BVB15 v Minister for Immigration
[2018] FCCA 3616
•11 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVB15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3616 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – decision affirming a decision of a delegate to refuse Protection (Class XA) visa – citizen of Sri Lanka – whether failure to take into account relevant materials – whether denial of procedural fairness in relation to alleged fabrication of claims – whether unreasonableness or bias in rejecting “fraudulent” documents – alleged failure of migration agent to raise claim made by applicant – whether fraud on the Tribunal – whether applicant helmsman of boat on voyage from Sri Lanka – whether claim previously made – whether impermissible merits review sought – whether jurisdictional error – whether possible jurisdictional error not raised by the parties – translation of document – whether unreasonableness in failure to indicate whether Tribunal would consider applicant’s offer to translate document. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.12.02 Migration Act 1958 (Cth), ss.5, 36, 65, 422B, 424A, 474, 476 |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 |
| Applicant: | BVB15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 408 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 June 2016 |
| Date of Last Submission: | 28 June 2016 |
| Delivered at: | Perth |
| Delivered on: | 11 December 2018 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Mr D Carroll |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the matter be adjourned to a further directions hearing on a date to be fixed upon written application by either party, but not before 1 February 2019.
Costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 408 of 2015
| BVB15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration and Border Protection (“Minister”). The Delegate’s Decision was to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”).
A copy of the Tribunal Decision is at Court Book (“CB”) 186-206.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Sri Lankan citizen of Sinhalese ethnicity who first arrived in Australia as an unauthorised maritime arrival on 9 April 2013: CB 21 and 94;
b)on 9 July 2013 the applicant lodged a Protection Visa application (“Protection Visa Application”) with the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (“Department”): CB 1-76;
c)on 11 July 2014 the applicant attended an interview with the Delegate regarding the Protection Visa Application: CB 96;
d)on 8 August 2014 the Delegate refused the Protection Visa Application: CB 93-103;
e)on 12 August 2014 the applicant sought review of the Delegate’s Decision by the Tribunal: CB 105;
f)on 2 July 2015 the applicant appeared before the Tribunal to give evidence and present arguments, assisted by a Sinhala interpreter and his registered migration agent: CB 175;
g)on 14 August 2015 the Tribunal Decision affirmed the Delegate’s Decision: CB 186 and 200 at [91];
h)on 7 September 2015 the applicant applied to this Court for judicial review of the Tribunal Decision and filed an affidavit annexing the Tribunal Decision;
i)on 28 October 2015 the Court ordered, by consent, that, among other things;
i)the applicant file and serve on or before 29 January 2016 any amended Judicial Review Application (“Amended Judicial Review Application”) and any further affidavits upon which he intends to rely at the hearing of the matter; and
ii)the applicant file and serve an outline of submissions not less than 42 days before the hearing;
j)on 29 January 2016 the applicant, through his then lawyer, filed an Amended Judicial Review Application and an affidavit of Patricia Ng Phaik Kim affirmed 28 January 2016 annexing a transcript of the Tribunal hearing on 2 July 2015 (“Tribunal Hearing Transcript”); and
k)on 31 May 2016 the applicant filed a Notice of Address for Service indicating that he was acting in person.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)set out the applicant's background, migration history, and visa application history, including that he was born in a village in the Southern Province of Sri Lanka where his parents and siblings continue to reside: CB 187-188 at [1]-[4] and [9]-[12];
b)set out the applicant's claims, as restated in the Delegate’s Decision, that:
i)he and his father owned two houses in their home village, and he rented one of the houses to three Tamil people who were working on a water mains project: CB 188 at [13];
ii)after one month (on 8 July 2011) the police searched the house and found guns: CB 188 at [13];
iii)the Tamils had left the house and the applicant searched for but was unable to locate them: CB 188 at [13];
iv)the police searched the applicant’s family home looking for weapons and, when the police asked the applicant to report to the police station, he did not go as he could not find the three Tamil men and was frightened he would be taken into custody: CB 188 at [13];
v)the applicant left his village on the same day as the police searched his family home, and worked on fishing boats in other villages until he travelled to Australia, and did not return to his village even when his father became seriously ill and paralysed: CB 188 at [14]; and
vi)since the applicant went into hiding and has been in Australia, the police have been going to the family home looking for him, and a group of thugs led by a local councillor who is a Sri Lanka Freedom Party supporter have visited the house looking for him, and have asked his parents if they had their weapons: CB 188 at [15];
c)referred to the Delegate having rejected a document provided by the applicant as not genuine, and recorded that the Delegate did not accept the applicant's central claims and had concerns regarding the applicant’s credibility: CB 188 at [16]-[18];
d)referred to certain principles regarding credibility findings and found that, while some aspects of the applicant's evidence were credible, important aspects of his evidence were not credible as they were unreliable, exaggerated or fabricated for the purpose of strengthening his protection claims: CB 188-189 at [19]-[22];
e)summarised the contents of written submissions and further documents provided by the applicant including a further statement from the applicant, and statements from his father, a person in his village, and an attorney: CB 189-190 [23]-[28];
f)referred to country information indicating the ease with which fraudulent documents could be obtained, set out its concerns regarding the applicant's documents as discussed with the applicant, stated that they did not overcome the Tribunal's concerns about the applicant's credibility, and gave them little evidentiary weight as independent evidence: CB 190 at [29]-[31];
g)set out the applicant's claims and evidence advanced at the Tribunal hearing regarding the applicant’s fears arising from the police discovering guns in his house, including the applicant's responses to questions from the Tribunal: CB 191 at [32]-[44]). Relevantly the Tribunal:
i)did not accept, based on the inconsistencies and implausibility of the applicant's evidence, that the police found guns in the house he was renting to three Tamils and that as a result the police held the applicant responsible or are seeking him in connection with those guns: CB 193 at [45];
ii)did not accept that the applicant is of any interest to the police or the Criminal Investigation Division (“CID”) or Sri Lankan authorities or underworld thugs for any reason, nor that the applicant has any criminal charges or warrants issued against him in respect to the guns he claims were found in his house, nor that the applicant is suspected of being involved in terrorist or Liberation Tigers of Tamil Eelam (“LTTE”) activities on this basis: CB 193 [45];
