BXB15 v Minister for Immigration
[2017] FCCA 77
•19 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXB15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 77 |
| Catchwords: MIGRATION – Judicial review – protection visa – s.425 of the Migration Act 1958 – failure to consider – unreasonableness. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J(5), 36(2)(aa), 425 Immigrants and Emigrants Act (Sri Lanka) |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 Minister or Immigration and Border Protection v SZTQS [2015] FCA 1069 |
| Applicant: | BXB15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2133 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 12 December 2016 |
| Date of Last Submission: | 12 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 19 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Latif |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | The Australian Government Solicitor |
ORDERS
A writ in the nature of certiorari be issued to quash the decision of the Second Respondent made on 21 March 2014.
A writ in the nature of mandamus be issued directing the Second Respondent to reconsider and determine the matter according to law.
That the First Respondent pay the applicant’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2133 of 2015
| BXB15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant relies on his amended application for judicial review dated 7 November 2016.
The applicant is 26 years old. He is a citizen of Sri Lanka and is a Tamil.
The amended application sets out two grounds. Both grounds relate to the application of the Immigrants and Emigrants Act. Ground One is a complaint that the Tribunal breached section 425 of the Migration Act1958 (Cth) (“Migration Act”). The second ground complains that the Tribunal’s decision failed to consider a relevant consideration was legally unreasonable. Essentially the applicant argues that however the error is characterised it is clear that the Tribunal made a jurisdictional error. As the complaints relate to the same material it is convenient to deal with them together.
Significantly the delegate makes no reference to the Immigrants and Emigrants Act in his decision. It is a surprising omission as it is routinely referred to in decisions of delegates and the Tribunal when considering claims by Sri Lankan citizens to have departed Sri Lanka illegally. As a consequence the applicant was not on notice of the application of the Immigrants and Emigrants Act and its relevance to the issue of the treatment of illegal returnees. This is relevant to the consideration of whether or not the applicant had a claim for protection based on s.36(2)(aa) of the Migration Act which addresses whether or not the applicant would face a real risk of suffering significant harm if he returned to Sri Lanka.
The applicant prepared a statutory declaration which appears at pages 79 to 88 of the Court Book (“CB”). The applicant had a migration agent at the time the Department was assessing his claim. It is apparent from the CB that he did not have the assistance of a migration agent for the proceedings before the Tribunal. This is relevant because there were no written submissions prepared on his behalf before the delegate nor were there written submissions prepared before the Tribunal. Commonly as the submissions referred to country information including with respect to the application of the Immigrants and Emigrants Act and the treatment of returnees who departed Sri Lanka illegally.
The Tribunal was not satisfied that the applicant would be imputed with a pro Liberation Tigers of Tamil Eelam (“LTTE”) political opinion. That finding is not challenged.
The applicant’s complaint focuses on the applicant’s capacity to pay any fine imposed by the court because of the applicant breaching the Immigrants and Emigrants Act. The Tribunal found at [56] that the applicant was likely to face fine of between LKR 5,000 and 50,000. The Tribunal referred to the applicant’s evidence that he had worked in Sri Lanka in the past. The Tribunal went on to say “there is no suggestion that he would not have the economic means to pay such a fine.”
The applicant’s counsel, Ms Latif pointed to the applicant’s entry interview at CB 36 to 50. The applicant refers to achieving qualification as a backhoe and excavator operator. The applicant said in his statutory declaration that he worked as a contractor. He worked on his father’s farm for several years. His father is a farmer and his mother is a homemaker. His parents are separated. The applicant said that his mother paid for his travel to Australia by assigning her land to the people smuggler. Ms Latif refers to CB 122 which sets out the applicant’s work history. There are only two periods where he was in paid employment.
The essence of the applicant’s argument is whether or not the Tribunal’s treatment of the issues characterises a breach of s.425, legally or as a failure to consider, or as legally unreasonable, the result is that the Tribunal failed to comply with its statutory obligations and amounts to a jurisdictional error.
The applicant acknowledges that the Tribunal is not obliged to provide the applicant with the text of the country information. Rather the complaint is that the Tribunal conflated the contents of country information with its obligations under s.425.
The applicant draws attention to [35] and [36] of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The applicant also referred to the comments of Griffiths J in Minister or Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”) at [52] where he said:
SZTQS submitted that identifying the issue in the present case as whether he faced harm by reason of his illegal departure from Sri Lanka was akin to identifying the issue in SZBEL as whether SZBEL was in fear of harm because the Iranian authorities had come to know of his interest in Christianity. I accept that, consistently with SZBEL, it is necessary to identify the issue in the present case with greater particularity. In doing so, it should be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision (SZBEL at [47]). The matters identified as issues in SZBEL were matters that had led the Tribunal to reject SZBEL’s claim (see at [20]).
The most significant part of the transcript is at page 48 where the Tribunal member discusses the country information. As extracted here:
I'm nearly finished my questions and country information. I've just got a little bit of country information I want to discuss with you about your departure illegally from Sri Lanka by boat. So when I look at the country information about that, DFAT in particular, they report that departing Sri Lanka illegally by boat is likely to be viewed as a breach of Sri Lanka's departure laws, and such persons are questioned by police at the airport and charged under the Immigrants and Emigrants Act.
