BZACX v Minister for Immigration
[2013] FCCA 647
•28 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZACX v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 647 |
| Catchwords: MIGRATION – Bias alleged because reviewer on contract – no evidence referred to – no denial of procedural fairness. |
| Legislation: Commonwealth of Australia Constitution Act, s.75 |
| Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 |
| Applicant: | BZACX |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
| File Number: | BRG 830 of 2012 |
| Judgment of: | Judge Coates |
| Hearing date: | 10 December 2012 |
| Date of Last Submission: | 10 December 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Barataraj |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the Application filed on 17 September 2012 and Amended Application filed 8 November 2012 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 830 of 2012
| BZACX |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| PENELOPE HUNTER IN HER CAPACITY AS INDEPENDENT MERITS REVIEWER |
Second Respondent
REASONS FOR JUDGMENT
This is an application under s.476 of the Migration Act1958 (the Act) for:
a)An order that the decision of the Tribunal or Minister be quashed;
b)A writ of mandamus directed to the Tribunal or Minister requiring them to determine the applicant’s Application according to law;
c)A declaration that the recommendation of the Independent Protection Assessment Reviewer was not made in accordance with law by reason of the grounds of this Application;
d)An injunction restraining the Minister, by himself or his department, officers, delegates or agents, from relying upon the recommendation of the independent protection assessment reviewer; and
e)Costs.
There was no challenge to the application under s.476.
The section gives this court the same original jurisdiction as to migration decisions as the High Court under s.75(v) of the Commonwealth of Australia Constitution Act (the Constitution), which gives the courts power to determine relief against an officer of the Commonwealth either by mandamus, prohibition or injunction.
The Application relates to the decision of an assessor who conducted an independent assessment and found that the applicant did not meet the criteria for a Protection Visa set out in s.36(2) of the Act.
The subsequent recommendation was that the claimant not be recognised as a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Refugees Convention).
The date of the assessors report was 22 March 2012 and the applicant was notified by letter dated 16 April 2012 of the assessment.
The Amended Application which was filed 8 November 2012 challenges the decision on the following grounds:
“1. The Second Respondent is not a delegate of the First Respondent under the Migration Act but merely an independent Reviewer appointed under a contract.
2. There is a bias or perceived bias by the Second Respondent in favour of the 1st Respondent so as to maintain the contract. She is not bound by the relevant provisions of the Migration Act or relevant decisions of the Australian Courts.
In the alternative:
3. There is a procedural error in that the Second Respondent
a) erred in law by failure of taking into relevant considerations in making the decisions.
b) erred in law by not taking relevant considerations in making the decision.”
By way of background, the statement of reasons supporting the findings of the Independent Protection Assessment states:
a)What the application is about and refers to the relevant law, being the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees and that Australia generally has protection obligations to people defined as refugees in Article 1 of the Refugees Convention;
b)The relevant considerations in Article 1 of the Refugees Convention by way of quoting such, being the reference to having a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, being outside their country and unable/unwilling to avail himself of the protection of that country or unable to return if outside the country;
c)The assessor being bound by relevant sections of the Migration Act 1958 and in particular s.36(2) which refers to the criterion for protection visas with reference to the wording of that section and Australia's protection obligations under the Refugees Convention as amended by the Refugee Protocol;
d)Further references to s.36 and ss.91R-91U and that court decisions "bear upon those provisions”;
e)The claimant claimed to be born at Point Pedro, Jaffna District, Sri Lanka, on 1 June 1970;
f)He provided copies of his birth certificate, Sri Lankan National Identity Card and Indian Camp Identification Card as to identification proof;
g)He is of Tamil ethnicity and his religion is Hindu;
h)He married in 1995;
i)He has a daughter aged 15;
j)He left Sri Lanka in 1990 and travelled to India, claiming he fled Sri Lanka as it was not safe for him;
k)He claimed he was beaten by the Indian Army so he could not go to work;
l)He resided in Tamil Nadu, India, in various refugee camps;
m)His mother and brother continue to live at Point Pedro, Sri Lanka;
n)He had not returned to Sri Lanka since 1990 as it was too dangerous for him;
o)Between 1986 and the time he fled Sri Lanka he claimed he was stopped and abused by members of the Indian Peace Keeping Force on numerous occasions;
p)He claimed he was questioned on occasions;
q)His claimed his brother was arrested by the Sri Lankan Army and taken to a notorious camp in the south on suspicion of being a member of the Liberation Tigers of Tamil Eelam, known as the LTTE;
r)He was allegedly there for 45 days and badly beaten and abused;
s)His brother eventually obtained a job as a government employee and because of that his brother has been able to survive in Sri Lanka;
t)Tamils are still being persecuted by the Sri Lankan Army and associated paramilitary groups and this will happen to him as Tamils are continued to be suspected of being members and/or supporters of the LTTE;
u)The authorities in Sri Lanka will not protect him as he is Tamil; and
v)The claimant arrived on Christmas Island in March 2011.
