BTC16 v Minister for Immigration
[2019] FCCA 3031
•25 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTC16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3031 |
| Catchwords: MIGRATION – Protection (Class XA) visa – review of decision of the Administrative Appeals Tribunal (AAT) – where the Applicant seeks judicial review – no failure of natural justice. |
| Legislation: Migration Act 1958 (Cth), ss.65, 438. |
| Cases cited: Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 |
| Applicant: | BTC16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1481 of 2016 |
| Judgment of: | Judge C E Kirton QC |
| Hearing date: | 10 May 2018 |
| Date of Last Submission: | 10 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 25 October 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr Goodwin |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1481 of 2016
| BTC16 |
Applicant
and
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
and
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a Sri Lankan national who was born on 5 April 1987. The Applicant arrived in Australia as an unauthorised maritime arrival on 29 June 2012 and subsequently applied for a Protection (Class XA) visa pursuant to s. 65 of the Migration Act 1958 (Cth) (Act)[1]. The Applicant claimed to fear harm as a Tamil and as a person imputed with pro-LTTE opinions. He set out the grounds for his claims to fear harm in a Statutory Declaration that accompanied his protection visa application[2].
[1] Court Book (CB) 49.
[2] CB 91.
The Applicant relied essentially upon two events as giving rise to his fear of harm as follows:
a)In 2008 he criticised the Army’s occupation, behaviour and treatment of Tamils in his home village Udappu on a local radio station. Then in April 2009 the Criminal Investigation Unit (CID) came to his home while he was not there and spoke to his mother. Although the Applicant’s mother could not completely understand what the CID officers said as they spoke in Sinhalese, they asked for whereabouts of the Applicant and said words to the effect of “your son should keep his mouth shut”[3]. After this incident the Applicant went into hiding with his family in Mampuri until June 2010 when he returned to Udappu.
b)In December 2010, while the Applicant was working as a fisherman, Tamils were subject to restrictive laws regarding the fishing nets they could use. Even though it was banned the Applicant used a particular fishing net. Two Sinhalese fishermen argued with the Applicant and his uncle about the use of the net and tore the net. Shortly afterwards they abused the Applicant for being a Tamil and threatened to abduct and kill the Applicant if he continued to argue with them. Several days after this incident people in a white van came to the Applicant’s house looking for him. The Applicant went back into hiding in Mampuri after this incident and eventually left for Australia by boat in 2012.
[3] CB 92, at [5].
The Applicant also claimed to fear harm as a failed Tamil asylum seeker and due to his illegal departure from Sri Lanka.
On 29 May 2014 a delegate of the First Respondent (Minister) refused to grant the Applicant a protection visa (Delegate’s Decision)[4]. The Applicant applied to the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) (Tribunal) for a review of the Delegate’s Decision. On 30 June 2016 the Tribunal affirmed the Delegate’s Decision (Decision).
[4] CB 115.
Current Proceeding
By an amended application filed on 20 April 2018 (Amended Application), the Applicant seeks judicial review of the Decision on four grounds.
Registrar Caporale made Orders on 21 December 2016 for the filing of an amended application and for the Applicant to file written submissions[5]. The Amended Application was filed late, however the Minister consented to the late filing and responded to the grounds raised by the Amended Application. The Applicant did not file any written submissions. His only affidavit material, filed contemporaneously with the original Application on 13 July 2016, merely appends a copy of the Decision.
[5] Order 3(a) and 3(c), Orders 21.12.16.
At the hearing of this matter the Applicant confirmed, in a response to a query from the Court, as to whether he wished to make any further submissions: “I have already given submission. Through that I have told whatever I want to”[6]. He then repeated “So I have given all my information through that submission”[7]. Accordingly the Court is left solely with the Amended Application as an articulation of Applicant’s case.
[6] Transcript T3:4-5.
[7] Transcript T3:14.
I therefore propose to deal with the grounds of application as they are out set out in the Amended Application seriatim.
Consideration
Ground 1
The Tribunal’s decision is affected with legal error.
Particulars
1. At paragraph 25 of the Tribunal’s decision the member states,“I found it odd that the CID could not find him there, at a relative’s house in a small village…”
2.At paragraph 32 of the Tribunal’s decision the member states, “(…and I am not sure I accept that this is enough information, even in a small village to be able to locate someone)”.
3.What the Tribunal has stated in paragraphs [25] and [33] are inconsistent, illogical and unreasonable because on the one hand it appears to suggest that the CID could easily have located the applicant in a small village such as Udappu [25] and thereafter found it difficult to accept that in a small village such as Udappu it would have been difficult to find someone like the applicant.
4.Paragraph 33 of the Tribunal’s decision contains an important finding that lacks confidence, it lacks confidence because the Tribunal member appears to be “unsure” as to whether on the basis of information CID may have had (i.e. “Mokan of Udappu”), the CID would have been able to locate the applicant. At paragraph 11 of the Tribunal’s decision, the Tribunal acknowledges the need to consider “the possibility that its findings might be wrong” if there was some doubt that the claimed events did not occur.
