BZAEC v Minister for Immigration
[2013] FCCA 2138
•8 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZAEC v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 2138 |
| Catchwords: MIGRATION – Protection visa – Refugee Review Tribunal – show cause hearing – whether the Tribunal failed to consider relevant material – whether the Tribunal took into account irrelevant material – no reasonable prospect of success – application dismissed – costs awarded. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.36, 46A |
| Applicant S214 of 2003 v Refugee Review Tribunal [2007] HCATrans 508 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709 VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447 VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 |
| Applicant: | BZAEC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 346 of 2013 |
| Judgment of: | Judge Burnett |
| Hearing date: | 8 October 2013 |
| Date of Last Submission: | 8 October 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 8 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barataraj |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection.”
That the application filed on 6 May 2013 be dismissed.
That the Applicant pay the Respondents’ costs of and incidental to the application fixed in the sum of $4500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 346 of 2013
| BZAEC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 11 May 2012. He participated in an entry interview on 19 June 2012 and on 10 August 2012, was subject to a decision made by the Minister, under s.46A(2) of the Migration Act1958 (Cth) permitting him to make a visa application.
He subsequently lodged an application for a protection visa on that day. The applicant was represented by the same migration agent in his dealings with the Department and the Refugee Review Tribunal (“the Tribunal”). He set out his claims as to fear of harm in Sri Lanka in a statutory declaration which was lodged with his protection application.
He is a person who was born in 1990 in Trincomalee in Sri Lanka’s eastern province. He claimed that in 1990, his father and uncles were arrested twice by the army, accused of being Liberation Tigers of Tamil Eelam (“LTTE”) members and mistreated, before being released. When the applicant was three months old, his family took him to live in India, where he lived for the next 22 years in a refugee camp. The applicant claimed that life was difficult in India and he had no permanent right to live there, so he decided to travel to Australia.
The applicant feared that if he was returned to Sri Lanka, he would accused or suspected of being an LTTE member or supporter, because he is a young Tamil male. He claims that the situation for Tamils was dangerous, especially in Trincomalee, as there were many ‘white van’ incidents in which people were kidnapped and killed. He also feared harm from the army because he did not have a national identity document and would be stopped, detained and interrogated. He provided copies of his untranslated birth certificate, academic records and refugee documents, which were said to have been issued for the applicant and his family in India.
He attended an interview before the delegate on 10 August 2012. The delegate made a decision on 3 October 2012, finding that, although the applicant was generally credible, independent country information indicated that Tamil ethnicity alone was insufficient to result in persecution. The delegate concluded that the applicant did not face a real chance of persecution for a convention reason, and concluded that he did not meet the complementary protection requirements or criteria for protection on that basis either.
On 8 November 2012, the applicant then lodged an application with the Tribunal to review the delegate’s decision. The applicant attended the scheduled hearing with his agent and gave evidence. In a decision of 8 April 2013, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.
By application filed on 6 May 2013 and an amended application on 22 August 2013, the applicant sought and now seeks judicial review of the Tribunal’s decision of 8 April 2013.
The amended application lists one particular ground of appeal which had three sub-grounds. The applicant contends that there is a procedural error in that the second respondent:
“b) erred in law by taking non-relevant considerations in making the decision.
Particulars
i) the Tribunal used outdated UNHCR country information in making the decision.
c) erred in law by not making a decision contradictory to the preponderance of evidence of Country evidence in support to the Applicant’s claims that makes it unreasonable to the common man.”
The application had earlier included subparagraph (a), but that particular paragraph was abandoned by the applicant in the course of submissions today. The application which comes before the Court today is one pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (show cause hearing). That rule provides:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for relief claimed – dismiss the application; or
…”
A comparable provision was considered in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 by Rares J, who, in considering the comparable provision under the Federal Court Rules dealing with bringing proceedings to an early end, summarised the approach as involving an assessment of whether there are reasonable prospects of success: but in doing so, the Court must be cautious not to do an injustice by summarily dismissing an application.
Broadly, his Honour determined that there would be a reasonable prospect of success if there is evidence which may be reasonably believed, and if so would enable the party against whom the summary dismissal is sought to succeed at the final hearing. In this instance, there are no questions of evidence. This Court is limited solely to re-consideration by judicial review. Accordingly, the only question is whether there is, on the material as it stands, any reasonable prospect of success.
Before proceeding to address that question, comment ought first be made on the matter of transcript. The matter was raised by the applicant this morning, but was abandoned. The applicant contended that the matter ought be adjourned and a transcript provided, because he could only provide effective submissions after he had received and heard and considered the oral and written transcripts of proceedings before the Tribunal.
Respectfully, it is simply insufficient to make application based on such a broad submission. If there is a risk of injustice occasioned because of an interpretation issue, then the party applying should, at least, provide instances to illustrate how these errors manifest. Given the opportunity, counsel for the applicant was unable to do so and, accordingly, then abandoned this point. However, I wish to reinforce the need for those sorts of applications to be properly considered if they are to have any prospects.
