BPQ15 v Minister for Immigration
[2019] FCCA 703
•29 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPQ15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 703 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – citizen of Sri Lanka – ethnic Tamil – whether relevant matter taken into account – whether failure to discern a Convention nexus – whether denial of natural justice – whether error of law – whether ultra vires – whether jurisdictional error. |
| Legislation: Immigrants & Emigrants Act 1948 (Sri Lanka) Migration Act 1958 (Cth), ss.36, 46A, 65, 422B, 424A, 424AA, 474, 476 |
| Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 |
| Applicant: | BPQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 367 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 June 2016 |
| Date of Last Submission: | 23 June 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 March 2019 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr R Hooker |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the applicant have leave to rely on an amended application filed 16 June 2016.
That the application filed 3 August 2015, as amended by the amended application filed 16 June 2016, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 367 of 2015
| BPQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application for judicial review (“Judicial Review Application”) filed on 3 August 2015, and amended on 16 June 2016 (“Amended Judicial Review Application”), the applicant seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Tribunal Decision dated 17 July 2015 affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) not to grant the applicant a Class XA protection visa (“Protection Visa”). The Tribunal Decision appears in the Court Book (“CB”) at CB 204-228.
Background
The background to the Amended Judicial Review Application is as follows:
a)the applicant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia as an unauthorised maritime arrival on 24 June 2012: CB 42-43;
b)the Minister exercised the power under s.46A of the Migration Act on 16 October 2012 to enable the applicant to apply for the Protection Visa: CB 24;
c)on 21 November 2012 the applicant lodged his Protection Visa application and made the following claims in the accompanying statutory declaration at CB 57-59:
i)he will suffer persecution due to his ethnicity and the lack of state protection, and his imputed political opinion;
ii)in July 2011 the applicant was abducted, then blindfolded and restrained, by four or five people and driven in a van, assaulted and beaten until he was dragged from the van, made to kneel down and shown photographs and asked if he knew anyone in the photos;
iii)when the applicant stated he did not know anyone in the photographs his head was pushed down forcefully to the floor and his lip was cut, he was assaulted and a wicket stump was used to beat him while he was continuously questioned about the photographs and asked “why are you going to Jaffna that often - you ought to know those people in the photo” and this beating and questioning occurred 4 or 5 times until he was released at 5am the next morning;
iv)he believes he was interrogated because he had a very large and visible scar on his stomach from a previous appendix operation and his abductors may have suspected it came from injuries sustained in fighting;
v)the applicant was in pain, he experienced swelling on his body, had a cut lip and his heels were also beaten badly such that it was painful to walk, but although he was really scared and his father asked him to lodge a report at the police station, his abductors had said “Don’t ever try to lodge any report against us”, and the applicant did not know who his abductors were, and reports are not normally accepted if the identity of the persons involved is not known;
vi)upon returning to work in Colombo about a week later the applicant learned someone had been enquiring about him, asking about his employment, character and whether or not he had registered his presence with the police, and this caused him to fear he would again be abducted, and as he was working with gold which was an expensive item he was scared these people were going to rob him;
vii)enquiries about the applicant were made at his workplace about four more times, but he was absent on those occasions, and he also learned that people had asked his neighbours about him, and he presumed these people were associated with his abductors, and anytime he sees a van he is in immediate fear;
viii)he cannot say for sure what would happen if he were to return to Sri Lanka or why, but he fears he will be kidnapped, assaulted and interrogated; he was not able to concentrate or go to work without anxiety as he fears it was decided that because he is Tamil, visits Jaffna frequently for work and has a significant scar, that people think he is a supporter or ex-member of the paramilitary groups; and
ix)as he departed Sri Lanka illegally he may be detained by authorities upon his return asking why he left;
d)the Delegate invited the applicant to attend an interview on 21 March 2013: CB 121, and on 18 September 2013 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa, noting that at the interview the applicant amended his claims to include that he was a member of a particular social group of persons suspected of links with the Liberation Tigers of Tamil Eelam (“LTTE”): CB 126-156;
e)on 9 October 2013 the applicant applied for review of the Delegate’s Decision by the Tribunal: CB 157-166;
f)on 9 January 2015 the applicant’s migration agent forwarded written submissions to the Tribunal and in his “Response to Hearing Invitation” advised that the applicant would be providing written witness statements as opposed to requesting the Tribunal take oral evidence from witnesses as the applicant feared his telephone calls were being monitored: CB 177;
g)the applicant attended a hearing at the Tribunal on 16 January 2015 (“Tribunal Hearing”) assisted by an interpreter and his migration agent, and the applicant’s migration agent was invited to provide further information or submissions: CB 188-190;
h)email correspondence ensued between the applicant’s migration agent and the Tribunal with respect to the applicant obtaining a psychological report indicating he suffered from moderate to high levels of trauma, anxiety and depression, and a letter from his father, both of which were provided to the Tribunal on 4 March 2015: CB 192-199; and
i)on 17 July 2015 the Tribunal Decision affirmed the Delegate’s Decision: CB 204-228.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)summarised the relevant law under the Migration Act to be considered for the purpose of the Protection Visa application: CB 205-207 at [5]-[18], and extracted portions of country information referring to the treatment of Tamils and white van abductions in Sri Lanka, and of failed asylum seekers and illegal departees from Sri Lanka: CB 213-224;
b)referred to the claims of the applicant to have suffered persecution because of:
i)his presumed links with and support of the LTTE;
ii)his repeated trips to Jaffna for reasons relating to his work as a jeweller that appear to have raised the suspicions of the authorities or others working at their behest;
iii)his being abducted in 2011 and beaten severely and questioned about the people in the photos and his trips to Jaffna;
iv)people enquiring about him to his neighbours and co-workers such that he feared what would befall him next; and
v)his leaving Sri Lanka illegally and his return as a failed asylum seeker: CB 207 at [19]-[20];
c)noted that in his first interview upon arrival on 25 June 2012 the applicant stated he sought protection in Australia because it is difficult to live in Sri Lanka as a Tamil, while in his entry interview on 8 August 2012 the applicant provided a more detailed account that included his disclosing the 2011 abduction and the applicant’s statutory declaration he provided with his Protection Visa application: CB 210-211 at [24]-[27];
d)discussed the Delegate’s Decision, including that the Delegate had concerns about the credibility of the applicant and in particular the credibility of his claim to have been abducted: CB 211-212 at [29]-[34];
e)referred to the applicant having provided further details of his claims including that he:
i)was cautious in the year after the abduction so as to avoid any further attack;
ii)had previously attempted to depart Sri Lanka but was caught and detained; and
iii)had previously held a passport as some years ago he was exploring textile trading in India, but he did not pursue the matter: CB 212 at [37]-[43];
f)referred to the “inconsistencies and concerns about the applicant’s implausibility” set out in the Delegate’s Decision, in relation to which the applicant said that he did not know why he had been targeted, and speculated that perhaps it was jealousy over the family’s nice house, frequent trips to Jaffna, or his work, and the applicant’s migration agent submitted that as there was no ransom demand a conclusion could be drawn that the targeting of the applicant was politically motivated: CB 212 at [45];
g)noted the concern the Tribunal had about the claim of poor treatment of failed asylum seekers upon their return, in relation to which the applicant’s migration agent submitted that the applicant would be under some suspicion because of his scar, in addition to being a young Tamil who has been overseas for a period of time and who has had past interaction with the authorities in Sri Lanka, while there was evidence that the applicant will suffer greater harm in Sri Lanka because of his mental health which is referred to in the psychological report indicating the applicant’s symptoms were consistent with his account of being abducted and beaten: CB 213 at [47];
h)considered an extensive array of country information including extracts from:
i)the US State Department Sri Lanka 2013 Human Rights Report: CB 213-214 at [50]-[51];
ii)the Department of Foreign Affairs and Trade (“DFAT”) Country Report on Sri Lanka (16 February 2015): CB 214-215 at [52];
iii)the UK Home Office Operational Guidance Note - Sri Lanka dated April 2012 concerning discrimination which may be experienced by Tamils in accessing government employment and housing: CB 215 at [53];
iv)the United Nations High Commissioner for Refugees (“UNHCR”) July 2010 “Eligibility Guidelines Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” (“UNHCR Eligibility Guidelines 2010”), and the December 2012 version of the same document (“UNHCR Eligibility Guidelines 2012”), dealing with the human rights and security situation following the conclusion of the civil war in May 2009, and, in particular, in the UNHCR Eligibility Guidelines 2012, a profile of those persons who, because of their links to the LTTE, may be exposed to treatment giving rise to a need for refugee protection, noting the specific list of general risk profiles, and the caution contained in the UNHCR Eligibility Guidelines 2012 with respect to ethnicity and geographical origin still possibly having some significance: CB 215-217 at [54]-[57];
v)a decision of a UK migration tribunal which comprehensively considered the available information on the treatment of Tamils in Sri Lanka and the treatment of those returning to Sri Lanka: CB 217 at [58], and in which it was observed that the establishment of former links to the LTTE are not determinative of an asylum claim today: CB 217 at [58], and which went on to further observe that those who are at risk of persecution or serious harm include those who have had a significant role in relation to post-conflict Tamil separatism within the diaspora or a renewal of hostilities within Sri Lanka: CB 217 at [59];
vi)country information in relation to the so-called “white van culture”, citing the US State Department Human Rights Report for Sri Lanka 2015 and an article in the Associated Press: CB 217-219 at [61]-[62], and a report (from The Hindu dated 18 May 2015) which signalled “a marked decline in [the] use of ‘white van’ intimidation”: CB 219 at [63]; and
vii)significant country information in relation to failed asylum seekers and illegal departees returning to Sri Lanka, noting that in addition to material provided by the applicant it had regard to a variety of country information from DFAT, the UNHCR, the UK Home Office, Freedom from Torture, the Australian Broadcasting Commission and the Sydney Morning Herald, in addition to setting out information from a UK Country of Origin Report, and DFAT advice from July 2013 and February 2015, the latter dealing in detail with the application of laws with respect to persons returning to Sri Lanka having departed illegally, the treatment of returnees, exit and entry procedures and offences under the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”): CB 219-224 at [64]-[69];
i)accepted that between the biodata sheet completed on 25 June 2012 immediately following the applicant’s entry into in Australia and his entry interview in August 2012 and the Tribunal Hearing there was only a minor variance in the applicant’s account of what he said he was doing when he alleged he was abducted: CB 224 at [74]-[77];
j)referred to the applicant’s claim that after the abduction he “never slept” at his home again as an exaggeration given that his evidence changed between the entry interview statement on 8 August 2012: CB 8-23, his statement of claims in his Protection Visa application, and the evidence given at the Tribunal Hearing: CB 224-225 at [78]-[79];
k)noted that while there were many reasons not to put undue weight on an entry interview, it was important that the applicant indicated he would provide the police report he made involving the abduction, but subsequently stated that he was too scared to make a police report, and that this indicated the applicant believed supporting evidence of a police report may assist his case, however the veracity, upon close inspection of such documents, may fail to stand up, and that it may be after receiving legal advice on the implications of providing false documents the applicant later indicated that he never made a police report: CB 225 at [80]-[81];
