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

1. 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).

2. 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

1. 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.

2. 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.

3. 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.”

4. The first applicant’s statutory declaration is included from page 47 of the Court Book which is exhibit 1 in these proceedings.

5. The first applicant completed school in 1999.  After he finished school he completed a computer course.  He then had various jobs including as a self-employed painter, an accounts clerk and subsequently as a volunteer project coordinator.  At page 125 (Exhibit 1 – in particular part of the applicant’s history as contained in the decision of the Delegate) it is also stated that between 2004 and 2010 the first applicant worked as a project coordinator with an organisation dealing with women and childcare.  In addition, after 2010, the first applicant owned and operated a grocery store in Trincomalee.

6. The Delegate’s decision also notes (at page 126 exhibit 1) that the first applicant’s brother died in 1991 – apparently as a result of injuries which he sustained at the hands of the Sri Lankan Police.  There are no other details provided in relation to his brother’s death.  The applicant’s mother, sister and brother still live in Sri Lanka (page 126 exhibit 1).  Indeed, at paragraph 6 of the first applicant’s statutory declaration referred to earlier – he also stated that his niece, his mother and his mother-in-law are still living in Sri Lanka and they are dependent on the first applicant.

7. The applicant married his wife (the second applicant) on 29 May 2005. 

8. The second applicant was born on 29 May 1985.  The third named applicant is the daughter of the first and second applicants.  She was born on 12 January 2008.  The fourth named applicant is the son of the first two applicants.  He was born on 18 March 2007.

9. The first applicant left Sri Lanka on 31 January 2007 because he said that he was worried about his own safety.  He travelled to Malaysia and entered Malaysia on a Sri Lankan passport.  He was granted a one month visitor visa.  While in Malaysia the first applicant lodged documentation with the United Nations High Commissioner for Refugees and he was given the date for an interview which was to take place in November 2007.  However the first applicant told the Delegate that he was not able to remain in Malaysia for that period of time.  He therefore left Malaysia and returned to Sri Lanka and therefore did not attend the interview in Malaysia in November 2007.

10. The first applicant also told the Delegate that he again did not feel safe in Sri Lanka and – with the assistance of a people smuggler – departed Sri Lanka on 3 February 2012 and travelled to India.  The second, third and fourth applicants joined the first applicant in India on 27 March 2012.  The first applicant says that he then made a further arrangement with a people smuggler so that his entire nuclear family unit (the four applicants) could depart India and travel to Australia.  The journey apparently commenced on 27 April 2012.  That particular boat (which departed from Kerala, India) was bound for Australia but was intercepted by Australian authorities.  The boat had a code-name.  The code-name was “Idalia”.  I am uncertain as to whether the code-name was given to the boat by the Australian authorities or the people smugglers.  In any event that boat arrived at Christmas Island on 12 May 2012. 

11. On 17 June 2012 the first applicant lodged an application for a Protection (Class XA) Visa at the Sydney city office (of the Department of Immigration and Citizenship as it was then known).  The application for a protection visa is included in the Court Book from page 6 and it names all four applicants as persons included in the application. 

12. The application for a protection visa in respect of all four applicants – was rejected by a decision of the Minister’s Delegate on 27 July 2012 (note the Delegate’s decision between pages 121 and 140 of exhibit 1).  In particular I note part D wherein the Delegate stated:-

    “I am not satisfied that (the first applicant) is a person to whom Australia has protection obligations under section 36 of the Migration Act. Accordingly I refuse to grant (the first applicant) a protection (class XA) visa.

    As I have refused to grant a protection visa (to the first applicant) I also refuse to grant a protection visa to (the second, third and fourth applicants) who are members of the family unit included in the application.”

13. The applicants filed an application with the Refugee Review Tribunal seeking a review of the Delegate’s decision.  That application was filed on 6 August 2012.  On 3 October 2012 a hearing took place before the Refugee Review Tribunal.  The decision of the Refugee Review Tribunal is dated 5 October 2012.  The Refugee Review Tribunal affirmed the decision of the Minister’s Delegate.  As noted, the decision of the Minister’s Delegate was to refuse to grant protection visas to the applicants.

