BUG16 v Minister for Immigration
[2020] FCCA 1203
•20 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUG16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1203 |
| Catchwords: MIGRATION – Protection (Class XA) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to make obvious inquiry – whether the Tribunal’s decision was irrational, illogical or unreasonable – whether the Tribunal failed to consider relevant considerations – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 60, 415, 424, 427, 476. |
| Cases cited: AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 |
| Applicant: | BUG16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1506 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 14 May 2018 |
| Date of Last Submission: | 30 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Ms Grinberg |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application for judicial review filed on 17 July 2016, as amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1506 of 2016
| BUG16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 15 July 2016 (Tribunal’s Decision). The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (Delegate) to refuse to grant the Applicant a Protection (Class XA) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The Applicant presses three grounds of review in his application which the Court will consider in detail below.
Background
The Court had before it a Court Book numbering 321 pages. The Court has reviewed the material in the Court Book in detail. The Court notes that the First Respondent’s (Minister) written submissions, filed on 7 May 2018 (Minister’s Submissions), at [2] to [5], accurately summarise the factual history of this matter. The Court adopts those submissions with minor amendments, as its own. They provide, relevantly, as follows.
The Applicant is a Sri Lankan citizen who arrived in Australia on 12 June 2012 as an unauthorised maritime arrival. The Applicant lodged his application for the Visa on 23 November 2012[1]. He was assisted by a migration agent. The Applicant’s claims for protection (as raised in his Visa Application) can be summarised from the ‘Statement of Claim’ attached to the application for a Visa, as follows[2]:
a)In 2007, the Applicant’s brother bought a truck and ran a business moving loads with the truck. The Applicant claimed that the Karuna Group would borrow the vehicle, at times accompanied by army officers.
b)In 2011, army people came to his house and asked to borrow the truck. He said that he did not have a key and could not lend the truck to them. The soldiers argued with him and beat him and told him to go to their camp the following day.
c)When the Applicant went to the army camp he was severely beaten. His brother went to the camp and took him to hospital. For some time he could not walk.
d)The Applicant went to his aunt’s house and the army saw him there. It took him six months to recover.
e)The Applicant fears the Sri Lankan Army because they have labelled him a trouble-maker or they believe he is opposed to them or the government.
[1] CB (CB) 1-60.
[2] CB 55-56.
On 16 August 2013, the Applicant attended an interview with the Delegate[3]. In the interview with the Delegate, the Applicant also stated:
a)He received death threats during the six months that it took him to recover.
b)His elder brother had gone missing[4].
c)The army man whom he had refused to lend the truck to had also accused him of being one of the “grease men”[5].
d)He also feared harm because he had helped to deliver posters for the Karuna group and they had also asked his brother for money. The Karuna group would harass the Applicant, his brother and their family and the army came to shoot him and his mother before he left for Australia[6].
e)Sometime in the month before the interview, his parents had gone into hiding. This was due to a newspaper article that stated the Applicant’s brother was involved with the Tamil United Front (TUF)[7].
[3] CB 75.
[4] CB 77.
[5] CB 77.
[6] CB 77.
[7] CB 78.
On 28 August 2013, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision)[8].
[8] CB 73-90.
The Applicant sought review of the Delegate’s Decision at the then Refugee Review Tribunal (now the Tribunal). On 24 March 2015, a differently constituted Tribunal affirmed the Delegate’s Decision. The Applicant sought review of that Tribunal’s decision and on 28 July 2015, the matter was remitted by consent[9].
[9] Minister’s Submissions, filed 7.5.18, at [2]; CB 91-93.
On 12 August 2015, the Applicant became represented by his current lawyers[10]. On 29 March 2016, the Applicant’s lawyers forwarded extensive written submissions to the Tribunal in support of the Applicant’s application. Those submissions contained a number of country information extracts[11]. The submission provided from the Applicant’s lawyers outlined the following bases for the Applicant’s fear of harm[12]:
a)Membership of a particular social group: Tamil from a traditional Hindu village.
b)Membership of a particular social group: Persons opposed to the Sri Lankan Government.
c)Imputed political opinion: Imputed anti-government and pro Liberation Tigers of Tamil Elam (LTTE) political opinion.
[10] CB 96-97.
[11] CB 191-236.
[12] CB 199.
On 31 March 2015, the Applicant’s lawyers forwarded to the Tribunal a statement of the Applicant, dated 29 March 2015[13].
[13] CB 237-246.
The Applicant attended a hearing before the Tribunal on 2 March 2016 to give evidence and to present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The Applicant was represented in relation to the review by his representative, a lawyer and registered migration agent. The representative attended the hearing[14].
[14] CB 280, at [3]-[4].
On 30 June 2016, the Tribunal again affirmed the Delegate’s Decision[15].
[15] CB 278-311.
Tribunal’s Decision
The Tribunal’s Decision appears at pages 279-311 of the Court Book. The Minister’s written submissions, dated 7 May 2018 (at [6] to [27]), accurately summarise the Tribunal’s Decision. The Court adopts that summary, with some alterations, as its own as follows.