In oral argument before the Court, which was intended to supplement the written outline, there were further developments. As earlier noted, the applicant abandoned ground (a) of the amended application and expanded upon grounds (b) and (c) by further informing the Court of the applicant’s complaints. In broad terms, the applicant complains that there was jurisdictional error by the Tribunal by it:
(a) failing to consider relevant material; and
(b) by taking into account irrelevant material.
These were addressed in paragraphs (b) and (c) of the amended application respectively. However, and most significantly for the purpose of the application, they were advanced solely in respect of an allegation that the Tribunal failed to consider the applicant’s claim under the complementary protection provisions of s.36(2)(aa). That is to say, there was no complaint prosecuted concerning the assessment of the convention claim pursuant to s.36(2)(a) as was initially contended for and is contended for in the written outlines.
The Tribunal dealt with the applicant’s complementary protection claim at [48] to [50]. In those sections, under the heading “Complementary protection,” the Tribunal observed:
“48. I have also considered whether the Applicant would satisfy the criterion for protection under complementary protection arrangements.
49. As noted, on the information before the Tribunal I am not satisfied that the Applicant would be harmed by the authorities on return to Sri Lanka because of his Tamil race, his political opinion or his membership of a particular social group. I am not satisfied that he does, in fact, face significant or serious harm for these or other reasons – including for lack of an identity card, for seeking asylum in Australia or for leaving Sri Lanka unlawfully in 1990 – whether that is assessed against the standards of a real chance or of a real risk.
50. On the basis of this finding I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.”
In essence, the applicant’s complaint is that the Tribunal failed to consider material put before it by him, in particular, that material which is particularised at paragraph 14 of his written submissions. In that paragraph, he detailed the body of material which was placed before the Tribunal. However, it is apparent that that material was considered by the Tribunal when regard is had to the Tribunal’s observations.
At [34], the Tribunal stated:
“I have considered the country information cited by the delegate together with the material submitted at the hearing by the advisor and the UNHCR Guidelines reports for 2010 and 2012.”
Although the findings addressed at [34] were in the context of the s.36(2)(a) claim, these findings were adopted and relied upon in support of the complementary protection claim. The applicant’s particular submissions concern two matters.
The first was that the country information relied upon was against the weight of the general country information. The fact remains that the Tribunal had available to it a broad cross-section of material, some favourable to the applicant and some not. The Tribunal stated that it had considered it all. Country information is broad and is generally agency-centric, that is, it is prepared from the perspective of the gathering agency, for its own or broader purposes.
However, what the applicant complains of is, in essence, the evaluation process that was undertaken by the Tribunal. In effect, he seeks review of the Tribunal’s conclusion, that is, its merits determination as to the Tribunal’s choice and assessment of the country information, and the factual conclusions which followed upon it.
It is settled that such a merits review in respect of country information and the Tribunal’s choice and assessment of country information is indeed a factual matter for the Tribunal and, accordingly, not a matter which is open to judicial review: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The applicant’s criticism of the Tribunal, in my view, cannot be made out on that ground.
The next point advanced by the applicant is that there is now more recent country information available, which it is submitted would shed a different light on the country information considered to date and that, if it were to be considered by the Tribunal, could lead to a different outcome.
This material is said to have come to light in the eight week period between the hearing but before the Tribunal delivered its decision. No application was made by the applicant to reopen the hearing. Indeed, no effort was made by the applicant to otherwise bring this material to the attention of the Tribunal.
As was submitted for the respondent, the Tribunal has no obligation to inquire generally into more recent country information than that which is placed before it: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 447; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29. Had the applicant wanted the Tribunal to consider additional country information, he ought to have brought the matter to the attention of the Tribunal, as the onus lay upon him: Applicant S214 of 2003 v Refugee Review Tribunal [2007] HCATrans 508; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709. However, as is apparent, he did not do so. Against that background, the applicant cannot reasonably assert that the Tribunal failed to consider relevant material. Nor, for reasons noted earlier, is it a case where the Tribunal has permitted itself to consider irrelevant material.
It is quite plain that the material that was placed before the Tribunal was relevant to the issues in question. In a supplementary outline filed today, the applicant also sought to contend that the failure by the Tribunal to detail its analysis of findings on the country information supported a contention of illogicality. However, I do not accept that is so.
Ultimately, the Tribunal provided a reasoned analysis of its conclusions. It addressed in its decision its reference to the country information and any criticism of its analysis is one which I think is tainted by an eye too finely attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
It follows that the application is one where I am satisfied that the applicant has not raised an arguable case for relief and, accordingly, it is appropriate that it be dismissed.
I will direct that the applicant pay the respondent’s costs of and incidental to the application, fixed in the sum of $4500.00. I note that as less than the scale fee which would ordinarily apply.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 11 December 2013
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