BSE15 v Minister for Immigration
[2017] FCCA 2535
•23 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BSE15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2535 |
| Catchwords: MIGRATION – Application for judicial review of refusal to grant protection visa – application by the Applicant at final hearing to adjourn the hearing to enable him to obtain legal advice refused – held that Tribunal decision not affected by jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.3(2) Federal Circuit Court Rules 2001 (Cth), r.1.03(1) Migration Act 1958 (Cth), ss.5(1), 36(2) |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 |
| Applicant: | BSE15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1938 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 29 August 2017 |
| Date of Last Submission: | 25 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 October 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for judicial review filed on 24 August 2015 be dismissed.
The Applicant pay the costs of the First Respondent in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1938 of 2015
| BSE15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal (“the Tribunal”), dated 11 August 2015, which affirmed the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (“the Minister”), dated 14 March 2014 refusing to grant the Applicant a Protection (Class XA) visa (“the visa”). A copy of the Tribunal’s decision is at Court Book (“CB”) 308-327.
The Court had before it a Court Book, the First Respondent’s Outline of Submissions filed on 21 August 2017, the Applicant’s Application filed on 24 August 2015 and the Applicant’s Affidavit filed on 24 August 2015.
Application for Adjournment
At the commencement of the proceedings on 29 August 2017, the Applicant sought an adjournment to obtain legal advice. The procedural background in these proceedings is as follows:
a)in his application for judicial review filed on 24 August 2015, the Applicant said at Ground 2, “I have made an applicant procedural [sic] for assistance through Victorian Legal Aid and am waiting for a decision”;
b)the matter proceeded to a directions hearing on 3 February 2016 before Registrar Caporale who made orders listing the application for judicial review for final hearing on 29 August 2017; and
c)Registrar Caporale’s orders were administratively amended by consent on 10 August 2017, so as to enable the Applicant to file an Amended Application for judicial review. No Amended Application was filed by the Applicant.
At the hearing on 29 August 2017, the Applicant was self-represented and assisted by an interpreter in the Tamil and English languages. The Court directed the Applicant to give sworn evidence regarding his application for an adjournment. The Applicant was asked what the outcome was of his approach to Victoria Legal Aid (“VLA”) for legal assistance. The Applicant said that approximately two weeks prior to the hearing, he was told that VLA would not represent him.
Upon viewing a bundle of email correspondence between the Minister’s solicitors in this matter, Clayton Utz, and VLA (Exhibit FR1), I am satisfied that on 18 July 2017 Clayton Utz were informed by VLA that VLA did not intend to represent the Applicant. It is apparent from the emails that prior to that date, Clayton Utz and VLA had consented to amendments to Registrar Caporale’s orders to enable an Amended Application to be filed.
The Applicant was then asked what further steps, if any, he had taken to obtain legal assistance. The Applicant gave oral evidence that he had applied to ten lawyers for assistance, however, they had all informed him that they were unable to assist. The Applicant said that this was because they were too busy.
The Applicant gave oral evidence that he recently attended upon one lawyer who said they would consider his case. The Applicant informed the Court that her name was Valerie Pereira (“Ms Pereira”) of Da Gama Pereira and Associates Pty Ltd. Ms Pereira was directed by the Court to immediately attend the hearing by telephone. Ms Pereira did attend by telephone and informed the Court that she had indeed said that she would look at the Applicant’s case. Ms Pereira said that she had referred the brief of the Applicant’s case to a Counsel who is well known in the migration jurisdiction. Counsel’s advice had the consequence that Ms Pereira decided not to take on the Applicant’s case.
The Applicant implored the Court to give him a further opportunity to obtain a lawyer to represent him in these proceedings.
The objects of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) refer to the desirability of proceedings being dealt with in a timely manner (sub-r.1.03(1) of the FCC Rules), and the objects of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCC Act”) include enabling this Court to operate informally and using streamlined procedures (sub-s.3(2) of the FCC Act). Of course, in matters such as this, the Court is concerned with the overall question of the administration of justice. This inevitably entails doing justice to the parties. The Applicant faces deportation to a country in respect of which he alleges he fears persecution and/or significant harm if he is returned to that country.
