BYV16 v Minister for Immigration
[2020] FCCA 1030
•6 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BYV16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1030 |
| Catchwords: MIGRATION – Protection Visa – decision of the Administrative Appeals Tribunal – whether the Applicant was afforded procedural fairness – whether the Tribunal acted unreasonably – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 422B, 423A, 424, 424A, 425, 476, 499 |
| Cases cited: BIX15 v Minister for Immigration & Border Protection [2017] FCA 1116 BXK15 v Minister for Immigration & Border Protection [2018] FCAFC 76 Minister for Immigration & Border Protection v WZARH [2015] HCA 40 Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 MZUYM v Minister for Immigration & Citizenship [2013] FCA 51 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 154; (2005) 88 ALD 257 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZHSV v Minister for Immigration & Border Protection [2014] FCA 253 SZKJV v Minister for Immigration & Citizenship [2011] FCA 80; (2011) 120 ALD 52 SZKOK v Minister for Immigration [2010] FMCA 90 SZQUY v Minister for Immigration & Citizenship [2012] FCA 856 SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 |
| Applicant: | BYV16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1597 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 17 May 2018 |
| Date of Last Submission: | 17 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 6 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the First Respondent: | Ms N Campbell |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s amended application for judicial review filed on 26 April 2018 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1597 of 2016
| BYV16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 28 June 2016 (Tribunal’s Decision).
The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Border Protection (Delegate) to refuse to grant the Applicant a Protection (Class XA) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The Applicant presses two grounds of review in his application which the Court will consider in detail below.
Background
The Applicant is a Sri Lankan citizen who arrived in Australia on 25 July 2012 as an unauthorised maritime arrival[1]. After being advised that the First Respondent (Minister) had lifted the bar to enable the Applicant to apply for the Visa, the Applicant lodged his application for the Visa on 30 October 2012[2]. He was assisted by a lawyer. The Applicant provided a number of supporting documents with his Visa application. The Applicant’s claims for protection (as raised in his Visa application) can be summarised as follows[3]:
a)The Applicant’s father was concerned for the Applicant’s safety as there had been a number of abductions of boys the same age as the Applicant; and
b)The Applicant left Sri Lanka illegally and the Sri Lankan authorities will harm him and put him in jail because he did so.
[1] Court Book (CB) 3 and 12.
[2] CB 15-47.
[3] CB 46-47.
On 6 November 2012, the Applicant attended an interview with the Delegate[4].
[4] CB 113.
On 23 August 2013, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate noted that the Applicant had claimed to fear harm for reason of being of Tamil ethnicity, having an imputed political opinion due to his ethnicity, as a young Tamil male and as a failed asylum seeker who departed the country illegally[5].
[5] CB 111-125.
The Applicant sought review of the Delegate’s Decision at the then Refugee Review Tribunal (now the Tribunal) on 30 August 2013[6].
[6] CB 126-131.
On 25 March 2014, the Applicant’s lawyer forwarded extensive written submissions to the Tribunal in support of the Applicant’s application. Those submissions contained a number of country information extracts[7].
[7] CB 141-189.
On 18 August 2014, the Applicant became represented by a new lawyer. The new representative forwarded submissions to the Tribunal which included a new claim that his family had been involved with the Liberation Tigers of Tamil Eelam (LTTE), that the Applicant had himself been questioned by the authorities about connections to the LTTE and that he had distributed leaflets and pasted posters which supported the LTTE[8]. The Applicant explained in the submission that he did not reveal this claim earlier for reason that he was ill-advised, had a lack of knowledge, was scared he would be refused the Visa because of his involvement with the LTTE and was stressed and fearing for his life in the future.
[8] CB 205-219.
The Applicant attended a hearing before the Tribunal on 21 August 2014[9]. The Applicant’s representative provided a post-hearing written submission to the Tribunal on 5 September 2014[10]. In those submissions, the Applicant’s representative submitted that the Applicant was confused at the hearing and had misunderstood some of the Tribunal’s questions and the context in which they were asked.
[9] CB 220-222.
[10] CB 223-225.
On 28 June 2016, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Visa[11].
[11] CB 230-243.
Tribunal’s Decision
The Tribunal’s Decision appears at pages 230 to 243 of the Court Book. The Minister’s written submissions, dated 10 May 2018 (at [8]-[10]) accurately summarise the Tribunal’s Decision. The Court adopts that summary, with some alterations, as its own as follows.