l)referred to the claims raised at a later stage in the Protection Visa application process, including the effect of the scar and the applicant previously being detained for trying to travel to Saudi Arabia, but drew no adverse inference from the failure to mention the former, and disregarded the latter due to it being raised late and the applicant’s failure to expand or rely on the claim in any way: CB 225 at [83]-[84];
m)accepted that “white van” abductions were a reasonably common occurrence for many years in Sri Lanka, including in 2011, but observed that the country information indicated that the applicant did not fit the profile of persons abducted, noting the Tribunal had been asked to draw an inference that the applicant was abducted because of his ethnicity and his frequent travel to Jaffna, and that he was targeted for abduction because his family was reasonably well off, and that it was the authorities or someone acting at their behest that was responsible. The Tribunal found that if the applicant was truly of interest to the authorities, he would have been questioned prior to the claimed incident in 2011, but on his own evidence he had not been so questioned: CB 225-226 at [85]-[88];
n)did not accept the submission that the applicant faced no subsequent problems because he was careful after the abduction, given that the applicant:
i)continued his normal routine travelling between Colombo and his village twice a week;
ii)did not change his workplace; and
iii)did not go into hiding in another area, nor even vary his routine: CB 226 at [90],
while also finding that even if it were to accept the applicant’s account of being abducted, which it did not, it appeared to be an isolated incident and found that the applicant did not face a real chance of serious harm in the foreseeable future: CB 226 at [91];
o)gave substantial weight to the UNHCR Eligibility Guidelines as to the circumstances for Tamils and the human rights situation in Sri Lanka, while also giving weight to various DFAT reports indicating that:
i)non-voluntary returnees are interviewed at the airport on return to Sri Lanka by various Sri Lankan government departments;
ii)a representative of the Australian Government is present at the airport for the arrival of non-voluntary returnees from Australia;
iii)failed asylum seekers are not treated differently from other returnees; and
iv)no allegations of mistreatment of returnees have been substantiated: CB 226 at [92]-[93];
p)accepted that the applicant would be charged with offences under the I & E Act, a law of general application, and that the country information indicates that the most likely penalty is a fine, unless a person is considered to be an organiser of irregular migration, and that the applicant will be remanded in custody when he returns to Sri Lanka and may spend up to a fortnight in jail on remand in prisons with conditions that are more crowded and less sanitary than what would be available in Australia: CB 226 at [94] and 227 at [98]-[100];
q)did not accept that:
i)a surgical scar, even one larger than normal, would create a heightened profile whereby the applicant would face a more serious chance of harm than other similarly returned asylum seekers;
ii)there was a real chance that the applicant will be mistreated for reasons of his imputed political opinion or membership of a particular social group if he returns to Sri Lanka now or in the reasonably foreseeable future; or
iii)there is a real chance that the applicant will be persecuted because he will be returning to Sri Lanka as a failed asylum seeker who left Sri Lanka unlawfully: CB 226 at [95];
r)was not satisfied the applicant met the criteria in s.36(2)(a) of the Migration Act for refugee protection on Convention grounds: CB 227 at [96];
s)when considering the complementary protection criterion, accepted that the psychological report indicated that the applicant suffers from past trauma and that it could be exacerbated by detention, however, on the evidence before the Tribunal found that any hardship for the brief period in remand would not be as a result of “intent or discrimination”: CB 227 at [101], and was satisfied that the harm the applicant would face as a consequence of any time spent in remand would not be such as to constitute significant harm as defined in s.36(2A) of the Migration Act: CB 227 at [105];
t)considered all aspects of the applicant’s circumstances and found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka there was a real risk the applicant would suffer significant harm: CB 227 at [106]; and
u)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 228 at [110].
Judicial Review Application
The Judicial Review Application as initially filed in this Court relied on three grounds, best (and often) described as “template” grounds, which were as follows (transcribed verbatim):
1. Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra-virus.
The Amended Judicial Review Application was filed on 16 June 2016. At hearing the Minister did not oppose the applicant being granted leave to rely upon the Amended Judicial Review Application: Transcript, page 3. The Amended Judicial Review Application contained two particularised amended grounds set out at [10] (Further Ground 1) and [26] (Further Ground 2) below.
These reasons will address Further Grounds 1 and 2, the oral submissions of the applicant made at hearing, the three grounds of the Judicial Review Application (hereafter Grounds 1-3 respectively), and any other matters arising in the Court’s consideration of the Tribunal Decision (having regard to the need to be alert to the possibility of legal error where an applicant is self-represented: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J, and see also what the Federal Court has more recently said as to this Court necessarily having “to pursue a more active role in the review that it undertakes of the Tribunal decisions … and to do so in a manner not necessarily confined to the arguments or concerns raised for resolution by an unrepresented claimant”: EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 at [16] per Flick J).
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a Tribunal decision exceeding or failing to exercise the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine claims for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
Further Ground 1
Further Ground 1 (with CB references omitted, but otherwise transcribed verbatim) is as follows:
Ground One
The Second Respondent made an error of law, with the error being a jurisdictional error, in that it failed to take into account a relevant matter and explore the central claim of the Applicant.
Particulars
The Applicant claimed that he was abducted after playing a cricket match.
The Second Respondent accepted that the claim of abduction occurred.
