BTQ17 v Minister for Immigration
[2019] FCCA 2414
•30 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTQ17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2414 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H(1), 36(2A), 424A, 425. |
| Cases cited: ETA067 v The Republic of Nauru [2018] HCA 46 Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327 |
| First Applicant: | BTQ17 |
| Second Applicant: | BTR17 |
| Third Applicant: | BTS17 |
| Fourth Applicant: | BTT17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 827 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 1 March 2019 |
| Date of Last Submission: | 1 March 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Counsel for the applicants: | Ms Dodd |
| Solicitors for the applicants: | Aum Lawyers Pty Ltd |
| Counsel for the respondents: | Mr Maloney |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicant’s application filed 24 April 2017 as amended on 2 November 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 827 OF 2017
| BTQ17 |
First Applicant
| BTR17 |
Second Applicant
| BTS17 |
Third Applicant
| BTT17 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (“the tribunal”) on 31 March 2017, which affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Control (“the Minister”) made on 2 April 2015 to refuse the applicants’ application for a protection (class XA) visa (“the visa”).
Background
The applicants are citizens of Sri Lanka. The first applicant is married to the second applicant, and the third and fourth applicants are their sons. Prior to arriving in Australia in September 2013, the first applicant lived with her parents and the third applicant in Sri Lanka. The second applicant spent much of his time working abroad and providing financial support to his family. The second applicant lived and worked full-time in France and Italy, visiting his family in Sri Lanka some three times over the course of the ten years prior to the applicants’ arrival in Australia.
The first applicant’s claims are set out in detail below.
On 3 September 2013, the first, second and third applicants arrived in Australia on a visitor visa. On 16 September 2013, the first applicant applied for a protection visa which included the second and third applicants. The fourth applicant was born in Australia on 12 June 2014 and was subsequently included in the visa application.
The applicant’s claims
The factual basis for the first applicant’s claims are as follows:
a)In 2011, the second applicant visited the first and third applicant in Sri Lanka after a long period of time working abroad (in France and Italy). Upon the second applicant’s return to the airport, he hired a driver named Kapila who was the owner of a hire car company and a known member of the community for his criminal and political links.
b)Over the ensuing months, while the second applicant was overseas, the first applicant and her family were visited by Kapila and his friends as he had identified that the second applicant was abroad indefinitely for work. When the first applicant’s father tried to put an end to these visits, Kapila assaulted him. The first applicant and her parents went to the police but did not receive any assistance.
c)In April 2013, the first applicant claims that Kapila visited her house and sexually assaulted her. The first applicant went to the police but was informed that there was insufficient evidence to charge Kapila.
d)The first applicant did not inform her husband, the second applicant about the rape. The first applicant suffers from ill mental health and fears future harm from Kapila and his associates to her and her family as a result of the rape.
On 3 September 2013, the first, second and third applicant travelled to Australia. The first applicant lodged her application for a protection visa and statement of support on 16 September 2013.[1]
[1] Court book pages 74 to 78.
The first applicant was interviewed by a delegate of the Minister on 10 February 2015. The representative for the applicant provided the delegate with written submissions, two psychologist reports and medical reports attesting to the second applicant’s heart condition.[2]
[2] Supplementary court book pages 41, 46, 48 and 80.
In her written submission, the first applicant claimed to belong to a particular social group of ‘single women’ since her husband was overseas indefinitely for work.[3]
[3] Supplementary court book page 41.
Prior to the tribunal’s decision, the applicants provided a further submission dated 12 October 2016 which emphasised that returning to Sri Lanka would:
…exacerbate the Applicant’s mental health problems; that relocating would be impracticable, in part because the Applicant had sought to conceal her past experiences from the Second Applicant, so that he would not understand the necessity of relocating; and that relocating would not in any event obviate the real chance or risk of serious or significant harm. The Applicant’s statutory declaration, relevantly, reiterated the risk to her husband’s life if he were to confront Kapila; the impracticability of relocation; and her husband’s health problems, including diabetes, heart problems, high blood pressure, pancreatitis and depression.[4]
[4] First respondent’s outline of submissions filed 16 November 2018.