The Tribunal summarised the Applicant’s claims as made in his entry interview, in his Visa application and before the Delegate[12]. The Tribunal then summarised the new claims raised by the Applicant in the submissions received by the Tribunal on 18 August 2014[13]. The Tribunal recorded the Applicant’s explanation for the new claims being raised late[14].
[12] CB 232 at [15].
[13] CB 232-233 at [16].
[14] CB 233 at [17].
The Tribunal accepted that the Applicant’s uncle may have had some involvement with the LTTE. However, given the Applicant did not claim that he or his family were ever accused of being involved with the LTTE because of the Applicant’s uncle, it did not accept that the Applicant had been, or would be, imputed with an LTTE association as a result[15].
[15] CB 233 at [18]-[19].
The Tribunal also accepted that the authorities may have questioned the Applicant’s father after a 2007 gunfight (and several times thereafter), and the Applicant may have accompanied him to the police station and been questioned himself in 2008. However, the Tribunal did not accept that either the Applicant or his father was suspected of any involvement with the LTTE as a result of this questioning given they were released, they had not been questioned prior to this incident and they were not detained at the end of the conflict[16].
[16] CB 234-235 at [20]-[28].
The Tribunal detailed the Applicant’s evidence about activities he undertook in support of the LTTE including putting up posters and painting a wall[17]. The Tribunal:
a)Did not accept that the Applicant put up posters of Prabhakaran on the walls of hospitals and public places in 2010 and 2011 and concluded that his explanation that he “found” the posters was implausible[18].
b)Accepted that the Applicant may have met a person named M who was a LTTE supporter, but did not accept that the Applicant was persuaded by M to write the slogan “Prabhakaran is alive, Tamil Eelam will rise” at his school or that other students recognised his handwriting[19].
c)Did not accept that the Applicant would not have told his lawyers about his activities when he set out his protection claims, if he had in fact written such a slogan[20].
d)Noted that even if the Applicant was persuaded to write the slogan, it did not accept that he will be imputed with an LTTE association now or harmed as a result, as the Applicant was young at the time and he wrote the slogan three years after the end of the conflict (well after the LTTE had been defeated). The Tribunal accepted that the Applicant may have been questioned if the authorities had become aware that he wrote such a slogan but did not accept that he had a profile which will cause him to be harmed on the basis of an imputed suspected LTTE association[21].
[17] CB 235-236 at [29]-[36].
[18] CB 237 at [37]-[38].
[19] CB 236-237 at [40]-[41].
[20] CB 237 at [42].
[21] CB 237 at [43].
The Tribunal did not accept that the Army and the Police had visited the Applicant’s family’s home since he had left for Australia to enquire about the slogan writing. The Tribunal did, however, accept that the visit may have occurred in relation to the Applicant’s illegal departure from Sri Lanka[22]. The Tribunal also accepted that the authorities in Sri Lanka may monitor the population in the north and the east for links to the LTTE, however as the Tribunal did not accept that the Applicant has any links or is suspected of having any links to the LTTE, the Tribunal did not accept that this posed a risk for the Applicant or that he faced a real chance of serious harm or a real risk of significant harm if returned to Sri Lanka because of an actual or imputed LTTE association[23].
[22] CB 237 at [45]-[46].
[23] CB 238 at [47]-[48].
Having had regard to its previous findings and relevant country information, the Tribunal found that there was not a real chance that the Applicant will suffer serious harm now or in the reasonably foreseeable future or a real risk that he will suffer significant harm if returned to Sri Lanka because of his Tamil ethnicity or his membership of a particular social group of young Tamil men from the north east[24].
[24] CB 238 at [49]-[51].
The Tribunal summarised the country information relevant to the Applicant’s claim to face harm as an illegal departee and a returning asylum seeker[25].
[25] CB 238-242 at [52]-[56], [59]-[62] and [67]-[68].
Having had regard to its previous findings (that the Applicant did not have any actual or imputed links to the LTTE) and the relevant country information, the Tribunal did not accept that there was a real chance that the Applicant will suffer serious harm now or in the reasonably foreseeable future, or a real risk that he will suffer significant harm if returned to Sri Lanka because of his status as a failed asylum seeker or as a result of his illegal departure from Sri Lanka[26].
[26] CB 238-243 at [57], [63]-[64] and [69]-[73].
The Tribunal concluded that it was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations pursuant to s.36(2)(a) or (aa) of the Act[27].
[27] CB 243 at [74]-[79].
