BZADR v Minister for Immigration - [2014] FCCA 1103

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZADR & ORS v MINISTER FOR IMMIGRATION & ANOR

[2014] FCCA 1103

Catchwords:
MIGRATION – Protection visa – judicial review of decision of the Refugee Review Tribunal – application for judicial review filed out of time.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 477

Li v Minister for Immigration & Anor [2011] FMCA 12
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 59
Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Ruddock; Ex Parte S154/2002 (2003) 201 ALR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZJTQ v Minister for Immigration (2008) 172 FCR 563

First Applicant:

BZADR

Second Applicant:

Third Applicant:

Fourth Applicant:

BZADS

BZADT

BZADU

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 1061 of 2012

Judgment of:

Judge Howard

Hearing dates:

13 August 2013 and 13 May 2014

Date of Last Submission:

13 May 2014

Delivered at:

Brisbane

Delivered on:

2 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr Barataraj (direct brief)

Counsel for the Respondents:

Mr Smith

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application of the applicants to extend the time limit for the filing of an application for judicial review is dismissed pursuant to section 477(2) of the Migration Act 1958 (Cth).
The applicants shall pay the costs of the first respondent fixed in an amount to be determined by the Court on the date when Judgment is delivered.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1061 of 2012

BZADR

First Applicant

BZADS

Second Applicant

BZADT

Third Applicant

BZADU

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The first applicant (BZADR) is the father in a family unit comprising four individuals. The second applicant (BZADS) is the wife of the first applicant. The third and fourth applicants (BZADT and BZADU respectively) are the children of the first and second applicants.
The first applicant was born in Trincomalee in the Eastern Province of Sri Lanka on 1 November 1978. His ethnicity is Tamil and his religion is Hindu.
In a statutory declaration sworn by the first applicant on 17 June 2012 at Inverbracki in South Australia – the applicant noted that, inter alia:-
“5. I am married with two children. My wife and two children are here with me in Australia, they do not have separate claims. They are part of my application and will be relying on my claims.
6. My niece, my mother and my mother-in-law who are still living in Sri Lanka and depend on me.
The country to which I fear returning:
7. I fear returning to Sri Lanka.”
The first applicant’s statutory declaration is included from page 47 of the Court Book which is exhibit 1 in these proceedings.
The first applicant completed school in 1999. After he finished school he completed a computer course. He then had various jobs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 1103
Decision Date: 2 June 2014

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by BZADR against the Minister for Immigration. The applicant sought to challenge a decision made by the Refugee Review Tribunal. The core of the dispute revolved around whether the Tribunal had properly considered the applicant's claims and evidence when assessing his application for protection.

The applicant raised four grounds of review in his amended application. These included the Tribunal taking into account irrelevant considerations, failing to consider favourable facts, denying procedural fairness, and a denial of natural justice. During the proceedings, the ground relating to natural justice was withdrawn. The remaining grounds focused on the Tribunal's assessment of the applicant's credibility, its failure to consider certain affiliations and fears as reasons for persecution, and whether it had adequately verified doubtful statements and used up-to-date country information.

The court considered the applicant's credibility issues, particularly in relation to his claims about involvement in elections and subsequent threats. The Tribunal had found serious credibility issues with the applicant's account, noting inconsistencies in dates and a lack of genuine engagement with politics. The court affirmed that procedural fairness does not require a decision-maker to provide a running commentary on their assessment of evidence or to highlight potentially doubtful statements. Furthermore, regarding the use of country information, the court held that the selection of, weight given to, and assessment of country information are matters for the decision-maker, and the court cannot substitute its own view on such material. The court found that the Tribunal's decision was open to it on the basis of the material it used.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The third ground of review actually states in the first sentence, “the reviewer made procedural fairness in the making of the decision”. That is clearly a typographical error. I have worked on the basis that the word “made” should be deleted and the word “denied” was intended. By way of providing particulars for the submission that procedural fairness had been denied – the applicants have contended that the Refugee Review Tribunal should have taken steps to verify any doubtful statements made by the applicant. But it is important to keep in mind what the High Court had to say in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. At paragraph 48 the High Court stated that:-“[48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry: "the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished." Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.” In particular, I note that the Refugee Review Tribunal was not under any obligation to the applicant to provide a running commentary in relation to what it thought of his evidence. Hence, there was no obligation upon the Tribunal to highlight for the first applicant those parts (statements) of his evidence or submissions which the Tribunal thought might be doubtful (i.e. lacking credibility). In relation to the question of country information – the complaint essentially is that the Refugee Review Tribunal did not base its decision on up to date country information. In Nahi v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 the Full Court of the Federal Court of Australia concluded that the choice of country information; the weight to be placed on country information and the particular items of country information to which regard ought to be had – are all matters for the decision maker. At paragraph 13 of the decision in Nahi (supra) the Court stated:-“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.” (Per Gray, Tamberlin and Lander JJ).