The statement of reasons records that the claimant underwent a protection obligation interview at Curtin Immigration Detention Centre on 18 April 2011 and that the assessor listened to a recording of the interview.
The assessor records what the claimant said in the interview, and that a post interview submission forwarded on 30 December 2012 supplied:
a)Two incomplete newspaper articles in the Tamil language;
b)Copies of photographs referred to by the claimant during an interview of his uncle’s rice mill and his wedding;
c)A medical certificate for the employee K Sivanatham dated 22 January 2006. The symptoms and signs being recorded as “army assault, lacerations, confusion”;
d)An application for accident leave completed by K Sivanatham. The cause of the incident is assaulted by army, urban council office Point Pedro;
e)Certificate of birth (illegible);
f)Camp identification for the claimant and his family from India;
g)Article, Impunity for torturing detainees in Sri Lanka, Amnesty tells UN Panel;
h)Article, Hundred’s tortured in policy custody;
i)Article, Abduction of a young man by Military Intelligence personnel! Incident in Jaffna;
j)Article, Military Intelligence head must answer extra judicial killings;
k)Article, After the Tiger vanished; and
l)Article, Abductions escalate in north, families urged to approach Co-Chair Ambassadors in Colombo.
The reasons record that a request by the assessor for translations of the Tamil articles could not be complied because of lack of funding.
The reasons look at the country information relying on United Kingdom Home Office material, Danish Immigration Service material, a report by the United Nations High Commissioner for Refugees, Immigration Refugee Board of Canada material and Department of Immigration and Citizenship Country Information Service report on the treatment of Tamils.
The reasons give the dates of those various reports.
The reasons give a short history of the civil war between the Sri Lankan government and the LTTE for almost 30 years.
The reasons records that the Sri Lankan Army was robust in its efforts to identify potential LTTE combatants among those interned in camps and that suspects were transferred to alternate detention facilities and that the International Crisis Group reported that the detentions were unlawful and posed grave risks, given the government's history of alleged disappearances and torture.
The assessment records that the country information referred to revealed that a great degree of normalcy had been established since the end of the war.
The reasons referred to the guidelines issued in July 2010 by the UNHCR for assessment of international protection needs for asylum seekers from Sri Lanka.
The reasons record that despite the conflict ending there is concern over human rights issues which remain and that the US State Department Country Report on Human Rights practices refers to what may well be ongoing abuses, at paragraph 70.
The reasons record the International Commission of Jurists expressing concerns for human rights of suspected ex-combatants.
The report refers to what occurs, according to reports of two Tamil’s returning to Sri Lanka, and of that anecdotal evidence suggesting the previous involvement or suspected involvement with the LTTE could influence how a person is treated at the airport. The conclusion was that there was no "hard evidence" of these events.
The reasons record that the assessor accepted that the applicant had been harmed by Indian soldiers, but the Indian army withdrew from Sri Lanka in 1990 and he had been out of Sri Lanka since 1990. The assessor found that, on his own statements, his family was not connected with the LTTE, he had not engaged in LTTE activities and he was not in that category of people who would be suspected of being associated with the LTTE.
The assessor found that since the end of the war, displaced Tamils had begun returning to Sri Lanka.
The assessment goes on to record its conclusions that:
“96-98. On the evidence before me, and having considered the matters raised by the claimant and his agent, both separately and cumulatively, I find that the claimant does not have a well-founded fear of persecution in Sri Lanka for a convention reason, where he to be returned now, or in the immediately foreseeable future.
I do not accept that the claimant faces a real chance of persecution on the grounds of his imputed political opinion, ethnicity or membership of particular social groups being a male Tamils who hail from the north, Tamils who have spent a long time in India, Tamils who have spent a long time out of Sri Lanka, returnees from overseas, failed Tamil asylum seekers and Tamils who have made a claim for asylum in Australia, were he to return to Sri Lanka in the reasonable future.
I find that the claimant, … does not meet the criterion for a protective visa set out in s.36(2) of the Migration Act 1985.”
That is a brief outline of the major points of the assessment.
I will refer to how the case was presented for the applicant. I must state that there seemed to be a disconnection between many submissions and the grounds relied on, or that it was difficult to see how I would apply the grounds stated in the application to the decision-making process.