Judicial Review Application
The Applicant filed an amended judicial review application on 26 April 2018 (Amended Application). The Amended Application contained two grounds of review as follows:
1. The Tribunal fell into jurisdictional error in that it denied the Applicant procedural fairness.
Particulars
(a) The Tribunal based its decision in part on its assessment of the claims evidence and arguments of the applicant presented at his hearing on 21 August 2014, and this assessment included an assessment of the credibility of the Applicant and his claims, but it was not until 28 June 2016, nearly two years after the hearing, that the Tribunal made its decision.
(b) The Tribunal based its decision in part on its assessment of some evidence which did not exist at the time of the Tribunal’s hearing, and which raised issues about which the Tribunal did not invite the Applicant to give evidence or present arguments in breach of section 425 of the Migration Act 1958.
2. The Tribunal fell into jurisdictional error in that it acted unreasonably.
Particulars
(a) The Applicant repeats and relies on the particulars set out under Ground 1 of this Application.
The Applicant filed written submissions, dated 26 April 2018 (Applicant’s Submissions). The Minister filed written submissions dated 10 May 2018 (Minister’s Submissions).
At the hearing of this matter, Counsel for the Applicant tendered a copy of a report from the Immigration and Refugee Board of Canada titled “Sri Lanka: Treatment of suspected members or supporters of the Liberation Tigers of Tamil Eelam (LTTE), including information about how many are in detention; whether the government continues to screen Tamils in an attempt to identify LTTE suspects” dated 11 February 2015. This document was marked as Exhibit A1.
In addition to the materials in the Court Book, the Applicant’s Submissions, the Minister’s Submissions and Exhibit A1, the Court has also reviewed in detail the transcript of the hearing that took place in this Court. Both Mr Krohn of Counsel for the Applicant and Ms Campbell of Counsel for the Minister provided oral submissions, which the Court has considered closely.
Consideration
Ground 1 Particular (a)
By Ground 1 Particular (a) of the Amended Application, the Applicant pleads that the delay between the hearing before the Tribunal and the Tribunal’s Decision was a denial of procedural fairness.
Specifically, the Applicant submitted that as the Applicant’s credit was central to the Tribunal’s Decision, the Applicant suffered grave unfairness because the decision was not made until nearly two years after the hearing and the Tribunal did not offer any further opportunity to the Applicant for a further hearing, nor did the Tribunal record any manner in which it had sought to overcome the difficulty in assessing the credit of evidence given nearly two years earlier.
The Minister accepted that the Tribunal made a number of credibility findings. However, it was submitted that none of these were findings that related to or were based upon the demeanour of the Applicant, which is a critical distinction. Therefore, no denial of procedural fairness (as exhaustively defined in s.422B of the Act) has occurred.
Whether a delay in making a decision amounts to a denial of procedural fairness depends upon the circumstances of the particular case: SZQUY v Minister for Immigration & Citizenship [2012] FCA 856, at [35].
The leading case on a delay in administrative decisions (and upon which the Applicant relied) is NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 154; (2005) 88 ALD 257 (NAIS).
In NAIS, the applicants in that matter attended two hearings. The first hearing took place in May 1998. The second hearing took place in December 2001. A decision was made in January of 2003. There was approximately 4 and half years (approximately 56 months) between the first hearing and the decision and approximately one year between the second hearing and the decision being made.
The Tribunal in NAIS had depended and relied upon the assessment of the applicants’ demeanour, sincerity and reliability during the course of these hearings. The High Court held that the substantial delay had deprived the Tribunal of the capacity to assess the oral evidence[28].
[28] NAIS at [9], [102], [172].
In NAIS, it was stated:
5. Undue delay in decision-making, whether by courts or administrative bodies, is always to be deplored. However, that comfortable generalisation does little to advance the task of legal analysis when it becomes necessary to examine the consequences of delay. The circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare. Of course, statutes of limitation impose a legislative direction that certain delays will bar proceedings; and analogous consequences may flow from the application of equitable principles. There is, however, nothing in the Act that prescribes a time limit for decisions of the Tribunal, and this Court has no power to determine some such limit. A court may have power to relieve against oppressive conduct of a complainant, or a prosecutor, and delay may be a factor in the oppression. In such circumstances, the ground for relief is the oppression, not the delay. A court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself. Where delay gives rise to a ground of supervisory or appellate intervention, the remedy must be tailored to the circumstances and justice of the case. In adversarial litigation, for example, neither party may be at fault, and it may be unnecessary and unjust to visit the successful party with all the consequences that flow from having to start again. Remedies available where delay has caused problems may be discretionary. (In the present case, counsel for the first respondent disclaimed any reliance upon a discretionary argument.) In some cases, mandamus may be an available remedy for dilatory behaviour, and failure to seek mandamus could constitute a discretionary reason to deny later relief.
