BVG15 v Minister for Immigration
[2019] FCCA 290
•15 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVG15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 290 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – Sri Lankan Tamil – whether failure to make a relevant finding – whether failure to consider integer of applicant’s claim – whether error in making assumptions as to grant of bail on return to Sri Lanka – whether jurisdictional error. |
| Legislation: Immigrants & Emigrants Act 1948 (Sri Lanka), s.45 Migration Act 1958 (Cth), ss.36, 91L, 91R, 425, 476 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Chen v Minister for Immigration & Multicultural Affairs [2000] FCA 1901; (2001) 106 FCR 157 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 |
| Applicant: | BVG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 410 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 20 April 2016 |
| Date of Last Submission: | 20 April 2016 |
| Delivered at: | Perth |
| Delivered on: | 15 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Hodges |
| Solicitors for the Applicant: | Stephen Hodges Solicitor |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That a writ of certiorari issue quashing the decision of the second respondent made on 11 August 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 17 April 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 410 of 2015
| BVG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant. On 4 April 2016 the applicant, by leave granted by the Court on 1 April 2016, filed an amended Judicial Review Application (“Amended Judicial Review Application”).
The Tribunal Decision is in the Court Book (“CB”) at 338-368.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a citizen of Sri Lanka who arrived at Christmas Island as an unlawful maritime arrival on 11 May 2010: CB 88;
b)on 8 August 2010, the applicant lodged a request for a Refugee Status Assessment (“RSA”): CB 1-86;
c)on 20 December 2010 the applicant was found in the RSA determination to be a refugee as defined by the Refugee Convention: CB 87-97;
d)the bar under s.91L of the Migration Act was lifted on 11 January 2012: CB 226;
e)on 30 January 2012 the applicant lodged a Protection Visa application, albeit without the required fee, but the Protection Visa application was subsequently deemed valid with effect from 13 March 2012 (although this was not recorded by the Department of Immigration and Border Protection (“Department”) until 4 November 2013): CB 226;
f)on 24 October 2012 a Protection Obligation Evaluation (“POE”) which took into account information obtained from a third party, which was confirmed to be true by the applicant, determined that the applicant was not owed protection obligations: CB 112-113;
g)the third party information was to the effect that the applicant's initial statement provided to the Department was false and that he had in fact been living in India for a number of years prior to boarding a boat bound for Australia: CB 119-120;
h)the negative POE was automatically referred for an Independent Protection Assessment: CB 114-130, and on 26 November 2012 the Independent Protection Assessment Office (“IPAO”) found that the applicant was not owed protection obligations (“IPOA Decision”): CB 132-152;
i)on 19 June 2013 the applicant sought judicial review of the IPAO Decision in this Court, but withdrew that application on 5 November 2013: CB 226;
j)on 26 March 2014 the Delegate refused the applicant's Protection Visa application made on 30 January 2012, and the applicant sought review of the Delegate’s Decision by the then Refugee Review Tribunal: CB 269-274;
k)the applicant appeared before the Tribunal on 25 May 2015 to give evidence and present arguments (“Tribunal Hearing”): CB 339 at [3]; and
l)on 11 August 2015 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.
