BQP16 v Minister for Immigration
[2018] FCCA 2123
•12 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2123 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal decision – whether Tribunal afforded the applicant procedural fairness – whether Tribunal applied wrong legal test – grounds devoid of particulars – applicant afforded meaningful opportunity to present case – no failure to apply correct legal test – no substance in grounds of review – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 36, 65, 422B, 424AA, 425 Migration Regulations 1994 (Cth), Sch.2, sub-cl. 866.21, 866.3 |
| Cases cited: ABV16 vMinister for Immigration and Border Protection [2017] FCA 184 Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 |
| Applicant: | BQP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1396 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 15 May 2018 |
| Date of Last Submission: | 15 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr McDermott |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
The applicant pay the costs of the first respondent fixed at $6,567.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1396 of 2016
| BQP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 1 July 2016, judicial review is sought of a decision of the then Refugee Review Tribunal (Tribunal) made on 20 June 2016 which affirmed a decision of a delegate of the first respondent (Minister) refusing the applicant’s Protection visa application under s 65 of the Migration Act 1958 (Cth) (Act).
For the reasons which follow I have concluded that the application should be dismissed.
Background
The applicant, a Sri Lankan national aged 36 years of Tamil ethnicity, arrived in Australia on 29 June 2012 as an Unauthorised Maritime Arrival: see s 5AA.
On 29 July 2012, the applicant participated in an Entry Interview on Christmas Island. In the course of this interview, he disclosed his educational achievements, that he spoke both Tamil and Sinhalese and that he had never obtained employment but was dependent upon his parents. He described his religion as Hindu.
On 12 December 2012, the applicant lodged a Protection visa application and made a statement in support of the claims upon which he relied as engaging Australia’s protection obligations.
On 10 September 2013, the applicant’s migration agent and lawyer provided to a delegate of the Minister a written submission on behalf of the applicant. The submission identified the applicant’s claims to fear of persecution based on: “Convention-related grounds of race (ethnic Tamil); imputed political opinion (suspected LTTE links) and as an opponent of the Ruling party; and as a member of a particular social group (a failed asylum seeker returning to Sri Lanka).” In addition, the applicant’s lawyer stated that the applicant feared he would be imprisoned due to his illegal departure and that he would experience harsher treatment than other inmates in that event.
On 14 October 2013, the delegate refused the application. The decision of the delegate was arranged as to: Part A – Applicant details (including findings on credibility); Part B – Assessment of Protection Obligations; Part C – Complementary Protection Obligations; Part D – Decision on visa application. It is convenient to record that Part B of the decision considered whether the applicant’s claims of fear were well founded and addressed each of the following: (a) race as a Tamil; (b) imputed political opinion; (c) return to Sri Lanka. The delegate concluded that the applicant did not have a “profile which would attract a real chance of Convention based persecution.”
On 14 October 2013, a copy of the delegate’s decision was sent to the applicant’s migration lawyer.
Tribunal application
On 18 October 2013, the applicant’s agent sought a merits review of the delegate’s decision by the Tribunal.
On 25 February 2015, the applicant was invited to appear before the Tribunal at a hearing scheduled for 16 April 2015 to give evidence and present arguments relating to the issues arising in his case. On 13 June 2016, the applicant’s lawyer provided a submission to the Tribunal. The applicant accepted the Tribunal’s invitation and attended a hearing in which his migration agent participated by telephone.
On 17 June 2016, the applicant’s migration agent made a post-hearing submission which focussed on a contention that 24 of 148 (or 16%) of documented torture cases involved persons who had been detained and tortured on the basis of imputation rather than actual links to the LTTE. This contention was relied upon to support a conclusion that the risk of harm to a person with LTTE links was neither fanciful nor remote.
On 20 June 2016, the Tribunal affirmed the delegate’s decision to refuse the visa application.
Procedural history
On 1 July 2016, an application for judicial review was filed in this Court. The application was supported by an affidavit affirmed by the applicant, which annexed a copy of the Tribunal’s decision but advanced no further evidence in support of the application.