The Tribunal summarised the relevant law[16]. The Tribunal then summarised the Applicant’s claims as made in his entry interview, his Visa application, the interview before the Delegate, the first review application, the hearing with the first Tribunal on 15 December 2014, the arrangements made for the hearing before the Tribunal on 2 March 2016, the pre-hearing evidence and supporting documents, the evidence provided at the hearing on 2 March 2016 and the post-hearing submissions and documents[17]. The Tribunal provided an overview of the country information relevant to providing context to the Applicant’s claims[18].
[16] CB 280-281, [5]-[9].
[17] CB 281-296, [10]-[126].
[18] CB 296-297, [127]-[142].
The Tribunal considered the Applicant’s ability to provide evidence to the Tribunal in light of his mental state[19]. The Tribunal stated that it had given careful consideration to the reports provided by the Applicant that related to the Applicant’s mental state and his ability to provide evidence. The Tribunal accepted that the Applicant had been depressed and anxious for some time, however it did not accept that the Applicant was incapable of providing evidence regarding his application[20].
[19] CB 298-299, at [143]-[146].
[20] CB 298, at [144].
The Tribunal stated that it had listened to the recordings of the Applicant’s interview with the Delegate and the evidence given at the first Tribunal hearing. The Tribunal considered that the Applicant was generally able to answer questions in a reasonably coherent and responsive fashion. The Tribunal noted however, that the Applicant’s responses to concerns of the interviewer were suggestive of someone attempting to overcome inadequacies in his evidence and not someone who was unable to recall what happened or someone unable to explain his situation[21].
[21] CB 298, at [145].
The Tribunal accepted that the Applicant had become more anxious and depressed since the first Tribunal hearing, however it considered that the Applicant was able to answer many of the Tribunal’s questions without apparent difficulty during the hearing. The Tribunal did not accept that the Applicant’s mental state meant that he was unable to provide evidence to the Tribunal, or that all of the serious inconsistencies in some of the Applicant’s claims were as a result of his mental state[22].
[22] CB 298-299, at [146].
The Tribunal did not accept that the Applicant’s back pain hampered his ability to provide accurate evidence to the Tribunal[23]. The Tribunal also did not accept that the Applicant’s age, level of education, or intelligence hampered the Applicant’s ability to provide evidence to the Tribunal[24].
[23] CB 299, at [147].
[24] CB 299, at [148]-[149].
The Applicant’s claims were then considered by the Tribunal. The Tribunal referred to a number of inconsistencies in the Applicant’s accounts of how he came to be beaten by soldiers[25]. The Tribunal did not accept the Applicant’s explanation for the inconsistencies. Inconsistencies highlighted by the Tribunal included whether the assault happened in 2010 or 2011[26], and whether the Applicant was assaulted the day after he did not give the keys to his brother’s truck to the soldiers[27]. The Tribunal also pointed out that there was no reference to the Applicant’s claims that his finger was amputated during the attack, nor in the police or medical reports that were provided to the first Tribunal[28]. The Tribunal was also not satisfied that the Applicant had provided an honest or accurate account of the cause of his back pain and did not accept that the Applicant was injured by soldiers in 2010 or 2011. The Tribunal believed that the Applicant had sought to use the fact that he genuinely suffered from back pain, as evidence to support his claims[29].
[25] CB 299-300, at [150]-[159].
[26] CB 299, at [151].
[27] CB 299, at [152].
[28] CB 300, at [155].
[29] CB 300, at [157]-[158].
The Tribunal noted that even if it were to accept that such an assault occurred, there was no credible evidence before the Tribunal that the Sri Lankan Army or anyone else had a continuing adverse interest in the Applicant following the claimed assault[30].
[30] CB 300, at [159].
The Tribunal accepted that the Applicant lived with his aunt prior to coming to Australia, while he was recovering from back injuries or problems. However the Tribunal did not accept that the Applicant was at his aunt’s house because he was hiding from the Sri Lankan Army or anyone else[31]. In making this finding the Tribunal noted the Applicant’s evidence that he was attending school and working during the last six months he lived in Sri Lanka[32]. The Tribunal also noted the inconsistencies in the Applicant’s evidence regarding whether he was staying at his aunt’s where he was bedridden, or whether he only stayed there at night[33].
[31] CB 301, at [160].
[32] CB 301, at [161].
[33] CB 301, at [163].
The Tribunal stated that the Applicant’s evidence that he and his family were harassed as a result of his brother’s work in Sri Lanka, was not persuasive and the Tribunal did not accept those claims[34]. In making this finding, the Tribunal noted the Applicant’s conflicting accounts of why his brother had gone missing and when he learned of this[35].
[34] CB 301, at [165]-[166].
[35] CB 302, at [168]-[172].
While the Tribunal doubted that the Applicant’s father was assaulted by people looking for the Applicant’s brother in mid-2012, the Tribunal stated that even if it accepted that this occurred, it occurred four years earlier and there was no evidence that the Applicant’s brother or anyone else had been harmed at that time due to any association with the Applicant’s brother. The Tribunal did not accept that the Applicant faced a real chance of serious harm because of his association with his brother[36].
