BQU15 v Minister for Immigration
[2016] FCCA 3272
•31 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQU15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3272 |
| Catchwords: MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal. |
| Legislation: Migration Act 1958 (Cth), ss.422B, 424AA, 425 |
| Applicant WAEE v the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No.2) (2004) 144 FCR 1 Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 |
| Applicant: | BQU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 732 of 2015 |
| Judgment of: | Judge Howard |
| Hearing date: | 31 October 2016 |
| Date of Last Submission: | 31 October 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 31 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barataraj |
| Solicitors for the Applicant: | Sparke Helmore |
ORDERS
That the Application filed on 12 August 2015 be dismissed.
That the APPLICANT pay the costs of the FIRST RESPONDENT, fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 732 of 2015
| BQU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These reasons were delivered ex tempore on 31 October 2016 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court.
This is an application before the Federal Circuit Court of Australia for judicial review of a decision of the Administrative Appeals Tribunal which was made on 14 July 2015. The applicant is a national of Sri Lanka, of Tamil ethnicity, and he is of the Hindu religion. He came to Australia on 28 July 2012 as a so called “unauthorised maritime arrival”. On 17 January 2013, the applicant applied for a visa known as a protection class XA visa.
A delegate of the Minister, on 6 March 2014, refused to grant the visa to the applicant. The decision of the Tribunal, dated 14 July 2015, affirmed the delegate’s decision, and the applicant applied to the Federal Circuit Court of Australia for judicial review. His application for judicial review was filed on 12 August 2015, and an amended application was filed on 14 December 2015. The grounds of the application are set out in the amended application filed 14 December 2015.
In a document entitled, “Outline of Submissions”, filed in the Court on 19 October 2016, it appears that there are two additional grounds contained in paragraph 4. I will refer to those additional grounds in due course. I do note that at the actual hearing before the Tribunal, which occurred on 3 July 2015, the applicant appeared and was assisted by an interpreter and by a migration representative.
The first ground which is pursued or pleaded by the applicant is contained in the amended application filed 14 December 2015, and reads:
“The Minister erred in law by not taking into consideration facts relevant to the matter in making the decision.”
Particulars are set forth in subparagraphs (a) and (b). The particular contained in subparagraph (a) of ground number 1 relates to the question of country information, and it is asserted that the Tribunal fell into error by not taking into account, or not considering, the country information which was provided by the applicant’s representative. It is the case, however, that the Tribunal itself came to a conclusion that the applicant in this particular case had not in fact been targeted or harmed or threatened by the group known as “TMVP” or a group known as “Karuna”.
I note paragraph 67 of the Tribunal’s decision, contained at page 257 of the court book. It states that:-
“67. While the Tribunal accepts he was a member of a sports club, it does not accept that he or the club was targeted by TMVP or Karuna as the Tribunal has found he has embellished his claims in that regard. The tribunal does not accept that Karuna, TMVP, armed or illegal group, the police or anyone, have targeted, threatened or harmed him as the Tribunal has found the applicant has fabricated his claims in that regard.”
This particular finding made by the Tribunal is, one would have to say, indicative of the credibility findings made by the Tribunal against the applicant, which of course makes his task on an application for judicial review very difficult. This Court, of course, is not able to conduct a merits review of the Tribunal’s decision. I note what was said in a case called Randhawa v the Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at page 278 to the effect that a Tribunal is not obliged to uncritically accept the applicant’s evidence. Furthermore, it is a matter for the Tribunal to assess the applicant’s evidence and to decide what weight it should be given. This forms part of the fact finding obligations of the Tribunal.
I note what was stated in paragraph 72 of the Tribunal’s decision:-
“72. The Tribunal has considered the representative submissions and country information. The Tribunal has also considered DFAT reports, UNHCR guidelines and UK upper tribunal decision country information, to which it referred in the course of the hearing. The tribunal acknowledges the agent submission the DFAT reports should be treated with caution as they lack independence, and questioning and monitoring is not as transparent as claimed in practice a significant degree of racially discriminatory conduct occurs in practice and that the agent refutes parts of the reports. However the Tribunal is satisfied that the DFAT reports are complied with the greatest degree of scrutiny of information, independence and verification, with adequate research and a great degree of accuracy. Further, the DFAT report refers to and acknowledges discrimination in practice and the UNHCR risk profiles and other independent information and sources. The tribunal is also mindful that the February 2015 DFAT report is considerably more recent and more detailed than many of the reports on which the applicant relies and gives the former more weight.”