…
9. Because the Tribunal’s reasons ignored the question of the time that had elapsed between the taking of evidence and the final assessment of that evidence, it can never be known how that assessment was in fact affected by the delay. What must be kept in mind is that the question concerns the fairness of the procedure that was followed. It was an inquisitorial procedure that, in the circumstances of this case, depended to a significant extent upon the Tribunal’s assessment of the sincerity and reliability of the appellants. That is one of the reasons why they were entitled to, and were given, a “hearing”. An important purpose of the hearing was to enable the Tribunal to do just what it ultimately did, that is, make a judgment about whether the appellants were worthy of belief. Appropriately, effort was directed to a search for independent verification of the claims they were making, and objective justification of the fears they were expressing. Yet ultimately the procedure directed attention to the Tribunal’s assessment of them as witnesses in their own cause. A procedure that depends significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make such an assessment is impaired.
10. In a case of failure to give a hearing when a hearing is required, the person complaining of denial of procedural fairness does not have to demonstrate that, if heard, he or she would have been believed. The loss of an opportunity is what makes the case of unfairness. The appellants in this case do not have to demonstrate that the Tribunal’s assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal’s capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal’s capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.
In SZKJV v Minister for Immigration & Citizenship [2011] FCA 80; (2011) 120 ALD 52, after summarising key statements from the High Court in NAIS, Reeves J stated[29]:
In summary, I consider the critical principles arising from these various decisions of the majority in NAIS are these: where adverse credibility findings, based solely or significantly on demeanour, are combined with a lengthy or significant delay in delivering the decision containing those findings, in the absence of some reasonable explanation for that delay, it can be inferred that the procedures followed were unfair, in the breach of natural justice sense, thereby giving rise to jurisdictional error.
[29] SZKJV v Minister for Immigration & Citizenship [2011] FCA 80; (2011) 120 ALD 52, at [33].
Here, the delay between the hearing and the decision was 22 months. Clearly, the delay in this matter was not as substantive as the delay in NAIS. This is a relevant factor to consider when determining whether the delay has affected the Tribunal’s Decision.
The Minister referred the Court to two cases which indicted that while the delays in those cases (of 17 months and 22 months) were unacceptable, they fell well short of the time period in NAIS : MZUYM v Minister for Immigration & Citizenship [2013] FCA 51 (MZUYM); BIX15 v Minister for Immigration & Border Protection [2017] FCA 1116 (BIX15).In both of those matters, the Court found that the delay had not occasioned any procedural unfairness. Nonetheless, in both of these circumstances it was recognised that the delay was “lengthy” or “inordinate”[30]. It follows that the delay in this case is also considered “lengthy” and not insignificant.
[30] MZUYM at [43]; BIX15 at [68].
The Tribunal does not provide any explanation for the delay in reaching its decision. There is no reference in the Tribunal’s decision to a delay. There is also no reference to the Tribunal having listened to the audio recording of the hearing. The Court does not accept that it should be cautious in finding that a party has been denied fairness by reason of delay, when there are various means that may be utilised by a decision-maker to refresh their memory. The Tribunal has not identified that it has utilised any of those means and the delay appears to have been of no fault of the Applicant. In NAIS at [3], the danger of not explaining the delay was highlighted. It would not be uncommon for the Tribunal to make a comment noting that it had taken a particular step to refresh itself. Therefore, the Court does not consider the fact that the Tribunal could have accessed memory aids (such as a recording) are significant. Further, while the Tribunal does appear to quote the Applicant (and this may suggest it had reviewed a tape of some sort), it nevertheless remains that there is no explanation.
Hence, in circumstances where the delay is lengthy and the Tribunal provides no explanation, the critical question is whether the Tribunal’s findings were based solely and significantly on demeanour. If that is the case, it can be inferred that the procedures followed were unfair.
Counsel for the Applicant took the Court to paragraphs [37], [38], [40], [41], [42], [43], [45], [46], [47], [57], [64] and [66] of the Tribunal’s Decision. The Applicant submitted that the findings in each of these paragraphs were made on the basis of the Tribunal’s assessment of the Applicant’s credit. Counsel for the Applicant submitted that the rejection of the Applicant’s credibility had to have been based upon the assessment made of the credit of the Applicant at the hearing. The Minister’s submission was that none of these findings were made with regard to the demeanour of the Applicant at the hearing.