They're photographed and fingerprinted and then taken to Negombo Magistrates Court at the first available opportunity. And they may be held in police custody for up to 24 hours. And that should a magistrate not be available in this time, for example, if it falls on a weekend or a public holiday, they're held at Negombo prison until a magistrate is available.
DFAT has been informed by Sri Lanka's Attorney-General's Department that no person who was only a passenger on a people smuggling boat has been jailed for departing Sri Lanka illegally, and that in most cases they have been granted bail immediately, and later fined somewhere between 5,000 and 50,000 Sri Lankan Rupiahs.
DFAT also reports that the departure laws are applied to all Sri Lankans regardless of ethnicity or religion. And this leads me to consider that those laws are what's called laws of general application for the purposes of both the refugee provisions - for the refugee provisions, and if so, would not constitute persecution. In considering whether you are likely to suffer significant harm on the basis of breaching those departure laws, the information before me suggests that it's likely you would be detained for a brief period. That may be less than a day, or at most several days.
And although the information before me indicates that prison conditions in Sri Lanka are poor, it doesn't indicate that there's a real risk that a person, including a person who is a Tamil and a failed asylum seeker, would suffer significant harm in prison if they were only held for a few days or a couple of weeks. Any comments you want to make about that information in respect to you departing Sri Lanka illegally?
The applicant says that the Tribunal failed to put the issues arising out of country information and the consideration of the applicant’s particular circumstances with sufficient particularity to enable the applicant to meaningfully respond. This is because the Tribunal merely summarised the country information “in a rolled-up way”. There is considerable force in this submission. The applicant did not put the country information in issue by written submissions and the delegate did not raise it with the applicant. The transcript shows the Tribunal member gave the applicant a lot of information in summary form.
The applicant’s answer as shown in the transcript is not responsive and talks about conditions in the community upon return. He talks about the grease men. The Tribunal member does not seek to confirm that the applicant understood he was being asked to comment about the country information which had been recited to him. That country information had several elements to it, none of which were put separately to the applicant.
The applicant argues that he was deprived of the opportunity to argue that he would not be able to pay the fine. The issue then is what the consequence would be if the applicant is unable to pay the fine. Could he pay in instalments? Would his bail be revoked? If so, how long might he be in prison for?
This is relevant to the refugee claims and complementary protection the Tribunal merely found at [63] of its decision where it said the “Tribunal is satisfied the applicant will have the economic means to pay such a fine if it is imposed upon him as discussed”. The applicant argues that this finding is not supported by the evidence in the applicant’s initial interview record.
The applicant argues that this amounts to a failure by the Tribunal to consider a claim that arises from the Tribunal’s approach to the material. It is not an express or implied claim but does not need to be. In support of this submission the applicant points to [38] of MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 where Young J said:
In my view, it is a natural consequence of the inquisitorial process, to paraphrase Merkel J, that the Tribunal must consider the case that arises from the evidence before it, regardless of how that case is specifically put by the applicant. While the authorities make it clear that the Tribunal is not required to make the applicant’s case, it is bound to consider a case on a basis not articulated by the applicant if it is raised by the evidentiary material that is before the Tribunal or by the Tribunal’s findings based on that evidence. It is a not an obligation that can be discharged simply by reference to the terms in which the applicant articulates his claim.
Jagot J endorsed these comments at [24] of SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144. The applicant argues that whilst he did not make the claim expressly it clearly arises from the material. The applicant was not reasonably in a position to raise that claim expressly when he had no notice of the provisions of the Immigrants and Emigrants Act. Finally the applicant drew attention to SZGUR v Minister for Immigration and Citizenship (2011) 241 CLR 594 at [84] and Minister for Immigration and Border Protection and Another v SZSRS (2014) 309 ALR 67 at [54] where the Full Court said:
[T]he Tribunal can failed to exercise its jurisdiction or failed to consider a claim in a number of different ways, including by ignoring evidence that is important to a claim, or ignoring evidence that, having regard to the course of its decision making, acquires importance to the exercise of its jurisdiction.
That is the essence of the complaints here. If the Tribunal had referred to the applicant’s work history and then assessed the applicant’s capacity to pay a fine he could have no complaint.
The respondent emphasises the fact that the Tribunal made two separate findings: one with respect to the likelihood that the applicant would be granted bail on his own recognisance and another that if convicted the applicant would face a fine. This is clear from the Court Book.
Quite properly the respondent accepted the proposition that the Tribunal is required to consider not just express claims, but claims that squarely arise from the material before it.
The respondent argues that there are threshold issues. The respondent draws attention to s.5J(5) of the Migration Act,[1] which defines well-founded fear of persecution. The respondent argues that the applicant has not pointed to anything in the country information or the CB or in his evidence that the consequences for the applicant if he was unable to pay the fine would amount to a well-founded fear of persecution referred to in s.5 of the Migration Act. What is missing before the Tribunal is what the consequence would be for the applicant if he were not pay the fine. As it stands this is all a matter of speculation.