The Second Respondent failed to explore this aspect of the Applicant’s claim any further in that the Second Respondent failed to make a finding as to why the Applicant was abducted.
If the Second Respondent had further pursued the this claim it would have been clear that the Applicant was abducted as he was suspected of LTTE connections.
Submissions
The applicant’s written submissions in support of Further Ground 1 were as follows (transcribed verbatim):
It is well established that if the administrative decision maker does not take into account a relevant matter, that will constitute and error of law. There is case law to support this view. The gravamen of Applicant’s claim is that he was suspected with the LTTE connections and to that effect he was abducted with the view to extract information from him information he might have had about persons who were in the LTTE. The Second Respondent failed to take into account a relevant matter and explore the central claim of the Applicant. Craig v South Australia [1995] HCA 58: 184 CLR 163
The applicant made the following oral submissions in support of Further Ground 1 at hearing:
a)the Tribunal did not investigate why the applicant was abducted, and he was abducted based on the suspicion that he belonged to the LTTE, and if the Tribunal had taken this fact into account the Tribunal Decision would have been favourable to him;
b)even now, those who are suspected as being members of the LTTE are facing troubles in Sri Lanka, and the applicant was abducted because of the suspicion that he had LTTE connections, and the Tribunal did not investigate that properly and it should be reinvestigated; and
c)the Tribunal did not ask why the applicant was abducted, and the Tribunal Hearing was conducted in a very short period of time, and the applicant did not have an opportunity to explain or elaborate.
The Minister’s submissions in relation to Further Ground 1 were as follows:
a)the applicant submits that the Tribunal committed a jurisdictional error in two distinct but connected ways: there was a failure to take into account a relevant matter and a failure to explore the central claim of the applicant as to why the Tribunal ought to have been satisfied he should receive a Protection Visa;
b)there is a critical difference between a mandatorily relevant consideration and a particular aspect of the evidence, or facts which are being asserted or relied on by the party claiming error;
c)the first limb, in asserting jurisdictional error by failure to take into account a relevant matter, does not invoke of itself a recognised category of jurisdictional error;
d)the second limb, that there is a jurisdictional error in the Tribunal not exploring the central claim of the applicant, is one in respect of which the High Court has made clear that in any given case where it is said that there was a relevant duty to inquire into or pursue a particular claim or explore a particular claim, it will always be necessary for the applicant to demonstrate with some clarity and specificity precisely what it is that ought to have been the subject of further inquiry and how it is that if that course had been adopted it could have yielded any different result;
e)the particulars to Further Ground 1 assert that the applicant claimed that he was abducted after playing a cricket match and that the Tribunal accepted that the claimed abduction occurred: the latter is inaccurate in light of the analysis and findings in the Tribunal Decision at CB 225 at [85];
f)the Tribunal referred to a number of reservations about the veracity of the applicant’s account leading up to, during and after the abduction, therefore the only realistically open interpretation of the Tribunal’s analysis is that there was considerable scepticism as to the reliability of the applicant’s account of the abduction;
g)the applicant, by his oral submissions, seeks to imply that jurisdictional error arises from the failure to explore the reason or the motivation behind why he was abducted, however, at CB 226 at [91] it is made clear by the Tribunal that the applicant’s account of the abduction was not accepted;
h)there is no applicable mandatory relevant consideration at issue here, nor has the applicant identified one; and
i)on another potential view, it might be that the applicant is claiming the Tribunal simply did not address the central claim of the applicant, however the Tribunal squarely did address the central claim and all of the alternative possible bases for being satisfied that the applicant satisfied the criteria in s.36 of the Migration Act: in particular at CB 226 at [93] and following.
Consideration – Further Ground 1
In Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J it was said that “[t]o make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.”: see also Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ.
In the statement of claims the applicant filed with his Protection Visa application he stated at CB 57 at [4] as follows:
4. I fear returning to Sri Lanka because I am sure that if I return to my country of origin I will suffer persecution, as defined in the United Nations Convention on the Refugee, due to my ethnicity, a lack of state protection because of my ethnicity, and my imputed political opinion.
The first time a claim was raised that the applicant feared harm as a member of a particular social group of “Person[s] who is suspected of links with the LTTE” was in the interview with the Delegate: CB 134, who was not satisfied the applicant would be imputed with a pro-LTTE political opinion: CB 149-151.
In the applicant’s submissions to the Tribunal, the applicant’s representative made numerous references to the LTTE and information concerning people targeted for abduction: CB 180-186. Of note is the following at CB 181 and 183 respectively:
The applicant did not know who his abductors were, but suspects they had targeted him as he was a Tamil of a certain age who was travelling regularly to Jaffna. He states in Sri Lanka there is also lot of discrimination against Tamil people, and his success may have led to rumour and suspicion within his local area when he built a modern home for his family. His views are corroborated by country information where Tamil people in Sri Lanka ‘maintain that they face systematic discrimination’. His success and travel to Jaffna may have also raised the suspicions of the authorities.
…
The applicant has stated that he believes that they would not have let him go if they believed he was associated with the LTTE. However, we submit that this doesn’t mean the authorities were no longer interested in the applicant. It is likely that they would have asked questions of his neighbours and colleagues to investigate if he were involved with the LTTE in any way.
The Court accepts that there was a claim by the applicant to fear persecution on account of imputed political opinion or links to the LTTE arising from the materials before the Tribunal. The applicant claimed he did not know who was responsible for the abduction, that he had no links or association to the LTTE or paramilitary groups, and the assertion from the applicant in the submissions to the Tribunal was that he does not believe the authorities would have let him go if they believed he was associated with the LTTE.