In that particular paragraph, the Tribunal clearly states that it has considered the “representative submissions and country information”.
Ground 1 of the application states that the member – meaning the Tribunal – had made a decision that the letters were not authentic, merely by reading the English translation and applying the wrong criterion to make the decision. Now, there are four particular pieces of paper, or letters, in question.
When the court book was originally prepared Mr Kyranis, solicitor on behalf of the first respondent, points out that the grounds of the application did not actually then refer specifically to the question of the untranslated version of these four letters. In the index of the court book (exhibit 1), it is possible to see in heading number 9 subparagraphs (a), (b), (c), (d), and (e).
Subparagraphs (a), (b), (c), and (d) are contained in the court book, pages 138, 139, 140 and 141 respectively, and they refer to four translated letters. Each of those entries in the index makes it clear that the untranslated copy of those letters was not reproduced. The letters “NR” are included. Indeed entry number 9(e) of the index also refers separately to the untranslated documents and, again the letters “NR” are stated there, which the Court has been informed means they have not been reproduced for the purpose of the court book.
Subsequent to the filing of the court book, the amended application was filed in December 2015, and the question of the untranslated copies of the letters became relevant, at least to this judicial review application, and I have accepted into evidence as exhibit 2 copies of the untranslated versions of the letters.
There are two letters said to be from the group known as TMVP. The translated versions of those letters are contained in the court book at pages 138 and 141, respectively.
There is a letter said to be – it looks like from a member of the Parliament in the Batticaloa District. The translated version appears in the court book, page 140. The fourth document is said to be a letter from a police station dated 23 February 2012. The translated version of that fourth letter is included in the court book at page 139.
In essence, the ground as stated in the amended application is that the Tribunal erred, by merely having regard to the translated version, because it is really only by looking at the untranslated version that a tribunal tasked with the fact finding mission that this tribunal was could only make a decision on the authenticity of the documents by referring to the original untranslated documents.
Now, the untranslated documents are now part of exhibit 2 – at least a copy of them is. Mr Kyranis, solicitor on behalf of the first respondent, made the point that the letters are referred to in the Tribunal’s decision. The paragraphs 38 to 40 of the Tribunal’s decision state:-
“38. Firstly, the Tribunal does not accept the TMVP and TNA documents asking him to attend the office for election work are genuine. They were written in similar terms and hand written. The applicant said format is common and people under them wrote the letters. However the Tribunal does not accept that two different parties would both write very similar two sentence letters or that they would send handwritten letters to individuals to attend the office for work.
39. Further, the TMVP letters are not a demand and not consistent with his claims that he was forced to do the work. However, the TNA letter says he should attend without ignoring it, which is inconsistent with his claims that he supported the TNA and did their work voluntarily.
40. Also, the letters refer to the elections having commenced but country information is that the nominations had not opened at the time. The applicant said they campaign 3 months before the election and put up stands. However, the Tribunal is not persuaded as the letter is specific about the elections having commenced, and the earliest this occurs is once nominations are closed and accepted. Given the problems with the documents and the prevalence of fraudulent documents, the Tribunal finds the TMVP and TNA documents are not genuine and have been fabricated.”
Those paragraphs refer to two letters from the TMVP apparently regarding election work, and also a letter from a Member of Parliament for the so called TNA, apparently also regarding election work.
But the problem for the applicant is that the Tribunal did not consider that the letters were genuine and, not only that, stated in paragraph 38 the reasons why the Tribunal did not think they were genuine saying, amongst other things, that the letters were written in similar terms and were handwritten. Now, the reference there of course to the fact that they were “handwritten” can only said to be a reference to the untranslated versions. They were handwritten; the translated versions were typed.
So that, indeed, the Tribunal had regard to and indeed did consider not only the translated versions of the letters, but also the untranslated versions of the letters. The tribunal sets out quite clearly, in paragraphs 38, 39 and 40, the reasons as to why it did not accept that the two letters from the TMVP and the one letter from the Member of Parliament for the TNA – the Tribunal set out why it concluded that those letters were not genuine.