Tribunal Decision
The Tribunal:
a)found that the applicant is a citizen of Sri Lanka of Tamil ethnicity who does not have the right to enter and reside in any other country: CB 339 at [7]-[8] and 345-346 at [32];
b)accepted that the applicant was a Tamil from the Northern Province of Sri Lanka and that he resided, until 1996, in an area controlled by the Liberation Tigers of Tamil Eelam (“LTTE”): CB 345-346 at [32];
c)found that the applicant does not face a real chance of suffering serious harm solely by reason of his Tamil ethnicity: CB 348 at [49];
d)did not consider that the applicant would be imputed to be an LTTE supporter on the basis that he and his father previously drove for the LTTE, finding that the driving that he and his father previously did was not done on a full time basis and was limited to that required by other drivers: CB 351 at [67];
e)did not accept that the applicant's maternal uncle was a member of the LTTE: CB 352 at [68];
f)did not accept that the applicant will face a real chance of serious harm upon return to Sri Lanka as a result of an actual or imputed political opinion as supporting the LTTE or opposing the current Sri Lankan government: CB 353 at [76];
g)did not accept that the applicant would face a real chance of serious harm upon return to Sri Lanka as a result of being a failed asylum seeker: CB 354-355 at [85];
h)accepted that the applicant left Sri Lanka in 1996 in a manner contrary to the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”) and that, upon his return to Sri Lanka, he would likely be charged with breach of the departure laws under s.45(1)(b) of the I & E Act, and held on remand pending a bail hearing, and be brought before a Magistrate for a bail hearing within a few days of his return and granted bail, based on personal recognisance, with the requirement for a family member to stand as guarantor: CB 355 at [88];
i)was satisfied that:
i)the applicant had family members in Sri Lanka including, but not limited to, the applicant's paternal uncles who could stand as guarantor: CB 355 at [88]; and
ii)no payment of money would be required for bail: CB 355 at [88];
j)found on the basis of country information that the applicant was likely to be fined an amount of Rs 50,000, and was satisfied that he would be able to pay that amount: CB 356 at [92];
k)found that the anticipated loss of liberty while being held on remand would arise from the operation of a law of general application and would not amount to persecution for the purposes of s.91R(1)(c) of the Migration Act: CB 365 at [92];
l)considered the applicant's claims collectively and concluded that he was not a person to whom Australia has protection obligations under the Refugees Convention and that he did not satisfy the requirements of s.36(2)(a) of the Migration Act: CB 357 at [94]-[96]; and
m)considered the complementary protection criteria in relation to the applicant's claims individually and collectively and found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm: CB 359-360 at [114].
Amended Judicial Review Application
The Amended Judicial Review Application contains the following grounds:
a)the Tribunal failed to make a relevant finding (“Ground 1”);
b)the Tribunal failed to consider an integer of the applicant’s claim (“Ground 2”); and
c)the Tribunal fell into jurisdictional error in making assumptions as to the granting of bail to the applicant on the applicant’s return to Sri Lanka (“Ground 3”).
By way of particulars for each ground the applicant refers to the applicant’s outline of submissions filed on the same day as the Amended Judicial Review Application.
Consideration
Requirement for jurisdictional error
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if 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 thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to the Tribunal 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 (“Yusuf”) 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, so too a lack of intelligible justification in findings made by the Tribunal: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“ Li”) at [105] per Gageler J.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine claims 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.
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; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
Grounds 1 and 2
It is convenient to deal with Grounds 1 and 2 together.
Ground 1
Applicant’s Submissions
With respect to Ground 1 the applicant submitted as follows:
a)the basis for the understandable attack by the Tribunal on the applicant's credibility is that the applicant was living in India with his family at times when he claimed that he was in Sri Lanka. The Tribunal Decision says no more than that the applicant was in India from 1996. The Tribunal did note that the family was allowed to leave the refugee camp to live and work. The Tribunal neither noted nor made a finding as to whether the applicant was a "registered refugee" in India. The significance and relevance of this issue is that:
i)the applicant submits that the evidence indicates that the applicant was successful in his application for refugee status in India; and
ii)the Tribunal was required to consider and determine the legal nature and circumstances of the applicant's entitlement to live and work in India. The applicant's status as a successful asylum seeker in India, although admittedly not clearly enunciated by the applicant, becomes a central aspect of his claim for protection in Australia. On return to Sri Lanka, not only would the applicant be a failed asylum seeker but he would also return as a successful asylum seeker returning from India, albeit via Australia; and
b)failure to consider a central issue amounts to jurisdictional error: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) and Yusuf.