The tribunal’s reasons
The tribunal set out the background to the applicants’ arrival in Australia and the delegate’s decision at paragraphs [1] and [2].
The tribunal then set out the first applicant’s claims at paragraphs [3] to [6] of the decision record.
At paragraph [7], the tribunal referred to the correspondence provided by the first applicant’s psychologist which noted that the first applicant was suffering from “extremely severe anxiety and depression”.
The tribunal also noted that the first applicant had “suffered significant mental trauma and had been raped” and had been targeted for reasons of her membership of a particular social group of ‘single women’, even though she was married.[5] The tribunal further noted that the first applicant’s representative claimed that the applicant fell within the complementary protection criterion given her mental health issues and the impact on those if she were to return to Sri Lanka.[6] The tribunal also noted that the second applicant suffered from heart problems and high blood pressure.
[5] Court book page 303 at paragraph [8].
[6] Court book page 303 at paragraph [8].
The tribunal then summarised the evidence given by the first applicant at paragraphs [9] to [12].
The tribunal summarised the further submissions provided on behalf of the applicants on 24 February 2015 and 12 October 2016 and the further correspondence received from the first applicant’s clinical psychologist at paragraphs [13] to [15].
The first applicant attended a hearing before the tribunal on 19 October 2016. The tribunal summarised the further evidence given by the first applicant during that hearing at paragraphs [16] to [28].
The tribunal then summarised its consideration of the applicants’ claims at paragraphs [29] to [41] of the decision record. The tribunal concluded that the applicants are not persons in respect of whom Australia has protection obligations and therefore affirmed the delegate’s decision not to grant the visas to the applicants.[7]
[7] Court book pages 311 and 312 at paragraphs [42] and [43].
Grounds one and two
The first and second grounds of review are:
The Administrative Appeals Tribunal erred in law and thereby fell into jurisdictional error, when it failed to consider a clearly articulated claim raised in the application before it, namely that there was a real chance that the First Applicant would continue to be harassed even if her husband remained in Sri Lanka, based on the nature and severity of the harassment and the fact that it was sustained over a significant period of time.
Alternatively, the Tribunal erred in fact, and thereby fell into jurisdictional error, when it misconstrued a clearly articulated claim raised in the application before it, namely that there was a real chance that the Applicant would continue to be harassed even if her husband remained in Sri Lanka, based on the nature and severity of the harassment and the fact that it was sustained over a significant period of time.[8]
[8] Applicants’ amended application filed 2 November 2018.
It is well settled that the tribunal is required to consider all claims that are either expressly raised by an applicant or which are apparent on the material before it, and a failure to do so may amount to a failure to undertake its statutory review function and thereby amount to a jurisdictional error.
The first applicant made the following claims in the alternative:
a)She was a refugee within the meaning of section 5H(1) of the Migration Act 1958 (Cth) (“the Act”) on the basis that she had a well-founded fear of persecution by Kapila based on her perceived membership of a particular social group, namely because she was perceived to be a single woman or a single mother while the second applicant was living and working abroad for long periods of time.
b)In the alternative, if the second applicant were to return to Sri Lanka with the first applicant, he would find out about the first applicant’s assault and would either leave the first applicant or confront Kapila and be killed. In either case, the first applicant would then be left a single mother and again would be persecuted on this basis by Kapila.
c)There is a real risk of Kapila causing the first applicant significant harm if she were to return to Sri Lanka even if her husband did return with her on the basis that Kapila is ‘now motivated to continue harassing her and is the kind of person who would not be dissuaded from doing so merely by the husband’s presence’.
The first applicant argued that the tribunal did not engage with the proposition that Kapila’s character is so corrupted that her husband’s presence would not stop him from continuing to harass her on her return. It was said that such a claim arises from the fact that the first applicant stated that Kapila has continued to inquire after her since her departure from Sri Lanka.