iii)found that the applicant had not been consistent in his evdence regarding when the police searched his house and “found” the guns, and did not accept as plausible that the applicant would fail to remember the time of this incident: CB 193 at [46];
iv)found that the applicant was not consistent and was evasive in his evidence as to when police visited his parents looking for him, and did not accept that the police have visited his house looking for him as it did not accept that the police were interested in him for any reason: CB 193 at [47];
v)having not accepted that guns were found at the house, did not accept that any underworld thug visited his parents looking for guns, and, in light of its credibility findings, found that this claim was fabricated and did not accept that the applicant faced a real chance of harm from any underworld thug should he return to Sri Lanka: CB 193 at [48];
vi)did not accept the applicant's claim that he would be held responsible if guns were found in the house, and found that the applicant's evidence regarding who had told him about being contacted by the police was inconsistent: CB 193-194 at [49]-[50]);
vii)did not accept as plausible that the applicant would immediately be suspected of being responsible for the guns because the police could not find the Tamils, or that the police would accuse him of being associated with the LTTE because they found the guns, and did not accept that if the police were genuinely interested in him they would not have found him either before he fled, or during the two years he remained in, Sri Lanka before travelling to Australia: CB 194 at [51];
viii)did not accept, based on its finding that the applicant was not a credible witness, that the applicant's brother was assaulted or that villagers stoned his family's houses or abused his family: CB 194 at [52];
ix)found that the applicant had not been truthful in his reasons for departing Sri Lanka and had fabricated his claim that police had found guns in his house for the purpose of his Protection Visa Application: CB 194 at [53];
x)found that the applicant is not of any interest to the Sri Lankan authorities, including the police, for any reason whatsoever: CB 194 at [54];
xi)found that the applicant will be not be perceived to be a terrorist, a member or supporter of the LTTE or actively opposed to the Sri Lankan government, or be suspected of being involved in such activities either because guns were found in his house, or because he departed Sri Lanka illegally and sought asylum in Australia, or for any other reason: CB 194 at [55]; and
xii)having considered the applicant's individual circumstances and his profile cumulatively, did not accept that he would face a real chance of serious harm now or in the reasonably foreseeable future because of an actual or imputed political opinion as a terrorist, LTTE supporter, or person opposed to the Sri Lankan government: CB 195 at [56];
h)set out the applicant's claims and submissions regarding his fear of suffering harm upon return to Sri Lanka as someone who departed unlawfully and was a failed asylum seeker, and accepted that the Sri Lankan authorities would assume that the applicant is a failed asylum seeker if he returned to Sri Lanka: CB 195 at [62] but, after referring to independent country information, found on the basis of the applicant's profile that he would not suffer serious harm for this reason: CB 195-197 at [63]-[67];
i)accepted that the applicant would be charged with an offence under the Immigrants & Emigrants Act of 1948 (Sri Lanka) (“I & E Act”), but found that the relevant provision of the I & E Act was a law of general application that did not give rise to persecution: CB 197 at [70], and that the applicant would be able to pay a fine if convicted under the I & E Act: CB 197 at [71], and that any short period of detention on remand prior to being released on bail would be in accordance with the law in Sri Lanka and would not involve systemic and discriminatory conduct: CB 198 at [73];
j)regarding complementary protection, found that due to his profile the applicant was not at risk of significant harm from individuals, underworld groups or the Sri Lankan government or security forces: CB 199 at [78], and that the applicant did not have a profile that would cause him to be targeted in the Sri Lankan prison system: CB 199 at [80], and that any short period on remand for the purposes of a charge under the I & E Act would not amount to significant harm in the applicant's case: CB 199 at [82]-[83];
k)found that any harm to the applicant caused by poor prison conditions would not be intentionally inflicted so as to give rise to a real risk of significant harm within the meaning of s.36(2A) or s.5 of the Migration Act: CB 199-200 at [84]-[85]; and
l)having considered the applicant's claims individually and cumulatively, was not satisfied that the applicant met the refugee criterion in s.36(2)(a) of the Migration Act, or that the applicant was a person to whom Australia has protection obligations under s.36(2)(aa) of the Migration Act: CB 198 and 200 at [75] and [87].
As might be deduced from the previous paragraph the Tribunal Decision gave comprehensive reasons, which ran to 14 typed pages and 91 paragraphs.
Amended Judicial Review Application
The Amended Judicial Review Application contained the following grounds (transcribed verbatim):
Ground 1
The Tribunal having found that the applicant had rented his house to 3 Tamils failed to take that into account when assessing whether or not he would be associated with the LTTE or imputed as a supporter of the LTTE.
Particulars
The Tribunal found and/or appeared to accept, inter alia:
"the Tribunal does not accept that the police found guns in the house he was renting to 3 Tamils" [45]
"the Tribunal does not accept as plausible the applicant would be responsible for the guns found by the police in a house he rented to 3 Tamils" [49]
everybody in his village was aware of that the applicant had leased his home to 3 Tamils [49]
However, when dealing with the applicant's claim that he would be associated with and/or imputed as a supporter of the LTTE, failed to assess that claim by reference to his conduct in leasing the house to the 3 Tamils but instead focused solely on the '3 guns claim', which the Tribunal rejected as being fabricated.
Ground 2
The Tribunal denied the applicant procedural fairness by failing to put to the applicant that he had fabricated his claims and/or by failing to invite the applicant to comment on an allegation that his claim in relation to the '3 guns' that the applicant claimed had been found in his house was fabricated.
The applicant’s additional documents
The applicant handed up a document in the form of a letter to the Court, annexed to which was an affidavit by the applicant (“Applicant’s Hearing Affidavit”) and five documents related to his application, all marked as Exhibit 1, subject to any objections by the Minister and rulings thereon made by the Court. Relevantly the Applicant’s Hearing Affidavit was as follows:
3. The Tribunal committed judicial error by not examining the documents I presented with due diligence and came to the wrong conclusion that they Were not true – vide paragraph 29 of the RRT judgment… I, II and III are the documents not accepted by the Second Respondent.
4. When these documents above were placed at the Tribunal hearing there was no translation of seals. They are now translated and clearly indicate the name and address in Sri Lanka. The translation was done by OnCall interpreters and translators.