By a Response dated 2 August 2016, the Minister opposed the grant of relief sought, contending that no entitlement to relief was demonstrated by the un-particularised grounds contained in the application.
On 7 December 2016, orders were made by consent that the proceeding be listed for final hearing. The order provided for the applicant to file any amended application with proper particulars of the grounds of review, any supplementary Court Book and submissions. The applicant did not take the opportunity provided by those orders to file any further material or submissions.
At the hearing before me, the applicant was self-represented and appeared with the assistance of an interpreter.
Judicial review
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ); see also Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for a Protection visa are set out in s 36 of the Act and Subclass 866 of Sch 2 to the Migration Regulations 1994. Subclass 866 prescribes the primary and secondary criteria that must be satisfied in relation to a Protection visa application, at the time of the application and at the time of decision respectively.
Where the criteria prescribed for a Protection visa have not been satisfied, the application must be refused.
As concerned the primary criteria to be satisfied at the time of application, cl 866.21 prescribes that the applicant had made:
(a)a claim that a criterion in sub-s 36(2)(a) or (aa) was satisfied;
(b)specific claims as to why such criterion was so satisfied: para 866.21(2)(a)-(b).
As concerned the secondary criteria, cl 866.3 prescribed that the applicant must also satisfy the primary criteria at the time of decision.
Relevantly, the applicant was required to satisfy the delegate or the Tribunal of the requirements:
(a)under para 36(2)(a), that he was owed protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b)under para 36(2)(aa), that there was a real risk that he would suffer significant harm if he was returned to Sri Lanka.
On the operative provisions of the Act as in force at the relevant time, the applicant was required to demonstrate that he had a well-founded fear of persecution for a reason specified in the Refugees Convention as amended or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm.
The expression ‘significant harm’ is defined by sub-s 36(2A).
Consideration
As the applicant had not filed any submissions the Minister and in turn, the Court were left to discern the existence of jurisdictional error from grounds which were devoid of particulars. In WZAVW v Minister for Immigration and Border Protection [2016] FCA 760, Gilmour J said at [35]:
. . . an unparticularised assertion of jurisdictional error. . . is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed (Citations omitted)
See also MZARG v Minister for Immigration and Border Protection [2018] FCA 624 at [25], (McKerracher J).
Although the application was open to dismissal on the basis that the grounds of review were devoid of particulars, I have considered the reasons of the Tribunal and the materials before it. I recognise that the applicant was unfamiliar with court process: cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, [44(g)].
Consideration of whether there is substantive merit in an application for judicial review requires that the reasons of the Tribunal be examined. The close analysis of the factual evaluation and approach taken by the Tribunal is not merits review; it is part of the process of assessing whether serious findings made about an applicant have been made lawfully: SZSSG v Minister for Immigration and Border Protection [2018] FCA 670 at [6]-[7] (Allsop CJ). I have examined the Reasons and materials comprised in the Court Book, and see no reason to conclude that the Tribunal had not considered the evidence before it.
The Tribunal provided an accurate summary of the subject application for review, relevant law relating to a Protection visa application with particular attention to the criteria to be satisfied by a person claiming to be a refugee or to be entitled to complementary protection pursuant to paras 36(2)(a) and 36(2)(aa) of the Act respectively. The Tribunal also had regard to the requirement to take into account certain complementary protection and refugee guidelines.
The Tribunal considered that the dispositive issue in the case was whether the applicant was owed protection obligations by Australia: Reasons, [20]. In undertaking an assessment of that issue, the Tribunal identified each of the claims which had been made by the applicant and identified the material that was before it, including the various submissions which had been made on the applicant’s behalf: Reasons, [21]-[25]. The Tribunal found that the applicant was a Sri Lankan national and assessed his claims on that basis.
In conducting a merits review of the application, the Tribunal found that many of the applicant’s claims lacked credibility due to his vague evidence, inconsistencies and the implausibility of matters that were raised: Reasons, [27]. The Tribunal addressed the following matters.
