BTB15 v Minister for Immigration
[2016] FCCA 2629
•12 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTB15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2629 |
| Catchwords: MIGRATION – Whether s.422B codifies natural justice provisions and overrides common law – Review of Refugee Review Tribunal decision – Status – refugee status – refusal – no jurisdictional error – application dismissed – applicant pay the respondent’s costs. |
| Legislation: Migration Act 1958 (Cth), s.420,s.422B, s.424A, s.425 |
| Kioa v West (1985) 159 CLR 550 |
| Applicant: | BTB15 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 776 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | 28 April 2016, 10 October 2016 |
| Date of Last Submission: | 10 October 2016 |
| Delivered at: | Brisbane |
| Delivered on: | 12 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr McMillan |
| Counsel for the Respondent: | Mr McGlade |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application filed on 28 August 2015 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 776 of 2015
| BTB15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 28 August 2015, the Applicant, BTB 15, seeks a review of the decision of the Administrative Appeals Tribunal which itself affirmed a decision of the delegate of the Minister to refuse the grant of a protection Visa.
The background to this matter is that the Applicant is a national of Sri Lanka.
On 22 July 2012, the Applicant arrived in Australia by boat as an illegal maritime arrival. On 10 January 2013, the Applicant lodged an application for a protection visa. On 18 March 2014, a delegate of the Minister refused the Applicant’s protection Visa application.
On 26 March 2014, the Applicant lodged an application with the then Refugee Review Tribunal seeking a review of the delegate’s decision. On 25 June 2015, the Applicant appeared before the Administrative Appeals Tribunal (“AAT”) to give evidence and present arguments.
At the end of that hearing, the Tribunal gave the Applicant until 1 July 2015 to provide further material. He took advantage of that opportunity providing further material and the Tribunal subsequently gave consideration to that material.
The Tribunal then conducted another hearing with the Applicant, seemingly for the purpose of discussing whether or not the Applicant had departed Sri Lanka illegally. On 24 July 2015, the Tribunal affirmed the delegate’s decision which led to the filing in this Court of the present application on 28 August 2015.
In short compass, the claims of the Applicant are as follows. The Applicant is a Sri Lankan national of Tamil ethnicity. He claims that one of his brothers was an intelligence officer for the Liberation Tigers of Tamil Eelam (“LTTE”) and was killed in shelling in March 2009.
He claims that his other brother had been questioned and beaten and threatened with death if the Applicant did not return to Sri Lanka. He claims that his family are still being monitored.
The Applicant claimed that he worked in a hospital in the LTTE controlled area and transported supplies and information for the LTTE between 2006 and the end of 2008. When the army took over this area in April 2009, he pretended he was married but he said that he was questioned and instructed to go to the LTTE line but he refused. He said that on two separate occasions he was able to persuade the army and Criminal Investigation Department (“CID”) to allow him to go into the general public line.
He entered Ramanathan camp on 2 May 2009 but around 5 days later, he claims that the CID were looking for him. He claimed that he then escaped with the help of an agent and went to Colombo where he was able to obtain a work Visa to Saudi Arabia.
He left Colombo airport with the help of an agent although he claims that he was questioned at the airport. He said that he worked in Saudi Arabia until February 2011 and then travelled to Malaysia, registered with United Nations High Commissioner for Refugees (“UNCHR”) and then took a boat to Australia arriving in July 2012.
He claims that he fears serious harm because of his Tamil ethnicity, his imputed political opinion in support of the LTTE, his brother’s involvement in the LTTE, his own activities for the LTTE and, upon his return as a failed asylum seeker, he would suffer cruel and inhuman punishment.
The Tribunal did not accept him as a credible witness and put no weight on his claims.
Grounds of Application
The Applicant has the following ground for this application:
“1. The decision of the Refugee Review Tribunal (the “Tribunal”) dated 24 July 2015, RRT Case Number 1405844 (the “Decision”), was not a privative clause decision within the meaning given by subsection 474(2) of the Migration Act 1958 by reason of the following jurisdictional errors in the Decision:
a. The Breach of procedural fairness;
b. Apprehended bias;
c. The identification of a wrong issue;
d. The asking of a wrong question by the Tribunal;
e. The failure to take into account relevant considerations;
f. The taking into account of irrelevant considerations;
g. The misconstruing of a statutory provision;
h. The application of a wrong test;
i. The failure to comply with a procedural requirement prescribed by statute;
j. The failure to consider the Applicant’s claim made or an integer of the Applicant’s claims made;
k. The failure to consider an articulated claim that was raised squarely on the material although not expressly advanced by the Applicant; and
l. Unreasonableness, illogicality or irrationality in decision making such that the conclusion reached by the decision make was not reasonably open on the evidence.”
While there are twelve aspects to this ground, the only ones that were originally pressed before me were that:
a)there was a breach of procedural fairness; and
b)the conclusion was not reasonably open on the evidence.
The main argument for the Applicant was the Tribunal had breached procedural fairness. In the written reasons of the Tribunal, there were many references to other information, some of which contradicted what the Applicant had said to the Tribunal.
The argument for the Applicant is that the Applicant did not have an opportunity to look at this other information, have it put to him and then have an opportunity to respond to it. The Applicant relied on observations of Mason J (as His Honour then was) in Kioa v West (1985) 159 CLR 550 at 587 where His Honour said
“recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it”.
At paragraph 20 of the submissions for the Applicant, there is reproduced a table that sets out all of the information that was not put to the Applicant but has been used by the Tribunal to contradict the Applicant.
Tribunal Reasons Paragraph No.