Minister’s Submissions
With respect to Ground 1 the Minister submitted as follows:
a)the Minister accepts that a failure by the Tribunal to consider a central issue will amount to jurisdictional error, but submits that no such error has occurred in the present case. The applicant's status as a registered refugee in India was not a central issue because it did not form part of the applicant's claim for asylum;
b)the Tribunal was satisfied, based on the evidence, that the applicant did not have a right to enter and reside in any other country: CB 339 at [8]. That finding was made for the purposes of s.36(3) of the Migration Act. The only other reason that the Tribunal would be required to make a finding in relation to the applicant's refugee status in India is if his status in India was to form part of his claims for asylum;
c)the applicant has had numerous opportunities over a period of five years to present his claims for protection. The Tribunal considered and summarised the claims made by the applicant in:
i)his statutory declaration dated 8 August 2010 submitted as part of his request for RSA (which he also said in his Protection Visa application are the reasons for his claim);
ii)his interview with an officer of the Department on 25 September 2012;
iii)his interview with the IPAO, conducted jointly with his brother on 22 November 2012;
iv)his Protection Visa interview on 3 December 2013;
v)his statutory declaration dated 20 May 2015 provided to the Tribunal;
vi)the Tribunal Hearing, at which he was assisted by a solicitor and registered migration agent (“solicitor/migration agent”): CB 328; and
vii)a post-Tribunal Hearing submission, prepared by the applicant's solicitor/migration agent;
d)there is no suggestion, express or implied, anywhere in the applicant's various claims that he fears to return to Sri Lanka as a result of having been a refugee in India. This includes the statement of the “essential and significant” reasons why the applicant fears persecution set out in the post-Tribunal Hearing submission prepared by his solicitor/migration agent: CB 313; and
e)in circumstances where the applicant has not claimed to fear returning to Sri Lanka on the basis that he has been a refugee in India, and this issue does not otherwise arise on the evidence (see submissions in relation to Ground 2), the Tribunal's failure to make any finding as to whether the applicant was a “registered refugee” in India, or his entitlement to live and work in India, does not amount to failure to consider a central issue and does not amount to jurisdictional error.
Ground 2
Applicant’s Submissions
With respect to Ground 2 the applicant submitted as follows:
a)the Tribunal failed to consider that the applicant would, if returned to Sri Lanka, be both a failed asylum seeker in Australia and a successful asylum seeker in India. While the Tribunal did consider the issue of a failed asylum seeker returning to Sri Lanka, there was no assessment of the consequences of the return to Sri Lanka of the applicant who had successfully obtained registered refugee status in India, been released into the community from the refugee camp, and lived there for about 14 years;
b)the Tribunal was required to deal with the case raised by the material before it: Chen v Minister for Immigration & Multicultural Affairs [2000] FCA 1901; (2001) 106 FCR 157. The case raised by the material before the Tribunal included that the applicant was a registered refugee in India, so that if he was returned to Sri Lanka, that would be a component of his claim and his fears. Such fears were referred to in the evidence before the Tribunal, see for example, CB 341-342 at [17]-[20] and 348 at [52]; and
c)the Tribunal was required to consider the group definition of “returned successful refugee applicants from India”, even if that claim had not been expressly advanced by the applicant: Minister for Immigration & Multicultural Affairs v Sarrazola (No.2) [2001] FCA 263; (2001) 107 FCR 184
Minister’s Submissions
With respect to Ground 2 the Minister submitted as follows:
a)the applicant contends that the Tribunal was required to consider whether the applicant was entitled to a Protection Visa on the basis that he would return to Sri Lanka as a returned successful refugee from India. The Minister makes no submissions as to whether the applicant was a “registered refugee” in India;
b)as discussed above and as conceded by the applicant in his submissions, claims related to his status as a successful refugee in India were not clearly articulated by the applicant;
c)in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No.2)”), the Full Court of the Federal Court reviewed relevant authorities, including the two cases cited by the applicant, and concluded that the Tribunal “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it”: NABE (No.2) at [61], and see also at [63], per Black CJ, French and Selway JJ. The Full Court of the Federal Court also said in NABE (No.2) at [68] per Black CJ, French and Selway JJ that:
A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
d)therefore in the present case the question is whether the claim by the applicant for protection, on the basis that he is a successful asylum seeker in India, arises clearly from the materials before the Tribunal;