In the Outline of Argument document filed 6 December 2012, addressing what I will call the first ground being perceived bias, which takes in the stated grounds one and two of the Amended Application, the applicant argues that the assessor not being an officer appointed under the Public Services Act, but being a contractor must raise the possibility of whether the applicant was afforded procedural fairness and I was referred to the High Court decision Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41.
The written submissions simply refer to the case without any particular reference to what point made in that case I was to take into account.
In oral applications I was taken to paragraph 78 of the decision and the last two sentences which state:
“78. …Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.”
The submission on behalf of the applicant is that these aspects as identified in the M61 case are in issue in this matter.
However, it was Mr Reilly for the respondents who bought my attention to paragraph 78, having heard the submission of Mr Barataraj for the applicant who said this:
“The witness has provided a lot of information as asked by the respondent and it’s also the responsibility of the respondent to consider all the evidence before her in making a decision, not just pointing out selective information as to what suits her decision making process. In other words, it appears that a decision has already been made and the person is looking for selective information to support her decision.”
I asked to be taken to the transcript upon which that assertion was based and I was told, “No, it is only my submission, not that it was made. Because the way it looks like …”.
I was then told that is the conclusion to be reached from the facts.
Mr Barataraj said this “I mean, from the facts that is what I conclude, not that she has done that, yes, your Honour, it’s possible, I say”.
In seeking more information I was taken to the Amnesty International Report in the Court Book at page 221 to 223 and to a passage which said “evidence indicated that the Tamil asylum seekers have been detained and tortured upon their return to Sri Lanka”.
I sought the submission as to the error alleged and the response was that it is a failure to consider relevant information.
The submission then was that the respondent was to take all the information together and identify each strand of that information and then make a decision from there. It was put that the decision-maker took selective information and used that to confirm her decision. There was a secondary argument that the information was out of date in the country information used because some of that material referred to some information received in 2010 when the decision was made in 2011.
I was then taken to various sentences and/or conclusions in the various documents relied on as country information by the assessor, some of which I have referred to generally when referring to the whole of the reasons above.
It was said that the applicant has a genuine fear based on those parts of the reports which refer to continuing abuses.
In support of ground one and two, it was put that the assessor was required to collect information and have enough information to make a valid decision and then call the applicant back for further information if the assessor finds that the information the assessor has is insufficient to make a decision and, as put by Mr Barataraj, “well, I don’t have enough information to make a favourable decision on your behalf. Now, would you be able to provide me more information, so that it will assist me to make better information?”. Mr Barataraj said the applicant was never provided with such an opportunity. It was put that in such a case the assessor has failed to get information and has failed to consider the information itself as an error, because there was opportunity and opportunity for the government to get all the information and update the information.
It was at that point I was taken to paragraph 78 of the Plaintiff M61 case and the above quotation at paragraph 28 of these reasons, which stated considerations of this type must be procedurally fair and pursuant to legal principles.
Mr Reilly said that this was not a factual enquiry by the court, it was an enquiry into the legal correctness and procedural correctness of the reviewer’s recommendation.
Mr Reilly said the affidavit material filed on behalf of the applicant was not admissible because it did not go to establishing any legal or procedural error by the reviewer.
By way of explanation he said some of the "new" material contained, even the newspaper report, was not published at the time the assessor made her decision.
As to the consideration of the country information and various reports, Mr Reilly submitted that on the face of the reasons it is clear that the assessor noted all the different sources of country information that she had before her – at paragraph 63 – including that provided by the claimant and the submissions of the complainant’s advisor who included a report from Amnesty International.
And from there up until paragraph 80, it is clear on the face of the reasons that she considers the reasons and then she applies that consideration to the circumstances of the applicant, stated from paragraph 81 and following.
Mr Reilly submitted that at paragraph 91 the assessor acknowledged the Amnesty International report and stated from that report there are “Tamil asylum seekers who have been detained and tortured upon their return to Sri Lanka”. It is then pointed out that the assessor in the same paragraph came to this statement:
“ … I acknowledge that those who are suspected of being LTTE members may face a risk of detention and mistreatment on return. However I have found on the country information and the particular circumstances of the claimant that he would not suspected of being an LTTE member or even associated with the LTTE. …”
The submission was that the reviewer distinguished the country information from the circumstances of this particular applicant.