The Tribunal addressed the abduction claim as follows at CB 225-226 at [85]-[88] and [90]-[91]:
85. Like the delegate, I accept that ‘white van’ abductions were a reasonably common occurrence for many years, including in 2011. The country information supports this. However, the country information also indicates profiles of persons abducted. Like the delegate, I do not accept that the applicant fits this profile.
86. It is true that the applicant has said that he did not know why he was abducted or by whom, but he appears to be asking the Tribunal to draw the inference that he was abducted because of his ethnicity and his frequent travel to Jaffna and that he was targeted for abduction because his family was reasonably well off.
87. He also appears to be asking the Tribunal to draw the inference that he was abducted by state authorities or someone acting at their behest.
88. In looking at the alleged abduction in light of his many trips to and from Jaffna and to and from Colombo, I am of the view that if he were truly of interest to the authorities, he would have been questioned earlier than the claimed incident in 2011 and/ or subsequent to the claimed incident in 2011. But on his evidence, he has not been so questioned.
…
90. I do not accept the submission that he faced no subsequent problems because he was careful after the abduction. On his evidence, he continued his routine travelling between Colombo and his village twice a week. He did not change his workplace, go into hiding in another area or even, apparently, vary his routine.
91. Even if I were to accept the account of the applicant’s abduction, which I do not, it would appear to be an isolated incident and I would not find that the applicant faced a real chance of serious harm in the foreseeable future.
The Tribunal was not required to make a finding as to why the applicant was abducted as it had expressly rejected each of the reasons which formed the basis for the applicant’s claim to have been abducted: CB 225-226 at [85]-[88]. In order to be granted the Protection Visa, the Tribunal had to be “satisfied” the applicant met the criteria for the Protection Visa: Migration Act, s.65. Section 65(1)(b) of the Migration Act does not require the Tribunal to make any positive finding as to who was responsible for the abduction. As the Full Court of the Federal Court Court noted in SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15]-[16] per Ryan, Jacobson and Lander JJ:
15. It can be seen from the form of that sub-section that it does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied…
16. It can be seen that satisfaction of that criterion depends not on a particular matter being established, but on the Minister’s attaining a state of satisfaction as to a number of matters which have to exist for Australia to have protection obligations to an applicant under the Refugees Convention…
In any event, the Tribunal’s finding at CB 226 at [91], while stated in the alternative, was an express finding that if the abduction did occur it was an isolated incident that did not give rise to a real chance of serious harm in the foreseeable future. That finding of greater generality, coupled with:
a)the finding at CB 225 at [85] that the applicant did not fit the profile of persons abducted, a finding based on country information, with the country information indicating that it is generally those with specific links to the LTTE, or with family links or who are otherwise closely related to persons with an LTTE profile, who may be at risk of harm from the Sri Lankan authorities: CB 214-217 at [52]-[60]; and
b)the finding at CB 225-226 at [88] that had the applicant truly been of interest to the authorities he would have been questioned earlier than, or subsequent to, the claimed abduction in 2011,
subsumed the need to make a finding as to who abducted the applicant, or to address the possibility it was because of suspected links to the LTTE: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ.
The applicant’s oral submissions contend the Tribunal should have “explored” his claim. It is for the applicant to advance whatever evidence and argument he wished in support of the contention he was entitled to a Protection Visa: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 at [187] per Gummow and Hayne JJ. That the applicant states in the fourth particular and his oral submission that if the Tribunal explored the claim more it would have found, assumedly as a fact, that the abduction was because of suspected LTTE links is difficult to accept where it was the applicant’s claim, and his evidence at the hearing reaffirmed this: CB 212 at [45], that “he did not know why he had been targeted - jealousy over the family’s nice house, frequent trips to Jaffna, his work were all raised as possibilities”, and where the applicant claimed to have no connection or links with the LTTE: CB 211 at [29] (where the Delegate accepted that the applicant had no actual LTTE connections, which was reiterated by the applicant before the Tribunal: CB 212 at [36]). Likewise, and for reasons otherwise set out above: see [21] above, the fact that the Tribunal found that the applicant did not fit the profile of persons abducted also indicates that the Tribunal perceived him to have, consistent with his own evidence, no connection or links with the LTTE: CB 225 at [85].
There was no obligation on the Tribunal to conduct an inquiry or investigation to determine who abducted the applicant, or otherwise to discover if the applicant’s case might have been better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J; Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15. That is particularly so where, as here, there was sufficient evidence for the Tribunal to conclude (having regard to the country information concerning the profiles of persons abducted: CB 215-217 at [55]-[59], and in particular those abducted in white vans, at CB 217-219 at [61]-[63]) that if the applicant were of interest to the authorities they would have questioned him earlier than 2011, that the country information did not indicate that the applicant fitted the profile of persons abducted: CB 225 at [85] and 225-226 at [88], and that the applicant was not abducted: CB 226 at [91].
The applicant’s claims that he did not have an opportunity to explain, or elaborate upon, his claims is contradicted by the Tribunal Hearing record, which indicates that at the Tribunal Hearing the applicant provided his evidence and answered the Tribunal’s questions for 80 minutes, was given a break to discuss matters with his migration agent representative, and returned to provide further evidence for another 30 minutes: CB 189 and 212 at [35]. The Court also notes that the applicant did not file any evidence as to the specific nature of the Tribunal Hearing itself, and did not file a transcript of the Tribunal Hearing, despite having had numerous opportunities to do so, including when the applicant filed the Judicial Review Application and the Amended Judicial Review Application, and as a consequence of orders made by a Registrar of the Court on 14 October 2015 which included order 4, which provided for the “applicant [to] file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 13 November 2015”. The Court therefore does not accept the applicant was given an insufficient amount of time to explain, or elaborate upon, his claims.
