BZY15 v Minister for Immigration

[2017] FCCA 2051

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZY15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2051

Catchwords:
MIGRATION – Protection visa – application for judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] A.C. 295
SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138

Applicant: BZY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2229 of 2015

Judgment of: Judge Riethmuller

Hearing date: 18 July 2017

Date of Last Submission: 18 July 2017

Delivered at: Melbourne

Delivered on: 1 September 2017

REPRESENTATION

Counsel for the Applicant: Ms Taylor

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Tran

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2229 of 2015

BZY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a Tamil who arrived in Australia in 2012.  The applicant applied for a protection visa in November 2012.  A delegate of the Minister refused the application in 2013, following which the applicant applied to the Administrative Appeals Tribunal (“the Tribunal”).  On 7 September 2015 the Tribunal refused the application and affirmed the decision of the delegate.  Thereafter, the applicant applied to the Federal Circuit Court for judicial review.

2. The applicant relies upon a single ground for judicial review arguing that the member did not adequately comply with s.425 of the Migration Act 1958. Section 425 provides:

   (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

3. In this case there is no question that the Tribunal afforded the applicant an opportunity to be heard in person, with the assistance of an interpreter and the applicant’s migration agent.  The issue that arises is whether or not the Tribunal put the applicant on notice that a question of fact central to the case was at issue before the Tribunal.

4. The delegate in their decision had accepted that the applicant’s uncle was a member of the LTTE.  The delegate said at p.13 of the decision (p.121 of the court book):

   The applicant has not claimed to have had any direct involvement with the LTTE himself nor that his father had any direct LTTE involvement.  His uncle was a member of the LTTE, although his level of involvement is unclear.  I accept that the applicant’s family sheltered his uncle for a short period immediately after the war ended in May 2009.

5. Ultimately, the delegate concluded that the applicant was not at risk as a result of any actual or imputed political opinion, such as being an LTTE supporter, saying:

   I consider that the lack of interest shown by the authorities towards the applicant and the applicant’s father is indicative of the applicant’s uncle (his father’s brother) not falling within one of the abovementioned 5 categories of those with an increased risk profile.

   While I acknowledge that the above UNHCR list is not an exhaustive list, in the case of the applicant he does not have any strong links that go beyond his father’s brother being in the LTTE and his father having provided shelter to this brother at the time that the applicant was 17 years of age.  In light of the absence of interest shown in him by the SLA and other Sri Lankan government authorities after the 2009 incident and for the reasons discussed above, I am not satisfied that the applicant would be at risk of harm for perceived links to the LTTE if he were to return to Sri Lanka.

6. Before the Tribunal, the applicant was heard at some length (a transcript of that hearing was placed before the Court: see Annexure ‘KB-1’ to the Affidavit of Katherine Elsa Wallis Bones affirmed 28 April 2017). 

7. The Tribunal set out in its reasons:

   53.  The tribunal advised that it had concerns regarding the credibility of his some of evidence given that it appeared vague and implausible.  It questioned whether his uncle was an LTTE member, noting the delegate did not accept that he was and put to the applicant that the camps where his uncle was appeared to be for those internally displaced from the conflict.  It noted that not all Tamils living in the North were LTTE members.

8. It seems clear that this paragraph refers to an exchange that took place between the applicant and the Tribunal member (at p.25.11 of the transcript) as follows:

   MEMBER:  Okay.  One of the things that I need to decide in whether I accept that what you are telling me is credible.  And I have to say that I’m finding some aspects of your evidence difficult to believe.  Okay, some of what you’re saying is pretty vague and some of it seems quite implausible.  Do you understand?

   INTEPRETER:  Yes, I can understand.

   MEMBER:  I’m not saying I’ve made up my mind, I’m just telling you that that’s my impressions at the moment.  As I think you’ve noticed from my comments some of the things that you’re saying I’m finding a little bit difficult to accept.  I’m just want to note that I know that the delegate accepted that your uncle came from the north but I don’t think the delegate accepted that the uncle had anything to do with the LTTE from the decision.  And given that – I mean you said that he’s in a detention camp but a lot of those camps are for people who lost their houses because of the conflict.  And not everyone in the north as an LTTE member, so I think I kind of need to kind of weigh up what I think about your evidence in the context of everything that you’ve told me about that.