14. Section 477(1) provides (essentially) that if an applicant wishes to seek judicial review in relation to a decision of the Refugee Review Tribunal – then such an application must be filed in the Federal Circuit Court of Australia within 35 days after the date of the decision of the Refugee Review Tribunal. The applicants filed their application for judicial review on 3 December 2012 and this was approximately 14 days after the expiration of the time limit. The Court has the power to grant an extension of time (note s.477(2)). Section 477(2) of the Migration Act 1958 states:-

    “477 Time limits on applications to the Federal Circuit Court

    (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

    (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

    (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

15. The first respondent Minister concedes that the applicants have satisfied the first part of the requirements contained in s.477(2)(a) – that is – an application in writing to this Court has been made. But that is the only admission made by the first respondent.

16. In Li v Minister for Immigration & Anor [2011] FMCA 12 at paragraph [35] it was stated that the various matters to be considered in relation to s.477(2)(b) include:-

    a)the length of time of any delay;

    b)the reasons for the delay;

    c)whether or not the respondent has suffered any prejudice as a result of the delay;

    d)the possible impact upon the applicants if the extension of time is not granted;

    e)the interests of the public at large; and

    f)a consideration of the merits of the substantive application.

17. In Li (supra) the Court noted that the list contained above is not an exhaustive list.

18. The first respondent has opposed the application for an extension of time.  The Minister concedes that the delay was not terribly long (approximately 14 days) – but contends there is no satisfactory explanation for the delay.  I agree with that submission put forward on behalf of the Minister.  I have not been able to find any satisfactory explanation or satisfactory reason for the delay.  Counsel for the applicants submitted (essentially) that it was a stressful time for the applicants and they do not speak English (at the very least it is not their first language). 

19. Whilst it will be noted that an explanation has been provided to the Court for the delay (the explanation having been provided by Counsel on behalf of the applicants) I do not consider it to be a satisfactory explanation.  Clearly, the applicants were obtaining assistance from a migration agent at the relevant time.  Their application for a protection visa was filed promptly and their application for a review of the Delegate’s decision was also lodged promptly and in accordance with the appropriate timeframe.  There is indeed, no satisfactory explanation for the delay in the filing of the application for judicial review.

20. In any event I consider it is essential for this Court to consider whether or not the grounds of review have sufficient merit in order to warrant the Court granting leave for the extension of time. 

21. 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.”

22. At the adjourned hearing on 13 May 2014 ground four was withdrawn by Counsel on behalf of the applicants, Mr Barataraj. 

23. 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. 

24. 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 elections

    204. 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.” 

25. I agree with the written submission provided by Mr Smith of Counsel on behalf of the first respondent (in his written submissions filed 5 August 2013).  At paragraph 18 the first respondent noted that the first ground of review “constitutes nothing more than an expression of dissatisfaction of the Tribunal’s findings”. 

26. It will be apparent from the quotation I have included above which formed part of the decision of the Tribunal – that in relation to some of the first applicant’s claims (in particular those claims relating to his involvement in the 2011 elections) the Tribunal concluded that those claims were simply not true.  On the other hand there were also parts of the Tribunal’s decision where it is apparent that the Tribunal concluded that the first applicant had given a credible account of some events.  But it is not permissible for this Court to embark on a merits review of the application for a protection visa or a merits review of the hearing which took place before the Refugee Review Tribunal.  This Court can only set aside the decision of the Refugee Review Tribunal in the event that an applicant has established jurisdictional error.  The fact that an applicant is dissatisfied with findings made by the Refugee Review Tribunal is not a proper ground of review.  Accordingly the first ground of review must fail.

27. In relation to the second ground of review – the LTTE referred to therein is an organisation known as the Liberation Tigers of Tamil Eelam. 