As to the other letter, that’s the letter dated 23 February 2012, said to be a letter which requested the applicant’s attendance at a police station, the Tribunal, in paragraph 49, stated:-
“49. Fifthly, the Tribunal also discussed its concerns with the police complaint letter, which was on blank paper and handwritten and did not bear any resemblance to an official document. The applicant said it is informal for lesser charges and had police station stamp on it and a presidential letter is sent for terrorism offences. The tribunal does not accept the applicant’s explanation as it is not credible and contrary to country information. Further, the Tribunal does not accept that police would deliver a complaint letter in person on the same day for a 9.30am appointment or that they would deliver it to him and not take him to the police station. The tribunal does not accept the letter is genuine and finds it has been fabricated.”
Of particular note is the finding made by the Tribunal that the documents said to be a police complaint letter was on blank paper and was handwritten, and did not appear to bear any resemblance to an official document. The tribunal concluded the letter was not genuine and that it had been fabricated. It’s apparent, on the face of paragraph 49 of the Tribunal’s decision, that the Tribunal had sighted not only the translated version but the untranslated version, because a reference is to the blank piece of paper, or to the blank paper, and to the fact that it was handwritten.
These are matters which the Tribunal could only have been aware of having sighted the untranslated version of the letter. Each translated version of these letters, as I stated earlier, is in typed form, and appears in the court book between the pages of 138 and 141 inclusive. And these issues, the concerns of the Tribunal, were actually raised by the Tribunal with the applicant during the hearing about the police complaint letter.
And the Tribunal concluded, or came to the conclusion, as I said and is noted in paragraph 49, that the explanation given by the applicant was not credible and the Tribunal considered that the explanation was contrary to country information. Again, I refer to paragraph 49 of the Tribunal’s decision. The tribunal also noted that, in Sri Lanka, document fraud was prevalent.
I find that the conclusion reached by the Tribunal in and the findings made by the Tribunal in relation to the documents in question were findings that were reasonably open to the Tribunal and open to it for the reasons that the Tribunal gave. There is nothing in ground number 1 that could be said to show that the Tribunal fell into jurisdictional error.
Ground number 2, contained in the amended application, states:-
“2. The Member erred in law by not taking into considerations relevant facts in making the decision.
Particulars
a. The Member failed to take into account the Applicant’s tender aged when he experienced the traumatic events and unfairly applied the criterion “limited knowledge in politics” to make an adverse credibility findings. The member failed to note that while the Applicant worked for the TMP he was only a poster boy or errand boy told to do what he was ordered.
b. The member raised serious credibility issues of the Applicant. In fact the Applicant’s written claims were consistent. Again considering the tender age of the Applicant, his traumatic experience with authorities, and the difficulty in hearing the telephone translations had given rise to some apparent inconsistencies or evasive replies. The member fell into jurisdiction error in not considering this allegation by the Applicant seriously and give a second interview to ensure he was given the opportunity to a fair hearing. The Applicant accepts that this may be an additional burden to the Member, but in the interests of justice this is a burden the member is duty bound to take.”
Paragraph 2(a) refers initially there to the “applicant’s tender age”. I do note paragraph 30 of the Tribunal’s decision, where the Tribunal stated:-
“30. The tribunal accepts that during the war he would have seen atrocities as many did and this is consistent with country information. The tribunal accepts and he moved to Navalkuda in 2002 (aged 10) and lived with his elder sister, as his mother was in Saudi Arabia. The tribunal accepts the applicant was 19 when he left Sri Lanka. In assessing the applicant’s credit and evidence, the Tribunal has taken into account the applicant’s age when the events occurred, he witnessed war atrocities when young and the effluxion of time since events and the hearing and the Tribunal credibility guidelines.”
The tribunal there made a specific reference to the age of the applicant (in the last sentence of paragraph 30). It’s apparent that the Tribunal explicitly said that it had taken into account the applicant’s age when the events occurred. The assertion to the contrary, contained in paragraph 2(a), is completely without foundation.
I also note that in paragraph 53 of the Tribunal’s decision, the Tribunal stated:-
“53. Sixthly, the Tribunal does not accept that he is a high profile campaigner or heavily involved in politics or campaigned for the TNA as the applicant had little knowledge of the TNA other than it was an alliance. For instance, he could not name any of the parties in the alliance, even the main party. The tribunal does not accept the applicant’s little knowledge was because he supported the TNA because it supported his sports club. The applicant claimed he had supported the TNA since 2003 and was involved in assisting in elections and it is reasonable to expect that he would have some knowledge of the party or be able to identify a party within the TNA. Further, while he claimed he did not vote because he had not reached voting age of 21, the country information is that voting age is 18 years old. Even if he did not vote because he had not reached 18 years, the Tribunal considers not being aware of the correct legal voting age is a further indicator that the applicant was not involved or interested in politics. As discussed above the Tribunal places no weight on the letters from the MP, TNA and TMVP as it finds they are fabricated. Given the problems fabricated documents and the applicant’s limited knowledge of the TNA and the MP which was not consistent which was not consistent with someone who claimed to be a follower since 2003 and campaigned for them, the Tribunal does not accept the applicant campaigned or did work for the MP or the TNA.”