It was further submitted that the deficiency in the tribunal’s reasoning on this basis is evident when the tribunal’s reasons are contrasted with those of the delegate. Unlike the tribunal, the Minister did consider the likelihood of a victim of sexual assault being targeted again by the perpetrator and concluding that there was a real risk of Kapila continuing to target the first applicant in future.
It was submitted that where a dispositive issue is raised on the evidence and contentions before the tribunal, a failure to deal with that issue in the tribunal’s reasons gives rise to a strong inference that it has been overlooked.[9]
[9] ETA067 v The Republic of Nauru [2018] HCA 46 at [14].
The first applicant stated that the only part of the tribunal’s reasons which dealt with the question of whether there is a real risk of future harassment is at paragraph [31] of the tribunal’s reasons. A fair reading of these paragraphs indicate that the tribunal did not grapple with the question of whether, notwithstanding the second applicant being in Sri Lanka, Kapila would continue to target the first applicant.
The Minister rejected this submission, and submitted that the tribunal’s reasons indicate that the tribunal gave significant consideration to the issue of whether Kapila would continue to target her if she were to return to Sri Lanka with her husband. In particular:
I put to [the applicant] that she had said that Kapila had targeted her because he had known that her husband had not been at home and that if she and her family went back to Sri Lanka now her husband would stay at home so Kapila would not have a reason to target her any more. The applicant wife said that if they went back to Sri Lanka her husband would come to know what had happened and this would aggravate the situation and more and more problems would come up.[10]
[10] Court book page 306 at paragraph [19].
Further, the tribunal relevantly stated:
I put to the applicant wife that she had told me that the reason Kapila had targeted her or had singled her out had been that he had known that her husband had not been there. I put to her that this suggested that, if she went back to Sri Lanka with her husband, Kapila would not have this reason to target her any longer. The applicant wife said that this would not be a reason for him not to come because in Sri Lanka they were so powerful that they would not consider those things as important. She said that the possibility would always be there that Kapila would come and trouble her. She said that there was a possibility that he would see her and her husband going and coming in any place.[11]
…I put to her that, obviously, if she went back to Sri Lanka with her husband, Kapila would know that her husband was at home. The applicant wife said that they were people who were so corrupted and who were involved in so many vices that they did not consider that type of thing. They would always trouble without considering whether your husband was there or not…[12]
[11] Court book page 306 at paragraph [21].
[12] Court book page 306 at paragraph [22].
Importantly, the tribunal noted:
I put to the applicant wife again that she had said that if she went back to Sri Lanka now her husband would go with her. The applicant wife again agreed. …The applicant wife agreed that Kapila would come to know but she said that when he understood that she was there he would sometimes come and her husband would come to know what this was. I put to her that I had difficulty in accepting that Kapila would continue to come if he knew that her husband was there. The applicant wife said that those people were not that type of civilised people. She said that Kapila would talk to her when she was going up and down so he could always come, even though her husband was there.[13]
… I put to her again that, as we had discussed, from everything she had said about Kapila, I thought that, if she went back to Sri Lanka with her husband, Kapila would know that her husband was there. The applicant agreed but she repeated that Kapila would come so this issue would come up again, it would become known by her husband and there would be family disunity after that.[14]
[13] Court book page 307 at paragraph [24].
[14] Court book page 307 at paragraph [25].
It is in this context that the tribunal’s comments at [31] and [32] referred to by the first applicant must be viewed. A fair reading of the tribunal’s reasons in the sense contemplated by Wu Shan Liang[15] does not support a finding that grounds one or two have been made out.
[15] Wu Shan Liang v Minister for Immigration and Ethnic Affairs [1995] FCA 1327.
It is evident from a fair reading of the tribunal’s reasons in their entirety that the tribunal did consider the applicant’s claim that there was a real chance that the harassment of the first applicant by Kapila would continue even if the second applicant remained in Sri Lanka. The tribunal simply did not accept this to be so. That conclusion was a finding of fact which was reasonably open to it on the basis of the evidence before it.