[36] CB 302, at [174].
The Tribunal accepted that the Applicant’s brother faced demands for money for unpaid access to his vehicles but, on the basis of a lack of evidence suggesting that the Applicant or his family had ever faced serious harm in this regard, the Tribunal did not accept that the Applicant faced a real chance of harm on return to Sri Lanka because people had demanded or extorted money from his brother[37].
[37] CB 303, at [176].
The Tribunal was not satisfied that the Applicant faced a real chance of serious harm for any reason associated with the presence of “grease men” in his area, noting country information that stated this problem did not continue after 2011[38].
[38] CB 303, at [177]-[178].
The Tribunal noted that the Applicant stated at the second Tribunal hearing that he could not remember claiming before the Delegate and at the first Tribunal hearing, that he had distributed posters for the Karuna group in 2012 and that he had been accused of setting fire to a Karuna group poster and had been slapped. The Tribunal also noted that the only election to occur in 2012 in Sri Lanka occurred four months after the Applicant’s departure from country. In these circumstances, the Tribunal found that these claims made by the Applicant lacked credibility. The Tribunal also stated that even if it did accept these claims, it would not be satisfied that this would cause the Applicant problems on his return to Sri Lanka[39].
[39] CB 304, at [181].
As the Applicant had not claimed prior to the second Tribunal hearing that he was a member of the TUF or the Tamil National Alliance, the Tribunal did not accept these claims as credible[40].
[40] CB 304, at [182]-[183].
The Tribunal accepted that the Applicant was taken to an army camp five or six times while living in Sri Lanka, but noted that there was no suggestion that he suffered serious harm during these round-ups. The Tribunal noted that the country information indicates that round-ups which occurred during the civil war, rarely occur now[41]. The Tribunal did not accept that the Applicant was labelled as a troublemaker by the Sri Lankan Army[42].
[41] CB 304, at [184].
[42] CB 304, at [185].
The Tribunal outlined some medical reports provided by the Applicant that referred to his claimed experiences of sexual assault[43]. The Tribunal concluded it was not satisfied that the sexual assault occurred and provided a number of reasons for its conclusion:
a)Firstly, the Tribunal noted that this claim was not raised with the Delegate or the first Tribunal.
b)Secondly, during the second Tribunal hearing the Applicant agreed that the assault had occurred when he was detained at the army camp, as opposed to the perpetrator’s home. The Tribunal also noted that the Applicant’s statement to the mental health worker regarding when and by whom he was sexually assaulted, was at odds with the information he provided to his doctor, which stated that he was sexually assaulted by soldiers in 2012 when he was also assaulted with a rifle butt.
c)Thirdly, the Tribunal found it implausible that the Applicant would accompany the man who assaulted him to the man’s home more than once. The Tribunal did not believe that the Applicant would have submitted to these repeated attacks, rather than ask for his brother’s assistance, as his brother was a successful businessman with good connections to local officials and members of groups such as the Karuana group[44].
[43] CB 305, at [186]-[188].
[44] CB 305-306, at [186]-[195].
The Tribunal concluded that even if it were to accept that the Applicant was sexually assaulted as claimed, it would not accept that he would experience similar harm if returned to Sri Lanka[45]. The Tribunal acknowledged that sexual abuse of people in detention did occur, but found there was nothing in the evidence that suggested the Applicant would be sexually assaulted if he were to be briefly detained upon return to Sri Lanka due to his illegal departure[46].
[45] CB 306, at [196].
[46] CB 306, at [197].
In relation to country information, the Tribunal was not satisfied that the Applicant faced a real chance of serious harm on account of his Tamil ethnicity[47]. The Tribunal did not accept that the Applicant would be believed to support the LTTE or to hold any other unacceptable political opinions on return to Sri Lanka, because of his ethnicity or due to his time in Australia[48].
[47] CB 305-306, at [199]-[202].
[48] CB 307, [203]-[204].
In relation to the Applicant’s illegal departure from Sri Lanka, the Tribunal found that the Applicant would be likely to be briefly detained and questioned at the airport, then transferred to the Magistrates’ Court, where he would likely be charged and fined for leaving the country illegally. The Tribunal accepted that there was some possibility that he may be remanded for a short period while waiting to be brought before a Magistrate, but found that this treatment related to the non-discriminatory operation of a law of general application and would not amount to harm suffered for a reason provided under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention)[49].
[49] CB 308, at [207].
The Tribunal accepted that people with mental health issues may have difficulties obtaining adequate care in Sri Lanka, however it did not accept that the Applicant would be denied proper healthcare for a Refugees Convention reason[50]. The Tribunal accepted that there was some degree of stigma attached to mental health conditions in Sri Lanka, but did not accept that this would amount to serious harm[51].
[50] CB 308, at [212].
[51] CB 308, at [212]-[213].
When considering the Applicant’s claim under the complimentary protection criteria, the Tribunal referred to reports of failed asylum seekers facing torture or serious harm, but noted that these appeared to be isolated cases involving people with suspected links to the LTTE, and the Applicant had no such real or suspected links[52]. The Tribunal did not accept that there was a real risk that the Applicant would be detained and tortured or face any other significant harm while being detained in relation to charges relating to his illegal departure from Sri Lanka[53].