December 2007 arrest – Reasons [28]-[37]
The Tribunal considered the applicant’s claim that in December 2007 he was rounded up on suspicion of involvement in a bomb blast in Vavuniya by reason of being a Tamil from Udappu. The bomb blast that had occurred in Vavuniya was some 150 kms distant from Udappu. The Tribunal found that the applicant provided consistent evidence about some aspects of this claim, however, other evidence was found to be exaggerated, inconsistent, vague or undetailed.
The Tribunal accepted that the applicant and around 15 other Tamils had been rounded up by authorities in Udappu, then detained for approximately seven hours, fingerprinted, questioned about LTTE involvement and released the following morning.
Evidence about the circumstances of the applicant’s release as disclosed in the applicant’s claim at the hearing and the written records of his entry interview in 2012 was found to be inconsistent. Written submissions stated that discrepancies were the result of interpreting errors. The applicant claimed at the hearing that the written record of his entry interview was inaccurate. No evidence was provided about why the record of entry interview was inaccurate despite the applicant being put on notice that the Tribunal may rely on that information pursuant to s 424AA. Given the concerns about the credibility of the applicant’s claims and his evidence at the hearing, the Tribunal gave greater weight to the entry interview record.
The Tribunal accepted that the incident described at [34] above would have made the applicant subjectively fearful, however, as the applicant had not been subjected to any further roundups, the Tribunal found that this significantly undermined his claims for protection.
Recent court complaint: Reasons [38]-[41]
The Tribunal considered a claim that was made by the applicant in the course of the hearing that a complaint had been made to a court by one of the 15 detainees to verify whether the 15 persons who had been detained in the 2007 incident were not suspected of LTTE involvement.
The Tribunal found this evidence was confused, contradictory and vague. The Tribunal did not accept any of the applicant’s claims about these events and found that they had been fabricated.
2001 Train Incident: Reasons [42]-[43]
Although it had not been mentioned at the hearing, the Tribunal accepted as plausible the applicant’s written claims that while on a train from Colombo to Udappu at the time of the LTTE attack on Colombo airport in 2001, he had been singled out as a Tamil by Sinhalese passengers, asked for his identification papers and handed over to a station master. The applicant’s evidence was that he was released and did not indicate that he had ever been questioned again about this incident in the more than ten years that he had remained in Sri Lanka.
The Tribunal did not accept that the applicant faced either a real chance of serious harm or real risk of significant harm arising from this incident.
Future Risk of Harm: Reasons [44]-[70]
The Tribunal considered the possibility that the applicant would face a real chance of serious harm from the authorities including the police or army, Sinhalese or from paramilitary groups due to his Tamil ethnicity, including an Udappu Tamil, Tamil youth or Tamil male, any actual/imputed LTTE association/support, any actual/imputed anti-government political opinion or his religion.
The Tribunal found on the evidence before it that the chance or risk that the applicant would face serious harm or significant harm was remote and speculative.
Failed Asylum Seeker: Reasons [71]-[78]
The applicant claimed at the hearing that he would be suspected of demonstrating against the government and that he would be tortured. The Tribunal found that the applicant’s claim was convoluted and was not supported by country information.
The applicant also claimed that some of his friends who had returned to Sri Lanka were asked to report monthly, incarcerated, harassed and tortured. The Tribunal found that this evidence was vague and generalised and that it lacked in credibility.
The Tribunal assessed that the country information before it did not indicate that failed asylum seekers were at risk or that the act of fleeing and seeking asylum abroad necessarily put an individual at risk. It did not accept that the applicant’s profile as a returning failed asylum seeker would increase the chance or risk of harm to one that was properly to be regarded as being real rather than remote.
Illegal Departure: Reasons [79]-[90]
The Tribunal accepted that the applicant departed Sri Lanka illegally and was therefore likely to be charged with an offence upon return. The applicant submitted that Tamil returnees were more likely to receive harsher treatment on return.
Country information indicated that all returnees who departed illegally were being charged regardless of their ethnicity. The Tribunal found that this law was a law of general application and as such did not constitute persecution under the Refugees Convention.
