BOG16 v Minister for Immigration Anor
[2018] FCCA 2354
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOG16 v MINISTER FOR IMMIGRATION ANOR | [2018] FCCA 2354 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Ahmed v Minister for Multicultural Affairs [2001] FCA 603 |
| Applicant: | BOG16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1341 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 23 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| Counsel for the applicant: | Mr Krohn |
| Solicitors for the applicant: | Ambi Associates |
| Counsel for the respondents: | Mr Petrie |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The applicant’s application filed on 24 June 2016 and amended on 4 April 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1341 OF 2016
| BOG16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the then Refugee Review Tribunal, a predecessor of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 6 June 2016. The tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the applicant a protection (class XA) visa (“the visa”) under section 65 of the Migration Act 1958 (Cth) (“the Act”).
The applicant, by his amended application filed 4 April 2018, alleges that the tribunal’s decision is affected by jurisdictional error and raises two grounds on which that submission relies.
The applicant’s claims
The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu religion. The applicant arrived in Australia by boat on 1 August 2012 as an unauthorised maritime arrival.[1] He applied for a protection visa on
27 November 2012.[2][1] Court book page 141.
[2] Court book pages 17 to 101.
The applicant claimed that:
a)as a young Tamil male he was taken by the military and interrogated on a number of occasions and further, he was made to kneel in the sun while being interrogated;
b)he was suspected of supporting the
Liberation Tigers of
Tamil Eelam (“the LTTE”) as a result of the fact that he was a driver of a three-wheeler vehicle which was commandeered by the LTTE in 2002;
c)in 2006, during the conflict between the Sri Lankan Army and the LTTE, three-wheeler drivers were suspected of supporting the LTTE and the Sri Lankan Army shot and killed two such drivers;[3]
d)his nephew was pursued by the army and was killed in a motorbike crash;[4]
e)in 2006 the applicant left his home area as a result of these concerns and moved from place to place for four years – when he returned in 2010, he was questioned and assaulted by the security forces;[5]
f)upon his release, he was told to report weekly but he did not do so;[6] and
g)he subsequently left Sri Lanka in 2012 after the security forces started asking about him at his workplace.
[3] Court book pages 11 and 76.
[4] Court book pages 11 and 76.
[5] Court book pages 11, 76, 146 and 277.
[6] Court book page 76.
The applicant claimed that he feared harm if he was forced to return to Sri Lanka as a result of being:
a)a young Tamil man;
b)a driver of a three-wheeler vehicle which had been commandeered by the LTTE; and
c)a suspected supporter of the LTTE.
The applicant feared specifically that he would be killed, tortured, mistreated or detained if returned to Sri Lanka.
The applicant was represented by a migration lawyer who submitted a pre-hearing written submission in support of the applicant’s application, attended the hearing before the tribunal with the applicant on
8 April 2015 and provided extensive post-hearing submissions on the applicant’s behalf.Relevantly for this application, the applicant made reference in his
post-hearing submissions to the fact that the applicant’s brother had travelled to Australia before him and had been determined to be a refugee in 2014. It was submitted in that post-hearing submission that the applicant’s brother’s claims “relate to those of (the applicant)”.[7][7] Court book page 364 at paragraph [31].
Importantly, the applicant’s representative referred to particular aspects of the tribunal’s decision in relation to the applicant’s brother; in particular, that the tribunal which considered the applicant’s brother’s claim:
…was satisfied that (the applicant’s brother) would face persecution due to a combination of a pro-LTTE political opinion imputed to him and his Tamil race…[8]
[8] Court book page 364 at paragraph [31].
…
accepted that (the applicant’s brother’s) name appeared ‘on official records as a person suspected of some tenuous connection with the LTTE (it is unclear what)’ and that he would therefore plausibly continue to be persecuted.[9]
[9] Court book page 365 at paragraph [31(c)].
In respect of the latter point, it was submitted on behalf of the applicant that:
It is plausible that these link(s) to the LTTE, though seemingly not fully disclosed, explored or understood, involve (the applicant) and his auto-rickshaw which was used by the LTTE.[10]
[10] Court book page 365 at paragraph [31(c)].