Document or Information Referred to
35
DFAT Thematic Report
37
“Country information about the tight control in camps”
43
“Country information that it would have been highly militarised”
47
Country information “is that all suspected LTTE, even low profile were rounded up”
48
Country information (Chamberlain the Guardian 20 December 2009)
49
Country information
50
Country information is “that both the camps and hospitals were government controlled”
51
UNHCR 2009
68
Country information is that everyone in LTTE controlled area had supported them in some way
77
DFAT country report 2.37-2.40 and 3.12
81
Country information in the decision of the United Kingdom Upper Tribunal
86
Country information is the trend of monitoring and harassment has generally eased
88
DFAT country report paragraph 5.32 and DFAT country report 4.21
93
UK Home office 212 CG (2013) UKUT319
94
UK Home office 212 CG (2013) UKUT319
101
DFAT country report paragraphs 5.2205.33
105
DFAT country information is that returnees are treated to standard procedures and further reference to DFAT country report paragraph 5.26
The submission of the Applicant is that in failing to bring to the attention of the Applicant that documents referred to in the above table would be relied upon, the Tribunal’s decision has been affected by jurisdictional error.
When the matter came before me in April 2016, I adjourned the matter so that the Applicant could have an opportunity to make submissions as to whether the Migration Act 1958 (Cth) (“the Act”) overrode the common law in this area.
Section 420 of the Act reads as follows:
“420 Refugee Review Tribunal’s way of operating
The Tribunal, in reviewing a Part 7‑reviewable decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.”
Section 422B of the Act relevantly reads as follows:
“422B Exhaustive statement of natural justice hearing rule
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 and Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
(3) In applying this Division, the Tribunal must act in a way that is fair and just.”
Section 424A of the Act reads as follows:
“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.
Section 425 of the Act reads as follows:
“425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the Applicant’s favour on the basis of the material before it; or
(b) the Applicant consents to the Tribunal deciding the review without the Applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the Applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the Applicant is not entitled to appear before the Tribunal.”
The Applicant submitted to me that s.424A did not absolve a Tribunal from acting fairly and it could not override s.420 of the Act.
The Applicant referred me to the High Court authorities of Minister for Immigration and Citizenship v Li (2013) 239 CLR 332, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Coco v R [1994] HCA 15 but none of those cases really advances the position for the Applicant.
The problem for the Applicant is that s.422B proscribes that “this division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”(My underlining). In that respect, there has been a legislative overriding of the common law.
Section 420 of the Act is, in many ways, a “motherhood” statement. It is an aspirational statement that has no enforceability in, and of, itself. The effect of s.422B is, that if the Tribunal has complied with its obligations under s.424A in the disclosing of documents to the Applicant, then it has complied with “natural justice” and has acted with “substantial justice”.
It is clear from the words in s. 424A, that a Tribunal does not need to put all information it has to an Applicant. The Tribunal only needs to put to an Applicant information that it considers would be a reason, or part of the reason, for affirming the decision.
The exceptions to that rule are listed in s.424A(3). As Minister, in its submissions, eloquently put it, broadly speaking, the abovementioned exception is said to immunise Country Information from being the subject of any obligation under s 424A of the Act.
The Full Court of the High Court made such a point in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 where their Honours said:
“[91] Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff’s claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides that the tribunal must give an 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’. But that obligation is subject to qualifications. In particular, it does not extend to information ‘that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or the other person is a member’. Hence country information is treated as a class of information which need not be drawn to the attention of the applicants for review by the refugee review tribunal…[emphasis added]”
In NANF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 141, Sackville J was concerned with a situation where Country Information indicated the approach taken by the Sri Lankan authorities to the enforcement of laws designed to combat the LTTE. Sackville J construed the information as being about a class of persons of which the Applicant was a member.
Relevantly, His Honour said at paragraph 42 :
“[42] The country information in this case plainly was not specifically about the applicant, since it was quite general in character. It is arguable that the country information was not ‘about’ a class of persons at all, but rather was about the approach taken by the Sri Lankan authorities to the enforcement of laws designed to combat the LTTE. I think the preferable view, however, is that the country information was about a class of persons, namely Simhalese with family, personal or business relationships with Tamils. The information related to their vulnerability (or otherwise) to arrest and torture at the hands of the Sri Lankan authorities. The appellant was a member of the class of persons so identified.”
In looking at the material identified by the Applicant contained in the table reproduced in paragraph 18 above, all of that information could be characterised as “country information”. But not all of that information was a reason, or part of the reason, for affirming the decision of the delegate.
That information that was not a reason, or part of the reason, for affirming the decision, does not have to do be given, or put, to the Applicant. But there clearly was some information that contradicted the Applicant which was, in part, responsible for leading the Tribunal to the conclusion that the Applicant lack credibility. The Tribunal’s finding of a lack of credibility in the Applicant was the reason that the Tribunal affirmed the decision.
In line with the above authorities, such information, because it was “country information”, would therefore come under the exception in s.424A(3)(a).
Therefore, there was compliance with s.424A and, because of s.422B, compliance with all the obligations of natural justice. The corollary of that finding is that there is no breach of procedural fairness.
The other aspect of the ground of the application was that the conclusion of the Tribunal was not reasonably open on the evidence. This ground was not expanded upon, or even mentioned, during the hearing of this matter.
Having examined the reasons of the Tribunal, I am satisfied that the conclusions reached by the Tribunal were, in fact, open on the evidence.
In summary, the argument of the Applicant was that the common law, combined with s.420 of the Act, proscribed that the Tribunal was obliged to put all the information that it considered in coming to its conclusion before the applicant.
I have concluded that s.422B overrides the common law and therefore codifies the natural justice provisions for the AAT when dealing with matters under the Migration Act.
Therefore I find that there is no jurisdictional error. I dismiss the application with costs fixed in the sum of $6,825.00.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 12 October 2016
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