The Tribunal found that the risk of the applicant being imprisoned instead of fined was remote and further, that if the applicant was imprisoned, it would be for a maximum of a few days and that this would not amount to a real risk of significant harm.
Overall findings on risk of future harm: Reasons [91]-[95]
The Tribunal considered the applicant’s claims both separately and cumulatively and found that his claims of persecution were not well-founded. The Tribunal did not accept that the applicant faced a real chance of serious harm. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the refugee criteria in ss 36(2)(a) or 36(2)(aa).
In light of the Tribunal’s analysis of the facts and circumstances relating to the application for merits review, I am satisfied that the Tribunal applied the correct legal test to the application and brought an active intellectual process, and gave genuine consideration, to the matter: Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, [57]-[59] (Stone, Foster and Nicholas JJ).
There is nothing to indicate that the credibility findings made by the Tribunal were not reasonably open on the material that was before it: CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413, [38] (McKerracher, Griffiths and Rangiah JJ). Equally, the findings made by the Tribunal in relation to country information were open in the circumstances: AZG15 v Minister for Immigration and Border Protection [2018] FCA 226, [55] (Kenny J). The conclusions reached concerning the discriminatory effect of the Sri Lankan laws as being laws of general application were also open: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610, [76]-[77] (French CJ, Kiefel, Bell and Keane JJ). Likewise the findings made concerning prison conditions in Sri Lanka were open: SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, [27] (Kiefel CJ, Nettle and Gordon JJ), [103] (Edelman J).
The application for judicial review contained two broad grounds being that the Tribunal: (1) did not afford the applicant procedural fairness, and; (2) had applied the wrong legal test.
Ground 1 - Procedural fairness
The Tribunal was obliged to afford the applicant procedural fairness. Part 7 of the Act concerns the review of Part 7-Reviewable Decisions and is arranged in 8 Divisions comprising ss 408-441G. Division 4 of Part 7 concerns the conduct of review of Part 7-Reviewable Decisions, comprises ss 422B-429A and is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals: s 422B.
In Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, (SZSSJ) the Full Court of the High Court stated at [83]:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
Applying SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, [32]; see also BRF038 v The Republic of Nauru [2017] HCA 44, [58]-[59].
The requirement to observe procedural fairness renders it necessary for a decision-maker to identify for the person who may be affected (and with a sufficient level of specificity) the nature of the inquiry that is to be conducted and the issues that are to be considered. For example, in SZMUF vMinister for Immigration and Citizenship [2009] FCA 182, Flick J stated at [22]:
Wherever the line may be drawn in individual cases, a party must be sufficiently put on notice of those matters which place him in a position where he can meaningfully avail himself of an opportunity to be heard. But procedural fairness does not require “a running commentary upon an applicant’s prospects of success, so that there is a forewarning of all possible reasons for failure”: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J.
See also ABV16 vMinister for Immigration and Border Protection [2017] FCA 184, [27].
The scope of the obligation to afford procedural fairness is not at large. The decision maker must give notice of issues which are ‘live’, including the assumptions that may underpin a decision: see BMF16 vMinister for Immigration and Border Protection [2016] FCA 1530, [162]-[163]. Generally, where the obligation is engaged, procedural fairness will require that the appellant be given the opportunity of ascertaining the relevant issues and commenting on any adverse information that is credible, relevant and significant: HFM045 v The Republic of Nauru (2017) 350 ALR 34, [51].
Contrastingly, in SZSSJ at [83], the Court held that ordinarily there was no requirement to notify a person of information which was in the possession of, or accessible to, the decision maker which he or she had decided not to take into account at all in the conduct of the inquiry. Further, as stated above, a Tribunal is not required to give a person a running commentary upon their prospects of success, so that there is, in effect, a forewarning of all possible reasons why a decision may be made to affirm a decision that is the subject of a merits review.
In Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82, [177], Middleton and Wigney JJ observed that the “rules of procedural fairness do not have an immutably fixed content . . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts. . .” This statement of principle is of importance when assessing a complaint grounded upon an alleged failure to observe procedural fairness.
The applicant was asked to explain the basis on which he contended he had been denied procedural fairness. His substantive complaints were that there had been a delay of 45 minutes before the hearing began and that the hearing had been conducted for one hour. The applicant claimed that for those reasons he had been denied the opportunity to give the information he wanted the Tribunal to have, instead being told that the hearing was over and sent home. The applicant also said that he had attended the hearing alone. These submissions were inaccurate.
The applicant contended that the hearing was due to commence at 8.00am and did not commence until 8.40am. The applicant was correct in relation to the complaint of a delay in the commencement of the hearing. However, an examination of the hearing record confirms that the hearing was in fact scheduled to commence at 9.30am but did not commence until 10.12am.
The applicant was incorrect in maintaining that the hearing had been of one hour’s duration. The hearing record also confirmed that the hearing was completed at 12.51pm. The hearing was not of one hour’s duration as he said but ran for nearly 2 ½ hours.
As importantly, while the applicant had appeared in person, it was also inaccurate to suggest that he had been alone. The applicant was taken to a series of communications between the applicant’s lawyer and the Tribunal both before and after the hearing which confirmed that his lawyer had requested that he be able to participate by telephone, that his request had been granted and that he had in fact done so.
The Minister correctly submitted that the applicant was on notice of the issues that had arisen in relation to the decision of the delegate which was under review: s 425. The applicant was put on notice of those issues before the hearing began. During the course of the hearing, the Tribunal addressed with the applicant the issues that had arisen in relation to each of his claims. It also put to the applicant issues that may have had a potential bearing on his credibility. The reasons of the Tribunal do not indicate – and neither the applicant nor his agent had suggested – that any issues other than those ventilated during the hearing formed the basis on which the Tribunal had decided the matter.
The delegate addressed in detail each of the applicant’s claims for protection based upon: (a) race as a Tamil; (b) imputed political opinion; (c) return to Sri Lanka. The applicant’s agent was provided a copy of that decision. The agent lodged an application for a merits review with the Tribunal. The agent made detailed submissions before, during and after the Tribunal’s hearing. The Tribunal gave detailed consideration to each of the applicant’s claims. It did not decide the merits review of the application on some basis that was not ventilated at the hearing or which had never been raised with the applicant.
Following the hearing, the applicant’s agent sent an email to the Tribunal which was focussed upon an analysis of country information relating to imputed association with LTTE. In no part of that or any other communication was it suggested that the applicant had been denied a fair hearing.
The applicant’s agent was supplied a copy of the recording of the hearing. The application was devoid of particulars as to why there had been any want of procedural unfairness. The supporting affidavit likewise contained no information that might have illuminated the precise basis for a complaint of any such unfairness.
I accept the Minister’s submission that the applicant did not establish, whether by evidence or otherwise, the basis for a complaint that he had been denied procedural fairness.
In all of the circumstances, it would be wrong to suggest that the applicant was denied a fair hearing. I discern no want of procedural fairness. I consider that the applicant was afforded a meaningful opportunity – that is, a real chance – to present his case: cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [61] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Guder [2018] FCA 626, [36]-[41] (Griffiths J).
Ground 2 – Wrong legal test
As noted at [27] above, the lack of precision in relation to this ground also would suffice to warrant a conclusion that it be rejected.
From my examination of the Reasons, and in the context of the consideration of this complaint, I see no warrant for a suggestion that the Tribunal had in some (as yet unidentified) way applied a wrong legal test or misapplied the correct legal test. To the contrary, I am satisfied that the Tribunal was fully cognisant of the claims being made by the applicant and properly construed and disposed of the claims that were relied upon: cf BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418, [9]-[12] (Allsop CJ).
Conclusion
Having found no substance in the applicant’s grounds of review, and otherwise being unable to discern any such ground, it follows that the application must be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 12 September 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Natural Justice
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Judicial Review
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Standing
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