[1] The Tribunal incorrectly referred to s.91R(1) which was repealed and replaced with s.5 by the time of its decision. Nothing turns on this as the text is the same.
The difficulty with the respondent’s submissions is that it does not address the aspect of the complaint being the breach of s.425 In my view, the procedural fairness complaint and the failure to consider complaint are intertwined in the circumstances of this case.
The first respondent also referred to [34] and [79] of SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175:
[34] In this context, relevant to ground 3, the Tribunal said, at [61]-[62]:
I do accept however that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the Immigration and Emigration Act are, regardless of ethnicity, arrested at the airport and brought before a court to apply for bail. This will plainly apply to the [appellant] as he left Sri Lanka without his passport. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. The evidence indicates that if the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo for a few days until a bail hearing is available. Conditions in remand have been described as dirty, cramped and uncomfortable, although there have been no reports that individuals awaiting bail hearings have been intentionally ill-treated. According to a local lawyer, when the cases come to court they might be fined between Rs. 50,000 and Rs. 100,000. However in the absence of these cases being finalised under the new tightened procedures there is insufficient evidence that the penalty will be applied in a discriminatory way towards the [appellant] for any of the Convention reasons.
Having considered the currently available information I am not satisfied that the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, can reasonably be seen as constituting ‘serious harm’ to the [appellant], and systematic and discriminatory conduct. It follows that, on the basis of the current available evidence, I am not satisfied there is a real chance that the applicant would suffer Convention-related persecution for his illegal departure if he were to return to Sri Lanka.(Citations omitted.)
[79] However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.
The respondent draws attention to SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256, Bromberg J discussed the nature of the Tribunal’s statutory function at [16] and [17] that whether or not the applicant made a claim is to be objectively determined that the Tribunal cannot enlarge its statutory task by identifying and dealing with claims that were not made. The respondent also drew attention to [24] in support of his submission that that there was nothing before the Tribunal which could be seen raising this claim.
I accept the comments of Bromberg J as being correct but I do not accept the respondent’s submissions that the claim about the applicant’s ability to pay the fine does not arise on the material. There is some limited information about the applicant’s financial circumstances in the material that was before the Tribunal. The Tribunal member did not explore the issue about the payment of a fine and the other issues with respect to illegal returnees with the applicant in a meaningful way. It is the combination of this together with the Tribunal member’s reference at [56] of the Tribunal decisions to “there is no suggestion that he would not have the economic means to pay such a fine” which creates an impression that the Tribunal did not deal with the material in the Court Book about the applicant’s financial circumstances.
In SZTQS Griffiths J said at [52] “I accept that, consistently with SZBEL, it is necessary to identify the issue in the present case with greater particularity.” The concern I have in this case is that the Tribunal did not do this.
There would be greater strength in the respondent’s submissions on this point is if the transcript showed that the Tribunal member broke down the country information and asked for a response on the different aspects of it rather than summarising it in one block. That information contained a lot of different elements.
The respondent argues that the applicant is really seeking that the court to engage in a merit review coming up with a different conclusion to the Tribunal with respect to the evidence about the applicant’s work history and the conclusion that the Tribunal reached that he would have capacity to pay the fine.
The respondent draws attention to SZMDS v Minister for Immigration and Citizenship & Anor (2009) 174 FCR 415 and the comments of Crennan and Bell JJ at [133] where they said:
[T]he correct approach is to ask whether it was open to the Tribunal to engage in a process of reasoning in which it did engage and to make the findings it did make on the material before it.
In reply the applicant pointed out that the fine is an alternative to imprisonment. The respondent’s submissions that what would happen upon non-payment of the fine is an invitation to speculate is unfair in circumstances where the applicant did not have the benefits of the enquiry and the review that the Migration Act entitles him to have. I accept the applicant’s submissions on this point.
I am satisfied that the Tribunal committed a jurisdictional error by breaching s.425 of the Migration Act. The combination of the fact that the delegate did not address the Immigrants and Emigrants Act and the Tribunal’s failure to put the issues arising out of the Immigrants and Emigrants Act with sufficient particularity amounts to a failure to give the applicant a meaningful opportunity to respond and present arguments. As a result the Tribunal failed to carry out its statutory task.
Turning to the issue of failing to consider the applicant’s claim, it is not clear from the Tribunal’s reasons that it did consider the evidence in the applicant’s application with respect to his work limiting and financial circumstances. It may or may not have made a difference.
The issue of capacity to pay a fine does arise on the material. If the Tribunal had not breached s.425 that issue could have been squarely addressed during the hearing. This is not a case where the applicant did not provide any material relevant to the issue of his capacity to pay a fine.
There was little attention paid to the illogicality argument. I do not need to discuss it further as I have already found that the Tribunal did make a jurisdictional error.
Counsel agreed that a costs order should be made in accordance with the Federal Circuit Court scale of costs. As the applicant has been successful I will order that the first respondent pay the applicant’s costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 19 January 2017
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