There is no legal entitlement to the provision of legal advice in matters such as the present application (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [4]; Singh v Minister for Immigration and Border Protection [2016] FCA 942 at [36]-[37]).
In my opinion, there would not be any prejudice to the Minister if the proceedings were to be adjourned, which cannot be dealt with where costs are available if the Applicant is unsuccessful.
There was a further issue in this case which the Minister properly drew to my attention. This was the fact that the High Court of Australia had granted special leave from the decision of the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. This was relevant because the Tribunal, in its decision record, held that if the Applicant were detained on return to Sri Lanka, the treatment by the authorities whilst he was in detention would not amount to significant harm under sub-s.36(2A) and
sub-s.5(1) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal said, in part (CB 356 at [62]):
62. …Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A).
I should note that there were other limbs upon which the Tribunal found that the Applicant did not satisfy the requisite criteria under
sub-s.36(2)(aa) of the Act. These included the fact that any harm the Applicant might suffer in the form of the imposition of a fine would not rise to the level of significant harm (CB 355 at [61]).
I decided not to grant the Applicant an adjournment. The Applicant had more than two years to obtain legal representation since the filing of his Application and was aware as of 3 February 2016 that the Application had been listed for hearing in 18 months’ time. I did not find the Applicant’s evidence about the steps he had taken and the reasons why he had thus far not obtained legal representation convincing. In my opinion, and upon hearing the Applicant’s evidence, the Applicant’s chances of obtaining legal representation if an adjournment were granted were very slim.
Further, although I decided to proceed to hear the matter on
29 August 2017, I afforded the Minister and the Applicant the opportunity to make further submissions upon the High Court of Australia handing down its decision in SZTAL v Minister for Immigration and Border Protection and SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 (“SZTAL”) if they so wished. The Minister filed a written submission on 18 September 2017.
Background
The Applicant is a 26 year old Tamil who is a Hindu and citizen of Sri Lanka (CB 49).
On 11 December 2012, the Applicant applied for the visa (CB 36). The Applicant provided a Statutory Declaration in support of his claims on 7 December 2012 (CB 79-84).
At the Tribunal hearing, the Applicant broadly claimed to fear harm from the Sri Lankan authorities due to his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (“LTTE”), which was based on the Sri Lankan Army’s suspicion that the Applicant’s father was an LTTE member or supporter. The Applicant claimed that after the Army was unsuccessful in locating his father, they pursued the Applicant to interrogate him over possible links with the LTTE. The Applicant claimed that these suspicions of the authorities were exacerbated by the Applicant’s Tamil ethnicity and his status as a failed asylum seeker (CB 347 at [22]).
On 14 March 2014, a delegate of the Minister (“the Delegate”) refused to grant the Applicant the visa (CB 161-182).
On 19 March 2014, the Applicant applied to the Tribunal for review of the Delegate’s decision (CB 185-190). The Applicant was represented by a migration agent and on 28 April 2015, through his agent, the Applicant provided submissions to the Tribunal (CB 221-289).
The Applicant appeared before the Tribunal at a hearing on
5 May 2015, at which he gave evidence and presented arguments with the assistance of his migration agent.
By an application to this Court dated 24 August 2015, the Applicant seeks judicial review of the Tribunal’s decision (CB 328-332).
The Applicant’s Claims
The Applicant’s claims contained in his visa application (CB 36-62) and attached Statutory Declaration (CB 79-84) are, in my opinion, correctly summarised by the Tribunal in its decision record as follows (CB 339-340 at [10]):
·[The Applicant] was born in Udappu, Sri Lanka, in 1991. His ethnicity is Tamil and he is a Hindu by religion. He lived at an address in Udappu from 1991 to 2005 and at another address there from 2005 to July 2012. He received a total of fourteen years of formal education in Sri Lanka, ending in 2010 when he completed his A levels. He worked as a house painter in his local area from October 2010 to June 2012. He is unmarried and his parents live in Mullaitivu, in the Northern Province of Sri Lanka. His younger sister and younger brother live in Udappu.