The essence of these findings referred to in paragraph 53 – is that the Tribunal did not accept that the applicant was a high profile campaigner, or that he was heavily involved in politics, or that he had campaigned for the TNA. It was noted that the applicant in fact had little knowledge of the TNA, other than that it was a so called alliance. The tribunal noted that the applicant could not name any of the parties of the alliance. He couldn’t even name the main party.
The tribunal also noted that the applicant had answered that he hadn’t voted because he hadn’t reached the voting age of 21, but the country information available to the Tribunal noted that the voting age was 18. The tribunal, noting that the applicant was not even aware of the correct legal voting age in Sri Lanka, concluded that this was a further indicator that he was not involved in politics and nor was he interested in politics.
In paragraphs 8 and 22 of the Tribunal’s decision, it is stated:-
“8. In 2008 he received a letter from the TMPV to come to his office and he was made (under threat) to work for them for two days, treated like a slave putting up posters. If he refused he knew he would be beaten. After the 2008 elections the TVMP took away his ID card and it took two years to get a new one and he would get into trouble with the police without one.
…
22. In his November 2013 statement after his immigration interview the applicant clarified some points claiming:
a. his parents separated when he was six. He stayed with his elder sisters. When he was 9 his mother went to work in Saudi Arabia for more than 10 years and he went to live with his aunt and brother and sister in Navalkuda. When he was 16 or 17 he moved to another house in Navalkuda with his sister and brother, not far from his aunt’s. When his mother returned in 2009 or 2010 she lived at Kokkadichola for one month and then live with him in Navalkuda until he came to Australia. She spent time at both places.
b. After his ID card was taken he had to use his temporary ID card until he was able to apply for another on 5 April 2010. He showed this card when asked and said the TMVP had taken his other card but it did not cause him any problems but he was worried he would get into trouble with the police. From the time he applied for his ID card in December 2008 it took almost two years or 18 months. Once he provided the office with his temporary card it took a month to issue his new ID card, which he used to obtain his passport.
c. When the first letter was written by the TMVP they were still working for the Tamils. The culture of the office changed with TMVP starting work for the Sinhalese side and that explains the problems with the TMVP letters.
d. When putting up posters in 2008 for TMVP the police beat them if they did not do it properly. They painted the symbols and number 7. He was nervous and anxious as the immigration interview as he was late and he got the dates mixed up and was not sure which elections he was being asked about. He was only 16 or 18 when he did it and not interested in TMVP or policies.
e. He supported Mr Ariyethran. He had trouble answering questions about his policies but knows him as a good man who helps the community and poor and his Sports club. He had a job on the board as community relations and was not the president of the club. They made sure the grounds were clean and gave fruit to the local temple. He loved the sports club and that was the reason he supported Mr Ariyethran. His support for him was one of the reason TMVP sought him out and they thought he had switched sides and because of his involvement in the club. The TMVP wanted the club’s support and put pressure on it and the board members to change allegiances.”
In these two paragraphs, it is apparent that the Tribunal specifically considered the question of the claim made by the applicant that he had put up posters for the TMVP. Having made specific reference in the decision itself to the contention that posters had been put up, it is not reasonable to assert on behalf of the applicant that the Tribunal had failed to consider such a submission.
In this regard, I note a decision called Applicant WAEE v the Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at paragraph 47. Paragraph 2(a) in the grounds also maintains on behalf of the applicant that the Tribunal had unfairly applied the criterion “limited knowledge in politics”, and made adverse credibility findings accordingly, but it has to be borne in mind that, in these cases – as I said earlier in these reasons for judgment – the Tribunal is not obliged to accept an applicant’s claims in an uncritical manner.
In this regard, I note the decision of Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. In addition, I note what was said Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 at page 434, to the effect that a tribunal was entitled to specifically test the applicant’s claims. That is to say, was entitled to test the evidence that was put forward, particularly where the Tribunal, as in this case, was concerned about the credibility of the applicant.