It is in this context that the applicant’s representative submitted on behalf of the applicant that his brother’s claims “substantiate and corroborate those of (the applicant)”.[11] The applicant’s representatives went on to say:
We submit that the fact that (the applicant’s) brother has been recognised as a refugee in Australia, and that his nephew is currently seeking asylum in Germany, provide convincing support for the Tribunal to make a finding that Australia’s international protection obligations should be extended to (the applicant) on highly similar grounds.[12]
[11] Court book page 365 at paragraph [34].
[12] Court book page 365 at paragraph [34].
The tribunal’s reasons
In its decision of 6 June 2016, the tribunal:
a)accepted that there were altercations between the army and rickshaw drivers in December 2005 and that a number of three-wheeled drivers and owners were shot by gunmen in 2006;[13]
[13] Court book page 419 at paragraph [8].
b)did not accept that the death of the rickshaw drivers was because of an imputed association with the LTTE either because of their occupation or because their rickshaws were used on celebration days or at other times during the ceasefire;[14]
[14] Court book page 419 at paragraph [8].
c)accepted that the applicant would have been questioned during 2006 but did not accept that this created a real chance or a real risk that the applicant would be harmed now or in the foreseeable future because of an imputed LTTE association;[15]
[15] Court book page 419 at paragraph [9].
d)accepted that the applicant may have been questioned by the army on his return to Point Pedro in 2010 after an absence of some four years and that the army may have beaten or mistreated him during this questioning but did not accept that the army suspected him of supporting the LTTE in 2010 because he drove a three-wheeler vehicle during the ceasefire, namely between 2002 and 2006;[16]
[16] Court book page 420 at paragraph [12].
e)did not accept that the army suspected the applicant of involvement in the bomb blast in 2006;[17]
f)accepted that the applicant may have been told to report once a week by the army, although it expressed some doubts about this;[18]
g)accepted that the applicant’s nephew died in a motorcycle accident in 2010 but did not accept that the army or the intelligence services were chasing the applicant’s nephew because he was imputed to be an LTTE supporter, because he had used his three-wheeler prior to 2006 or because of the applicant;[19]
h)did not accept that the army or other security forces were searching for the applicant in 2012 or that the applicant was imputed to be an LTTE supporter or to have LTTE associations in 2010 or 2012;[20]
i)did not accept that the applicant would be considered a supporter of or otherwise associate with the LTTE now or in the reasonably foreseeable future because he drove a three-wheeler between 2002 and 2006 or because the LTTE used his three-wheeler to make announcements or to carry flags; nor was it satisfied that the applicant fell within the risk profiles which might give rise to an imputed LTTE association identified by the UNHCR in 2012;[21]
j)did not accept that the applicant will suffer discrimination or any other harm amounting to serious or significant harm on return to Sri Lanka because of his Tamil race;[22]
k)after considering the applicant’s submissions regarding his brother’s claims, did not accept that the applicant faced a real risk or a real chance of serious or significant harm because his brother has been granted asylum in Australia;[23]
l)in light of its findings that it did not accept that the applicant had been imputed with an LTTE association arising from his occupation as a three-wheeler owner or driver, did not consider that the applicant’s claims about his nephew who had applied for asylum in Germany had any impact on its views;[24]
m)did not accept that the Sri Lankan authorities would view his departure from Sri Lanka as proof of his links with the LTTE;[25] and
n)did not accept that any questioning, detention and fine imposed as a result of the applicant’s illegal departure from Sri Lanka would give rise to a real risk of significant harm.[26]
[17] Court book pages 420 and 421 at paragraph [13].
[18] Court book page 421 at paragraph [14].
[19] Court book page 421 at paragraph [19].
[20] Court book page 422 at paragraph [23].
[21] Court book page 422 at paragraph [24].
[22] Court book page 424 at paragraph [29].
[23] Court book page 424 at paragraph [33].
[24] Court book page 425 at paragraph [34].
[25] Court book page 427 at paragraph [41].
[26] Court book pages 427 to 430 at paragraphs [43]-[57].
The tribunal concluded that the applicant did not face a real chance of serious harm at the time of its decision or into the reasonably foreseeable future from the Sri Lankan Army or other authorities because of his race, an imputed link with the LTTE, as a rickshaw driver, because he applied for asylum in Australia or because he left Sri Lanka illegally. Relevantly the tribunal stated:
The tribunal finds that the applicant does not have a well-founded fear of persecution in Sri Lanka because of his race or imputed political opinion or as a member of a particular social group of Tamil rickshaw drivers or his brother’s family or Tamil returnees or failed Tamil asylum seekers or Tamils who left Sri Lanka illegally, separately or cumulatively.[27]
[27] Court book page 430 at paragraph [10], noting this paragraph was incorrectly numbered and follows after paragraph [57] at court book page 430.