5. The Second Respondent did not exercise due diligence in rejecting these documents as fraudulent.
6. The Second Respondent had a preconceived prejudice against documents from Sri Lanka as recorded for rejecting these documents and therefore he was biased in assessing them.
7. I am a Sinhalese, and did act to steer the boat from Sri Lanka to Geraldton as there were no other competent persons to do so. The skipper of this boat was not competent and there was danger to peoples life on the boat.
8. I attach documents IV and V to substantiate my claims stated above.
9. Under these circumstances stated I will be treated under the Immigration and Emigration Act of Sri Lanka as a person assisting in peoples' smuggling and be therefore be sentenced to a long term of imprisonment.
10. I did instruct the person who represented me to present this aspect of my involvement, but it appears that this had gone by default for no known reason.
Annexed to the Applicant’s Hearing Affidavit were five documents:
a)Document I - an affidavit affirmed in Sri Lanka by the applicant’s father on “13 March” but which does not specify a year;
b)Document II - an undated statement by a Sri Lankan attorney at law and notary public;
c)Document III - an undated statement by the Grama Sevaka (the Head Man) of the applicant’s village in Sri Lanka; and
d)Documents IV and V - two statements both dated “/05/2016”, each by a different passenger on the boat on which the applicant arrived in Australia, stating the applicant was the helmsman of that boat.
The Minister objected to the Applicant’s Hearing Affidavit and Documents I-V going into evidence, but for reasons which are set out hereunder it is unnecessary to rule on those objections, as even if the Applicant’s Hearing Affidavit and Documents I-V were admissible, they do not establish jurisdictional error in the Tribunal Decision.
Additional grounds
The Applicant’s Hearing Affidavit and Documents I-V may give rise to the following additional grounds:
a)at [3]-[6] of the Applicant’s Hearing Affidavit that the Tribunal was unreasonable and biased in determining that the statements by the applicant’s father, an attorney at law and the Grama Sevaka which appear at CB 172-174, which were similar to Documents I, II and III respectively, were fraudulent (“Ground 3”); and
b)at [7]-[10] of the Applicant’s Hearing Affidavit that the applicant’s representative failed to put before the Tribunal his claim that he was the helmsman of the boat on which he, and others, arrived in Geraldton from Sri Lanka (which was the subject matter of Documents IV and V), and that the applicant would therefore be treated more harshly under the I & E Act if returned to Sri Lanka (“Ground 4”).
The requirement for jurisdictional error
A decision by the Tribunal may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error may constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), as may unreasonableness: as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [48] per Griffiths, White and Bromwich JJ.
It is well accepted that this Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1
A failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which seeks to meet the criteria for the Protection Visa Application and its component integers, which are considerations mandatorily relevant under the Migration Act, and which if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct a review, and therefore amount to jurisdictional error: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [58]-[61] per Black CJ, French J and Selway J. In ApplicantWAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2004) 75 ALD 630 at [47] per French, Sackville and Hely JJ the Full Court of the Federal Court stated that:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
Another Full Court of the Federal Court in Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] per Kenny, Griffiths and Mortimer JJ said that:
[L]awful formation of that state of satisfaction [under s 65 of the Act] (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality …
and further at [62] per Kenny, Griffiths and Mortimer JJ that:
A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal.
The applicant made no express contention, either in writing or at the hearing before the Tribunal, that he would be associated with or imputed to be a supporter of the LTTE solely on the basis that he had rented a house to three Tamils. This was in circumstances where the applicant was represented by a migration agent in relation to his Protection Visa Application (which included his statutory declaration of protection claims): CB 1 and 35, and before the Tribunal (which included making written submissions on the applicant's behalf): CB158-171.
When prompted by the Tribunal at the hearing, the applicant consistently referred to weapons being found at the house: Tribunal Hearing Transcript at p9 line 15, p12 line 30, p13 line 55-p14 line10, p15 line 31 and p17 line 24. Further, the supporting documents provided by the applicant to the Tribunal referred only to the applicant being wanted by police in connection to rifles: CB 172-174. The evidence before the Tribunal therefore did not suggest that the applicant was at risk of harm solely for having rented a house to Tamils.
A claim that the applicant would be associated with, or imputed to be associated with, the LTTE solely on the basis that he had rented a house to three Tamils therefore did not arise either on the evidence or contentions before the Tribunal, and was not required to be expressly dealt with by the Tribunal.
The Tribunal did, however, record the applicant's evidence concerning the rental of the property to three Tamils: CB 188-193 at [13], [25], [32]-[34], [45] and [49], and clearly assessed the applicant’s claims, including his claim to be under suspicion of involvement with the LTTE, by reference to this aspect of the applicant’s evidence: CB 193-194 at [49]-[51].
This ground must also fail because, if the claim did arise squarely on the material, it is clear that the Tribunal made findings with reference to all the evidence before it (including evidence given at the Tribunal hearing), which dealt with the claim that the applicant would be associated with or imputed to be a supporter of the LTTE. Relevantly, the Tribunal:
a)did not accept that the applicant is of any interest to the police or CID or Sri Lankan authorities or an underworld thug for any reason: CB 193 at [45];
b)did not accept that the police had visited his house looking for him as it did not accept that they were interested in him for any reason: CB 193 [47];
c)did not accept that the applicant's brother had been assaulted or that the villagers in the applicant's home village had pelted stones at his family's house or abused his family for any reason: CB 194 at [52]; and
d)found that the applicant “is not of any interest to the Sri Lankan authorities, including the police for any reason whatsoever”: CB 194 at [54] (emphasis added).
The Tribunal found as follows: CB 194-195 at [55]-[56]:
The Tribunal finds that his return to Sri Lanka [sic] the applicant will not be or perceived to be a terrorist, a member or support of the LTTE or actively opposed to the current Sri Lankan [sic] or suspected of being involved in such activities because guns were found in his house or be of any interest because guns were found in his house, because he departed Sri Lanka illegally, because he has sought asylum in Australia or for any other reason.
Accordingly, considering the applicant's individual circumstances and his profile cumulatively, the Tribunal does not accept that the applicant will face a real chance of serious harm because of an actual or imputed political opinion as a terrorist or supporting the LTTE or opposing the current Sri Lankan government if he returns to Sri Lanka now or in the reasonably foreseeable future.