The Applicant takes particular issue with what is said at [37]-[43]. The rejection of the evidence and claims in this portion of the Tribunal’s decision (relating to LTTE connections) forms the basis of the other findings of the Tribunal (i.e., the other findings are based on the fact that the Tribunal found that the Applicant would not have an imputed LTTE association). At [37]-[43], the Tribunal states:
37. The Tribunal does not accept that the applicant put up posters of Prabhakaran on the walls of hospitals and public places in 2010 or 2011. The Tribunal finds his explanation that he found the posters on the road and then decided to put them up to be implausible. The Tribunal has had regard to the representative’s submission that the applicant was confused about this and that he got most of the posters from some LTTE boys and only picked up a few from the ground. The Tribunal does not accept that the applicant was confused. The question asked by the Tribunal – “where did you get [the notices]” - was simple and straightforward. Had the applicant got the notices from some LTTE boys, the Tribunal expects he would have said so and not said that he found them on the ground and that someone must have dropped them.
38. Further, the applicant had not previously done anything to support or assist the LTTE and had not met M in 2010/2011 or been brainwashed into believing that Prabhakaran was still alive. There is no apparent reason why the applicant would have pasted such notices in public places in the early evening when he could easily have been seen, particularly at a time when the Army and other authorities were still screening the Tamil population for possible LTTE links and detaining people with suspected links.
39. The Tribunal has some doubts that the applicant met a person called M in March 2012 and the met with him two or three times a week until April or June 2012 given that the applicant did not know if M was a friend of his friend T. However, the Tribunal accepts that he may have met M and that M may have been a supporter of the LTTE and believed that Prabhakaran is still alive.
40. The Tribunal does not accept that M persuaded the applicant and T to write “Prabhakaran is alive, Tamil Eelam will rise” on the wall of his school in June 2012. As stated above, the applicant had not previously acted to support the LTTE and the Tribunal does not accept that he was motivated to do so in June 2012 given the risks.
41The Tribunal does not accept that other students recognised his handwriting or that he would have told his friends he wrote the slogan given the potential consequences or that the Deputy Principal would have written a positive letter of recommendation if the teachers were angry with him as he claims or that the Deputy Principal would not have known about the slogan as he implied.
42. Further, the Tribunal does not accept that the applicant would not have told his lawyers about his activities when he set out his protection claims if he had in fact written such a slogan. The Tribunal has had regard to the applicant’s age and his submission that his father told him not to mention the LTTE but, as stated above, the Tribunal is of the view that his lawyers would have asked him if he had any connection to the LTTE and, as his claim is only in relation to an imputed connection, there is no reason for him to have been scared to disclose it.
43. Even if the applicant was persuaded to write the slogan, which the Tribunal does not accept, the Tribunal does not accept that he will be imputed with an LTTE association now or harmed as a result. The applicant was young at the time, only 17 years old. He wrote the slogan three years after the end of the conflict, well after the LTTE had been defeated and was a spent force and he had no actual association with the LTTE. The Tribunal accepts that the authorities may continue to screen the Tamil population and search for actual LTTE cadres and associates, and accepts that the applicant may have been questioned if the authorities had become aware that he write such a slogan but does not accept that he has a profile which will cause him to be harmed on the basis of an imputed a suspected LTTE association.
(Errors in original and footnotes omitted)
The Tribunal’s reasons for rejecting that the Applicant had engaged in these activities were based upon:
a)The explanation of how the Applicant found the posters being implausible[31]. To the extent that the Applicant submitted that this conclusion was based on an assessment of what the Applicant stated at the hearing that is true. However, the Tribunal is not rejecting the evidence on the basis that the manner in which the Applicant gave evidence was implausible (nor “confused” as the Applicant’s agent submitted to the Tribunal). It is apparent that the Tribunal rejected it on the basis that it was “inherently improbable”.
b)The lack of previous involvement in supporting or assisting the LTTE[32]. Again, the Tribunal noted the lack of plausible or logical reason why the Applicant would have engaged in the conduct. This was not a reflection of his demeanour or the Tribunal’s observations about the outside world. Rather, it was the absence of evidence of previous involvement and the lack of “apparent” (or logical) reason to become involved or motivated to do so.
c)Inconsistency in the evidence[33]. The Tribunal did not accept that the Deputy Principal of the school would have written a positive recommendation for the Applicant, had he painted the wall as he claimed. It is not the case that the Tribunal rejected the evidence on the basis of the assessment of external probabilities, it was the lack of logical connection and inconsistency between the Applicant saying teachers were angry at him, yet the Deputy Principal wrote him a positive recommendation.