28. The second ground of review is similar to the first in that the applicants have voiced their dissatisfaction with findings of fact made by the Tribunal.  Once again, in an application for judicial review of the Tribunal’s decision – it is not open to this Court to undertake a review of the merits of the earlier decision.  The second ground of review must fail.

29. 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.”

30. 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).

31. 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).

1. There is a qualification to the principle noted in Nahi.  A decision maker is required to take into account the most up to date country information which the decision maker has at hand.  In this regard I note the decision of Rares J in SZJTQ v Minister for Immigration (2008) 172 FCR 563:

   “[40] If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (i.e. before him or her) supports a conclusion of persecution of adherents of that religion in the applicant’s country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered.

   [41] The claim of a black person that he or she would suffer persecution for reasons of his or her race, by being subjected to slavery if he or she returned to one of the Confederate States in North America, would be viewed through very different eyes in 1861 and today. And the aphorism that a week is a long time in politics is not a merely local observation. The trend of events throughout the world is one of constant change. A decision-maker charged with the important function of assessing whether Australia owes protection obligations to an applicant for a protection visa cannot ignore recent, up to date information actually before him or her and make a decision on earlier material which may be out of date.

   [42] Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45.”

2. The point made by Rares J in SZJTQ (supra) is that the situation on the ground in any given country or locality can change and, indeed, can change quite quickly.  Therefore those cases referred to in paragraph number three of the further submissions filed by leave (on behalf of the applicants) on 13 February 2014 really do not take the matter very far.  They relate to decisions of the Refugee Review Tribunal at various points in time during 2010 and 2011.  There is no indication that as at October 2012 the matters referred to in the previous decisions of the Refugee Review Tribunal were up to date.  To put it another way – there is no evidence, indication or confirmation that the country information which is referred to in paragraph three of the applicant’s stated further submissions (dated 13 February 2014) was country information that was “at hand” for the Tribunal as at the date the Tribunal made its decision in October 2012 concerning the applicants.  The Refugee Review Tribunal had regard to certain country information.  It was entitled to do so.  There is no obligation upon the Review Tribunal to take account of any other particular country information.  In relation to the question of up to date country information – there is (as noted earlier) no confirmation that there was any more recent up to date country information. 

3. I have concluded that the third ground of review must fail.

4. The applicants have also argued that the Refugee Review Tribunal fell into jurisdictional error when it failed to put to the second applicant (the first applicant’s wife) questions so as to determine whether or not she was entitled to seek protection in Australia in her own right (and not merely as part of the family unit of the first applicant).  It is also contended by the applicants that by failing to interview the second applicant – the Refugee Review Tribunal fell into jurisdictional error because interviewing the second applicant would have assisted the Tribunal in determining whether she could corroborate the evidence given by the first applicant.

5. On behalf of the first respondent it is contended that because of the way the applicants pursued their claims for a protection visa – the Refugee Review Tribunal was not under an obligation to specifically direct questions to the second applicant.

6. In considering this aspect of the applicants’ submissions it is necessary to have regard to s.36(2) of the Migration Act 1958 (Cth). That section states:-

   “(2) A criterion for a protection visa is that the applicant for the visa is:

   (a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

   (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

   (b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i) is mentioned in paragraph (a); and

   (ii) holds a protection visa; or

   (c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

   (i) is mentioned in paragraph (aa); and

   (ii) holds a protection visa.”

7. The visa application itself is contained in exhibit 1 from page six.  That document is an application for a protection (class XA) visa and the names of the persons included on the application are stated.  They are the four applicants. 

8. Further, from page 17 there is the individual application for a protection visa of the first applicant. He notes that he is making his own claim for protection (indeed that is the heading on that particular form).

9. The second applicant, the third applicant and the fourth applicant completed applications for protection visas which are headed, “Application for a member of the family unit”. The document states further:-

   “This part is for a member of the same family unit who does NOT have their own claims for protection, but is included in this application.

   If you DO have your own claims for protection, complete a part C instead.”