The tribunal also concluded that:
There are not 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 he will suffer significant harm.[28]
[28] Court book page 430 at paragraph [11], noting this paragraph was also incorrectly numbered and follows after paragraph [10] at court book page 430.
Ground one
The first ground of review is:
The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations by failing to consider claims, or integers of claims or information required by the Act and the law to be considered.
Particulars
(a)The Tribunal accepted “that the Army may have questioned the applicant when he returned … in 2010 … because he had returned after a four year absence, and that the Army may have beaten him or otherwise mistreated him during this questioning...
(b)The Tribunal “accepts that [the applicant] may have been told to report”…
(c)The Tribunal “accepts that if the applicant was asked to report … in 2010 and did not do so, the Army may have gone to his home … in 2010 to inquire about him”…
(d)The applicant claimed and the Tribunal apparently accepted that the applicant’s brother had suffered serious harm in Sri Lanka and had been granted protection in Australia as a refugee, and had been found by the Tribunal member in that matter to have his name “on official records as a person suspected of some tenuous connection with the LTTE (it is unclear what)”…
(e)The Tribunal accepted that “on return to Sri Lanka the police undertake and (sic) investigative process … which would address whether someone was … trying to avoid, among other things, court orders or arrest warrants. This often involves … contacting the person’s claimed home address”…
(f)Despite these findings, the Tribunal in the present matter failed to consider whether the applicant may have a real chance of longer detention, or other serious harm, by the cumulative effect of the inquiries on his return revealing his having been detained and beaten by the army, having been required to report weekly but having failed to report, been inquired for by the Army, and also by the fact that on his return he would be scrutinised as a person whose brother has his name “on official records as a person suspected of some tenuous connection with the LTTE”;
(g)The Tribunal further failed to consider what were the applicant’s brother’s connections with the LTTE (as opposed to his status as having protection in Australia), and whether these connections may separately or in conjunction with other factors cause the applicant to have a real chance of serious or significant harm (emphasis in original).[29]
[29] Page 5 of the applicant’s amended application filed 4 April 2018 and the references contained therein.
It is common ground that the tribunal is required to consider each necessary claim and integer of such claims made by the applicant as well as any unarticulated claims which can be said to clearly arise from the material before it.[30] In fact, a failure to do so could constitute jurisdictional error.
[30] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [48]–[49] and [55]–[63].
It was submitted on behalf of the applicant that given the duty to provide reasons pursuant to section 430 of the Act, the omission of a question or finding from those reasons may be evidence of the fact that the tribunal did not consider that matter and therefore fell into jurisdictional error. The applicant also, in his written submissions, argued that the tribunal’s task is an inquisitorial one and referred to its power to seek information under section 424 of the Act.
The applicant argued that the cumulative effect of the findings of fact which the tribunal made, raised the question of whether upon his return, “is there a real chance that the applicant may have a real chance of longer detention, or may suffer other serious harm”[31].
[31] Applicant’s outline of submissions filed 4 April 2018 at paragraph [24].
Moreover, although the tribunal found that the applicant was not imputed with an LTTE association before he left Sri Lanka, it was submitted on behalf of the applicant that the tribunal was required, but failed to consider whether he may be regarded as having such a link on his return as a result of the cumulative effect of the matters set out in the applicant’s written submissions, including that he would be scrutinised on his return as a person whose brother has his name ‘on official records as a person suspected of some tenuous connection with the LTTE.’[32]
[32] Applicant’s outline of submissions filed 4 April 2018 at paragraph [24].
In addition, it was argued that the tribunal failed to consider the precise links that the applicant’s brother had with the LTTE and whether these links (as opposed to the brother having been granted protection in Australia) might separately or in conjunction with other factors, cause the applicant to face a real chance of serious or significant harm.[33].
[33] Applicant’s outline of submissions filed 4 April 2018 at paragraph [26].