d)The unconvincing explanation for the delay in raising the claim[34]. The Tribunal is required by s.423A of the Act to draw an inference unfavourable of the credibility of a claim or evidence if it is not raised until the Tribunal’s review, unless there is a reasonable explanation. Here, the Tribunal rejected the explanation that was offered. The rejection was based on the Tribunal’s lack of satisfaction with the explanation. It was not that the Tribunal was unconvinced because of concerns over the Applicant’s sincerity or reliability, it was the Tribunal having regard to the explanation and the circumstances and not accepting it.
e)Even if the Applicant had done so, given he had no actual association with the LTTE (which the country information said was whom the authorities continued to monitor) the circumstances in which the actions occurred (his age, the time and the situation), would not cause him to be harmed on the basis of an imputed LTTE association[35]. Hence, the finding was based on country information and not based on the implicit assumption that the Applicant did not have any motivation to engage in the conduct.
[31] CB 236 at [37].
[32] CB 236 at [38] and [40].
[33] CB 237 at [41].
[34] CB 237 at [42].
[35] CB 237 at [43].
As can be seen, none of the findings made by the Tribunal relied upon the Applicant’s demeanour. While the Tribunal had regard to the evidence the Applicant gave at the hearing, it did not reject the evidence and his credibility on the basis it did not find him a sincere and reliable witness.
The Court agrees with the Minister. The Tribunal’s credibility findings did not significantly depend on the Tribunal’s assessment of the Applicant’s demeanour, sincerity or reliability: MZYUN at [73]. In fact, the Tribunal made no reference to the Applicant’s demeanour or the way in which he provided his evidence. The Tribunal’s consideration was based upon its analysis and assessment of the Applicant’s claims. The Tribunal’s reasons for rejecting the Applicant’s claim and not accepting the Applicant’s evidence was based, in large part, on the inherent unlikelihood of the narrative that the Applicant had provided[36]. It was not the credibility of the Applicant that was the basis of the Tribunal’s findings per se, it was the credibility of his new claims when subjected to objective scrutiny in a merits review process.
[36] SZKOK v Minister for Immigration [2010] FMCA 90 at [30].
While the delay in this matter is not insignificant and there is no reasonable explanation before the Court for such, the critical distinction between this case and NAIS, is that none of the Tribunal’s findings turned on the assessment of the Applicant’s demeanour or his honesty and sincerity as a witness. It cannot be inferred that the delay in this matter caused a real and substantial risk that the Tribunal’s capacity to make an assessment was impaired.
The Applicant’s Written Submissions make reference to s.423A of the Act, however Counsel for the Applicant did not make any reference to this in his oral submissions. The Applicant’s Written Submissions submitted that s.423A made the assessment of credibility “central”. It was never put to the Applicant that s.423A raised an issue on the review and the Applicant should have had an opportunity to give evidence and present arguments at the hearing.
It is unclear how the delay relates to this submission, save as to emphasise the importance of the assessment of credibility. There is nothing before the Court to suggest that the Applicant was not on notice that s.423A of the Act was operative. On the materials that are before the Court, it is apparent that the Tribunal asked the Applicant why he had not mentioned the claims previously and sought an explanation[37]. The Applicant’s agent also made submissions in relation to the late nature of the claim[38]. On this basis, the Court is satisfied that the Applicant had a meaningful opportunity to address s.423A and any implication of such on the assessment of the credibility of his claim.
[37] CB 233 at [17].
[38] CB 204-217 and 223-225.
The Applicant has failed to establish that the Tribunal has fallen into jurisdictional error as pleaded in Ground 1 Particular (a).
Ground 1 Particular (b)
By particular (b) of Ground 1, the Applicant contends that the Tribunal relied upon material in its decision which did not exist at the time of the hearing. It was argued that it was a manifest and obvious failure of procedural fairness not to invite the Applicant to give evidence and present arguments on the information as per s.425 of the Act given that the content of the information was material to the Tribunal’s decision.
The two pieces of information were as follows:
a)A Department of Foreign Affairs and Trade Report dated October 2014 (DFAT Report) (which was cited at [26] and [61] of the Tribunal’s decision); and
b)The report from the Immigration and Refugee Board of Canada which was marked as Exhibit A1 (and was cited at [43] and [46] of the Tribunal’s decision).