5.The finding at paragraph 33 concerning the CID being able to locate the applicant was a finding that could not be said to be without any real doubt.
6.The Tribunal then states at paragraph 33 “This leads me to make several findings with great confidence” [sic]
7.The inconsistency between paragraphs 25 and 33 concerning CID’s ability to locate the applicant in Udappu a small village, coupled with some doubt in an essential finding at paragraph 33 could not have resulted in a subsequent finding made by the Tribunal “with great confidence”, on an essential integer of the applicant’s claims concerning the CID “looking for him in April 2009”.
8.The Tribunal quite rightly did not expect the applicant or his representatives to engage in any speculation regarding the need for the CID to come after the applicant in April 2009 – paragraph 32 of the Tribunal’s decision, however appears to give some weight in what the applicant had told the Tribunal (i.e. The applicant seems to be arguing that the CID have the intelligence to know that he is not at his home and so not to come and enquire there). This response by the applicant has also contributed to the Tribunal’s adverse inference concerning the CID looking for the applicant in April 2009.
9.The finding made with great confidence” that the “CID did not come looking for him in April 2009” is affected with legal error because this finding contained some doubt, it could not be stated that there was “no real doubt” in its finding.
10.The findings are so unreasonable no reasonable decision would have made similar findings if similar facts were before a reasonable decision maker.
Clearly these ten paragraphs of particulars constitute one ground. I accept the submission of the Minister that there is no inconsistency or illogicality on unreasonableness in the Tribunal’s findings. At paragraph 25, the Tribunal noted that Udappu is a small village of 15,000 people. The Tribunal found it, “[…] odd that the CID could not find him there, at a relative’s house in a small village”[8].
[8] Decision at [25], CB 207.
At paragraph 32, the Tribunal said:
“… Even if I accept that it took the CID many months to find out at Mokan of Udappu was him (and I am not completely persuaded by the explanations offered, and I am not sure I accept that this is enough information, even in a small village, to be able to locate someone), I do not accept as plausible the explanations given for what followed. Despite such a level of interest that it takes them months to track him down they then go to his house, do not wait the hour that it would have taken to have been able to apprehend him on his return, said they would return but did not and have not done so some years later, and have the intelligence to know that he is not at home without returning but are not able to locate him at a relative’s house. I find this sequence of events, and the explanations proffered for it implausible. This leads me to make several findings with great confidence. I find that the comment made by the applicant in 2008 on the radio station was not heard or of any interest to the authorities. I find that the CID did not come looking for him in April 2009, nor have they come looking for him at any other time, and I find that he is of no interest to the authorities for reasons connected with his comments on the radio. I find therefore that he did not go into hiding at his uncle’s or in Mampuri or anywhere else”[9].
[9] CB 208-209, at [32].
As the Minister’s written submissions point out, the Tribunal’s assessments related to different things. On the one hand, the Tribunal found it odd that the CID could not locate the Applicant had he gone to a relative’s house in a relatively small village. On the other hand, the Tribunal found that it was not sure that the explanations given by the Applicant were enough information even in a small village to be able to locate someone. Given that the Applicant’s case was that his nickname, “Mokan”, being part of his first name, was what would have led the CID to locate him, the Tribunal’s reservations are simply a matter of fact assertion.
Furthermore, the overarching findings (set out above in paragraph 10) by the Tribunal were open on the facts as the Applicant sought to put them and do not disclose jurisdictional error.
Ground 2
The Tribunal failed to consider that the CID coming after the applicant in April 2009 may not have been connected to the end 2008 radio incident.
Again the matters described as “Particulars” are essentially a series of submissions. The essence of what is put is at paragraphs 6 and 7 of the Particulars as follows:
6. Because the Tribunal assessed the April 2009 incident on the basis that it was somehow connected to the late 2008 incident the Tribunal failed to consider that the April 2009 incident may have occurred for a completely different reason or that there may have been other reasons other than the late 2008 incident which formed part of the reason / motivation to target the applicant in April 2009. For example the applicant claimed in his statement of claims at [CB91,1] that he feared harm on account of his Tamil ethnicity, his political opinion, because he was a young Tamil male and because he departed unlawfully. Therefore the reason to target the applicant in April 2009 could well have been for several reasons including the late 2008 incident.
7. The failure to consider the reason/s as to why the April 2009 incident occurred and only consider one possible reasons founded on the applicant’s belief to be the reason would amount to a legal error as the April 2009 incident was not assessed in the matter that it should have been.