·His father is a seasonal fisherman, dividing his time between Udappu and the Mullaitivu and spending a few months at a time in each place. His mother travels with his father wherever he works. Mullaitivu is controlled by the LTTE (sic) while Udappu is controlled by the army.
·On seven or eight occasions between 2009 and 2010 a group of three to four armed police came to the house looking for his father. Luckily his father was not at home at these times but one afternoon in September 2009 they found them there and took him away in a white van. He was detained for questioning and released the next evening. Two days later he left for Mullaitivu and never returned to Udappu. The police continue to visit the house in search of him.
·On one such visit, in March 2010, when the police found his father was not at home they seized the Applicant instead. He was taken in a white van to Negombo police station where he was asked his father's whereabouts. He replied that he did not know and was released two hours later.
·In November 2010 he was again taken to the police station. They asked if he knew anything about his father's LTTE connections or if he himself had such links. He denied it and was released the next day.
·In September 2011 he was once more taken to the police station and asked the same questions. One of the officers became angry and slapped his face when he inquired why he was being detained. He was released the next day.
·From September 2011 to June 2012 the police came to his house looking for him about seven to eight times. Whenever he saw them approaching the house he would escape through the back door. In June 2012 they came once more and told his aunt that if they caught him they would kill him. They were very angry over his refusal to disclose his father's whereabouts and his denial that he or his father had any connection with the LTTE.
·The police have already threatened to kill him. Now he has left Sri Lanka illegally they will definitely kill him next time they catch him. They suspect he has a connection with the LTTE because he is a Tamil and his father works in Mullaitivu, an LTTE-controlled area. They have accused him of covering up his father’s LTTE membership.
·The authorities will not protect him as they believe he and his father are LTTE members. He cannot relocate in Sri Lanka as the police will track him down and kill him wherever he goes.
The Tribunal further identifies in its decision record the following documents on the Department file (CB 340 at [12]):
a)a submission from the Applicant’s migration agent citing a range of country information on human rights conditions in Sri Lanka and, in particular, the treatment of the Tamil minority. The submission also includes a discussion on the appropriate treatment of credibility issues in the case of applicants for protection;
b)photocopies of educational records for the Applicant;
c)photocopied documents in Sinhala said to be the Applicant’s birth certificate and national identity card;
d)photocopied pages from the Applicant’s Sri Lanka passport issued on 18 January 2011;
e)a record of an entry interview conducted with the Applicant in Darwin on 24 September 2012; and
f)an audio recording of the protection visa interview.
Prior to the Tribunal hearing, the Applicant’s migration agent submitted, on behalf of the Applicant, that the Applicant feared persecution and/or significant harm if he were to be returned to Sri Lanka by reason of his race, imputed political opinion, membership of a particular group of failed asylum seekers returning to Sri Lanka, and his unlawful departure from Sri Lanka (CB 221-289).
Tribunal Decision
Sub-section 36(2)(a) of the Act
Imputed Political Opinion
The Tribunal said that “…there [were] good reasons to doubt the truth of [the Applicant’s] claims…” that he would be imputed a political opinion as a supporter of the LTTE (CB 347 at [22]).
The reasons enunciated by the Tribunal for doubting the truth of these claims were as follows (CB 347-348 at [23]-[28]):
a)the Tribunal’s difficulty in understanding why the police suspected the Applicant’s father of having LTTE connections, when the only explanation provided by the Applicant for this was that his father had lived and worked for some time in Mullaitivu, an area which was under the control of the LTTE. According to the Applicant, his father had no connection with the LTTE and the Tribunal said that there was no apparent reason why his father should have been singled out among others who earn their living in the same way;
b)the Tribunal’s difficulty in understanding why police would have released the Applicant’s father shortly after interrogating him about his LTTE connections if they had any real reason to suspect him;
c)the Tribunal found the Applicant’s claim that his father had been able to live for the last five years in Mullaitivu (a heavy militarised and controlled area which was the scene of the final battle in the Sri Lankan Civil War in 2009) without the knowledge of the Sri Lankan authorities to be implausible;
d)the Tribunal found the Applicant’s evidence that police came to the family home on seven or eight occasions in search of his father, and each time accepted the response from the Applicant’s mother and aunt that they did not know where his father had gone, to be implausible;
e)the Tribunal found the Applicant’s claim that he was taken for questioning three times and that the police came to the family home on seven or eight more occasions in the period from September 2011 to June 2012, missing him each time because he was able to see them approaching and took the opportunity to escape, to be implausible; and
f)the Tribunal found the Applicant’s claim that the police had a genuine suspicion that the Applicant was an LTTE member or supporter or had substantive LTTE connections, but would release the Applicant from custody on three separate occasions rather than place him in long-term detention or rehabilitation, to be inherently implausible.