[52] CB 309, at [221].
[53] CB 310, at [222].
The Tribunal did not accept the Applicant’s claim to have come from an impoverished, downtrodden family who would not be able to arrange bail for him. The Tribunal noted that the Applicant agreed at the hearing that his brother operated a construction company which obtained government contracts and had good contacts with local officials[54]. The Tribunal did not accept that, if the Applicant were to receive inadequate medical care, it would be as a result of an act or omission intentionally committed and therefore would not amount to significant harm[55].
[54] CB 310, at [224].
[55] CB 310, at [226].
After considering the Applicant’s claims, the Tribunal noted that it had requested from the Applicant a medical opinion on the nature and cause of his injuries, in order to have a clear understanding of the nature of these injuries and why his doctor believed that they were the result of being sexually assaulted. The Tribunal stated that it did not request this evidence to substantiate the Applicant’s claim that he had been sexually assaulted. The Tribunal also indicated that at no stage had it offered to arrange for the Applicant to be examined by the Commonwealth Medical Officer, so that the Applicant could obtain evidence to support his case. Instead, the Tribunal indicated that if the Applicant continued to state he was unfit to attend a Tribunal hearing, that the Tribunal might arrange for him to be assessed to determine whether this was correct. The Tribunal noted that the doctor’s certificate provided by the Applicant stated only that he was unfit for full-time work, which did not suggest that he would be incapable of attending a Tribunal hearing[56].
[56] CB 311, at [229]-[230].
The Tribunal concluded that in the circumstances it was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention. The Tribunal found that the Applicant did not meet the criterion in s.36(2)(a) of the Act. Further, the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act[57].
[57] CB 111, at [231]-[232].
Proceedings before the Court
The Applicant filed an amended judicial review application on 18 April 2018 (Amended Application). The Amended Application contained three grounds of review as follows.
1. The Tribunal fell into jurisdictional error in that it failed to make enquiries or cause investigations to be made as required by law.
Particulars
(a)Although the physical and mental health of the Applicant was an issue in the review, relevant to the claims that he made and to the assessment of his credibility, and although the Tribunal was asked by the Applicant’s representatives to arrange for examination of the Applicant by a medical officer of the Commonwealth, the Tribunal failed to exercise its powers to do so, whether under the power conferred by sections 60 of the Act to require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, or under section 427(1)(d) by requiring the Secretary to arrange for the making of an investigation or a medical examination or under the power conferred by section 424 of the Act to give any information that it considers relevant, or under other powers of the Tribunal.
(Court Book 311, Decision Record [229]-[230])
2. The Tribunal fell into jurisdictional error in that it acted irrationally or illogically or unreasonably.
Particulars
(a)The Tribunal was unreasonable in rejecting the credibility of some important parts of the Applicant’s claims:
(i) when it was submitted that he had suffered serious trauma including torture and sexual assault, (CB 55, 76, 107-109,181, 240-241)
(ii) when this may have affected his mental and physical health such as to affect not only his ability to work, but also his ability to give a timely and consistent account of his history and claims, (CB 109-110, 138, 149, 181, 191, 200, 240-241, 268-269)
(iii) When the Tribunal asked for a medical report regarding the nature of the injuries the Applicant claimed to have suffered as the result of being sexually assaulted, (CB 123)
(iv) when it was submitted to the Tribunal that the Applicant could not afford the cost of specialist medical assessment and treatment, and therefore could not submit expert reports on his health to the Tribunal, (CB 129-131, 147)
(v) when the Tribunal was asked by the Applicant’s representatives to arrange for examination of the Applicant by medical officer of the Commonwealth, (CB 131, 147
(vi) but the Tribunal proceeded to assess and reject the credibility of the Applicant’s claims without requiring the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition and therefore without having expert reports on which to base its assessment of the Applicant’s ability to give a timely and consistent account of his history and claims.
(Court Book 311, Decision Record [229]-[230])
(b) The Tribunal was unreasonable in saying that:
“… even if I were to accept that the applicant was sexually assaulted during the time he was convalescing from injuries to his back (which I do not), I do not accept there is a real chance that he will experience similar harm is he returns to Sri Lanka now…
In reaching this conclusion, I have considered the evidence… regarding the sexual assault of people held in detention by the security forces in Sri Lanka. While I acknowledge that this kind of abuse occurs, as discussed below, and while I accept that the Applicant will probably be detained for a brief period… because of his illegal departure, there is nothing in the evidence which suggests that there is a real chance that he will be sexually assaulted while being detained for this reason.”
(Court Book 306, Decision Record [196]-[197])
3. The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations including claims, or integers of claims, or information required by the Act and the law to be considered.