In all of the above circumstances the Court has concluded that:
a)the Tribunal did address the claim by the applicant to have been abducted;
b)the Tribunal implicitly rejected any claim by the applicant to have been perceived to have had LTTE links when it found that the applicant did not have a profile which fitted the profile of persons abducted in Sri Lanka in 2011;
c)it was not necessary for the Tribunal to further inquire into the applicant’s claim to have been abducted, once it concluded that he had not been abducted; and
d)in any event, the Tribunal’s further finding that if the abduction did occur (the Tribunal having found that it did not) it was an isolated incident not giving rise to a real chance of serious harm in the foreseeable future, was a finding of such generality that it would have been unnecessary to determine who abducted the applicant,
and in all of those circumstances, no jurisdictional error in the Tribunal Decision is established by Further Ground 1 of the Amended Judicial Review Application.
Further Ground 2
Further Ground 2 (with CB references omitted, but otherwise transcribed verbatim) is as follows:
Ground Two
The Second Respondent made an error of law, with the error being a jurisdictional error, in that it failed to discern a Convention nexus.
Particulars
This ground flows from the First grounds above. It could be summarised as follows.
Applicant claimed that he travelled to Jaffna d
The Applicant claimed that he was abducted after playing a cricket match.
The Second Respondent accepted that the claim of abduction occurred.
The Second Respondent failed to explore this aspect of the Applicant’s claim any further in that the Second Respondent failed to make a finding as to why the Applicant was abducted.
If the Second Respondent had further pursued with the investigation of this claim it would have been clear that the Applicant was abducted as he was suspected of LTTE connections.
Consequently Applicant was imputed with the LTTE connections/profile.
There was information before the Second Respondent that persons suspected of LTTE connections were targeted by the Sri Lankan authorities.
Submissions
The applicant’s submissions (transcribed verbatim) were as follows:
It is very clear from the material before the Decision maker that there were abundant evidence that, although the civil war in Sri Lanka, has come to an end certain groups of people were targeted by the Sri Lankan authorities.
It is the Applicant’s respectful submission that he falls into that category.
In order for the Applicant to be granted a protection visa the Applicant has to demonstrate that he was targeted for a Convention reason.
The well-known UN Convention states. A person who
Owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality, and is unable or ,owing to such fear, is unwilling to avail himself of the protection of that country:
Court Book: page 205
It is also well-established in law that if a person is perceived to hold a political opinion he will be satisfying the Convention reason.
As it is contended that the Applicant’s central claim was not investigated by the Second respondent, the LTTE suspicion attributable to the Applicant is a sign that that the Applicant was imputed with the LTTE political opinion. It is not correct to assume that the Applicant will have to change his behaviour so as to avoid being targeted by the Sri Lnkan authorities.
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs S395 [2003] HCA 71; (2003) 216 CLR 473
For the above reasons Applicant submits that the matter be sent back to the Second Respondent for reconsideration.
The applicant’s oral submissions in respect of Further Ground 1 appear to also relate to Further Ground 2 and the Court will treat them accordingly.
The Minister’s submissions in respect of Further Ground 2 were as follows:
a)it does not raise a recognised form of jurisdictional error, rather it challenges the Tribunal having concluded that there was no Convention nexus;
b)it proceeds on the same erroneous premise as Further Ground 1, in that the assertion about failure to discern a Convention nexus arises from the erroneous assertion that there was a positive finding that the abduction occurred;
c)what the ground as particularised and developed amounts to is a factual challenge or disagreement with the merits of the Tribunal Decision;
d)it is true that in certain cases where there is a finding made that a person seeking a Protection Visa would be required to modify his or her behaviour to avoid or minimise the risk of persecutory behaviour such findings can give rise to certain bases upon which there is a risk of jurisdictional error;
e)this is not a case where there is cause to apply the principles in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8 (“S395”) and the applicant’s reference is not a correct statement of principle of S395 as it cannot be said that it is well established in law that the fact of holding a political opinion alone meets the Convention criteria, nor that a claim of suspicion by certain government authorities or opposing forces whose activities are perhaps not controlled or restricted as much as would be ideal by the government, is a sign that an applicant was imputed with the political opinion that can give rise to persecution;
f)the applicant is incorrect in suggesting that a link is established between a Convention reason and persecution on the basis of speculation; and
g)properly characterised it is another attempt to re-agitate the merits or factual conclusions of the Tribunal.
Consideration – Further Ground 2
Further Ground 2 is largely a repeat of Further Ground 1 insofar as the particulars are concerned. For the reasons set out in relation to Further Ground 1 at [14]-[25] above, those particulars are, to the extent that they are effectively repeated, not made out for those same reasons, and for the further reasons which appear below.
The country information before the Tribunal that it placed significant weight upon referred to the profile of the individuals considered at risk of serious harm in Sri Lanka: CB 226 at [92] (and see CB 215-217 at [55]-[59]). Based upon the applicant’s evidence he had no links or associations to the LTTE, and the applicant’s representative’s submissions to the Delegate that the basis of the imputed political opinion was the applicant’s ethnicity, it was plainly open to the Tribunal to find that the applicant was claiming harm on the basis of a Convention ground, but that it was not satisfied that that fear was well-founded. Notably, the Tribunal referred to the applicant returning to his routine after the alleged abduction in 2011 and that he had not been subjected to adverse treatment from the time of the alleged abduction until his departure from Sri Lanka on 4 June 2012: CB 9, 18 and 58, almost 12 months after his claimed abduction in July 2011: CB 57. The fact that the applicant did not change his routine during that approximately 11 month period renders the rationale in S395 inapplicable to the applicant’s case.