These findings were made in circumstances where the Tribunal considered in detail the applicant's evidence that he had rented a house to three Tamils: see CB 193-194 at [49]-[51], and [19] above, and gave comprehensive reasons dealing with all of the evidence and the claims the applicant actually made: see [4]-[5] above.
The Tribunal correctly recorded that the applicant's claim that police found guns in the house he rented to three Tamils was his “central principal reason for seeking protection”: CB 193 at [46], and gave thorough reasons for not accepting that claim. It is not, however, the case that the Tribunal “focused solely” on the “3 guns” aspect of the applicant's claim such that the Tribunal failed to consider the applicant's claim that he would be associated with or be imputed to be a supporter of the LTTE, such that it fell into jurisdictional error, particularly where the applicant did not expressly make the claim in ground 1 in any of his written materials or, indeed, at hearing.
The allegation in ground 1 that the Tribunal “failed to assess that claim by reference to his conduct in leasing the house to the 3 Tamils” is therefore without any proper basis. It follows that ground 1 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 2
The Tribunal found, on the basis of the inconsistencies and implausibility of the applicant's evidence, that it was unable to accept that the applicant was a credible witness, and found that the applicant had fabricated his claims that police found guns in his house: CB 194 at [53]. Those inconsistencies and implausibilities included the following:
a)inconsistencies in the applicant’s evidence regarding when the police searched his house and found the guns: CB 193 at [46];
b)the implausibility of the applicant failing to remember the time of the incident when the police searched his house and found the guns: CB 193 at [46];
c)the inconsistencies and evasiveness of the applicant’s evidence as to when the police visited his parents, looking for him: CB 193 at [47];
d)inconsistencies in the applicant’s evidence regarding who had told him about being contacted by the police: CB 193-194 at [49]-[50]; and
e)the applicant’s untruthfulness in relation to his reasons for departing Sri Lanka: CB 194 at [53],
and see also the matters referred to at [20] above.
On the basis of the evidence and materials considered by the Tribunal and referred to in the previous paragraph it was open to the Tribunal to form an adverse view of the applicant’s credibility, and to find that this aspect of the applicant's claim was fabricated: Minister for Immigration & Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J.
The Tribunal’s disbelief of the applicant's evidence arising from the inconsistencies and implausibility it identified was not “information” that the Tribunal was required to put to the applicant pursuant to s.424A of the Migration Act: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heyden and Grennan JJ, referring to VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471 at [24] per Finn and Stone JJ. Further, s.424A of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with (see s.422B of the Migration Act), and no breach of procedural fairness necessarily arises from the Tribunal not putting to the applicant that parts of his claims were fabricated. It was not necessary, and may have been inappropriate, for the Tribunal to put directly to the applicant that aspects of his claim were fabricated: SZBEL at [47]-[48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The applicant was on notice that his credibility was an issue for the Tribunal to determine. The Tribunal raised with the applicant at the hearing that he had taken an affirmation to tell the truth, and explained that if it became apparent that he had not done so it may affect the Tribunal's assessment of his credibility: Tribunal Hearing Transcript at p2 line 10. Further, the applicant was on notice from the Delegate’s Decision that his credibility was in issue, and that his central claims may not be accepted if found to be implausible: CB 97.
The Tribunal Decision indicates that the Tribunal gave the applicant ample opportunity to expand on his claims, and sought clarification regarding relevant aspects of the applicant's evidence: CB 193 at [45]-[51]. The Tribunal Hearing Transcript also indicates that the Tribunal questioned the applicant extensively in relation to the circumstances in which the police found the guns in the house, the disappearance of the Tamils from the house, why the police would, according to the applicant, seek to blame him for the weapons found in the house, and the leasing arrangements entered into (and how they were entered into) with the Tamils who were in the house in which the guns were found: Tribunal Hearing Transcript at pp9-16, 21-22 and 23. There can be no doubt upon a reading of the Tribunal Hearing Transcript that the applicant’s account of these events was being tested by the Tribunal. Thus, the applicant was asked a number of times why he would be held responsible for the guns left in the house by the Tamils: Tribunal Hearing Transcript at pp10 and 13, was asked why the police would be accusing the applicant of owning the weapons: Tribunal Hearing Transcript at p12; why it is that the applicant thought he would be arrested in relation to the disappearance of the Tamils: Tribunal Hearing Transcript at p13, and why he did not in a small village with a small police post tell the police who was in the house: Tribunal Hearing Transcript at p13; and if the whole village knew that the house had been rented out to Tamils working on the pipeline, why he would be held responsible for the guns found there when the Tamils were away at work: Tribunal Hearing Transcript at p14; why he would be worried if he did not have any weapons: Tribunal Hearing Transcript at p22; and the timing of the incident concerning the guns: Tribunal Hearing Transcript at p23.
In the above circumstances, no denial of procedural fairness arises, the Tribunal having questioned the applicant, and put to the applicant its concerns regarding the claims made with respect to the finding of guns in the applicant’s house. It follows that ground 2 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3, in asserting that the Tribunal did not exercise due diligence in rejecting documents as fraudulent and that it had a pre-conceived prejudice against the documents resulting in a bias in assessing them, can be considered to be asserting that there was jurisdictional error on the basis of unreasonableness and bias in the treatment of the applicant’s documents before the Tribunal.
What are now Documents I, II and III, were before the Tribunal in a different form at:
a)CB 173, being the applicant’s father’s 13 March affidavit, which in a different form is now Document I;
b)CB 172, being the undated statement by a Sri Lankan Attorney at Law, which in a different form is now Document II; and
c)CB 174, being the statement of the Grama Sevaka, which in a different form is now Document III.
In relation to the three documents before the Tribunal (at CB 172-174) the Tribunal expressed concerns during the hearing about those documents. The Tribunal Hearing Transcript at pp18-19 has the following exchanges:
TM: … You also provided some other documents, is that correct?
AS: Yes.
TM: I have some concerns about the documents you have provided. How did you obtain the documents?
AS: It was sent to me by my parents.
TM: Does your father speak English?
AS: No.
TM: Why is the document written in English then?
AS: There’s a lawyer he knows, he has wrote it.