e)the Minister submits that the claim for protection on the basis of the applicant being a successful asylum seeker in India does not arise. The applicant did not articulate his claim in such a way that suggested that his status in India formed part of his claim or his reasons for fearing a return to Sri Lanka. This is despite numerous opportunities to do so and despite the assistance that he received from his solicitor/migration agent. That the applicant had professional assistance is a consideration that this Court should take into account: SZSHK v Minister for Immigration & Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 (“SZSHK”) at [37] per Robertson, Griffiths and Perry JJ, where the Full Court of the Federal Court discussed relevant considerations in determining whether the Tribunal could be said to have erred by failing to consider material, put on only in support of a claim for protection pursuant to the Refugee Convention, in addressing claims to complementary protection. Although the issue in the present case is different, the assistance of a solicitor/migration agent in articulating the applicant’s claims is still relevant;
f)in the post-Tribunal Hearing submission prepared by the solicitor/migration agent: CB 313-328, the applicant's claims were put on the basis of being a failed asylum seeker. The submissions did not make any reference to claims based on the applicant's refugee status while in India;
g)the Tribunal found that the applicant had lived in India since 1996 before coming to Australia in 2010. The Tribunal found that the applicant did not have a right to enter and live in India. However, nothing in the material before the Tribunal suggested that the applicant had any fears of returning to Sri Lanka as a result of having lived in India or as a result of either being a registered refugee in India or otherwise spending time in a refugee camp in India;
h)there was no country information considered and referred to by the Tribunal, or contained in the applicant's post-Tribunal Hearing, submissions which suggested that Sri Lankans who have lived in India as refugees, or otherwise, are likely to face harm upon their return to Sri Lanka;
i)no mention is made in the country information provided by the solicitor/migration agent of any difficulties with Sri Lankan refugees in India being returned to Sri Lanka; and
j)where there is:
i)no express or implied suggestion by the applicant that his refugee status in India forms part of his fear of returning to Sri Lanka; and
ii)no other evidence, such as country information, to suggest that Sri Lankans who have spent time in India or who are found to be “registered refugees” in India may be at risk of harm or persecution for that reason upon their return to Sri Lanka,
it cannot be said that the issue arises clearly on the material before the Tribunal.
Consideration – Grounds 1 and 2
In relation to what was claimed by the applicant it is relevant to note the following from the Tribunal Decision:
a)in response to adverse information received by the Department (that adverse information being that the applicant’s claims to have departed to Australia directly from Sri Lanka were false), the applicant told the Department (at CB 341-342 at [17]) that:
i)he had not left from Sri Lanka for Australia, but had left for Australia from Kerala in India;
ii)other passengers told him not to say that he was from India, but to say that he had departed from Sri Lanka;
iii)he had been living in India since 1996 and had not lived in Sri Lanka since that time or returned to Sri Lanka;
iv)the claims made to the Department in his statement of claims at his RSA interview were untrue; and
v)he had “ … lived in India for 14 years as a refugee. He did not have any rights”;
b)at the Protection Visa interview with the Delegate on 3 December 2013 the applicant:
i)confirmed he had fled Sri Lanka with his family in 1996 and lived in India until he departed for Australia by boat in 2010; and
ii)said that “initially they lived in a refugee camp but moved to a house nearby”: CB 342 at [20];
c)the Delegate found that the UNHCR were planning on returning Tamils from India to Sri Lanka, and that that the Delegate did not believe that the applicant would have any problems: CB 342-343 at [20];
d)the applicant had repeatedly provided false information to Australian government agencies and the Tribunal had serious concerns about the reliability of his evidence: CB 344-345 at [28], and said that it found “important aspects of his claims are not credible” and that the Tribunal rejected those claims as unreliable, exaggerated or fabricated for the purposes of strengthening his protection claims: CB 345 at [29];
e)the Tribunal accepted that the applicant lived in India, as it accepted that prior to his departure for India he worked as a driver (as had his father): CB 345-346 at [32];
f)in relation to his political opinion and LTTE connection claims, the Tribunal records the applicant as asserting at the Tribunal Hearing that “the first question he will be asked on his return [to Sri Lanka] is why he went to India and why has he returned after all this time and why did he not go into a Sri Lankan Army (“SLA”) controlled area”: CB 348 at [52];