The Tribunal considered the evidence and information before it fully to reach the conclusion the applicant did not have a real chance of serious harm by reason of his alleged imputed political opinion in the reasonably foreseeable future. That conclusion was a conclusion that was properly open to the Tribunal on the evidence and information before it.
Properly analysed the alleged failure to discern a Convention nexus rests upon particulars which, as observed above: see [14]-[25] and [30] above, do not disclose jurisdictional error for the reasons set out in Further Ground 1. In any event, the alleged failure to discern a Convention nexus based upon the particulars in Further Ground 2 amounts to no more than an assertion that the Tribunal otherwise failed to reach factual conclusions giving rise to that nexus, and, as such, constitutes a plea for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
For the above reasons, Further Ground 2 of the Amended Judicial Review Application fails to disclose any jurisdictional error in the Tribunal Decision.
Judicial Review Application
Grounds 1-3 of the Judicial Review Application are template grounds lacking in particulars. At least on one view adopted by the Federal Court the lack of particularisation would be sufficient to dismiss the Judicial Review Application: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; MZARG v Minister for Immigration & Border Protection [2018] FCA 624 at [25] per McKerracher J; contrast DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9] per Colvin J. The Court notes that the applicant was given the opportunity to make oral submissions at hearing, but effectively said nothing that would add to, or enhance, any of Grounds 1-3.
The Minister made both written and oral submissions in respect of ss.424A and 424AA of the Migration Act, lest the Court take a “generous view” of the scope of Ground 1. The Minister’s submissions were as follows:
a)it is not apparent that the Tribunal was required to put any information to the applicant pursuant to ss.424A or 424AA of the Migration Act in circumstances where:
i)to the extent that the Tribunal may be said to have relied upon inconsistencies in the evidence given by the applicant at various stages of the proceedings, the Tribunal’s subjective appraisals, thought processes or determinations in relation to the evidence is not “information” for relevant purposes: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 (“SZBYR”) at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; and
ii)the relevant portions of the applicant's various pieces of evidence “did not contain in their terms a rejection, denial or undermining of the … [applicant's] claims to be … [a person] to whom Australia owed protection obligations”: SZBYR at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The evidence thus cannot, to the extent it is not subject to an exemption in s.424A(3) of the Migration Act, be said to be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” for the purposes of ss.424AA and 424A of the Migration Act; and
b)furthermore, the Tribunal’s alternate finding that, even if the Tribunal did accept that the abduction had occurred it did not accept that the applicant faced a real chance of foreseeable harm in the foreseeable future, provided an independent basis to support the validity of the decision: SZBYR at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Accordingly, any breach of s.424A or s.424AA could not have affected the Tribunal Decision.
In respect of Ground 1, the applicant was afforded an opportunity to attend the Tribunal Hearing, at which he had the assistance of an interpreter and his migration agent representative, and in respect of which written submissions were provided prior to the Tribunal Hearing, and the Tribunal allowed the applicant an extension of time to provide other materials after the Tribunal Hearing and expressly referred to and considered those post-Tribunal Hearing submissions: CB 205 at [3]-[4], 212 at [35] and 213 at [48]-[49]. It follows that, subject to what is said at [38]-[44] below, the applicant was not denied natural justice in relation to the Tribunal Hearing and nor did the Tribunal fail to follow the rules of natural justice in relation to the Tribunal Hearing, limited as they are by reason of s.422B of the Migration Act.
The Tribunal at CB 212 at [44] stated the applicant and his representative responded to the concerns “put” by the Tribunal. At CB 212-213 at [45]-[47] the Tribunal referred to the “concerns” it had and the responses it received. It was apparent from the Delegate’s Decision that the credibility of the applicant’s claim to have been abducted was an issue, and the matters the Tribunal referred to and asked for comment upon were those that had been raised in the Delegate’s Decision. The Court does not therefore consider that this was “information” that was required to be “put” to the applicant under ss.424A or 424AA of the Migration Act, but was rather “doubts, inconsistencies or the absence of evidence”: SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
At no time in the Delegate’s Decision, however, was reference made to the applicant’s interview on arrival, or the interview in August 2012, and the inconsistencies with what was stated in those interviews and the evidence provided thereafter. The Tribunal referred to these interviews at CB 207-209 at [22]-[26] in some detail. The Tribunal considered the variance between the applicant’s claims from the time he arrived to what he stated at the Tribunal Hearing. In some instances it stated the variance was “minor” and that it “drew no adverse inference”: see CB 224 at [76]-[77] and 225 at [83]. At CB 224-225 at [78]-[82], however, the Tribunal drew adverse inferences from the variances in the applicant’s claims, specifically in respect of his evidence as to the living arrangements after the abduction and the police report of the abduction. In particular at CB 225 at [81], the Tribunal noted there were “many reasons” not to put weight on what is stated at an entry interview when an applicant first arrives, however, found the variance with respect to the police report of the abduction to be important. At CB 225 at [80]-[81] the Tribunal stated:
80. During the entry interview, the applicant advised that he would provide a copy of a letter and police report made involving the abduction. However, in both his statement of claims and the hearing, he stated that he was too afraid to make a police report, having been warned not to do so by his abductors. His parents had urged him to make a report. Anyway, he would have been unable to identify the abductors.