TM: One from the lawyer I assume it’s from a lawyer because it’s signed off Attorney at Law doesn’t have any identifying features on it. I have to say in view of the country information on the availability of fraudulent documents and the obtaining of fraudulent documents I’m not quite sure how much weight to give these documents I’m concerned about. They’re all typed on the same – they’re all very similar and I would have expected a letter from a lawyer to at least be on letterhead and have the lawyer identified. And if you do know a lawyer, wouldn’t you have been able to seek the assistance of the lawyer in speaking to the police on your behalf?
AS: My father got to know the lawyer only recently, he didn’t know him before so (indistinct).
Tribunal Hearing Transcript at p18, line 44-p19, line 21.
At p24 of the Tribunal Hearing Transcript the Tribunal again expressed its “genuine concerns about the nature of the documents provided”.
The Tribunal deals with the three documents referred to above at CB 190 at [26]-[28] as follows:
26. An undated statement from Grama Sevaka was provided stating that the applicant is a suspect who will be arrested on sight for an alleged offence with the discovery of certain military rifles within his residence at … [village name deleted].
27. The statement from his father affirmed 13 March 2015 states his son fled to Australia as he was in fear for his life as the police were looking for him for an offence connected the finding of certain military rifles in his residence he had let out. In Sri Lanka due to the emergency situation created by the civil war, persons suspected of being connected with an armed revolt or violence directed against the state is subject to torture and extra judicial killings.
28. An undated statement from an Attorney at Law stating he knows the family and is aware the applicant had to leave the country as the police were looking for him following the discovery of TD56 rifles in his residence. This is a serious offence under the Prevention of Terrorism Act which enables any member of the armed forces and police to arrest, detain, person who is suspect. It has been alleged that persons arrested for these offences are not brought within the Courts and the worst human rights offences take place.
The Tribunal then deals with another document (to which the Court returns below: see [62]-[77] and [79] below), before stating the following at CB 190 at [29]-[31]:
29. ... The Tribunal indicated to the applicant that it had concerns over each of the documents presented and referred to country information indicating the ease in which fraudulent documents could be obtained. The applicant told the Tribunal that his father did not speak, read or write English and when asked why the document he provided was written in English was, the applicant responded that his father's friend was a lawyer and wrote it for him. The Tribunal indicated that the letter from the lawyer did not identify him, apart from a mention at the end that he was an Attorney at Law. All 3 letters provided were set out similarly and in the same type. The letter from the Grama Sevaka similarly identified him as Grama Sevaka but no name. All letters were written in English and there was no confirmation of the identity of each writer. The applicant indicated he could arrange the address block to be translated and they could be verified. However, as indicated at hearing, that would not overcome the concerns of the Tribunal as to the overall authenticity of the 3 letters provided by him. The applicant's response to the Tribunal's concerns was that his father obtained the documents for him.
30. It was submitted by the representative that as the applicant's father obtained the letters, no adverse credibility finding should be made against the applicant should the Tribunal find the documents provided as not credible.
31. The Tribunal has carefully considered the content of these various documents but they do not overcome the Tribunal's concerns about the applicant's credibility. While the applicant claims that he would not submit false documents, in view of the country information as to the ease of obtaining false documents in Sri Lanka and the concerns the Tribunal has over the applicant's credibility, the Tribunal gives the documents little evidentiary weight as independent evidence that he is wanted by the police in relation to finding firearms in his house.
The Court notes that at Annexure “B” to the Tribunal Decision at CB 204 the Tribunal cites country information, being DFAT country information reports on Sri Lanka from 2013 and 2015 which indicate that document fraud is prevalent in Sri Lanka, although the document fraud referred to is primarily that in relation to identity documents such as passports and drivers’ licences, and that document fraud is prevalent in large part due to the lack of computer data bases to store information.
It is against the above factual background that the issues of bias and unreasonableness need to be considered.
An allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”).
The questions in this case are whether:
a)the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, any proper assessment of the applicant’s credibility: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the assessment of the applicant’s credibility: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The Court observes that the generally careful and detailed manner in which the Tribunal has dealt with the applicant’s claims: see [4]-[5] above, weighs significantly against any suggestion of bias in the Tribunal Decision.
The Tribunal’s treatment of the three documents at CB 172-174 is not indicative of any bias on the part of the Tribunal. The Tribunal considered the documents, questioned the applicant about them, and had regard to country information, before reaching a finding, which having regard to the country information and the other concerns raised by the Tribunal at hearing, was open to the Tribunal. It is important to note that the Tribunal did not specifically find that these documents were fraudulent, but rather expressed concerns about their authenticity and held that it would attach little evidentiary weight to them as evidence that the applicant was wanted by the police in relation to the finding of guns in the house that he rented to the three Tamils: CB 190 at [31].
In the circumstances, the allegation of bias is not made out, and therefore no jurisdictional error is established in the Tribunal Decision on the basis of bias in respect of the treatment of documents by the Tribunal.
The relevant principles in relation to unreasonableness as explained by the High Court and the Full Court of the Federal Court were summarised by the Federal Court in Pandey at [41] per Wigney J as follows:
(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45 ]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court's view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The Court does not consider that there is any error in the Tribunal’s approach to its assessment of the three documents at CB 172-174, and its conclusion that they ought be afforded little evidentiary weight, essentially for the reasons set out at [42] above. Further, and for those reasons, it cannot be said that there is anything arbitrary, capricious, without common sense or plainly unjust about the manner in which the Tribunal has dealt with the three documents as tendered at the Tribunal Hearing, nor is there any apparent undisclosed error, let alone jurisdictional error, in the decision-making process in regard to those three documents. In the circumstances, there is no unreasonableness in the Tribunal Decision in relation to the manner in which the Tribunal dealt with those three documents.
For the above reasons no jurisdictional error is established in the Tribunal Decision by what the Court has considered to be ground 3.