Ratio Decidendi

Legal Principle Established

Whilst the original application for judicial review was filed on 3 December 2012 an amended application for judicial review was filed on 28 March 2013. Four grounds of review were contained in that document. Those grounds are as follows:“1. The Reviewer took into (account) irrelevant considerations in making the decision.The Reviewer was aware The Applicant has provided credible account of many of the events that had occurred to the Applicant. Yet he has chosen one aspect of the events stated by the Applicant as not credible to make the adverse decision. The Reviewer could have asked the Applicant to clarify that event, but has not provided evidence that he did.2. The Reviewer erred in not taking into consideration facts that would be favourable to the Applicant. Some examples are:a. Even though the Applicant may not be part of the LTTE, his affiliation in political associations not in support of the controlling political party, is itself a reason for persecution.b. The Reviewer erred in not taking into consideration among others that even though the Applicant may not be part of the LTTE, his affiliation in political associations not in support of the controlling political party, is itself a reason for persecution.c. The Reviewer failed to take into consideration among others that the Applicant had genuine fear in returning to Sri Lanka on the grounds that His close relatives had been persecuted and that feeling from Sri Lanka was only after a traumatic event suffered by the applicant.d. His association with a NGO itself is a reason for persecution, simply because the NGO identifies wrongs done to the citizens and the Applicant loses it protection once he leaves the NGO. This fact is one that has not been taken into consideration by the Reviewer. 3. The Reviewer made procedural fairness in the making of the decision.The Reviewer has a duty to ensure that all the procedures in the administration of his duties are followed correctly and including verifying any doubtful statements made by the Applicant and reviewing the application based upon up to date country information.4. Denial of Natural Justice : The Reviewer failed to make available relevant country information that would assist in making the correct decision and subjected the Applicant to a denial of natural justice.” At the adjourned hearing on 13 May 2014 ground four was withdrawn by Counsel on behalf of the applicants, Mr Barataraj. As to the first ground of review – where the words “the reviewer” are written in the amended application – I have, of course, taken that to mean the Refugee Review Tribunal. I note that the Tribunal had made a finding that the first applicant had “serious credibility issues”. This was particularly referred to at paragraph 204 of the Tribunal decision (page 215 of exhibit 1). The Tribunal member noted there:-“Consideration of the Applicant’s Claims in regard to the 2011 elections204. I put to the applicant, as had the delegate, that I have serious credibility issues in regard to this claim.205. He has claimed to have had a role in calling meetings for a particular political member.206. He has provided at least three different dates for the election, being September 2011, August 2011 and following receipt of the delegate’s decision where she cited independent material stating the election was in July he provided a new Statutory declaration stating it was July. However, at the hearing a document purporting to support the claim that he participated in the election states that the election was in August.207. I do not accept that a person who was genuinely involved in an election and that that was a consequence of that involvement was threatened and brought to such a state of fear that he fled for his life, would forget the date which was less than twelve months prior to the date of lodgement of the application. …214. I have reached a state of positive disbelief in regard to his claim to have been party to a local election and threatened on two occasions as a consequence of his role in calling meetings for a candidate in the elections.…216. I further accept his evidence and the submissions of his representative that he is not politically motivated or interested in politics. This leads me to find that his political profile is so low that it would not be of concern to any politician or authority.…219. Since I do not accept that he was involved in the elections to the point that he was of concern to anyone or any authority it follows that I reject his claims to have been confronted and threated by people in “white vans”.…222. Having considered the applicant’s claims in this regard as a whole I am unable to be satisfied that he faces any real chance of persecution for this reason either now or in the reasonably foreseeable future.”