10. The second applicant completed the part D which was the “Application for a member of the family unit”.  The second applicant did not make a separate application for protection. 

11. The first applicant also provided a statutory declaration.  That declaration was referred to earlier herein (in paragraph 3).  It was sworn on the 17 June 2012 at Inverbracki in South Australia.  As noted earlier the first applicant stated in the statutory declaration that his wife and children (the second, third and fourth applicants) do not have separate claims for protection. 

12. Having regard to the applications that were actually lodged for protection visas by the second, third and fourth applicants – the Minister’s Delegate proceeded on the basis that it was the first applicant who required protection and the other applicants sought protection visas because they were members of the family unit of the first applicant.  The same situation existed when the applicants applied to the Refugee Review Tribunal for a review of the Delegate’s decision.  I note paragraph 107 of the decision of the Refugee Review Tribunal (included at page 208 of exhibit 1).  At that paragraph it is noted:-

    “107. At the beginning of the hearing I confirmed with the primary applicant and adviser that he was the only applicant making claims and the case of the other three applicants was dependent on his matter.”

13. I have come to the conclusion that the Refugee Review Tribunal did not fall into jurisdictional error by failing to consider an independent claim by the second applicant.  The second applicant did not make an independent claim for protection.  Her claim or application for protection related to her membership of the first applicant’s family unit.

14. There was a further submission on behalf of the applicants that the Refugee Review Tribunal fell into jurisdictional error because it failed to interview the second applicant to see if she would be able to corroborate the evidence of the first applicant relating to two of the second applicant’s brothers.  At paragraph 121 of the Tribunal decision (page 209 of exhibit 1) the Tribunal stated:-

    “121. He said that two of his wife’s brothers had been captured and taken.  I verified the details of those two incidents with him and he said that the details were as he had provided them in his Statutory declaration of 17 June 2012”

15. The evidence of the first applicant in his statutory declaration relating to his two brothers-in-law (noted later as the brothers of his wife) is contained from paragraph 9 of the statutory declaration and it is stated there (from page 47 of exhibit 1):-

    “9. In 2006 my brother in law, who was 19 years old at the time discovered a gun at the school he was studying at. He and his friend went to the police to hand the gun in and they assumed it had belonged to them and they arrested them.

    10. The police fabricated a claim that said they had captured these two boys on the road with a gun. They were jailed were jailed for 1 year.

    11. During this period 2 of my colleagues, one field officer and one village animator (they were working on a project called AUSCARE – Australian Care International).

    12. In the first week on January 2007 the field officer was shot dead on his way home from work one day by an armed group. I am not sure who or what this group was.

    13. Two weeks later the village animator was shot dead in home by an armed group. I am not sure if it was the same group or not.

    14. In the third week January 2007 my other brother in law who was a painter went to do some painting in a house with a team of about 5 painters (all Tamila). They had to work late one evening to finish painting the house. The Sri Lankan Army turned up to the house and arrested them on the basis of suspicion that they were involved with the LTTE.

    15. This was a time when there was a lot of suspicion that all young Tamil men were somehow involved with the LTTE.

    16. They arrested all 5 of the painters, including my brother in law and put them in jail for approximately 1 month.”

16. It is, of course, a matter for the first applicant as to how he presents his case.  It is a matter for the applicant for a protection visa to put before the Refugee Review Tribunal the relevant evidence and submissions.  This would include affidavits and/or written statements from the second applicant.  It is not incumbent on the Refugee Review Tribunal to seek out any particular witness (including another applicant who might be part of the same family unit) in order to get their view in relation to a particular issue or obtain evidence from them seeking to corroborate the evidence of another applicant.  To put it another way – in an application for a protection visa the onus lies upon the claimant.  It is not incumbent upon the Refugee Review Tribunal to make out the applicant’s case for him.  In this regard I note what was said in Re Ruddock; Ex Parte S154/2002 (2003) 201 ALR 437 at paragraph 57.