In response, counsel for the Minister argued that the tribunal did consider all relevant aspects of the applicant’s claims and there were no claims which clearly arose on the material which were not dealt with by the tribunal.
It is not for the tribunal to make out the applicant’s case for him. I find that to the extent that the applicant made reference to his brother’s claims, he did so only in his post-hearing written submissions on the basis that the acceptance of his brother’s claim “provide(s) convincing support for the Tribunal to make a finding that Australia’s international protection obligations should be extended to (the applicant) on highly similar grounds”.[34] There was no claim raised either expressly or which could be said to squarely arise within the meaning articulated in
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2)(2004) 144 FCR 1; [2004] FCAFC 263 (“NABE”), that the applicant faced additional risks as a result of his brother’s links to the LTTE (however tenuous they might be).
[34] Court book page 365 at paragraph [34].
Moreover, as noted by Sackville J in Ahmed v Minister for Multicultural Affairs [2001] FCA 603 (“Ahmed”):
In carrying out its task, the RRT had to take into account the material before it. Like the decision-maker who determined brother’s application (sic), the RRT had to determine the applicant’s claim for a protection visa in light of the facts and circumstances at the time of the decision … An earlier decision of the delegate or the RRT granting the applicant’s brother a protection visa was in no sense binding upon the RRT. Nor was it a matter the RRT was bound to take into account…[35]
[35] Ahmed v Minister for Multicultural Affairs [2001] FCA 603 at [12].
In addition, his Honour noted in Ahmed that the applicant in that case, as in this case:
... was represented before the RRT. It was not suggested that any impediment had been placed in his path in adducing material supportive of his claims. There is no warrant for imposing a duty on the RRT to attempt to formulate or make out the applicant’s case for him.[36]
[36] Ahmed v Minister for Multicultural Affairs [2001] FCA 603 at [13] and the reference contained therein.
These comments equally apply in the present case, where the applicant was represented throughout the proceedings before the delegate and the tribunal. As stated above, the applicant only referred to his brother’s case in any detail during post-hearing submissions and at that point, made express reference to the relevant aspects of the decision of the tribunal in the applicant’s brother’s case. It is evident from those submissions that the applicant was seeking to rely upon the decision in his brother’s case and the similarity with his claims as a basis for the tribunal to come to a similar view in his case. It is also evident from the applicant’s submissions in relation to his brother that he was submitting that the basis for his brother’s “tenuous link to the LTTE” was linked to the applicant’s three-wheeler and its use in LTTE activities.
I find that the tribunal considered these claims. In particular, the tribunal stated:
Even if his brother had a tenuous link to the LTTE (according to the information provided in the submission), the applicant has not claimed to have been imputed with an LTTE connection because of his brother or to have suffered any harm in Sri Lanka because of his brother and the Tribunal does not accept that he will be imputed to have an LTTE connection now or harmed because his brother was granted protection.[37]
[37] Court book page 424 at paragraph [33].
The tribunal’s findings in this regard were open and responsive to the claims advanced by the applicant. Contrary to the assertion now made on behalf of the applicant, no claim squarely arises from the material before the tribunal that the applicant’s brother’s connection with the LTTE (as opposed to his status as having protection in Australia) may separately or in conjunction with other factors cause the applicant to face a real chance of serious or significant harm. It is apparent from the applicant’s post-hearing submissions that the reference to the applicant’s brother was put forward as corroborating the applicant’s claims, not as a separate basis for a fear of persecution claim.
For these reasons, the applicant has failed to make out ground one.
Ground two
The second ground of review is:
The Tribunal fell into jurisdictional error in that it failed to make inquiries as required by law whether by the exercise of its power under section 424 of the Act to get information or otherwise.
Particulars
The Tribunal failed to exercise its power to get information or evidence in that it did not inquire into what were the applicant’s brother’s connections with the LTTE.[38]
[38] Page 6 of the applicant’s amended application filed 4 April 2018.
Section 424 of the Act relevantly permits the tribunal, in conducting a review, to ‘get any information that it considers relevant’.[39] Whilst it permits this, it does not direct the tribunal to make such inquiries. It goes on to say that if it does get such information, it must have regard to it in making its decision.[40]
[39] Migration Act 1958 (Cth), s 424(1).
[40] Migration Act 1958 (Cth), s 424(1).