For these reasons, grounds one and two are not made out.
Ground three
The third ground of review is:
The Administrative Appeals Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question, in finding that the First Applicant’s claim that she would suffer mental harm if removed to Sri Lanka could not satisfy the complementary protection requirements based on the principal set out in SZRSN v Minister for Immigration & Citizenship [2013] FCA 751.[16]
[16] Applicants’ amended application filed 2 November 2018.
Paragraph [41] of the tribunal’s decision states:
In her statutory declaration made on 12 October 2016 the applicant wife said that she would not be able to cope with the fear and pressure if she had to return to Sri Lanka. However I do not accept that the fear and pressure which she may feel if she were to be removed from Australia to Sri Lanka brings her within the complementary protection criterion: it is well established that harm arising from the act of removal itself will not meet the definition of ‘significant harm’ in subsection 36(2A) of the Migration Act.
In that context, the tribunal referred to the decision in SZRSN v Minister for Immigration and Anor [2013] FMCA 78 at [64], which was upheld on appeal in SZRSN v Minister for Immigration & Citizenship [2013] FCA 751 at [48]-[49] (“SZRSN”).
The tribunal then went on to say:
At the hearing before me the applicant wife said that her older son was receiving a good education here and was learning well and she produced a folder containing documents relating to her son’s educational achievements and the like. However such matters which may be regarded loosely as compassionate circumstances do not bring her family’s situation within the complementary protection criterion. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Migration Act.[17]
[17] Court book page 311 at paragraph [41].
The first applicant argued that in relying upon the decision in SZRSN, the tribunal misdirected itself because SZRSN was a decision in which the court held that harm arising from the act of removal itself will not constitute significant harm for the purposes of section 36(2A) of the Act. Conversely in this case, the first applicant was not raising concerns about fear of harm from the act of removal itself, but rather claimed that she would not be able to cope with the fear and pressure of being returned to the home in which she had been raped and subjected to ongoing harassment by her rapist. The first applicant said that the claim was one of a fear of harm in Sri Lanka as a result of her removal to Sri Lanka, not fear of harm arising from the act of removal itself.
SZRSN was a decision concerning a New Zealand citizen whose visa was cancelled on character grounds following a period of imprisonment for the offence of robbery with an offensive weapon. He had lived in Australia since he was 11 years of age. Among other reasons, he wanted to remain living in Australia because his children and de facto partner lived here.
At first instance, Driver FM as he then was, in considering the complementary protection provisions in the Act, stated:
It is clear… that the non-refoulement obligation is an obligation to afford protection to a non-citizen where the harm faced is that which arises in the receiving country. …While it is no doubt true that any harm stemming from the applicant’s separation from his children in Australia would occur in New Zealand if he is removed there, the same would be true in any country to which the applicant is removed. The harm stems from his removal from Australia, not his presence in any particular other country.[18]
[18] SZRSN v Minister for Immigration and Anor [2013] FMCA 78 at [62].
Driver FM went on to say:
…if the relevant act were considered to be that of being removed, then s36(2)(aa) would require the Minister be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will be removed. This circularity suggests that the relevant act in the definition ‘degrading treatment’ cannot be the act of removal itself.[19]
[19] SZRSN v Minister for Immigration and Anor [2013] FMCA 78 at [64].
On appeal to the Federal Court, his Honour’s decision was upheld. Relevantly for present purposes, Mansfield J stated that in considering what constitutes ‘cruel or inhuman treatment’ or ‘degrading treatment’ as defined in section 5 of the Act:
It should be noted here that only an ‘act or omission’ will fall within either of the above definitions. Being separated from one’s children is, in the present context, not an act or omission but a consequence of an act. The relevant act is the act of removal from Australia. The separation from his children is said to be the cruel, inhuman or degrading treatment.[20]
[20] SZRSN v Minister for Immigration & Citizenship [2013] FCA 751 at [47].