17. Further, in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 59 the court stated at paragraph 20:

    “Section 427(1)(d) is ancillary to s 424. Those two provisions and s 415, which confers upon the Tribunal all the powers and discretions of the person who made the decision under review, give the Tribunal wide discretionary powers to investigate an applicant's claims. But they do not impose upon the Tribunal a general duty to make such inquiries. Relevantly to the present case, as Gummow and Hayne JJ observed in Minister for Immigration, Multicultural and Indigenous Affairs v SGLB:

    "whilst s 427 of the Act confers power on the Tribunal to obtain a medical report, the Act does not impose any duty or obligation to do so."

    That observation was made in a context in which the Tribunal had considered it highly likely that the applicant for review was suffering from Post Traumatic Stress Disorder. The Court, by majority, held the Tribunal was under no duty to inquire as to the effect of that condition.”

18. In the event that the first applicant took the view that his own credibility would be enhanced if the second applicant had given evidence – it was open to the first applicant to draw this to the attention to the Tribunal.  The first applicant could have provided a statement or an affidavit from the second applicant.  But, as noted earlier, the Refugee Review Tribunal was not under any obligation to give a “running commentary” about its views concerning the first applicant’s credibility.  Hence it was not incumbent upon the Tribunal to seek to find corroborative evidence – for instance from the second applicant – in relation to the question of what may or may not have happened to her brothers.  My comments in this regard relate to the matter generally and are not limited solely to the question of the “brothers-in-law”.

19. I have concluded that the Refugee Review Tribunal did not fall into jurisdictional error because it failed to ask questions of the second applicant in an attempt to obtain corroboration in relation to the first applicant’s account of events.  My conclusion in that regard relates to all of the issues raised by the first applicant – including the evidence as to what happened to the first applicant’s brothers-in-law.  Indeed in relation to the question of the brothers-in-law I note paragraph 186 of the decision of the Refugee Review Tribunal (contained at page 214 of exhibit 1).  Paragraph 186 states:-

    “186. He claims that two of his brothers in law were detained about that time. Even if that was the case, any concerns the authorities may have had in regard to those two people did not lead to a conclusion that he was of interest by association.”

20. It was open to the Tribunal to deal with the question of the first applicant’s brothers-in-law in that way.  As noted earlier, it was not incumbent on the Tribunal to seek out corroborative evidence from anyone (including the second applicant) concerning the issues of the brothers-in-law.  I agree with the submission made in writing in paragraph 15 of the first respondent’s written submissions filed 26 August 2013 that the issue of whether or not the second, third and fourth applicants may be permitted to make a further application for a protection visa is a hypothetical question which does not need to be determined in these proceedings.

21. The applicants wanted to rely upon an affidavit that was filed on 28 March 2013.  That is the affidavit of the first applicant.  I have had regard to the content of that affidavit.  The evidence contained in that affidavit is sought to be adduced to point out that the actual findings made by the Tribunal were erroneous.  Alternatively it is sought to be adduced to point out that the country information relied upon was not correct.  Whatever way one looks at it the evidence sought to be adduced in that affidavit would only be relevant if this Court were empowered to embark upon a merits review of the application that was before the Refugee Review Tribunal.  That is not permissible.  That affidavit is therefore not relevant.  Even if I took all of the contents of that affidavit into consideration – it would still not change the fact that this Court cannot embark upon a merits review of the decision of the Tribunal.

22. I have come to the conclusion that the grounds of review are bound to fail.  That includes the grounds of review noted in the amended application filed 28 March 2013.  It also includes any other grounds of review that may have been raised during the course of submissions.

23. Accordingly, I have come to the conclusion that the application for judicial review of the applicants is without merit.  Accordingly I have decided that the Court should not exercise its discretion to extend the time limit in respect of the filing of the initial application for judicial review.  The application for an extension of the time limit is dismissed.  The applicants will also have to pay the first respondent’s costs.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Howard

Associate: 

Date:  2 June 2014