g)the Tribunal records the applicant as having told the Tribunal that at least he and his father “… have lived in India since 1996 so people will ask why they did not go to a SLA controlled area and went to India and did not return. Those people who questioned him will associate him with the LTTE and that is his main fear”: CB 350 at [58], and insofar as the Minister’s submissions asserted that the applicant did not suggest that he feared harm as a result of having been a refugee in India: see, for example, [14(e) and (g)] above, that submission is plainly wrong;
h)the Tribunal noted that in the Delegate’s Decision it referred to the applicant and his father fleeing to India because the applicant’s father was pressured to work for the LTTE: CB 350-351 at [63];
i)prior to the Tribunal Hearing the applicant’s evidence had been that his father was forced to drive for the LTTE and other groups and that is why they had fled to India from Sri Lanka, but at the Tribunal Hearing the applicant claimed for the first time that he and his father were supporters of the LTTE and that is why they drove for them: CB 351 at [67];
j)in relation to his being a failed asylum seeker the Tribunal accepted that the applicant departed Sri Lanka other than at a port of lawful departure and without a Sri Lankan passport by boat for India in September 1996, and that he lived in India before departing for Australia in May 2010: CB 353 at [78];
k)in the context of the applicant being a “failed” asylum seeker the Tribunal made a number of findings, including:
i)that a Department of Foreign Affairs and Trade (“DFAT”) 2012 country information report on Sri Lanka indicated that an NGO involved in facilitating the voluntary return of former asylum seekers and refugees, told DFAT that they had not witnessed or received any allegations of mistreatment: CB 353-354 at [81];
ii)that the weight of the credible evidence does not support a finding that failed asylum seekers are “for those reasons alone” imputed with an LTTE profile, and that there was “nothing in the applicant’s background … even in conjunction with his status as a failed Tamil asylum seeker who departed illegally and sought asylum overseas” which would lead the Sri Lanka authorities to impute to him an LTTE profile: CB 354 at [82] and [84]; and
iii)that it was satisfied on the basis of independent country information that failed Tamil asylum seekers returning involuntarily after illegal departure “whose circumstances are similar to that of this applicant” are treated in the same way as any other group: CB 356 at [91], and went on to observe that the applicant did not have a well-founded fear of persecution based on his Tamil ethnicity, LTTE associations, or “because of returning as a failed asylum seeker, or for his illegal departure, or any combination thereof or for any other ground claimed”: CB 357 at [94]; and
l)the Tribunal did not, when considering complementary protection criterion, deal with the applicant other than on the basis that he was a failed Tamil asylum seeker returning to Sri Lanka: CB 357-360 at [97]-[114].
Where the Tribunal fails to consider a component integer of an applicant’s claim to meet the criteria of a Protection Visa, that failure will constitute a jurisdictional error: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) 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 (“Htun”) at [42] per Allsop J; MZYTS at [62] per Kenny, Griffiths and Mortimer JJ. There must also be evidence that the Tribunal has engaged in an active intellectual process such that the applicant must not be left to guess what role a particular issue played, if any, in facts found in the Tribunal Decision: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [47]-[54] per Lindgren, Rares and Foster JJ.
In the Court’s view the Tribunal has failed to deal with that element of the applicant’s claim which asserts that he was a refugee in India (whether a registered refugee or not is not material for this purpose) in circumstances where that was a claim that was:
a)articulated, albeit not clearly, it was nevertheless articulated, as noted by the Tribunal itself, at CB 348 at [52] and 350 at [58] where the applicant plainly asserts that on return to Sri Lanka he will be asked why he went to India instead of to an SLA controlled area, and that that question will be asked by persons who will associate that conduct with the applicant having been involved with the LTTE, and “that is his main fear”: CB 350 at [58]; and
b)that claim must be viewed in the context of the applicant having lived (again it does not matter whether he was a registered refugee or not for this purpose) for a period of 14 years, that being a lengthy period of time to have lived in India, and a period of time which might conceivably result, and as a matter of common sense almost inevitably result, in his being asked the question that he fears upon his return to Sri Lanka.
In the Court’s view this aspect of the applicant’s claim for protection was not addressed, in circumstances where it needed to be specifically addressed by the Tribunal: Dranichnikov at [24]-[25] per Gummow and Callinan JJ; Htun at [42] per Allsop J MZYTS at [62] per Kenny, Griffiths and Mortimer JJ. It follows that there was therefore a jurisdictional error in the Tribunal Decision by reason of its failure to consider this integer of the applicant’s claim to meet the criteria for the grant of a Protection Visa.