This leads into the next ground, or subground, which is contained in paragraph 2(b) in the amended application filed 14 December 2015. This ground relates to the question of the credibility of the applicant. In a decision entitled SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at paragraph 83, it was noted that the Tribunal’s decision is not discretionary in nature so that it cannot be, as it were, maintained that the decision was unreasonable. The question is probably more correctly looked at as an argument on behalf of the applicant to the effect that the decision of the Tribunal was illogical or irrational.
In this regard, I note a decision entitled Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, per Crennan and Bell JJ. I note, in particular, what was stated in paragraph 131, where their Honours noted:
“131. …If probative evidence can give rise to different processes of reasoning, and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.”
One of the biggest problems, as I said earlier in these reasons, for the applicant is the number of adverse credibility findings made by the Tribunal against him. It is part of the fact finding mission of the Tribunal to consider the credibility of applicants. The conclusion by the Tribunal that the applicant was not credible falls within the category of a fact finding conclusion. Indeed, as was stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407, credibility findings are findings of fact “par excellence”.
I should note here also that the Court heard a submission today to the effect that the delegate – even though the delegate had decided not to grant the visa to the applicant, the delegate had come apparently to some different conclusions in relation to the applicant’s credit, apparently finding that the applicant, in relation to some issues at least, was credible. This Court, of course, has the task of reviewing the Tribunal’s decision – and the Tribunal, when it carries out its task, is required to put itself in the shoes of the delegate and to consider the matter afresh.
It is up to the Tribunal, then, to determine whether it determines or finds that an applicant is credible, and in this case the Tribunal concluded that the applicant was not credible, and gave reasons for such a conclusion. These reasons were open to it on the basis of the evidence before it. I have already made reference to the conclusions reached by the Tribunal in relation to the letters referred to – the four letters: two from the TMVP, one from the TNA politician, and one the police complaint. The letters were not accepted as genuine.
I note what was said by the Tribunal and referred to earlier in these reasons at paragraphs 38, 39 and 40, where the Tribunal set out in some detail the credit findings against the applicant, relating to the documents I referred to earlier. I also note at paragraphs 41 to 44 of the Tribunal:–
“41. Secondly, the applicant’s account of the threats from the TMVP was vague, lacked details and evasive. The tribunal spent some time asking the applicant to describe the threats, where, when and what happened. However the applicant avoided the question and responded generally, saying they threatened him and can do anything to him and kill him. The tribunal asked him three times to provide specifics of where the threats were made, by whom and the circumstances. The applicant said he did not remember dates, but said it was in 2009 and the Tribunal noted it was not concerned with specific dates but the circumstances of the threat and understanding what actually happened.
42. Eventually, the applicant provided evidence in a piecemeal way, saying they came to his home and said you are with TNA, with the tower company and were angry and told him to transfer the tower or pay money. The tribunal continued to prompt him to understand what was said or happened. The applicant added he told them he would not do that. The tribunal asked what happened when he said that. He said the TMVP said we will look after you and went.
43. The tribunal asked if there were any other times he was threatened. He said during the election they threatened and when he was in school in 2008 they came to assault a teacher. The tribunal noted it was interested in his description of any threats made to him. He then said they targeted and threatened him because he was in the sports club. The tribunal asked him again to describe the threat – who, what, where, what happened and when. The applicant said in 2008 the TMVP asked him to support them but he supported TNA. The tribunal asked again for him to describe the threat. The applicant repeated his general response. He then provided evidence about the TMVP motivation (the club supported the TNA and he was a senior member and helped the poor). The tribunal asked the applicant to give specifics about the threat. He said they will kill him if they do not support the TMVP.
44. In response to tribunal concerns that he was not answering the question he said the TMVP gave him a letter to come to their camp and he went and they told him to support the TMVP. The tribunal considers the applicant’s account was particularly evasive and vague and told in a piecemeal fashion as he was not recalling a true event. While not raised as an issue, the Tribunal does not accept that there was any issue with him not understanding or interpreting as the Tribunal asked the question a number of times in a different way and explained to the applicant the importance of providing detail, answering the question and prompted him. Further, it was apparent throughout the hearing the applicant had good English and understood the questions before they were interpreted as he tried to respond early.”
In those paragraphs, the Tribunal concluded that the applicant’s account of the threats from the TMVP were vague, they lacked details, and were evasive.