Mansfield J went on to state that Driver J’s reasoning for concluding that the forced removal of one’s children could not be considered to be ‘cruel, inhuman or degrading treatment so as to constitute significant harm’ was sound. His Honour noted that as the ‘significant harm’ must be a consequence of the removal, this suggested that the removal itself cannot be the significant harm.
Mansfield J stated:
In my view, that reasoning is not shown to be erroneous. An interpretation of the legislation that incorporates removal from one’s family by the Australian government as ‘significant harm’ would be an extremely strained reading, and one not in accordance with the clear intention of Parliament in enacting the complementary protection criterion.[21]
[21] SZRSN v Minister for Immigration & Citizenship [2013] FCA 751 at [49].
The tribunal’s reasoning in paragraph [41], in which reference was made to SZRSN, cannot be read in isolation. It must be read in the context of the tribunal’s reasoning at paragraphs [38] to [41] inclusive. Those paragraphs appear under the heading entitled ‘Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that they will suffer significant harm?’[22]
[22] Court book page 310.
In that context, and based on the findings of fact made by the tribunal earlier in its reasons, the tribunal concluded that it was not satisfied that:
a)there was a real risk that the first applicant would be troubled or otherwise suffer significant harm at the hands of Kapila and his friends or associates; or
b)there was a real risk that the applicants would suffer significant harm because the applicant husband will come to know that Kapila had raped the first applicant.
The tribunal accepted that both the first and second applicants suffered from various health issues and would be unlikely to be able to continue to receive the same standard of health care in Sri Lanka compared to what they have received in Australia. Ultimately however, the tribunal concluded that there was no real risk that the applicants would suffer significant harm as defined as a result of their medical issues.
It was against these findings that the tribunal went on to make the comments it did at paragraph [41]. Having already dealt with the first applicant’s claims in relation to alleged risks of harm which might arise in Sri Lanka if she were to be returned, the tribunal was entitled to assess the first applicant’s claim to be able to cope with her fear and pressure if she had to return to Sri Lanka as fear and pressure arising from the return itself. In this context, the reference to SZRSN was entirely appropriate and does not disclose any jurisdictional error.
For each of these reasons, ground three is not made out.
Ground four
The fourth ground of review is:
The Administrative Appeals Tribunal fell into jurisdictional error by failing to comply with section 424A of the Migration Act 1958, or alternatively by acting in breach of the rules of procedural fairness, in that it did not invite the First Applicant to comment on or respond to the issue of whether her husband’s ill health precluded him from returning to work overseas.[23]
[23] Applicants’ amended application filed 2 November 2018.
The tribunal stated:
…At the hearing before me, although she initially said that her husband would stay in Sri Lanka with her and their family, she said subsequently that if he were unable to find a job locally he might have to go to the Middle East to work and that if he were not available these people could come. However she has said that her husband has heart problems, high blood pressure, diabetes and pancreatitis. Given his health problems I consider that there is only a remote chance that he will go to the Middle East to work if the family returns to Sri Lanka now or in the reasonably foreseeable future…[24]
[24] Court book page 309 at paragraph [33].
The first applicant submitted that the tribunal’s failure to raise whether the second applicant’s health might impact on his ability to travel or live overseas amounts to a breach of the tribunal’s obligations under section 425 of the Act. The first applicant relied upon the comments of French J in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 204 ALR 624 at [59] in support of this submission.[25]
[25] The first applicant also relied upon the decision of Minister for Immigration and Citizenship v SZMOK (2009) 247 FCR 404 at [68] as approved by the Full Court in Minister for Immigration and Border Protection v Ly [2018] FCAFC 123 at [48]-[51].
Section 424A requires that the tribunal must give the applicant clear particulars of any information that the tribunal considers would be the reason or part of the reason for affirming the decision under review. However, leaving aside questions of whether the evidence given by the first applicant about the second applicant’s health condition is information for the purposes of section 424A(1), if it can properly be characterised as such, section 424A(3)(ba) of the Act expressly provides that section 424A(1) does not apply to information “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”.[26]
[26] Migration Act 1958 (Cth), s. 424A(3)(ba).