The Court is cognisant of the fact that the Tribunal Decision ought not be overzealously examined for error: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, and that the Tribunal made findings of some generality which, on one view, might be seen as encompassing the applicant’s claims with respect to the fear arising from his time in India: see CB 356 at [91] and 357 at [94] cited at [15(k)(iii)] above. Furthermore, the Court is cognisant of the fact that the applicant’s submissions to the Tribunal were prepared by a solicitor/migration agent and that is a matter which might be taken into account in determining this issue: SZSHK at [37] per Robertson, Griffiths and Perry JJ. The difficulty with that argument, in the context of this matter, is that although the claim was not made by the applicant’s solicitor/migration agent in submissions to the Tribunal, it was made by the applicant directly during the course of the Tribunal Hearing, and noted as such by the Tribunal: see CB 348 at [52] and 350 at [58] noted at [17(a)] above. In those circumstances there was an articulated claim arising on the face of the record which the Tribunal noted, and was obliged to deal with: NABE (No 2) at [5], [61], [63] and [68] per Black CJ, French and Selway JJ.
The fact that the Tribunal made adverse credibility findings against the applicant on other matters, and that the applicant had made other false claims, did not obviate the necessity for the Tribunal to consider the applicant’s fear of returning to Sri Lanka, expressly stated to and noted by the Tribunal, because of the time the applicant had spent in India.
The Tribunal did not intellectually engage with the claim that the applicant feared harm on his return to Sri Lanka as a consequence of having lived for 14 years in India as a “refugee”: Lafu at [47]-[54] per Lindgren, Rares and Foster JJ. Lafu applies in particular to the “any other ground finding”, at CB 357 at [94] because the Tribunal simply did not make a finding as to the applicant’s claims as to his time or status in India, and the fear alleged to arise therefrom on his return to Sri Lanka, and in particular failed to examine how the applicant might be treated as a person returning to Sri Lanka having been a refugee in India, if the applicant had been a refugee in India, about which there should have been a finding. The Tribunal dealt only, in this context, with that part of the applicant’s claim to fear harm as a failed asylum seeker in Australia, and not otherwise.
In all of the above circumstances, the Court is satisfied that there is a jurisdictional error in the Tribunal Decision because the Tribunal has failed to consider an integer of the applicant’s claim for a Protection Visa, namely that the applicant feared harm by reason of his returning to Sri Lanka, having spent an extended period of time in India, prior to coming to Australia. The Court is also of the view that had the Tribunal intellectually engaged with the integer of the claim which it failed to consider, then it would have made a finding with respect to the applicant’s status, and in particular whether the applicant was a refugee, in India. Those were relevant issues in relation to the applicant’s claim, which plainly arose on the materials before the Tribunal, and were matters in respect of which the Tribunal ought, ultimately, to have made findings. Jurisdictional error in the Tribunal Decision therefore arose because of those failures. In all of those circumstances, Grounds 1 and 2 of the Amended Judicial Review Application are made out.
Ground 3
Applicant’s Submissions
With respect to Ground 3 the applicant submitted that the Tribunal’s finding that the applicant’s paternal uncles, or another member of the family, in Sri Lanka would stand as guarantor, requires the following assumptions:
a)that paternal uncles fall within the definition of family members for the purposes of the Sri Lankan legislation in question;
b)that the said paternal uncles would be prepared to act as guarantor for the applicant, and
c)the said paternal uncles would be able to meet the requirements for providing a guarantee.
It is accepted that the applicant was sufficiently alerted to the factual issues leading to the assumptions referred to at [23(b) and (c)] above. It is, however, submitted that the Tribunal fell into error in making the assumption referred to at [23(a)] above. The assumption amounts to jurisdictional error: SZTQS v Minister for Immigration & Border Protection [2015] FCCA 978 (“SZTQS-FCCA”).
Minister’s Submissions
With respect to Ground 3 the Minister submitted as follows:
a)the applicant claims that the Tribunal erred by assuming that the applicant's paternal uncles fell within the relevant legislative definition of family members and were thus able to provide a guarantee to support any bail order made by a Magistrate in relation to breach of the I & E Act;
b)this claim is similar to, but distinguishable from, the claim made by the applicant in SZTQS-FCCA which was upheld on appeal: Minister for Immigration & Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507 (“SZTQS-Federal Court”). In SZTQS-FCCA, the Court at first instance, found that the Tribunal failed to comply with s.425 of the Migration Act by failing to put to the applicant the issue of whether a family member was required to pay surety to enable the applicant to be bailed. The Tribunal had then proceeded to conclude that the applicant would be bailed and would not suffer serious harm;
c)the applicant accepts in his submissions that the Tribunal sufficiently alerted the applicant to the factual issues relating to the preparedness of the applicant's paternal uncles to act as guarantor for the applicant and the ability of the paternal uncles to meet the requirements for providing a guarantee. The applicant submits, however, that the Tribunal fell into jurisdictional error by failing to ask the applicant whether his paternal uncles fell within the definition of family members for the purposes of the relevant Sri Lankan legislation, but this is an artificial distinction;
d)the applicant accepts that the Tribunal had sufficiently alerted the applicant to factual issues relating to whether the applicant's paternal uncles:
i)were willing to act as guarantors; and
ii)met the requirements for providing a guarantee; and
e)the issue as to whether the applicant's paternal uncle was a family member for the purpose of the relevant Sri Lankan legislation can only be a requirement for providing a guarantee and is therefore subsumed by [25(d)(ii)] above.