The Tribunal noted in paragraph 41, for instance, that it had spent some time asking the applicant to describe the threats – as to where they were made, when they were made and what happened, but the Tribunal noted that the applicant avoided the question and responded generally. He was repeatedly asked to provide specifics. The tribunal came to the conclusion that, when evidence or information eventually was provided by the applicant, it was provided in a piecemeal way and, essentially, as noted in paragraphs 41 to 44, the Tribunal concluded that the account given by the applicant was, as I stated, vague, it lacked details in relation to some issues and he was evasive in relation to some issues. As the Tribunal concluded, the applicant was not recalling a true event. All of these credibility findings made against the applicant were open to the Tribunal. This is not the sort of case where it could be said that no rational or logical decision maker could arrive at the conclusions or the findings on the same evidence.
And this harks back to what was said in SZMDS per Crennan and Bell JJ. Ground number 2(b) also made some reference to jurisdictional error by the Tribunal, because of a failure to provide a second interview to ensure that he had been given the opportunity of a fair hearing. And certain issues were noted, including the applicant’s age, his alleged earlier traumatic experience with the authorities, difficulty in hearing telephone translations and so on. It has to be noted that there is no evidence before the court that the applicant had any difficulty hearing the interpreter.
The court also noted earlier that the applicant’s representative, his migration representative, had attended the Tribunal hearing, and that representative did not raise during that hearing, or indeed after that hearing, that there had been some unfairness in relation to this issue, or that there ought to have been a second hearing. There is in fact no evidence before the court that the Tribunal failed to comply with its obligations under part 7 of the Migration Act 1958 (Cth) (“the Act”). I note that section 422B of the Act is an exhaustive statement of the requirements of natural justice.
In the Tribunal’s decision it is apparent that on many occasions it raised its concerns with the applicant during the course of that hearing, and put to the applicant its concerns and asked him questions about its concerns, and I note what was said – in particular in this regard in paragraphs 41, 44, 46, 48, 51 and 52 of the Tribunal’s decision. In those paragraphs it is apparent, of course, that when the applicant was appearing before the Tribunal, that the Tribunal specifically (and this is only some examples of it) the Tribunal specifically identified with the applicant the concerns it had with the applicant’s own evidence.
I have concluded that the Tribunal did discharge the obligations which it owes under section 425 of the Act. Ground number 2 does not disclose any jurisdictional error.
Ground number 3, contained in the amended application, filed 14 December 2015, states:-
“3. The Member erred in not taking into consideration relevant Country information in making the decision under the Complementary Protection provisions of the Migration Act.
Particulars (inter alia)
a. The Country information provided by the legal representative with respect to the activities of the Karuna and the Pillayan group to the delegate of the Minister (pg 92 of Court Book) as well as to the Member (pg 195, CB) provides supporting evidence of the Applicant’s claim. It should be noted that the Applicant made the claim first and obtained the supporting country information and not vice versa. The Applicant was very young during the time of the LTTE occupation and activities. It is not inconceivable that the Applicant faced experiences traumatic enough to have scarred him and affect his whole demeanour and psychology.
b. The member failed to consider the fear of the Applicant being returned to Sri Lanka may indeed be real because of his traumatic experience and downplaying this situation merely to reject the application is against the spirit and intent to the Migration Act and the UNHCR guidelines.”
In some respects, this particular ground has been covered earlier in these reasons for judgment, but the essence of the ground is that the applicant maintains that the Tribunal failed to consider relevant country information when considering the complementary protection criterion.
In paragraph 72, in relation to this aspect of the applicant’s claim, the Tribunal noted that it had indeed considered the representative’s submissions and the country information. Paragraph 72 states:-
“72. The Tribunal has considered the representative submissions and country information. The Tribunal has also considered DFAT reports, UNHCR guidelines and UK upper tribunal decision country information, to which it referred in the course of the hearing. The tribunal acknowledges the agent submission the DFAT reports should be treated with caution as they lack independence, and questioning and monitoring is not as transparent as claimed in practice a significant degree of racially discriminatory conduct occurs in practice and that the agent refutes parts of the reports. However the Tribunal is satisfied that the DFAT reports are complied with the greatest degree of scrutiny of information, independence and verification, with adequate research and a great degree of accuracy. Further, the DFAT report refers to and acknowledges discrimination in practice and the UNHCR risk profiles and other independent information and sources. The tribunal is also mindful that the February 2015 DFAT report is considerably more recent and more detailed than many of the reports on which the applicant relies and gives the former more weight.”
