent from the particulars, the claim of apprehension of bias is based on the Tribunal’s having made what the ground contends were findings that are capricious, arbitrary, unreasoned, and lacking in rational or reasoned foundations, and were made on the basis of the Tribunal’s selectively relying on material. The particulars identify the findings the ground contends suffered from these vices. These are findings that are already the subject of the other grounds; and my conclusions in relation to those grounds are relevant to ground 4.
a)As for the matters stated in sub-paragraphs (b)(i) and (b)(ii) of the particulars, I have found that it was open to the Tribunal to find that the applicant claimed he had an involvement and an interest in the UNP beyond that of erecting posters during a local election campaign; and that it was reasonably open to the Tribunal to rely on that claim in the manner that I found it did when assessing the credibility of the applicant.
b)As for the matter stated in sub-paragraph (b)(iii) of the particulars, I have found that the Tribunal was not required to put to the applicant that it proposed to find, or was considering finding, that even if it had accepted the applicant’s claims he had or was imputed with a “low level involvement” in politics.
c)As for the matters stated in subparagraphs (b)(iv) and (b)(v) of the particulars, I have already found it was reasonably open to the Tribunal not to accept as genuine the Purported Politician’s Letter.
Given my findings, I do not accept that any of the findings identified in paragraph (b) of the particulars to ground 4 constitute findings that are capricious, arbitrary, unreasoned, or lacking in rational or reasoned foundations, or were made on the basis of the Tribunal’s selectively relying on material.
Subparagraph (b)(v) of the particulars suggests that the Tribunal’s concluding the Purported Politician’s Letter was not genuine was the result of the Tribunal’s treating the applicant less favourably because of his race, colour, descent, national or ethnic origin or immigrant status. This subparagraph, however, does not identify the race, colour, descent, national or ethnic origin, or immigrant status by reference to which the applicant is said to have been treated less favourably. Nor does the paragraph identify how the Tribunal’s reliance on country information is said to have resulted in the applicant’s being treated less favourably because of his race, colour, descent, national or ethnic origin or immigrant status. I do not accept that the Tribunal’s reliance on country information that showed fraudulent documents can be obtained in Sri Lanka is any basis for finding that the Tribunal treated the applicant less favourably because of his race, colour, descent, national or ethnic origin, or immigrant status.
There is an additional reason why ground 4 fails. As I have noted, the claim of apprehended bias relies exclusively on findings the Tribunal made. At least in most cases, it is not permissible to conclude that a fair minded observer might conclude from adverse findings a decision-maker has made that the decision-maker might not have considered the matter before him or her on other than the factual and legal merits of the matter. This point was made in the following passage from the judgment of the plurality in Michael Wilson & Partners Limited v Nicholls (emphasis in original):[43]
An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
[43] [2011] HCA 48, at [67] (footnote omitted)
Although these observations were made in the context of a judge, they apply equally to decisions made by the Tribunal.
Ground 4, therefore, also fails.
Applicant’s Submissions at hearing
At the hearing before me the applicant said the problem was that the Tribunal said he was untruthful; the applicant was putting up posters during election time; and he supported his claim by providing the Purported Politician’s Letter certifying that the applicant worked for the Politician but the Tribunal did not accept the Purported Politician’s Letter was genuine. The applicant then asked rhetorically how could he prove he worked for the Politician. The applicant also said he travelled to Jaffna, and that after coming from there the applicant faced some problems, but the Tribunal did not believe him. In reply the applicant further submitted that the Tribunal was not correct in finding that on his return the applicant will face punishment that is the same for the whole population; the applicant said that he will end up in gaol, and all his previous problems will be dug up with the consequence that his life will be in danger.
These matters go no further than expressing disagreement with the Tribunal’s findings, and in particular the Tribunal’s finding that the applicant was not a witness of credit. This Court does not have jurisdiction to determine whether the Tribunal was correct in the findings it made; the role of the Court is to determine whether, on the grounds on which the applicant relies, the Tribunal made any jurisdictional error.
Conclusion and disposition
For the reasons I have given, none of the grounds on which the applicant relies has been established; and I am not satisfied the Tribunal made any jurisdictional error in affirming the delegate’s decision not to grant the applicant a Protection visa. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs at the time I pronounce my order dismissing the application.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 October 2018
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
0
8
2