Consideration – Ground 3
When considering the issue of the grant of bail for breach of the departure laws under s.45(1)(b) of the I & E Act the Tribunal, seemingly on the basis of country information, determined that there would be a bail hearing, and that the applicant may be held for a few days prior to the bail hearing on remand: CB 355 at [88]. The Tribunal then went on to find that at the bail hearing the applicant would:
a)be “ … granted bail, based on personal recognizance, with the requirement for a family member to stand as guarantor but with no payment required”: CB 355 at [88]; and
b)that the Tribunal was “ … satisfied on the evidence provided that the applicant has a family member in Sri Lanka, including but limited to his paternal uncles with whom the family remains in contact, to stand as a guarantor”: CB 355 at [88].
The evidence required to sustain the finding at [26(b)] above requires that there be evidence:
a)that the applicant has family members in Sri Lanka; and
b)that one, at least, of those family members is prepared to stand as a guarantor for the applicant’s bail in relation to his breach of the departure laws under the I & E Act.
There is no doubt that there was evidence, from the applicant directly, that he had family members in Sri Lanka, including a paternal uncle and other uncles: CB 342-343 at [20]. The Tribunal accepted that evidence: CB 345-346 at [32].
The Tribunal dealt with the issue of assistance by the applicant’s family upon his return at CB 346 at [40], where it found that he still had paternal family in Sri Lanka, with a paternal uncle still residing in the applicant’s home area with whom the applicant’s family are in regular contact, and that the Tribunal “is not satisfied on the evidence that … [the applicant] does not have family ties or family support networks in Sri Lanka to assist him on his return”: CB 346 at [40].
There is nothing in the Tribunal Decision, nor in particular in Annexure “A” dealing with the relevant law or Annexure “B” dealing with relevant country information, which provides a basis or source for the statement that a family member is required to stand as guarantor, or that a paternal uncle is a family member eligible to stand as guarantor. No country information to that effect is cited in the Tribunal Decision, and no relevant law providing who may stand as guarantor, and if a family member may stand as guarantor, what constitutes a “family member” for the purposes of the relevant Sri Lankan legislation, is cited. Thus, while it is reasonable to assume on the evidence that a paternal uncle with whom the applicant and the applicant’s family have remained in contact might be prepared to stand as a guarantor, there is no legal or evidentiary basis for the conclusions reached that a paternal uncle is a family member capable of standing as guarantor for the purposes of the relevant Sri Lankan law, and is therefore a person who met the requirements for providing a guarantee, and the Minister’s submission to the contrary (see [25(d)(ii) above) is misconceived. A conclusion reached for which there is no evident legal (in the sense of relevant Sri Lankan law cited) or evidentiary (in the sense of any relevant country information cited as to the legal practice in Sri Lanka) means that the Tribunal Decision, in this respect, lacks an evident and reasonable justification, and thus constitutes jurisdictional error: Li at [105] per Gageler J; Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [61(d)] per Wigney J. For that reason, Ground 3 of the Amended Judicial Review Application is made out.
Conclusion and orders
The Court has concluded that Grounds 1, 2 and 3 of the Amended Judicial Review Application have been made out, and establish jurisdictional error in the Tribunal Decision. It follows from the establishment of jurisdictional error in the Tribunal Decision that the applicant is entitled to prerogative relief. There will therefore be orders that a writ of certiorari issue quashing the Tribunal Decision, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant to the Tribunal on 17 April 2014 according to law.
The Court will also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 February 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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