In the Tribunal’s own decision at paragraph 113 it is stated:-
“113. For reasons set out above, the Tribunal has not accepted the applicant’s claims that he was assaulted or threatened by police, TMVP, Karuna or anyone is looking for him or that he is suspected of LTTE or anti-government or is of adverse interest to authorities. As discussed above, while he suffered harm during the civil conflict (being rounded up and having seen atrocities), the Tribunal does not accept he faces similar harm or serious harm in the future as the war ended in 2009. Further, the monitoring and checkpoints have eased considerably and the Tribunal does not accept he faces a real risk of harm in the future. The tribunal does not accept he faces any real risk of significant harm in the future.”
Now, the Tribunal here has used the words “for reasons set out above”, so that when considering the applicant’s claims under the so called complementary protection criterion the Tribunal here was in fact referring to earlier findings which it had made. This approach, taken by the Tribunal, was of course open to it and it is permissible. This has been confirmed in decisions such as SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 776 at paragraph 56, and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at paragraph 32.
Ground 3(b) makes reference to the fear of the applicant of being returned to Sri Lanka, and it is said the Tribunal failed to consider this.
The issue itself, highlighted by this ground 3(b), is an interesting one. The applicant appears to be maintaining that the Tribunal failed to consider the fact that the applicant had departed his country of origin as evidence of the truthfulness or genuineness of his claims. As was noted on behalf of the first respondent, the applicant had in fact not made any such claim when before the Tribunal, and accordingly the Tribunal was not required to consider this, as it was a claim not made nor one that was – did – it is a claim which was in fact not made.
Furthermore, it was not one which fairly arose on the material before the Tribunal. I note what was stated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1. In any event, even if I’m wrong in relation to that conclusion, the ground itself is really without merit. The fact that the applicant departed Sri Lanka obviously is a fact that was known by the Tribunal. This particular ground talks about the applicant’s fear of being returned to Sri Lanka because of his – that is, the applicant’s – traumatic experience.
At the heart of the problem with this particular ground, as particularised, is that the Tribunal concluded that it didn’t believe the applicant. The credit findings that were made against the applicant were so extensive that it simply is not open to this Court to conclude, or in fact to review, the merits of the applicant’s claims.
What is really being asked in relation to this ground is for this court to reconsider the truthfulness of his claims, to reconsider whether he did have traumatic experiences, to reconsider any number of assertions made by the applicant, when such a review is not permissible by this Court. Ground number 3 does not disclose any jurisdictional error.
The applicant also put forward written submissions, called an Outline of Submissions, filed on 19 October 2016. Mr Kyranis, solicitor on behalf of the first respondent, has stated that the document in paragraph 4, under the heading Ground Number 1, contains two additional grounds of review which were not contained in the application or the amended application. It is submitted on behalf of the first respondent that leave should not be granted.
Firstly, it is submitted that leave is required to rely upon them. Secondly, it is submitted leave should not be granted, as there’s no explanation provided as to why these grounds were not included at an earlier time. Mr Barataraj, on behalf of the applicant, seemed to submit that, because the amended application had referred to, or had used the words where the grounds were stated, particulars were provided inter alia, that this meant that the applicant would be able to add additional grounds as he considered appropriate.
I do not accept that argument. The court can only operate in a reasonable and sensible way if the grounds of the application are particularised at the appropriate time and new grounds can’t merely be added. I do not consider that any explanation or any reasonable explanation has been provided as to why these grounds were not particularised or included at an earlier time, and I’ve concluded that leave ought not be granted to permit the two grounds contained towards the end of paragraph 4.
In case I am wrong in relation to that conclusion I note that section 424AA of the Act states:-
“424AA Information and invitation given orally by Tribunal while applicant appearing
(1) If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424A of the Act states:-
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(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; or
(c) that is non-disclosable information.
(4) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
It’s important to consider the word “information”. In the ground referred to here in paragraph 4 ground 1(a), it is said:
“…The tribunal did not at any time suggest to the applicant that the documents he had provided were fake or not authentic and would consider this an important issue in making the decision under section 424AA of the Migration Act 1958, which it failed to do so.”
Now, that sentence is taken directly from the outline of submissions. Crucially, I note, the following paragraphs in the Tribunal’s decision – paragraphs 38, 40 and 49.