Mr Reilly referred to the Full Federal Court’s decision NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 from paragraph 11 under the heading “Reliance on ‘country information’” and the decision that there is no error of law or jurisdictional error for the Tribunal to base a decision on country information that is not true. The full paragraph 11 states:
“11. The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
At paragraph 13 the decision went on:
“13. In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) [1993] FCA 545; (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”
Mr Reilly said the country information before the assessor referred to problems for Tamil’s on return to Sri Lanka and referred to the fact that those people suspected of having a connection with the LTTE would have problems.
But he said once the reviewer formed the view that the applicant had not been in Sri Lanka since 1990, it was open for her to come to the view based on an analysis of the country information that he could not have a well founded fear of persecution.
As to the submission that there was more information or more recent information about the country, Mr Reilly said the assessor relied on country information up until 2011 and made the decision in March 2012 and that the applicant, being represented before the reviewer, had submitted country information including the Amnesty International report which has been referred to.
I need to address this issue that Mr Barataraj submitted that the assessor really had a duty to seek more information if she could not make a favourable decision for the applicant.
I was not referred to any law either by Act of Parliament or the decisions of authorities that there is an onus on an assessor to try and come to a favourable decision for an applicant.
As I understand the law from both the Acts and authorities, a person's claims have to be assessed and the assessment has to be fair and according to law. That is exactly the point made in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 at paragraph 78, which I have quoted above. It is worth repeating:
“78. …Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.”
Mr Reilly put it this way:
“It is not the case, if my friend attempts to suggest this, that the reviewer is under some sort of obligation to locate every possible item of country information. That can’t be – it would be an impossible task in a decision involving a country like Sri Lanka where there’s voluminous information, much of it possibly partisan.”
Reduced to legal terms, that is a correct proposition as can be seen from the assessor’s reference to the documents she had before her on country information. Some of the information certainly referred to different treatment given to people who were found to be connected with the LTTE than to people who were not found to have such connections, and the applicant supplied information he believed was favourable.
The applicant is stating that he fears he would be found to have a connection with the LTTE but the assessor made the finding that since he has been out of the country since 1990 his fears are not grounded in reality.
Mr Reilly then referred to SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372 where the Federal Court makes it clear that a duty to enquire arises only if there is readily available relevant information. No further readily available information was identified in the submissions on behalf of the applicant.
I could not determine how these arguments actually went to a bias as alleged. It seemed to me that the applicant simply relied on the fact that the assessor was on a contract.
Mr Reilly referred to the Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at paragraph 20 and the references there that the “merits review is not available before your Honour and the wrong finding of fact is not an error of law; an unsound reasoning is not an error of law”.
He said in terms of bias the court noted at paragraph 18, such is rare:
“18. It is a rare case in which a Court will find that a decision maker has breached the natural justice hearing rule by exhibiting bias based simply upon the decision maker’s reasons: SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [44]. The same is the case in relation to apprehended bias. Ordinarily a party would need to show some conduct on the part of the decision maker, apart from the decision maker’s expression of the decision maker’s reasons, which would indicate that the decision maker has been guilty of pre-judgment or was in any way biased.”
As was pointed out there was no transcript filed and so I am not taken to anything which is said to amount to a bias except that because the assessor is a contractor, and not a public servant, that gives grounds for a suspicion.
To proceed on such a case, in my view, the terms of any contract would have to be put before the court and submissions relevant to a consideration of bias would go from there but none of that was before the court. I must say, I do not know what the terms of employment for the assessor are; as such information was not before me.
If the assessor's position is impugned because an application under s.476 applies to decisions of an officer of the Commonwealth, as stated in the section, no argument, evidence or case was presented that there was no power for a contractor to make the decision. The case was stated to be one of bias, and in the terms as I have set out above.
As to the last ground that the reviewer had regard to irrelevant considerations, Mr Reilly’s submission was that it was a non-statutory decision so it would be difficult to discern what the relevant considerations were, given that they were considerations the governing statute required to be taken into account and no such irrelevant considerations were identified.
I accept that was how the case was conducted.
In my view the applicant has not shown:
a)That all of the information was not taken into account and so there can be no argument that procedural fairness has not been accorded to the applicant;
b)That no real doubt was raised that there was a lack of information before the assessor and that she was not under a duty or required by procedural fairness to try and come to a favourable decision for the applicant;
c)Or that the independence of the assessor could be questioned by any submissions or evidence put before me;
d)Or that the assessor's "contract status" results in some type of perceived bias.
The Application will be dismissed.
I should also comment on the relief sought with each box in the pro-forma application ticked as to final orders sought. Mr Reilly submitted, and I accept, and there being no opposition, that the only relief available is a declaration and he referred me to Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 as to why it is the only relief available.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Coates
Associate:
Date: 28 June 2013
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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