It was argued on behalf of the applicant that where there is ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’[41] then the power to obtain that information may in fact be a duty. Therefore, a failure to do so gives rise to a jurisdictional error.
[41] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25].
The applicant pointed to the tribunal’s reasoning where it accepted that the applicant’s brother:
a)had suffered serious harm in Sri Lanka;
b)was granted refugee status in Australia; and
c)had been found by the tribunal considering his application to have “appeared on official records as a person suspected of some tenuous connection with the LTTE (it is unclear what)”[42]; but
d)nevertheless concluded that the applicant did not fall within the risk profile identified by the United Nations High Commissioner for Refugees (“UNHCR”) which included “persons with family links” to persons with profiles of connection with the LTTE.[43]
[42] Court book page 424 at paragraph [32].
[43] Court book page 422 at paragraph [24] and the references contained therein.
It was submitted that in the context of these findings, the nature of the applicant’s brother’s links to the LTTE was a critical fact which the tribunal could have easily determined by having regard to the information in his brother’s file. Consequently, it was argued that a failure to undertake this task amounted to a failure to discharge the tribunal’s statutory task and as such, a jurisdictional error.
In support of this submission, the applicant relied upon the comments by the Honourable Justice Tracey in AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 (“AMT15”) in which his Honour said:
It would have been relatively easy for the Tribunal to have… [made these inquiries]. The failure to make these obvious enquiries which had the potential to have a material bearing … constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction…[44]
[44] AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 at [47].
The applicant was granted leave to rely upon an affidavit filed by his solicitor, Mr Chellappah Ambikaipalan on 6 April 2018. Annexure
CA-1 to that affidavit was a copy of the tribunal decision in relation to the applicant’s brother in which the tribunal made certain findings about the applicant’s brother’s claim for a protection visa.[45]
[45] Annexure CA-1 in the affidavit of Chellappah Ambikaipalan filed 6 April 2018.
Counsel for the applicant referred to various aspects of the tribunal decision regarding the applicant’s brother. It was conceded that the tribunal, as presently constituted, was not obliged to accept any of the tribunal’s findings of his brother’s application. However, it was said that had the present tribunal made reference to the applicant’s brother’s claim, it would have had more information about the claims made by the applicant’s brother and perhaps more importantly, it may have considered the applicant to fall within one of the UNHCR profiles of persons at risk, namely as a person with family links to the persons with one of the specified profiles.[46]
[46] Transcript page 23 at lines 14 to 31.
In response, it was said on behalf of the Minister that the applicant in these proceedings only made reference to his brother’s claim insofar as corroborating his own claims. Moreover, it was submitted that the tribunal had regard to this claim, considered it and noted the applicant’s claim that the tribunal dealing with the applicant’s brother’s claim accepted that the applicant’s brother’s “name appeared on official records as a person suspected of some tenuous connection with the LTTE.”[47]
[47] Transcript page 25 at lines 28 to 31.
In addition, it was submitted on behalf of the Minister that the applicant in this case made no claim regarding the applicant’s brother’s profile and how that might impact on him.
I agree with the submissions put on behalf of the Minister that none of the passages from the tribunal’s decision in the brother’s application and referred to by counsel for the applicant are relevant to this present application. Other than dealing with similar allegations at similar times and in similar locations, there is no reference in the brother’s tribunal’s decision to the applicant in this case. There is no suggestion that the brothers were involved in the same activities or that they were captured, interrogated or tortured together. In any event, as was correctly conceded by the applicant’s counsel, a finding by one tribunal in relation to the applicant’s brother is not binding in any way on another, nor is the present tribunal bound to take such other finding into account. To the extent that the applicant in this case made express reference to the brother’s tribunal decision and findings made by that tribunal, those matters were considered and taken into account by the tribunal in the present case.