This matter can again be dealt with briefly for the reasons advanced in the Minister’s written submissions. The Tribunal rejected the proffered reason by the Applicant for the April 2009 incident, namely the alleged radio call in 2008. This matter was dealt with in analogous circumstances by his Honour North J in MZZHA v Minister for Immigration and Border Protection (2014) 224 FCR 365, where his Honour said:
“… The findings which the appellant accepted for the purpose of the argument addressed the reasons which he advanced as the basis upon which there existed a real risk of harm to him in the future. The Tribunal rejected each of the reasons which the appellant advanced, but accepted that he had been lashed. The Tribunal then had to determine whether there was a real risk that this punishment would be repeated in the future. The circumstances relied on by the appellant as the reason why there might be a risk to him in the future had been rejected. The Tribunal was not required to speculate as to the offence which was the cause of the lashings, or to assume that the appellant was likely to recommit this unknown crime. Nor was the Tribunal required to make further inquiries in order to ascertain the appellant’s case (authorities omitted). This was not a case in which the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained: SZIAI at [19]-[25]. It was up to the appellant to put his version of events to the Tribunal, which he did and which the Tribunal rejected for the reasons set out at [3] of these reasons”[10].
[10] MZZHA v Minister for Immigration and Border Protection (2014) 224 FCR 365, at [14].
The Tribunal in this case directly addressed the case that the Applicant presented, and as earlier indicated, rejected it for reasons that I find cogent. I note further, and would agree with, the submissions of the Minister that:
“[…] there were independent reasons for rejecting that the April 2009 incident occurred at all other than the rejection of the proffered reason”[11].
[11] Minister’s Written Submissions, filed 26.4.16, at [28].
As the submissions rightly say, these included the implausibility of the CID visiting, but not waiting for the Applicant to return home, the fact that the CID did not visit again and that nothing had subsequently occurred to the Applicant’s family.
Ground 3
The non-disclosure of material before the Tribunal constituted
a denial of procedural fairness.
The Applicant’s particulars at paragraph 1 correctly state that there was evidence of information not being disclosed to the Applicant under s.438 of the Act. The particulars also correctly proceed to assert, as the Minister conceded, that the certificate issued to the Tribunal was invalid for the reasons given in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 (MZAFZ) at [37]. The Minister has since, by the affidavit of Adam Cunynghame affirmed 26 April 2018, waved privilege over the documents and does not seek any confidentiality thereof. That material has been provided to the Court as Exhibit R1. I note that I admitted those documents without objection from the Applicant[12].
[12] Transcript T7:L1-21.
I note that in Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, the Full Court adverted to the fact that there had been numerous cases in which Judges of this Court received evidence and examined such documents (as those here) and had gone on to hold that the failure to disclosure the existence of a notification did not give rise to denial of procedural fairness[13]. The Court noted[14] the cases concerned turned on their own facts. The Full Court observed:
“It will, perhaps, be an unusual case in which the reviewing court will be satisfied that the material in the documents, although relevant, can have had no bearing on the outcome of the Tribunal’s decision. Nevertheless the possibility that such cases may exist may not be foreclosed. It is more likely that such material may be relevant if the reviewing court is invited to withhold relief on discretionary grounds”[15].
[13] Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197, at [73].
[14] Ibid., at [76].
[15] Ibid., at [79].
As Counsel for the Minister submitted:
“Turning to annexure A, the documents relate to the testing of the authenticity of the national ID cards”[16].
[16] Transcript T8:27-28.
Counsel also submitted that the Applicant was on notice by virtue of the Delegate’s letter and decision that the authenticity of the documentation was an issue and that his first ID had been found to be a bogus document and his second one had been found to be genuine. The Tribunal referred to the matter as follows:
“… I share to a degree the concerns of the delegate – the applicant supplied a ‘copy’ of his Sri Lankan identity card and that appeared designed to make it look as close to an original as possible, having been laminated and copied in colour. This is clearly of concern, as it appears on its face to be an attempt to pass off a copy as an original. However, the second supplied identity card is an original on the basis of the information from the document examiner. Without any evidence but speculation to the contrary, I find that this is the applicant’s identity card, that he is who he says he is, and is a national of Sri Lanka, also his receiving country”[17].
[17] Decision at [16], CB 205.
Thereafter, for the remaining, and what is clearly the majority, of the decision, no further reference to this issue is made. I accept the inference that Counsel asked me to draw that unlike the Delegate, who clearly viewed this matter adversely to the Applicant, the issue is taken to count only in terms of the Applicant’s identity not his credibility regarding his claims for persecution.
I accept that the failure to disclose the actual testing of the documents did not, given the Tribunal’s favourable finding to the Applicant on this issue, give rise to any unfairness as to outcome. In these circumstances, there was no failure of natural justice.
Ground 4
The applicant’s matter must be adjourned until MZAFZ is brought to finality by the High Court
This ground is plainly untenable. MZAFZ was not appealed and remains good law.
Conclusion
The Applicant’s grounds of application not being made out, the Amended Application will be dismissed with costs.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC.
Associate:
Date: 25 October 2019
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