The Tribunal was not satisfied that any of the events claimed by the Applicant had occurred, and it was not satisfied that the Applicant had ever come to the adverse attention of the authorities as a person suspected of some kind of connection with the LTTE (CB 348 at [29]).
The Tribunal was not satisfied that the Applicant’s Tamil ethnicity or status as a young Tamil male or failed asylum seeker would serve to cast suspicion on him as holding a pro-LTTE or anti-government political opinion (CB 348 at [30]-[31]), or that the Applicant would suffer serious or significant harm because of his ethnicity (CB 350 at [37]-[39]). In coming to this conclusion, the Tribunal considered various Department of Foreign Affairs and Trade (“DFAT”) country information (CB 349-350 at [33]-[39]). While the Tribunal accepted that, if the Applicant was to return to Sri Lanka it would most likely be known to the authorities that he had unsuccessfully sought asylum in Australia, it was not satisfied, having considered country information, that the Applicant would be imputed with a pro-LTTE political opinion for this reason (CB 348-349 at [31]-[32]).
Failed Asylum Seeker
In relation to the Applicant’s status as a failed asylum seeker, the Tribunal again considered various country information (CB 350-352 at [40]-[45]). While the Tribunal accepted that this was a particular social group to which the Applicant belonged, it was not satisfied that simply applying for asylum in another country exposes returnees to Sri Lanka to harm. The Tribunal noted further that the DFAT country information indicated it is only returnees who are suspected of LTTE involvement or criminal activity (such as people smuggling) who are at risk of harm (CB 350-351 at [40]-[44]). The Tribunal stated as follows (CB 352-353 at [47]):
47. I accept the Applicant would be subjected to such processes on return. I am not satisfied this would involve him being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or for any other reason. As I am not satisfied that he has ever been under genuine suspicion of having links with the LTTE, or that there is any reason to believe he would now fall under such suspicion or would be suspected of having committed any crime (other than the offence of having left the country unlawfully, as discussed below) I am not satisfied he would be arrested, detained or subjected to harm for this reason. Nor am I satisfied that he falls within any other identified category of persons who might be at risk of persecutory harm on return for other reasons. I am not satisfied that the fact of his being questioned at the airport, even for an extended period, could in itself reasonably be characterized as harm, or that he would be subjected to any other form of mistreatment there. While the information suggests he might be visited by the CID or police on return to his home area to check on his arrival, and that he might be placed under some degree of monitoring I am not satisfied that in his particular circumstances he would be subjected to any more serious forms of attention and I do not accept that such visits or monitoring in themselves could reasonably be described as harm.
Unlawful Departure
The Tribunal acknowledged that on the information before it, returnees who have breached the Sri Lankan Immigrants and Emigrants Act 1949 (Sri Lanka) are arrested at the airport and brought before a magistrate for a bail hearing. The Tribunal stated as follows (CB 353 at [50]):
50. …Bail is routinely given on the accused’s own recognizance although a family member may also be required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison, possibly for some days, until the next opportunity for a bail hearing arises. Conditions in Negombo prison have been described in media reports as overcrowded and unsanitary, but there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Immigrants and Emigrants Act, including those returned from Australia, have been subjected to torture or other forms of deliberate mistreatment.
Based on country information, the Tribunal concluded that, in practice, illegal returnees have fines imposed on them ranging from 5,000 to 50,000 Sri Lankan Rupees (about 45 to 450 Australian Dollars at the time of the Tribunal hearing) and not terms of imprisonment (CB 353-354 at [51]). The Tribunal held that this conclusion is supported by the absence of media reporting of terms of imprisonment for illegal returnees (CB 354 at [52]).