As noted by the majority of the High Court in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (“SZIAI”), in the face of a similar argument to that advanced in this case regarding section 424 of the Act:
It has been said in this court on more than one occasion that proceedings before the tribunal are inquisitorial, rather than adversarial in their general character… The relevant ordinary meaning of ‘inquisitorial’ is “having or exercising the function of an inquisitor”, that is to say “one whose official duty it is to inquire, examine or investigate”. As applied to the tribunal ‘inquisitorial’ does not carry that full ordinary meaning. It merely delimits the nature of the tribunal’s functions… The core function, in the words of s 414 of the Act, is to “review the decision” which is the subject of a valid application made to the tribunal under s 412 of the Act.[48]
[48] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [18] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The majority then went on to say:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.[49]
[49] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
It is noteworthy that in SZIAI, the court concluded that there was no jurisdictional error as there was no failure to make such an inquiry. In SZIAI, the issue was whether the tribunal fell into error by failing to make an inquiry as to the authenticity of certain documents. Similarly, in AMT15, his Honour Justice Tracey considered the tribunal’s failure to make inquiries about the authenticity and veracity of a letter provided by the applicant in support of his claims. The tribunal in that case had concerns about the credibility of the applicant and stated that it was not satisfied that the document which was submitted by the applicant overcame those concerns. The tribunal went on to say that it therefore did not give any evidentiary weight to that document. His Honour found that had the letter been accepted, it had the potential to bolster the applicant’s claim. His Honour then relevantly said:
It is one thing for a decision-maker, having examined a particular document, to conclude that its contents were insufficient to overcome his or her concerns about an applicant’s credibility; it is another altogether for the decision-maker to decline to place any weight on the contents of the document without explaining why the corroborative material in the document should be discounted or ignored.[50]
[50] AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 at [45].
…
The Tribunal was not under any duty to gather evidence or to make a case for AMT15 … However, in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the (relevant person) … it would have been relatively easy for the Tribunal to have, … contacted the (author of the document) and enquired as to whether he had sent the letter to AMT15… The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15’s credibility and some of his claims of political involvement, constituted on the facts of this case, a jurisdictional error. [51]
.[51] AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 at [47].
This case is distinguishable from AMT15. In this case, the applicant’s representatives not only made reference to the fact that the applicant’s brother had been assessed as a refugee but also summarised the relevant findings of the tribunal that considered his claim. The applicant was represented throughout the proceedings before the tribunal and there is nothing in the material to suggest that the applicant was prevented from raising any arguments or referring to any evidence which he considered relevant to his claim.
The tribunal expressly dealt with the claim by the applicant in its decision as follows:
(The tribunal) accepted that his brother’s name “appeared on official records as a person suspected of some tenuous connection with the LTTE (it is unclear what)” and that this unclear, tenuous connection plausibly involved the applicant and his rickshaw. The Tribunal does not accept that the applicant has an imputed LTTE connection arising from being a rickshaw driver for the reasons set out above.[52]
[52] Court book page 424 at paragraph [32].
Moreover, the tribunal added “the applicant has not claimed any past imputed LTTE association because of his brother”.[53]
[53] Court book page 427 at paragraph [41].
In these circumstances, the tribunal did not make the type of error found in AMT15.
As stated above, the applicant referred to the brother’s claim by way of corroboration. The applicant did not make any claim, nor did one squarely arise on the material before the tribunal in the sense discussed in NABE; that is, that he claimed fear because of his brother’s association with the LTTE or that this association brought the applicant within one of the UNHCR identified risk profiles. Indeed, this is noted in the tribunal’s reasons where it states:
The applicant did not make any claims in relation to his brother or his brother’s situation.[54]
[54] Court book page 424 at paragraph [31].
In these circumstances, there was no obligation on the tribunal to review the applicant’s brother’s protection visa application file and therefore, any failure to do so does not disclose a jurisdictional error. Put simply, the applicant, with the benefit of legal representation, drew the tribunal’s attention to the fact that he had a brother whose application for a protection visa had been the subject of a tribunal decision and relevantly referred the tribunal in this case to those aspects of that proceeding which he considered pertinent to his claim. The tribunal considered those matters.
In addition, the tribunal directly considered the question of whether the applicant fell within one of the UNHCR risk profiles where it said:
Further, the applicant does not fall within the risk profiles which might give rise to an imputed LTTE association identified by the UNHCR in 2012 namely persons who held senior positions with the LTTE; former combatants; former combatants employed in administration, intelligence or media roles; former supporters involved in providing shelter and transport to LTTE personnel or goods; fundraisers and propagandists; and persons with family links to persons with the above profiles (emphasis added).[55]
[55] Court book pages 422 and 423 at paragraph [24].
Applying a fair reading of the tribunal’s reasons in the sense discussed, this ground also fails.
Conclusion
As neither of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 30 August 2018
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