The Court has observed above that Documents I, II and III sought to be tendered in these proceedings are different in form to the three documents at CB 172-174 which were before the Tribunal. In that regard it is relevant to observe that the Tribunal at CB 190 at [29] indicated that the address blocks could be translated and verified, but that the Tribunal indicated, as it did at the hearing in the Tribunal Hearing Transcript: Tribunal Hearing Transcript at p24, lines 41-42, that that might not overcome the concerns of the Tribunal as to the overall authenticity of the three documents at CB 172-174. Documents I, II and III contain the same substantive text as the three documents at CB 172-174. There are, however, subtle, but important differences between them. Firstly, the so-called address blocks, which are in Sinhalese script, have been moved. In the three documents at CB 172-174 they follow immediately following the signature of each of the father, the Attorney at Law and the Grama Sevaka in each of the documents. Seemingly in an attempt to answer the Tribunal’s criticism that the address blocks were not translated, in each of Documents I, II and III a translation of what is said to appear in the address block appears immediately following the signature of the deponent of each of the documents, then following that translation the address block in Sinhalese script appears. In short, the translation of the address block has been inserted between the address block and the signature. That can only have been achieved if the documents have been re-typed and re-signed. That they have been re-typed there can be no doubt as each of Documents I, II and II contains either typographical, line-ending or paragraphing which is different to the three documents at CB 172-174.
In Document I in the second line the words “and declares” appear, whereas in the document at CB 173 the “and” is capitalised as “And”. In paragraph 3 of Document I the paragraph runs into a fourth line, with the word “killings”, being the last word in the paragraph, appearing on the fourth line. At CB 173 paragraph 3 runs to only three lines with “killings” being the final word in line 3. Finally, the Court notes that the name of the applicant’s father has been added in Document 1 under the words “Singed (sic) by deponent”, but it does not appear in the document at CB 173.
In relation to Document II the text of the third, fourth and fifth paragraphs of the document is differently configured, in that various line-endings and beginnings are different. For example, in paragraph 3 the document at CB 172 ends line 1 with the word “police” and commences line 2 with the words “At Meetiyagoda”, whereas Document II ends line 1 with the words “as the” and commences line 2 with the words “police At Meetiyagoda”. Similar line-ending and beginning differences are evident in each line of paragraphs 4 and 5.
In relation to Document III it suffers from the same vice as Document II in that its line-endings and beginnings are different to the document similar to it which was tendered before the Tribunal at CB 174. Those differences are evident in paragraphs 2 and 3 of Document III when compared to the document at CB 174.
It is readily apparent that at some time after the Tribunal Hearing the applicant, or someone on his behalf, has arranged for Documents I, II and III to be typed, seemingly signed by the same persons in Sri Lanka, and for the English signature blocks of the signatories to the documents to be inserted before the Sinhalese version of the address block. In short, Documents I, II and III are completely new documents brought into existence after the Tribunal Hearing. In those circumstances, the Court ought not have regard to them, and, indeed, the Court is concerned that the manner and form of their production does no more than reinforce the Tribunal’s concerns with respect to the authenticity of the three documents provided to it at CB 172-174. It is not putting is too highly to say that Documents I, II and III appear to have been made to order. It would have been a simple enough task for the applicant to have had an accredited interpreter translate the Sinhalese address blocks on the documents at CB 172-174 and provide an affidavit as to the translation, but it would appear that this was not done, and there is certainly no evidence from an accredited translator before the Court indicating that that was done, or, indeed, indicating that the English translations now appearing in Documents I, II and III are, in fact, a translation of the Sinhalese address blocks in Documents I, II and III. The applicant does in the Applicant’s Hearing Affidavit advert to a translation having been done, but if it was done, there is no evidence of the translation, and, in particular, of any translation of the documents at CB 172-174 which were actually before the Tribunal. And, even if that were the case, it does not necessarily derogate from the Tribunal’s concerns with respect to the authenticity of the documents and its decision to afford them little weight as evidence in the Tribunal proceedings.
As indicated above, there is no jurisdictional error established by reason of what the Court has described as ground 3, and Documents I, II and III are, in that regard and in any event, not of any assistance to the Court, and not documents to which the Court considers it ought to have any regard.
Ground 4
Ground 4 appears to assert that the applicant was the helmsman of a boat upon which he travelled from Sri Lanka to Geraldton, and that although he instructed his migration agent to raise this matter with the Tribunal, the migration agent did not do so. That the migration agent did not do so does not appear to be in dispute.
The Court notes that during his evidence to the Tribunal the applicant had the opportunity to raise any claim or issue that he wished to put to the Tribunal. At Tribunal Hearing Transcript at p2, lines 51-53 the Tribunal asked the applicant whether there were “any other claims you wish to make or anything you wish to add?” to which the applicant responded “No”. At Tribunal Hearing Transcript at p19 at lines 23-26 the Tribunal asked the applicant “Is there anything else you’d like to tell me in relation to your claims of fear, to fear harm when you return to Sri Lanka?” to which the applicant responded “I shall definitely be in jail”. It is pertinent to observe that the applicant said nothing about being helmsman of the boat when at Tribunal Hearing Transcript at p24 at line 10 the Tribunal asked “Is there anything else you’d like to say to me?” to which the applicant responded at Tribunal Hearing Transcript at p24, lines 12 and 13 “I am the only southern province person who has come illegally in a boat. I wouldn’t have come if I had a problem (sic)”. The Tribunal went on to then ask whether there were any other submissions that the applicant would like to make, to which the registered migration agent made a response referring to the fact that workers in the applicant’s village were unorganised casual workers, as were the workers who were renting the house, and that otherwise the applicant relied on the written submissions (which appear at CB 158-173). At Tribunal Hearing Transcript at p24 at lines 44-48 the Tribunal asked the applicant “Is there anything else you’d like to say to me in support of your application?” to which the applicant responded that he would be “in big trouble if I returned to Sri Lanka because the old problem would haunt me and they will hurt me, they will put me under stress and they will even torture me”.
At Tribunal Hearing Transcript at p17, lines 46-55 and p18, lines 1-15 the following exchange occurs:
TM:How would they know you’re in Australia?
AS:They all know now.
TM:What do you mean they all know now?
AS:They have shown on TV, us on TV, that we have left the country illegally.
TM:What do you mean have shown you on TV that you’ve left the country illegally?
AS:On the internet they have shown some pictures taken in Geraldton when we arrived in Geraldton.
TM:And when did they do this?
AS:We have a foundation near our house, some organisation and people in the organisation have seen this this clips and they have told everyone.
TM:How many people from your village were on the boat
AS:From the whole of southern province I was the only one.
It suffices for the Court to observe that the applicant had ample opportunity before the Tribunal, either through his registered migration agent, or in particular on his own account, to raise the issue of his having steered the boat from Sri Lanka to Geraldton, and the danger that that fact, if known, might give rise to if the applicant was returned to Sri Lanka, but that he did not do so.