Particulars
(a)Despite its adverting to noting that the applicant’s distress at the hearing was such that at one point he could not continue to speak intelligibly (Court Book 290-291, Decision Record [85]), and despite considering whether the Applicant’s mental and physical health may have affected his ability to give evidence (CB 298-299, [143]-[149]), the Tribunal did not consider whether to get expert information and evidence about this, whether under section 60 of the Act by requiring the applicant to visit, and be examined by, a specified person, being a person qualified to determine the health, physical condition or mental condition, or under section 427 (1)(d) by requiring the Secretary to arrange for the making of an investigation or a medical examination or under section 424 or other powers.
(b)The Tribunal noted what it perceived as evidence that one of the Applicant’s brothers had been abducted and tortured in custody and that this had badly affected the Applicant, but this failed to advert to the fact that the evidence was of the Applicant himself having been abducted and tortured (Court Book 166; CB 289, Decision Record [78])
(Without alteration)
The Applicant filed written submissions dated 18 April 2018 (Applicant’s Submissions) and the Minister filed the Minister’s Submissions. At the conclusion of the hearing, the Applicant and the Minister were given leave to file and serve further written submissions in relation to AMT15 v Minister for Immigration and Border Protection [2018] FCA 366. The Minister filed further written submissions dated 21 May 2018 (Minister’s Further Submissions). The Applicant filed further written submissions dated 29 May 2018 (Applicant’s Further Submissions).
In addition to the materials in the Court Book, the Applicant’s Submissions, the Minister’s Submissions, the Applicant’s Further Submissions and the Minister’s Further Submissions, the Court has also reviewed in detail the transcript of the hearing that took place in this Court. Both Counsel for the Applicant and Counsel for the Minister provided oral submissions, which the Court has considered closely.
Legislative Provisions
Section 60 of the Act confers on the Minister (and the Delegate) power to require a medical examination as follows.
60 Medical examination
(1)If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and a specified reasonable place.
(2)An applicant must make every reasonable effort to be available for, and attend, an examination.
Section 415 of the Act confers the power of the original decision maker on the Tribunal as follows
415 Tribunal powers on review of Part-7 reviewable decisions
(1)The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
[…]
Section 424 of the Act confers power on the Tribunal to seek information as follows.
424 Tribunal may seek information
(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.
[…]
Section 427 of the Act set out the powers of the Tribunal as follows.
427 Powers of the Tribunal etc
(1)For the purpose of the review of a decision, the Tribunal may:
(a)take evidence on oath or affirmation; or
(b)adjourn the review from time to time; or
(c)subject to sections 438 and 440, give information to the applicant and to the Secretary; or
(d)require the Secretary to arrange for the making of any investigation, or any medical examination that the Tribunal thinks necessary with respect to the review, and give to the Tribunal a report of that investigation or examination.
Consideration
Ground 1
By Ground 1 of the Amended Application, the Applicant pleads that the Tribunal fell into jurisdictional error in that it failed to make inquiries as required by law, by the exercise of its powers pursuant to ss.60, 424 and 427(1) of the Act, or otherwise.
Specifically, the Applicant submitted that as the Applicant’s credit was critical to the Tribunal’s Decision, the Tribunal erred by failing to exercise its powers under the Act to arrange for an assessment of the Applicant’s health, physical or mental condition. The Applicant submitted that the mental and physical health of the Applicant was potentially critical to the review. It may have accounted for the difficulty the Tribunal noted in the Applicant giving a consistent account of his claims and his situation. Whether it did so, or may have done so was therefore a critical fact. It was submitted that an inquiry about these matters was obvious[58].
[58] Applicant’s Submissions, at [23].
The Minister submitted that the Tribunal was not under any obligation to arrange for the Applicant to be assessed by a medical officer to determine the physical and mental health of the Applicant and how this might affect his ability to provide evidence to the Tribunal. Sections 60 and 424 of the Act are permissive sections. They allow the Tribunal to do certain things, however they do not oblige the Tribunal to do anything in particular.
In Minister for Immigration and Citizenship v SZIAI ([2009] HCA 39; (2009) ALR 429; (2009) 83 ALJR 1123; (2009) 111 ALD 15) (SZIAI) the plurality of the High Court said:
In the exercise of its review function, the tribunal may obtain such information as it considers relevant. In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own enquiries in addition to information provided to it by the applicant and otherwise under the act.[59]
[…]
Flick J correctly eschewed any suggestion that the power the tribunal imposed upon it any duty or obligation to do so.[60]
[…]
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an enquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.[61]
(Emphasis added. Footnotes omitted)
[59] SZIAI, at [1] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[60] SZIAI, at [10].
[61] SZIAI, at [25].
In SZNBX v Minister for Immigration and Citizenship ([2009] FCA 1403; (2009) 112 ALD 475) (SZNBX) Bennett J referred to SZIAI at [25] (referred to in the preceding paragraph) and said:
This raises a number of considerations, namely:
·whether the inquiry that the tribunal failed to make was an obvious enquiry;
·whether it concerned a critical fact the existence of which was easily ascertained; and
·whether it supplied a sufficient link to the outcome to constitute a failure to review.[62]
[62] SZNBX, at [21].