At the hearing, Counsel for the Applicant made clear that he was not putting this part of ground 1 on the basis of a failure to comply with s.424A of the Act, rather it was on the basis of a breach of s.425 of the Act. It was submitted that some of the information may have been indifferent to the Applicant’s claim, some may have been adverse to it and some may have supported it. However, if the Tribunal was going to have regard to a report as a matter of procedural fairness, it ought to have allowed the Applicant an opportunity to be aware of it and to respond to it.
The Minister submitted that the Applicant was plainly on notice of the matters that were dispositive to his review. In any event, the Tribunal’s reliance on the material that post-dated the Applicant’s hearing with the Tribunal caused no practical unfairness. The Tribunal’s assessment of the Applicant’s evidence and claims was unaffected by the new material.
The Court notes that if it is also the case that the Applicant was advancing an argument that there was a breach of s.424A of the Act, the Court is satisfied that the materials fall into the exception of s.424A(3) of the Act and were not required to be put to the Applicant for any comment.
In relation to the argument under s.425 of the Act, this requires that an applicant be on notice of the issues arising in relation to the review and that there be an opportunity for the applicant to comment and present evidence in relation to those issues[39].
[39] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, at [44].
In BXK15 v Minister for Immigration & Border Protection [2018] FCAFC 76, at [82] in relation to an argument concerning a breach of s.425, it was stated:
82[…] But the Tribunal was not obliged to put “country information”. What it was obliged to do was to afford the appellant a meaningful hearing in which he was apprised by the Tribunal of issues which were not otherwise obvious. As I have stated, the Tribunal did this.
This suggests that the Tribunal is not required to “put” country information to the applicant generally under s.425 of the Act. It would make s.424A(3)(a) of the Act redundant if the Tribunal was obliged to put country information relevant to the issues to an applicant under s.425 of the Act. That is not to say that country information will never be required to be put to an applicant. Rather, for the purposes of s.425 of the Act it is only when the country information raises a “new issue” that a breach will be found[40]. Here, the country information did not raise any new issue and therefore s.425 was not enlivened.
[40] SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404; Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507.
Further, the reports to which the Applicant refers in this ground were not the “dispositive issue” in the Applicant’s review. The dispositive issue was that the Applicant had no LTTE association or imputed opinion. The finding that the Applicant did not have an imputed opinion was not in any material way based on the reports the Tribunal considered which post-dated the Tribunal hearing.
The Court agrees with the Minister’s Written Submissions that insofar as the Tribunal’s findings may have footnoted the reports, the dispositive findings were unaffected by the content of the reports for the following reasons:
a)The reference to the DFAT Report at [26] must be considered in the context of the Tribunal’s discussion at [24]-[25] as a whole. The reference to the DFAT Report did no more than confirm information from an earlier 2012 report that those with LTTE links were detained. The critical finding was that the Applicant’s father had not been detained, he had only ever been questioned and released.
b)The reference to Exhibit A1 at [43] of the Tribunal’s Decision, is of no significance in circumstances where the Tribunal had already rejected that the Applicant had the profile identified by the information in Exhibit A1.
c)The reference to Exhibit A1 at [46] of the Tribunal’s decision was, in some respects, in the Applicant’s favour. While it was open to the Tribunal to reject out of hand that the authorities visited his family (on the basis that the Tribunal found that the reason for the alleged visit never in fact occurred), the Tribunal relied on the information to accept that the family was visited by the authorities in relation to the Applicant’s illegal departure.
d)The reference to the DFAT Report at [61] was not significant as the Tribunal in any event addressed what would occur if the Applicant was held on remand (instead of being released on the first court date as the DFAT Report stated), and it expressly found that on the Applicant’s own evidence his father would assist him to pay the fine. Therefore the need to seek comment on whether he would pay the fine by instalments or not was immaterial. The Tribunal in any event found that neither would amount to a real risk of harm.
There was no denial of procedural fairness in the Tribunal having regard to information which post-dated the Tribunal hearing and not inviting the Applicant to give evidence and present arguments.
Ground 1 Particular (b), is dismissed.
Ground 2
Ground 2 contends that for the reasons advanced in ground 1, the Tribunal’s decision was unreasonable.
The Applicant in his oral submissions and the Minister in written submissions made reference to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 as the authority for the principles relied upon in this ground. The following passages are relevant:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
The mere fact that the delay in the Tribunal’s decision may be characterised as unreasonable does not necessarily render the decision as a whole unreasonable.
To the extent the Applicant was submitting that it was unreasonable for the Tribunal not to invite the Applicant to a second hearing in light of the delay, the Court disagrees. It refers to its reasons above in relation to Ground 1 Particular (a).