The Tribunal was satisfied that the Immigrants and Emigrants Act 1949 (Sri Lanka) was a law of general application (CB 354 at [53]).
The Tribunal considered evidence given by the Applicant at the hearing that upon return to Sri Lanka he would not be able to leave for a period of five to seven years, but found this assertion to be speculative and unsupported by corroborative evidence (CB 354-355 at [55]).
Having considered the Applicant’s claims individually and cumulatively, the Tribunal concluded that it could not be satisfied that the Applicant had a well-founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future (CB 355 at [56]-[59]).
Sub-section 36(2)(aa) of the Act
The Tribunal referred to its earlier findings that the Applicant would not suffer serious harm on the basis of his claims. It further stated that it was not satisfied that the Applicant would be at risk of significant harm for those reasons (CB 355 at [60]).
The Tribunal then stated as follows (CB 355-356 at [61]-[62]):
61. I accept that the Applicant would face arrest on charges of unlawful departure, under a law of general application, and that he would be fined if found guilty. I am not satisfied that imposition of a fine, at the essentially moderate levels indicated by the information before the Tribunal, could reasonably be seen as rising to the level of significant harm in itself. Nor am I satisfied that being fined such an amount would reflect any intention by the state authorities to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.
62. Further, I am not satisfied, on the basis of the definition of significant harm in ss.36(2A) and 5(1) that if the Applicant were to be detained and arrested at the airport after being questioned and later remanded in custody for a brief period awaiting a bail hearing, this treatment would in itself constitute significant harm. On the available information I am not satisfied that in these circumstances he would experience mistreatment which would pose a threat to his life or constitute torture. While I accept that conditions during a brief period on remand might well be cramped, uncomfortable and unsanitary I am not satisfied they would involve him suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A). I have had regard to the relevant PAM 3 refugee and humanitarian-complementary protection guidelines, including those dealing with prison conditions and I accept that there may be circumstances in which even a brief period of imprisonment may meet the definition of degrading treatment or punishment. However, having considered both the Applicant's circumstances and the nature of what would most likely be a short period in detention on remand I am not satisfied this would involve a real risk of significant harm to him. Nor am I satisfied on the information before the Tribunal that he would suffer any more serious form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.
Accordingly, the Tribunal found that the Applicant did not satisfy the complementary protection criteria under sub-s.36(2)(aa) of the Act.
Judicial Review
The Applicant’s grounds of review are:
1. The decision of the Tribunal:
(a) is affected by an error of law; and
(b) denied the applicant procedural fairness.
2. I have made an applicant procedural [sic] for assistance through Victorian Legal Aid and am waiting for a decision.
As the Applicant was self-represented, I explained the nature of judicial review and its difference from merits review as conducted by the Tribunal. The Applicant informed the Court that a friend had assisted him to write the grounds of review and that he understood them.
Ground 1(a)
The Applicant’s submission in relation to Ground 1(a) of his application for judicial review was that he was unable to accept the Tribunal’s reasons for its decision. The Applicant said that the Tribunal had not believed the evidence he gave at the hearing. The Applicant said that he was shakey and panicky at the hearing, and believed that it was on this basis that the Tribunal did not believe him.
It is evident that the Applicant’s complaint about the Tribunal’s decision is its failure to believe his evidence; that is, the Tribunal’s finding that it was not satisfied about the truth of the Applicant’s claims and evidence.
Whilst not stated in these terms expressly by the Tribunal, the Tribunal’s reasons for its doubts about the truth of the Applicant’s claims and evidence fall under the rubric of credibility findings.
It is now settled that credibility findings made by a Tribunal are not immune to findings of jurisdictional error.
In Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99 (“SZRKT”), Robertson J said (at [78]):
78. It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
To similar effect, in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 (“SZSHV”) (at [31]), Flick J held that a Tribunal’s adverse credibility findings “…do not shield its decision-making processes from scrutiny…” His Honour went on to observe that (SZSHV at [31]):
31. …an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has proceeded in a manner which gives rise to a reasonable apprehension of bias…
An irrational or illogical finding of fact which critically affects the Tribunal’s assessment of an applicant’s credibility may amount to a finding of jurisdictional error (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (“CQG15”) at [40]-[44]). In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (“SZUXN”), Wigney J stated (at [56]):
56. An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 at 455-456 [14]-[15]. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (“ARG15”), the Full Court of the Federal Court of Australia said (at [82]-[83]):
82. The appellants contended that the Tribunal misunderstood the evidence regarding the appellant mother’s dowry in making critical adverse credibility findings. In particular, they submitted that the Tribunal had misapprehended evidence relating to the contents of the nikahnama which provided the basis for the Tribunal’s conclusion that the appellant mother had sought to mislead the Tribunal about the dowry.
83 . Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:
(a) McHugh J’s oft quoted comments in Ex parte Dumairajasingham (which were cited by the primary judge in the proceedings here) to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b) the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);
(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
(d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Dumairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
(i) failure to afford procedural fairness;
(ii) reaching a finding without a logical or probative basis;
(iii) unreasonableness; and/or
(iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].
I have considered carefully the Tribunal’s reasoning in reaching its view that it doubted the truth of the Applicant’s claims. The reasons given by the Tribunal were multifactorial. It is evident that the Tribunal did not make one single adverse credibility finding upon which its conclusions regarding the Applicant’s claims were reached. In my opinion, the Tribunal’s findings were based on the cumulative effect of the matters it referred to. I am satisfied that the Tribunal’s findings and reasoning were logical and cogent.
I am not satisfied that the Tribunal’s decision was affected by any error of law.
Ground 1(b)
In relation to Ground 1(b) of his application for judicial review, the Applicant repeated his earlier submission that he was unable to accept the Tribunal’s decision on the basis that the Tribunal Member did not believe him.
The Applicant does not claim that he was treated unfairly or denied procedural fairness by the Tribunal. Rather, the Applicant’s focus, when asked to explain what he wanted to say in relation to this ground, was the fact that the Tribunal did not believe his evidence.
I am not satisfied that the Applicant was denied procedural fairness. The Applicant was invited to, and did, attend together with his migration agent, a Tribunal hearing. The Applicant was assisted by an interpreter (who appeared by telephone) in the Tamil and English languages. The Applicant has not complained that there were difficulties in the interpretation at the Tribunal hearing, nor does the Applicant complain that he was not afforded the opportunity to otherwise give evidence and make submissions at the hearing. The Applicant’s complaint is that the Tribunal did not believe him.
SZTAL
It is appropriate to consider whether jurisdictional error arises from the Tribunal’s consideration of “significant harm” whilst the Applicant was in detention (see [12] above).
In SZTAL, the majority of the High Court of Australia held that the references to “intentionally inflicting” and “intended to cause” in sub-s.5(1) of the Act concern the relevant person’s subjective state of mind; that is, that the person intended to produce a particular result, and that the result was the person’s purpose in doing the act (see the majority judgment of Kiefel CJ, Nettle and Gordon JJ (at [27]) and Edelman J (at [103]) with Gageler J dissenting).
The Tribunal found that any treatment by the authorities towards the Applicant in detention upon returning to Sri Lanka would not meet the requirement of “significant harm”. The Tribunal also said that it was not satisfied there would be intentional mistreatment by the authorities amounting to significant harm upon the Applicant’s return (CB 356 at [62]).
Having considered the decision in SZTAL, I am not satisfied that the Tribunal’s reasoning in considering whether the Applicant would suffer “significant harm” upon returning to Sri Lanka within the meaning of the Act discloses jurisdictional error.
In my opinion, the Tribunal applied the correct test in considering whether the Sri Lankan authorities’ treatment of the Applicant would reflect an intention to produce the result amounting to significant harm.
Conclusion
For the reasons set out in this judgment, I will make an order dismissing the application for judicial review filed on 24 August 2015. I will also order that the Applicant pay the costs of the First Respondent in a fixed amount.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 19 October 2017
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