In this case the Applicant provided a number of reports regarding his health to the Tribunal. These reports included reports from the Applicant’s general practitioner and mental health social worker. These reports were:
a)Report of Sumana Kodi, Accredited Mental Health Social Worker, dated 1 October 2015[63].
b)Letter from Dr Jeyachandran, Parkview Medical Centre, dated 31 October 2015[64].
c)Report of Sumana Kodi, dated 9 November 2015[65].
d)Letter from Dr Jeyachandran, Parkview Medical Centre, dated 21 January 2016[66].
e)Letter from Dr Jeyachandran, Parkview Medical Centre, dated 22 February 2016[67].
f)Referral from Dr Thanigasalam Kanapathippilai to the Westmead Hospital, dated 15 December 2015[68].
g)Report of Sumana Kodi, dated 16 March 2016[69].
h)Report of Sumana Kodi, dated 2 May 2016[70].
i)Letter from Dr Jeyachandran, Parkview Medical Centre, dated 29 April 2016 and enclosed information[71].
[63] CB 108-109.
[64] CB 132,
[65] CB 138.
[66] CB 149.
[67] CB 167.
[68] CB 168-169.
[69] CB 200.
[70] CB 271.
[71] CB 272-274.
The Tribunal considered the medical reports provided by the Applicant and accepted that the Applicant had been anxious and depressed and that this had worsened since the first Tribunal hearing[72]. However the Tribunal considered that the Applicant was still able to provide evidence for his case. On the basis of serious inconsistencies in the Applicant’s claims and other aspects of the evidence, the Tribunal found that the Applicant was not credible in relation to significant parts of his claims for protection.
[72] CB 298, at [144]-[146].
The Tribunal’s reasons provided a clear and rational basis for its credibility findings. The Tribunal highlighted numerous inconsistencies in the Applicant’s evidence and reported that these inconsistencies were put to the Applicant at the hearing, as well as put to the Applicant in writing, to give the Applicant an opportunity to respond in writing[73].
[73] CB 175-177; 257-258.
The Court agrees with the Minister. In these circumstances, it was not an obvious inquiry for the Tribunal to then seek a further medical opinion in relation to the Applicant’s mental and physical health. Further, the ascertainment of a medical assessment of the Applicant’s mental and physical health, including how it related to his ability to provide evidence, was not a critical fact. It would at most, be a medical assessment that the Tribunal could take into account in assessing whether or not it was satisfied that the Applicant was a person in respect of whom Australia has protection obligations.
It is well established that a finding on credibility is the function of the primary decision maker, in this case the Tribunal. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham ([2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405) Mc Hugh J said:
If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.[74]
[74] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham ([2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405, at [67].
Therefore, while the Tribunal could take into consideration an opinion of a medical officer, it remained the task of the Tribunal, taking into account all the material before it, to reach a conclusion as to the Applicant’s credibility.
Therefore, whilst it is submitted by the Applicant that a medical report could have been easily ascertained, it cannot be said that an assessment of the Applicant’s credibility in relation to his claims for protection could be easily ascertained by an assessment made by a medical officer as to the Applicant’s physical and mental health.
The Tribunal’s failure to arrange for the Applicant to be medically assessed by a Commonwealth Medical Officer was not sufficiently linked to the outcome of the review such as to constitute a failure to review. The Tribunal’s ultimate conclusions as to the Applicant’s credibility were open to it on the evidence before it. This evidence included material from the Applicant’s general practitioner and mental health social worker. It also included making an assessment of the evidence provided by the Applicant over a period of approximately three and a half years. This evidence included evidence from the Applicant’s entry interview, the second Tribunal hearing and the material provided by the Applicant’s lawyers afterwards[75]. In particular the Court notes that the submission made by the Applicant’s lawyers after the second Tribunal hearing included the following:
In the absence of a medical report written soon after [the Applicant] was assaulted, no evidence can be produced that would establish a direct causal link between [the Applicant’s] assault and his [condition]. If the Member could detail the precise type of evidence the Member requires to substantiate this claim, our client would be willing to consider this request and make a further submission.[76]
[75] CB 267-270.
[76] CB 269.
The Court notes the decision of the Full Court of the Federal Court in DYS16 v Minister for Immigration and Border Protection ([2018] FCAFC 33; (2018) FCR 260) (DSY16). In that case a psychiatrist diagnosed the Applicant with post-traumatic stress disorder and also provided an opinion concerning the Applicant’s credibility. The psychiatrist’s opinion was that the Applicant was a credible witness. The Immigration Assessment Authority (IAA) took into account the psychiatrist’s assessment as to post-traumatic stress disorder. The IAA did not take into account the psychiatrist’s assessment of the Applicant’s credibility, and the Applicant appealed this aspect of the determination. The Applicant was unsuccessful in relation to this ground of appeal. The Full Court considered the role that the psychiatrist’s opinion concerning the Applicant’s credibility could have had in relation to the task before the IAA. The Full Court said:
The IAA’s explanation for its refusal to have regard to the psychiatrist’s opinion concerning DYS16’s credibility appears principally at [9] of its reasons. Those reasons have to be understood against the background of the three preceding paragraphs. The principal reason was that DYS16’s psychiatrist’s opinion about his credibility “[did] not carry more weight than other concerns regarding [DYS16’s] credibility which [had] been discussed above [in the preceding paragraphs]” and which were to be the subject of further attention in the reasons.