Even if it be the case that the applicant did as is suggested in the Applicant’s Hearing Affidavit, instruct his migration agent to deal with the issue of whether the applicant steered the boat from Sri Lanka to Geraldton because there were no other persons competent to do so, and the danger that this might give rise to if the applicant was returned to Sri Lanka, there is no evidence that the failure to raise this issue was as a result of the applicant’s migration agent engaging in a fraud upon the Tribunal, and no reason to infer that that was the case, and, therefore, because mere negligence, incompetence or inadvertence by a migration agent will not establish jurisdictional error, let alone jurisdictional error in the nature of fraud having the effect of stultifying the Tribunal’s decision-making process, this aspect of ground 4 cannot be made out: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 at [45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 at [33] per Tamberlin, Finn and Dowsett JJ.
Otherwise, it is apparent that this issue was not raised at the Tribunal hearing, and it cannot therefore be now raised before this Court upon an invitation by the applicant to the Court to ascertain the relevant facts as to whether or not he steered the boat from Sri Lanka to Geraldton. To undertake that task would be to engage in impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Nor can the Court have regard to Documents IV and V annexed to the Applicant’s Hearing Affidavit, as those documents were brought into existence after the Tribunal hearing, and deal only with factual matters which should properly have been put before the Tribunal, but which were not, and which cannot now, be put before this Court on judicial review: WZATL v Minister for Immigration & Anor [2016] FCCA 43 at [42] per Judge Lucev.
In the above circumstances, ground 4 does not establish any jurisdictional error in the Tribunal Decision.
A possible jurisdictional error?
In MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [100] per Mortimer J the Federal Court made certain observations as to the fairness of hearings involving unrepresented litigants, particularly where those litigants were “additionally disadvantaged by issues of language and unfamiliar culture”, and went on to observe that:
All the judge can do is to make the process as fair as possible and then, in my opinion, do her or his best to be astute and alert to the possibility of legal error in the tribunal’s decision when considering the material before her or him, and be prepared to raise any such possibilities with the Minister’s legal representatives.
That responsibility plainly does not cease at the end of the hearing in this Court. In that regard, in reading the Tribunal Hearing Transcript in detail for the purposes of preparing these Reasons for Judgment the Court has observed that there may be a possible jurisdictional error which neither party has alluded to, and which escaped the Court’s attention until the Reasons for Judgment were in preparation. The matter arises as follows.
Before the Delegate the applicant provided an original document that stated he was wanted for questioning by the Terrorist Investigation Unit (“TIU” and TIU Document” respectively). The applicant said that his parents received the TIU Document whilst the applicant was still in Sri Lanka, although he is not sure when. The Delegate observed that the TIU Document itself was not dated, and had inconsistencies in font and printing. The Delegate observed that the applicant’s claims that he was not aware that the TIU Document existed until December 2013 because his parents did not take the TIU Document seriously caused the Delegate to further speculate regarding the TIU Document’s authenticity, and the Delegate concluded that she did “not accept that prima facie the document provided by the applicant is genuine”: CB 97. Nothing further was said about the TIU Document in the Delegate’s Decision.
In the applicant’s written submissions: CB 158-173 for the Tribunal Hearing the applicant, through his migration agent, submitted to the Tribunal that:
a)the applicant relied on all previously submitted oral and written evidence in support of his claims for protection: CB 158;
b)the Delegate did not accept that the TIU Document provided by the applicant during the interview with the Delegate, and allegedly sent to the applicant by his parents in Sri Lanka, stating that he was wanted for questioning by the TIU, was genuine: CB 158;
c)the Tribunal was asked that the TIU document not impact negatively on an assessment of the applicant’s character should the Tribunal not accept it as genuine, and that the applicant maintained that he did not obtain the TIU Document fraudulently, rather that it was found at his parents’ house apparently delivered by the local police in his parents’ absence, and that the TIU were part of the Sri Lankan police force: CB 159; and
d)torture was endemic in Sri Lanka and being practised at every police station and detention centre including those kept under the “Terrorist Investigating Division” (a submission seemingly based upon a United Nations High Commissioner for Refugees document): CB 166, and footnote 14.
In a statement attached to the applicant’s written submissions the applicant said as follows in response to the Delegate’s non-acceptance of the TIU Document as genuine:
This document was sent to me from my parents in Sri Lanka while I was in Australia. According to my parents it was delivered to them by the local police asking me to be present at the local police station I presented it to the department because I have no way of knowing whether it is genuine or not or fabricated by the authorities to frighten or intimidate my parents. I would be happy for the department to check its genuineness.
CB 169.
At the Tribunal Hearing the following exchange occurred between the Tribunal and the applicant at Tribunal Hearing Transcript at p18, lines 31-42:
TM: You provided some documents, is that correct?
AS: Yes.
TM: One document you indicate is a document from the police.
AS: Yes.
TM: It’s not translated – it hasn’t been translated into English.
AS: I don’t know. I got it from my home.
The Tribunal returned to the issue of the genuineness of documents and the untranslated document at Tribunal Hearing Transcript at p24, lines 30-42 as follows:
TM: There’s no other further information. I do have concerns about the documents that he’s provided to me as to their genuineness.
RMA: (indistinct) documents have been obtained by him from his father and I’m sure (indistinct)
TM: It’s not in English.
RMA: If member give us some time to and we can actually get that done, translated … (indistinct)
TM: I’ll think about it. I don’t think that’s actually going to solve my genuine concerns about the nature of the documents provided as well.
The Court infers that the document referred to in the quote in the previous paragraph is the TIU Document because it is the only non-English untranslated document referred to by the Tribunal in the Tribunal Hearing Transcript. The Tribunal Hearing was adjourned with the Tribunal indicating that it would “consider everything you’ve told me today and the other evidence and come to a decision”: Tribunal Hearing Transcript at p24.
The MRD Hearing Record (at CB 175-178) contains all the usual details as to appearances and interpreters, and the commencement and finishing times of the Tribunal Hearing (in this case 10.00am and 12.20pm respectively), but contains no note with respect to any further issues to be considered, and nothing specifically in relation to the TIU Document.
There is no indication of any contact between the Tribunal and the applicant (or his registered migration agent) from the time of the end of the Tribunal Hearing to the time of delivery of the Tribunal Decision.