“38. Firstly, the Tribunal does not accept the TMVP and TNA documents asking him to attend the office for election work are genuine. They were written in similar terms and hand written. The applicant said format is common and people under them wrote the letters. However the Tribunal does not accept that two different parties would both write very similar two sentence letters or that they would send handwritten letters to individuals to attend the office for work.
…
40. Also, the letters refer to the elections having commenced but country information is that the nominations had not opened at the time. The applicant said they campaign 3 months before the election and put up stands. However, the Tribunal is not persuaded as the letter is specific about the elections having commenced, and the earliest this occurs is once nominations are closed and accepted. Given the problems with the documents and the prevalence of fraudulent documents, the Tribunal finds the TMVP and TNA documents are not genuine and have been fabricated.
…
49. Fifthly, the Tribunal also discussed its concerns with the police complaint letter, which was on blank paper and handwritten and did not bear any resemblance to an official document. The applicant said it is information for lesser charges and had police station stamp on it and a presidential letter is sent for terrorism offences. The tribunal does not accept the applicant’s explanation as it is not credible and contrary to country information. Further, the Tribunal does not accept that police would deliver a complaint letter in person on the same day for a 9.30am appointment or that they would deliver it to him and not take him to the police station. The tribunal does not accept the letter is genuine and finds it has been fabricated.”
In each of those paragraphs it is apparent that the Tribunal was questioning the applicant during the hearing in relation to its concerns concerning the documents, or relating to the documents. The applicant must have been aware that the Tribunal may not be accepting that the documents were authentic.
In the High Court decision of SZBYR & Anor v Minister for Immigration and Citizenship & Anor (2007) 96 ALD 1 at paragraph 18, where the Court stated that, for the purposes of section 424A:-
[18] “…“information”:
…does not encompass the Tribunal’s subjective appraisals, thought processes or determination … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc…”
The High Court continued and stated:-
“…However broadly information be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence…”
It seems to be the case that this ground, while not particularised to any great extent, is that the “information” which the Tribunal failed to put to the applicant in breach of either section 424AA or section 424A was the Tribunal’s subjective view that the documents weren’t genuine, and as I have said: the Tribunal’s subjective view or the Tribunal’s thought processes – these are not information for the purposes of section 424 of the Migration Act, and that is the clear conclusion which the High Court reached in SZBYR. There is nothing in that ground which could be said to amount to jurisdictional error.
The final point which seems to be made in the outline of submissions, is that the Tribunal failed to make inquiries about the genuineness or the authenticity of the documents. Section 424 of the Migration Act makes it clear that the Tribunal may obtain such information as it considers relevant.
In a decision entitled Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429, it was made clear that the Tribunal does not have a general duty to undertake its own inquiries, in addition to information to information that is provided to it by an applicant. Applicants must make out their own case before tribunals. In that decision of SZIAI the High Court did say that there was some limited circumstances where a tribunal may be obliged to make its own inquiry.
And the High Court specifically noted, for instance at paragraph 25 of that decision in SZIAI, that only in a situation where there had been a failure by a tribunal to make what the High Court referred to as “an obvious inquiry of a critical fact, the existence of which is easily ascertained” could it be said that a jurisdictional error may have occurred.
Gleeson J, in a decision entitled BFC15 v Minister for Immigration and Border Protection [2016] FCA 735, at paragraph 20, said that such circumstances were “rare and exceptional”. I do not consider, in the present case, that there was any failure by the Tribunal to make an obvious inquiry of a critical fact, the existence of which was easily ascertained. I do note that the applicant was represented before the Tribunal.
I note that the conclusion that the documents were not genuine was only one of a myriad of adverse credibility findings made against the applicant. There is no evidence provided by the applicant that would enable a conclusion that an inquiry by the Tribunal would have come up with or led towards a different conclusion. In its decision, the Tribunal itself set out several reasons in relation to the conclusion that it reached on the lack of authenticity of those documents, all of which were open to the Tribunal.
I note what was stated in the Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 at paragraph 40 to the effect, essentially, that even if some further inquiries may have confirmed that particular parties had, for instance in this case, written the letters in question, as was said in SZRTF, numerous other questions remained to be decided before the Tribunal could be satisfied that the respondents were entitled to protection visas.
The applicant in this case has not been able to identify any jurisdictional error. The application is dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Howard
Associate:
Date: 19 December 2016
0
11
0