One can well understand why the IAA had come to this view. The psychiatrist’s opinion relating to DYS16’s credibility was, as he said, founded upon the history given to him by DYS16 and the answers provided by DYS16 to questions asked by the psychiatrist. The IAA was the trier of fact. It was for it to form a judgment about DYS16’s credibility: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at 423; [2000] HCA 1 at [67] (McHugh J). It was required to do so on the basis of the information which it had before it. That information was not coextensive with that before the psychiatrist. The psychiatrist, for example, did not have access to the country information which was before the IAA. The absence of contradictory medical evidence as to credibility can be of no moment. Such contrary evidence could only have been obtained from another psychiatrist who was privy to the same interviews and the same documentary materials as were considered by the author of the report on which DYS16 sought to rely. More importantly, no psychiatric opinion as to DYS16’s credibility could have been binding on the IAA and it was entitled, as it did, to prefer its own assessment. It is also notable that the IAA was prepared to receive and act on the psychiatrist’s PTSD diagnosis which had a potential bearing on the IAA’s assessment of DYS16 as a witness. While reasonable minds might differ about the IAA’s reasons for its decision the reasons which it did advance are not illogical or irrational.[77]
[77] DSY16, at [22] and [23].
The Full Court therefore noted that the psychiatrist’s opinion regarding the appellant’s credibility was founded upon the assessment that the psychiatrist had made and that the information before the psychiatrist was different to the information before the IAA. The IAA was the trier of fact. It was for the IAA to form a judgement about the credibility of the appellant, and it was required to do so on the basis of all the information it had before it. This information included previous information provided by the appellant and country information. The IAA’s role to determine the credibility of the appellant in DSY16 was the same task that the Tribunal had to perform in this case.
Accordingly, the Applicant has failed to establish that the Tribunal has fallen into jurisdictional error as pleaded in Ground 1.
Ground 1 is dismissed.
Ground 2 Particular (a)
By Ground 2 Particular (a) of the Amended Application, the Applicant pleads that the Tribunal acted irrationally, illogically or unreasonably by rejecting the credibility of parts of the Applicant’s claims, including making credibility findings, without requiring the Applicant to visit and be assessed by a medical officer.
While the Tribunal had available to it the discretion to seek further medical opinions, it was not unreasonable in the legal sense, for the Tribunal to not exercise that discretion. The Federal Court distilled the principles relevant to determining whether a decision might be vitiated because it was “ illogical” or “ irrational” in Minister for Immigration and Border Protection v SZUXN ([2016] FCA 516; (2016) 69 AAR 210) (SZUXN). In SZUXN Wigney J said:
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.[78]
[…]
Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 at 598-599 [83]- [84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at 291 [66]; SZWCO at [64]-[67].
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.[79]
[78] SZUXN, at [52].
[79] SZUXN, at [55]-[56].
In DYS16 an issue was whether the decision-maker, the IAA, had acted unreasonably by failing to take into consideration the opinion of a psychiatrist in relation to the Applicant’s credibility. The Full Court of the Federal Court found that the IAA had not erred[80].
[80] DYS16, at [22]-[23].
Similarly, in this matter it was for the Tribunal to reach a decision regarding the Applicant’s credibility. The Tribunal relied upon a significant amount of evidence before making adverse findings in relation to the Applicant’s credit. The evidence before the Tribunal included evidence at the entry interview, in the Applicant’s Visa application, evidence at the interview with the Delegate, supporting documentation including the medical reports, newspaper articles, the newspaper article referring to the Applicant’s brother, the evidence at the first Tribunal hearing and the second Tribunal hearing, the submissions made by the Applicant’s lawyers and the Applicant’s responses to the two letters from the Tribunal inviting the Applicant to comment on inconsistencies in the Applicant’s evidence.
The Tribunal based its conclusions on the evidence before it and provided clear reasons for its conclusions. The Court therefore rejects the Applicant’s submission that the Tribunal made a finding that was not based on evidence or that it was not based on probative evidence.
The Applicant also submits that the Tribunal’s decision in relation to the Applicant’s credibility was so unreasonable that no reasonable decision-maker could come to the same decision. The Court refers to the discussion in relation to Ground 1 and rejects that submission.
Ground 2 Particular (a) is dismissed.
Ground 2 Particular (b)
By Ground 2 Particular (b) of the Amended Application, the Applicant pleads that the Tribunal acted irrationally, logically or unreasonably by finding that there was not a real chance that the Applicant would be sexually assaulted if he were to be briefly detained for having left Sri Lanka illegally, because there was no evidentiary basis for this conclusion.