In the Tribunal Decision the Tribunal refers to the applicant providing an untranslated document which he claims stated he was wanted for questioning and which the Delegate had referred to as not being dated and having inconsistencies in the font, and which the applicant said had been received by his parents while he was still in Sri Lanka, but that he was unaware of its existence until December 2013 as his parents did not take the document seriously. The Tribunal observes that the Delegate did not accept that the document was genuine: CB 188 at [16]. Plainly enough those references to the document by the Delegate and the Tribunal are to the TIU Document.
The Tribunal dealt with the TIU Document a CB 190 at [29] where it said as follows:
As discussed with the applicant at hearing, the document claimed to be issued indicating that the applicant was wanted for questioning by the terrorist investigation unit was not translated. The Tribunal referred to the delegate also indicating concerns over the authenticity of the document.
The Tribunal went on the deal with the issue of the authenticity and weight to be given to documents provided by the applicant (seemingly including the TIU Document) in the remainder of the paragraph quoted immediately above and the two subsequent paragraphs, being CB 190 at [29]-[31], which are set out at [36] above.
There is nothing in the Tribunal Decision to indicate that any steps were taken by the Tribunal in relation to its consideration of the TIU Document between the Tribunal Hearing and the publication of the Tribunal Decision.
The Court notes that there is an untranslated document at CB 77. There is no means of identifying what that document is as it appears to be exclusively in Sinhalese script, save for the fact that it bears a date “2011.07.08”, or 8 July 2011 within the script, which is the same date upon which the applicant claims that the police searched the house that had been rented to the three Tamils: CB 188 at [13]. It is not evident from the untranslated document at CB 77 as to whether or not there are any inconsistencies in its font or printing (it being a photocopy), and although a date appears within the script it does not appear to be dated as such: see [70] above. It is therefore not possible to say whether the untranslated document at CB 77 is, or is not, the TIU Document.
The position appears, therefore, to be as follows:
a)the applicant provided to the Delegate an untranslated document, the TIU Document, which he claimed was from the TIU, a division of the Sri Lankan police force, which stated that he was wanted for questioning;
b)without obtaining a translation of the TIU Document the Delegate found that it was not genuine, seemingly on the basis of inconsistencies in font and printing;
c)the applicant relied upon the TIU Document for the purposes of the Tribunal Hearing: see [63(a)] above;
d)the Tribunal clearly understood the nature of the TIU Document, as it was asserted by the applicant, to be a document from the TIU, a division of the Sri Lankan police force, indicating that the applicant was wanted for questioning;
e)the applicant had not had the TIU Document translated prior to the Tribunal Hearing (surprisingly so, given its apparent importance) but at the Tribunal Hearing offered to have a translation prepared;
f)the Tribunal indicated that it would “think about it”, that is the offer to have the TIU Document translated, but qualified that by saying that it did not think a translation was “actually” going to resolve concerns that the Tribunal had about the nature of the TIU Document: Tribunal Hearing Transcript at p24 at lines 41-42, and the other documents provided (being those at CB 172-174);
g)there is nothing on the face of the record, being the Tribunal Decision, or in the materials before the Court, which indicates that the Tribunal did “think about” the offer to have the TIU Document translated, or that the Tribunal otherwise resolved not to have the TIU Document translated, pursuant to the offer made by the applicant’s migration agent or otherwise; and
h)although there is a difference between the task of an interpreter and a translator, as the written word is translated and the spoken word is interpreted: De La Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291; (2006) 197 FLR 125 at [7]-[12] per Roberts-Smith J, it would appear that no effort was made at the Tribunal Hearing to ask the interpreter whether the interpreter might be able to translate the TIU Document.
The TIU Document might, if translated, assist the applicant’s case. Alternatively, it might not. At this stage, it is impossible to make any finding in that regard because the TIU Document has not been translated. The applicant offered to have the TIU Document translated, and the Tribunal indicated that it would “think about it”, but did not, it appears, ever indicate to the applicant what position it had decided to adopt with respect to the offer to have the TIU Document translated, or if it did indeed actually think about the offer. In the Court’s view the Tribunal’s failure to do so was unreasonable in the sense that it was unjust to indicate to the applicant that the offer to translate would be thought about, and then to fail to indicate to the applicant (at least on the record as it stands before this Court) whether the Tribunal had thought about the offer to have the TIU Document translated, or alternatively, what view the Tribunal had come to with respect to whether or not it would receive a translation of the TIU Document. There might also be an arguable case that the making of a finding that the TIU Document ought to be afforded little weight (or was possibly not authentic) was unreasonable because it was arbitrary or unjust in circumstances where the Tribunal did not have the benefit of a translation of the TIU Document. The importance of the TIU Document cannot be understated: if accepted as genuine by the Tribunal it might have impacted upon the Tribunal’s assessment of the applicant’s credibility, and, therefore, its factual findings about the applicant’s claims, and whether or not he had a well-founded fear of persecution or a fear of significant harm if returned to Sri Lanka.
In all of the above circumstances, the Court considers that it would be appropriate to hear further from the parties with respect to the possible jurisdictional error (and it is put no higher than that) identified by the Court above because it was not a matter which was addressed at the hearing before this Court.
Conclusions and orders
The Court has concluded that no jurisdictional error is established by the grounds set out in the Amended Judicial Review Application or the additional grounds which might be said to arise from the Applicant’s Hearing Affidavit and Documents I-V.
The Court has, however, concluded that there is a possible jurisdictional error by reason of unreasonableness in relation to the treatment by the Tribunal of the TIU Document. Because that was not a matter which was addressed at hearing the Court will adjourn this matter to a further directions hearing on a date to be fixed upon written application by either party, but not before 1 February 2019.
The Court will also, pursuant to r.12.02 of the Federal Circuit Court Rules 2001 (Cth), request that a Registrar of the Court refer the applicant to a lawyer for pro bono legal assistance by issuing a Referral Certificate in accordance with the approved form. The legal assistance is to be limited to advice on, and any necessary preparation for and appearance at further hearings (including directions hearings), in relation to the possible jurisdictional error identified at [76] above.
In the circumstances, it is appropriate that the Court reserve costs, and there will be an order to that effect.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 11 December 2018