81. While there are many reasons not to put undue weight on an entry interview, this variance is important as it indicates to me that he believed supporting evidence of a police report may assist his case and it was promised accordingly. The Tribunal has information that such documents can be obtained from Sri Lanka to support cases but that their veracity, upon close inspection, may fail to stand up. It may be that after receiving legal advice on the implications of providing false documents to the Department, the applicant later indicated that he never made a police report for the reasons given.
The Tribunal has relied on the inconsistency and variance from the applicant’s entry interview, and what was subsequently stated. Section 424A(3)-(3ba) of the Migration Act states:
(3) This section does not apply to information:
…
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department.
The Minister submits that the interviews and the inconsistencies arising therefrom fall under s.424A(3)(b) of the Migration Act. Where an applicant makes a statement prior to any application, unless the applicant adopts that “earlier statement at some stage during the course of a hearing” as true, the Tribunal is required to put that information to the applicant for comment: SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214; (2006) 230 ALR 1 (“SZEEU”) at [179] per Weinberg J. In SZEEU at [179] per Weinberg J it was observed that:
179 In the same way, the present position can lead to odd results. As can be seen from the appeal in SZEEZ, if an applicant makes a statement during the course of an airport interview that is inconsistent with later evidence given at a hearing, s 424A(1) requires that written notice be given of the possible use of that statement to draw inferences against the applicant. If, however, the applicant repeats the earlier statement at some stage during the course of the hearing, and adopts it as true, and then subsequently resiles from that statement, the Tribunal is not obliged to afford the applicant an opportunity to comment upon the discrepancy… This is because the adoption of the earlier statement brings it within the scope of the s 424A(3)(b) exception. If, however, the Tribunal proposes to use the earlier statement as the “reason”, or “a part of the reason” for affirming the decision under review, rather than the later adoption, it must comply with s 424A(1).
In submissions to the Tribunal the applicant’s representative referred to the applicant having been consistent in his claims and evidence since the “entry interview”: CB 182.
The Tribunal ultimately did not accept the applicant’s account of the abduction, seemingly for the reasons appearing at CB 224-225 at [76]-[81] and 225-226 at [85]-[90]. The Minister submits that the evidence relied upon was not a “rejection, denial or undermining” of the applicant’s claims, and therefore cannot be said to have been information that would be the reason or part of the reason for affirming the Delegate’s Decision: SZBYR at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. The Court does not consider the evidence relied upon by the Tribunal was not a “rejection, denial or undermining” of the applicant’s claims. In SZEEU at [221] per Allsop J it was observed that:
That, of course, is one way that the information is a part of the reason. Another would be the inconsistency between the information and what was now being said. If the Tribunal considers that inconsistency relevant to the assessment of the claims, it may be that the information would be part of the reason. If a Tribunal says that it does not believe an applicant for reasons that can be seen to include the fact that one thing was said in the prior statement and another at the hearing, or the fact that if what is now being asserted at the hearing is true it would have been in the prior statement in that form, the information would be part of the reason. The information is the knowledge imparted to the Tribunal of a prior statement in a particular form. The significance given to it by considering it in the light of evidence is the product of mental processes. This significance and those mental processes are not information, but rather, are why the information is relevant for s 424A(1)(b).
In the Court’s view the Tribunal failed to meet the obligations of s.424A of the Migration Act in failing to put the information it relied upon from the applicant’s prior interviews to him for comment. The Court notes, however, that at CB 226 at [91] the Tribunal made an alternative finding that even if the Tribunal were to accept the applicant’s account of the abduction it would not find that there was a real chance of serious harm in the foreseeable future as it considered the abduction was an “isolated incident”. Given the Tribunal has rejected the applicant’s claim based on an alternative independent finding, there is no practical unfairness to the applicant as the Tribunal Decision would nevertheless have been the same, and the applicant was thereby not deprived of the possibility of a successful outcome on the Tribunal Decision: Minister for Immigration & Border Protection v WZARH & Anor [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1 at [56] per Gageler and Gordon JJ; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 (“Aala”) at [4] per Gleeson CJ and [104] and [115]-[121] per McHugh J. Ground 1 of the Judicial Review Application therefore does not disclose jurisdictional error, in the Tribunal Decision.
In respect of Ground 2 of the Judicial Review Application, the Tribunal identified and applied the correct provisions of the Migration Act in determining the applicant’s Protection Visa application. It is not evident what error of law, let alone jurisdictional error, the applicant seeks to establish by Ground 2 of the Judicial Review Application, and, even if the applicant could establish an error of law, mere error of law does not necessarily constitute a jurisdictional error by an administrative decision-maker such as the Tribunal: Migration Act, s.474; Craig v The State of South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Aala at [163] per Hayne J; Zhang v Minister for Immigration & Anor [2014] FCCA 2752 at [23] per Judge Lucev. No jurisdictional error is established by Ground 2 of the Judicial Review Application.
For the purposes of Ground 3 of the Judicial Review Application the applicant has failed to identify any delegated legislation upon which he relies or which was applied by the Tribunal, or which is ultra vires.
Ground 3 of the Judicial Review Application is therefore baseless and must fail. No jurisdictional error in the Tribunal Decision is therefore established by Ground 3 of the Judicial Review Application.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error, and that the Judicial Review Application, as amended by the Amended Judicial Review Application, must therefore be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 29 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Jurisdiction
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Procedural Fairness
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