The first applicant’s representative advised the tribunal of the second applicant’s medical issues by written submission dated 12 October 2016. The issue of the husband’s medical issues arguably therefore does not fall within the requirements of section 424A.
The first applicant has filed an affidavit of the transcript of her interview with the tribunal.[27]
[27] Affidavit of Attila Ulas Mete sworn and filed 2 November 2018.
The first applicant’s arguments in support of this ground rests on a mischaracterisation of the ‘issues arising in relation to the decision under review’.
It is clear from that transcript, and is indeed reflected in the tribunal’s written reasons, that the tribunal made it clear to the first applicant that some issues in the review were:
a)whether her husband would return to Sri Lanka with her; and
b)whether the second applicant would be able to obtain work.
Moreover, it is also clear from the transcript of the interview that the tribunal member did provide the first applicant with an opportunity to comment on the information provided by her representative about both her medical issues and those of the second applicant.
As noted by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 63:
It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.[28]
[28] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 63 at [26].
Section 425 of the Act requires the tribunal to “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.”[29]
[29] Migration Act 1958 (Cth), s. 425.
Whilst the Minister conceded that unless the tribunal advises the applicant of any issues relevant to the disposition of the application which differ from those raised by the delegate, the applicant is entitled to assume that the only dispositive issues are those raised by the delegate, this does not equate to requiring the tribunal to give the applicant a running commentary on the tribunal’s thought process.
The High Court noted in SZBEL:
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.[30]
[30] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 63 at [48].
In responding to the matters put to her by the tribunal in relation to these issues, the first applicant explained that one reason explaining why her husband, the second applicant, might not remain in Sri Lanka was that he may not be able to find work and have to seek employment overseas.
In this case, the issues for review were whether the second applicant was likely to return to and remain in Sri Lanka including whether the second applicant would be able to obtain employment in Sri Lanka. Both of these issues were comprehensively canvassed in the interview with the first applicant as is evident both by the decision record itself and also by the transcript of the tribunal hearing filed in these proceedings by the applicants’ representatives.[31]
[31] See for example, paragraphs [17], [19], [21], [22], [24], [25] and [27] of the decision record which address these issues.
Whether the second applicant’s health concerns might preclude him from being able to find work overseas was not an issue in respect of which the applicant was to be provided with an opportunity to give evidence and present arguments. Rather, his health concerns were a factual matter which went to the issue of whether the second applicant would remain in Sri Lanka.
The tribunal concluded that this was not likely in light of other evidence put before it by the first applicant about the second applicant’s health. This was a factual finding open to the tribunal on the evidence before it. As noted in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486, section 425 does not require the tribunal to put every factual matter to the applicant.
The facts in this case are distinguishable from the line of authorities on which the applicant seeks to rely, including WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624 (“WAJR”) and Minister for Immigration and Border Protection v Ly [2018] FCAFC 123 (“Ly”). In those cases, the court was faced with a situation in which the tribunal had concerns about documents provided after a hearing and it was held that procedural fairness required that those concerns be put to the applicant.
In this case, the applicants’ representative provided evidence about the second applicant’s health concerns. This issue was then raised with the first applicant in the course of her interview before the tribunal. The first applicant provided more detailed information about the second applicant’s health concerns. This was not a case of the tribunal questioning that evidence but, on the contrary, accepting that evidence. Having accepted that the second applicant suffered from a number of health issues, it was open to the tribunal to weigh that evidence with other material before it to determine the issues before it, including whether the second applicant was likely to remain in Sri Lanka with the first applicant. That issue was well and truly explored with the first applicant in the interview with the tribunal.
This reasoning and approach does not disclose a jurisdictional error.
For each of these reasons, ground four is not made out.
Conclusion
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 30 August 2019
1
6
2