Further, as noted above, there is nothing to suggest that the delay impacted the Tribunal’s capacity to make a fair decision. The detail in the Tribunal’s decision is of a high level. It referred to what the Applicant had “told” the Tribunal, the questions the Tribunal asked or put to the Applicant and the Applicant’s particular responses to these matters at the Tribunal hearing[41]. The Tribunal referred to a large range of country information. In the time between the hearing and the Tribunal’s decision no “new issue” had arisen that would warrant the Tribunal inviting the Applicant to a second hearing.
[41] For example, CB 234 at [21] and CB 235-236, at [28]-[36].
It was not unreasonable for the Tribunal to not invite the Applicant to a second hearing.
If it is suggested that the delay caused the Tribunal’s credibility findings to be unreasonable, the Court is of the view that the Tribunal’s findings and the Tribunal’s assessment of the evidence was sound. As canvassed above, the Tribunal’s findings were based on a logical and probative assessment of the Applicant’s evidence. It is not the case that the Tribunal’s rejection of the Applicant’s evidence relating to the LTTE connections was based on an objectively minor fact which, in turn, was used as the basis to reject the entirety of the Applicant’s claims for protection[42].
[42] SZHSV v Minister for Immigration & Border Protection [2014] FCA 253, at [31].
Instead, the Tribunal carefully considered the Applicant’s evidence, including taking into account his explanation for the late nature of the claim being raised and response to questions asked, to form the view that the Applicant’s evidence did not satisfy it that he had an imputed opinion as claimed. The delay had no bearing on the Tribunal’s findings and in no way rendered them unsound when they were based on objective matters that were unconnected to the Applicant’s demeanour.
As to whether it was unreasonable for the Tribunal to rely on country information that post-dated the Tribunal hearing and not invite the Applicant to comment, again the Court refers to its reasons above in relation to Ground 1 Particular (b).
Further, by virtue of s.499 of the Act, the Tribunal was required to have regard to the DFAT Report. It was not a matter of it “deciding” to. Given the Tribunal was required to have regard to the DFAT Report, it was not unreasonable for it to consider it. Furthermore, that the Tribunal obtained Exhibit A1 is not unreasonable, the Tribunal is entitled to obtain further information[43].
[43] Migration Act 1958 (Cth), s.424.
As for not inviting the Applicant to give evidence or present arguments on the content of the information, the Court is not satisfied that it was unreasonable for the Tribunal not to have done so. The Applicant had an opportunity to present his claims and evidence. The decision cannot be said to lack an evident and intelligible justification in circumstances where the Tribunal had complied with its procedural fairness obligations and no new issues arose from the country information[44]. It was not suggested that there was anything in the country information to suggest or alert the Tribunal to the fact that the Applicant may have information or evidence on a particular matter of significance to his application.
[44] Minister for Immigration & Citizenship v Li (2013) 249 CLR 332, at [76].
To the extent that Counsel for the Applicant submitted that there was evidence in the reports that “went both ways” (implying that the Applicant could have relied on the information favourably), the Applicant had the responsibility of putting such favourable information before the Tribunal. It was not for the Tribunal to find information then allow the Applicant to review that information for the purpose of further supporting his claims.
Ground 2 is dismissed.
Other matters
At [24] of the Applicant’s Written Submissions, reference is made to a rejection of the Applicant’s credibility without obtaining a medical examination of the Applicant. It is unclear how this is related to the Tribunal’s decision or review. At no time in the materials is there any reference to the Applicant having physical or mental ailments that may have undermined his credibility. On that basis, no jurisdictional error arises.
Counsel for the Applicant made submissions referring to the importance of an oral hearing in circumstances where credibility is in issue[45]. The Court does not disagree. However, the Applicant here was not deprived of the opportunity to undertake an oral hearing. He had, and took, the opportunity to participate in a hearing before the Tribunal and “impress” the Tribunal. The mere fact of a delay does not entitle the Applicant to the second opportunity to impress the Tribunal, particularly where there is no indication that the participation in the first hearing was deficient nor that the Tribunal could not fairly review the decision unless it had a second hearing. The Applicant has not satisfied the Court that that is the case in this matter.
[45] Minister for Immigration & Border Protection v WZARH [2015] HCA 40.
Conclusion
The Court is not satisfied that the Amended Application identifies any error. The Amended Application is dismissed.
At the hearing, the Minister sought costs fixed in the sum of $5,400. Noting this is below the amount the Minister is entitled to in accordance with the Court’s scale, it is appropriate for costs to be awarded fixed in that sum.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 6 May 2020
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