The Court agrees with the Minister in relation to this ground. The Tribunal acknowledged that sexual assault did occur to people held in detention in Sri Lanka, but then stated the evidence did not suggest that there was a real chance that the Applicant himself would suffer sexual abuse while potentially being briefly detained, due to charges under the Immigrants and Emigrants Act for having left Sri Lanka illegally. The Tribunal referred to relevant country information at paragraph 221 of its reasons and concluded that there was not a real risk that the Applicant would be detained and tortured, or face any other significant harm while being detained in relation to charges under the Immigrants and Emigrants Act[81].
[81] CB 309, at [221]-[222].
To the extent the Applicant focusses in particular on paragraphs [196]-[197] of the Tribunal’s Decision, those paragraphs must be read with the finding at [221]-[222] about harm generally while being detained, while also bearing in mind that the Tribunal stated there was nothing in the evidence to suggest that the Applicant would suffer sexual abuse because of his illegal departure. Therefore, the Tribunal was relying on an absence of evidence to suggest this particular harm would befall the Applicant because of a Convention reason. An absence of evidence is rational basis for a conclusion, and particularly so when the Tribunal later at [221]-[222] refers to the chance and risk of harm because of any detention more substantively.
There was therefore a clear evidentiary basis for the Tribunal’s finding that there was not a real chance that the Applicant would be sexually assaulted if he were to be briefly detained for having left Sri Lanka illegally.
Ground 2 Particular (b) is dismissed.
Ground 3 Particular (a)
The Applicant claims that the Tribunal fell into jurisdictional error by failing to consider whether to get expert information and evidence about how the Applicant’s mental and physical health may have affected his ability to give evidence.
In Minister for Immigration and Citizenship v SZGUR ([2011] HCA 1; (2011) 241 CLR 594; (2011) ALR 223; (2011) 85 ALJR; (2011) 119 ALD 1) (SZGUR) the High Court said:
The question whether s 427(1)(d) imposes a legal duty on the Tribunal to consider whether to exercise its inquisitorial power under that provision was answered in the negative by the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs. The Court held that absent any legal obligation imposed on the Tribunal to make an inquiry under s 427(1)(d) "[b]y a parity of reasoning ... there is no legal obligation to consider whether one should exercise that power". That view is correct. That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d).[82]
(Footnotes omitted)
For the reasons discussed relation to Ground 1, there was no legal obligation on the Tribunal to obtain a medical examination of the Applicant. Therefore there was no legal obligation to consider whether to exercise that power.
The Court notes that the Tribunal considered the Applicant’s request that arrangements be made for him to be assessed by a Commonwealth Medical Officer when the Applicant was requesting an adjournment of the hearing due to his health. In a letter to the Applicant from the Tribunal, dated 17 February 2016 the following was stated:
The member notes that the most recent medical certificate from your doctor states only that you are not well enough to work full-time. In these circumstances she does not believe that an assessment by the Commonwealth medical officer is necessary.[83]
[83] CB 155-156.
In the Tribunal’s Decision the Tribunal stated:
At no time did I intend to suggest that I required medical evidence to substantiate the applicant’s claim that he had been sexually assaulted, and at no time did the Tribunal offer to arrange for the applicant to be examined by the Commonwealth medical officer so that he could obtain evidence in support of his case.[84]
[84] CB 311, at [230].
The Tribunal thereby demonstrated that it was aware of the request in earlier correspondence from the Applicant’s lawyers, requesting examination by a Commonwealth Medical Officer and it ultimately determined that it was not necessary for the Tribunal to arrange such an assessment of the Applicant.
Therefore, absent any legal obligation on the Tribunal to obtain a medical examination, there is no legal obligation on the Tribunal to consider whether it should exercise the power to obtain examination.
Ground 3 Particular (a) is dismissed.
Ground 3 Particular (b)
The Applicant claims that the Tribunal fell into jurisdictional error by misunderstanding the Applicant’s claim that he was abducted and tortured, and instead perceiving it as evidence that one of the Applicant’s brother had been abducted and tortured in custody.
The Minister acknowledged that the Tribunal’s reference to the Applicant’s claim of his brother being abducted and tortured and the Applicant being both physically and mentally affected by this, is incorrect. The Minister submits that at most this was a factual error made by the Tribunal and that this was an error made within jurisdiction.
The Minister submits that the Tribunal comprehended and considered the Applicant’s underlying claim to have been assaulted in 2010 and 2011[85]. The Tribunal took into account the police reports and medical material provided by the Applicant, which indicated that the Applicant was assaulted in August 2010[86]. The Tribunal noted that there were significant differences between the Applicant’s original account of events and his injuries, and the account of events and the Applicant’s injuries recorded in the police and medical documents provided at the first Tribunal hearing[87].
[85] CB 299, at [150]-159].
[86] CB 299, at [151].
[87] CB 299, [151].
The Court accepts the submission made by the Minister.
It cannot be said that the misstatement or misunderstanding of the evidence in this case caused the Tribunal to fail to take into account the Applicant’s claims.
Ground 3 Particular (b) is dismissed.
Conclusion
The judicial review application has not identified any error.
The Applicant’s application filed on 17 July 2016, as amended, is dismissed.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 20 May 2020
[82] SZGUR, at [22] (French CJ and Kiefel J. Heydon and Crennan JJ agreeing).
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