9. The applicant’s ground for judicial review is framed as follows:

   1. The Tribunal failed to afford the applicant procedural fairness, in that it did not comply with its obligations under s425 Migration Act 1958 to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   Particulars

   (a)  The Tribunal failed to tell the applicant that it did not believe that the applicant’s uncle was a member of the LTTE, or that it was considering making an adverse finding in relation to that matter.

   (b)  The Tribunal mischaracterised the findings made by the delegate, namely by stating that the delegate did not “accept that the uncle had anything to do with the LTTE”.

   (c)  In the decision record, the Tribunal overstated and mischaracterised the ‘invitation’ that had been extended during the course of the hearing.

Particular (a)

1. It is convenient to commence with the first particular.  As can be seen from the quote above, it is clear that the Tribunal member put the applicant on notice that his uncle’s membership of the LTTE was an issue.  Counsel for the applicant argued that this statement must be seen in context as the Tribunal member went on to say (at p.25.32):

   MEMBER…

   It seems from your claims to the department that you were saying that some of the problems that you face in Sri Lanka that you discussed today are because not only because you’re Tamil but because of your uncle being an LTTE member.  But I’m kind of struggling to find any connection with the kinds of things that you’ve describes, like the problems when you were working at the beer shop and at the fish market and even your dad’s fishing issues.  I’m finding it difficult to understand to understand how those would relate to your uncle being in the LTTE or having stayed at your place for that period of time.

2. Whilst the Tribunal member discussed both membership and the consequences of membership with the applicant, it appears that the Tribunal member was logically working through the issues of identifying, firstly, whether the applicant’s uncle was a member of the LTTE and, secondly, the consequences if his uncle was, in fact, a member.

3. It does not seem to me that a fair reading of the second part of what the member said should be taken as limiting the operation of the first part of what the member said.  The member’s views must have been apparent not only from this exchange but from earlier comments made in the transcript where the Tribunal member said at p.22.6:

   Your uncle was not the only – I mean he wouldn’t have been the only one, if he was an LTTE member.

At p.24.1:

I think if somebody was interested in your uncle, if he really was an LTTE member, they probably would be able to …

And at p.24.34:

MEMBER: Well, I’m referring to what you said, that if your uncle was in the LTTE and they might, I’m not sure who they is when you said it, they might think that you helped your uncle with his work.

1. Counsel for the Minister also referred to a passage at transcript at p.26.43 where the member said:

   Okay, so looking at that information I may find that even if your uncle was in the LTTE I may find that the risk for you, if you go back to Udappu, would be quite remote.

2. The last two of these examples, on fair reading of the transcript, form part of the transition to the topic of the impact that membership by the applicant’s uncle in the LTTE may have upon the applicant, rather than being directed at the issue of whether there was membership of the LTTE.  

3. I also note that at the commencement of the transcript the member made clear to the applicant that the member was not bound by findings made by the Department, saying:

   Okay, so now I’m going to be making a new decision about whether you’re not you’re owed protection.  And when I do that I don’t have to accept or agree with any of the findings that the department made but I do need to apply the same law that the department applied in your case.  And under that law I first need to decide whether you are a refugee.

4. The principle underpinning this area of the law is relatively clear: proper compliance, in a substantive sense, with s.425, requires a Tribunal member to ensure that the applicant is on notice as to the issues that are to be determined. In a practical sense, this means that a Tribunal member must ensure that an applicant is on notice if a fact or circumstance found in the applicant’s favour by the delegate is again in issue and may not be accepted by the Tribunal member: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35] to [36].

5. Of course, in the practical context of running a hearing this presents other difficulties for Tribunal members (as it would for judges hearing trials) of ensuring that the statements they make do not impermissibly cross into the potential of apprehended bias if the statements were too strongly worded: see SZBEL at [47].

   It is also important to bear in mind the statements by Lord Diplock in

   
   F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry

   [1975] A.C. 295 at p.369 (as approved in SZBEL at [48]), where his Honour said:

   …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.  A trial by jury would have to be abolished.

6. These matters were expanded upon by Gray J in SZHKA v Minister for Immigration and Citizenship [2008] FCAFC 138 at paragraph [7] where his Honour listed several points that “emerged clearly” from the High Court’s decision in SZBEL:

   First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case.

7. In this case the comments by the Tribunal member in the hearing clearly identified that the Tribunal member was not persuaded that the applicant’s uncle was a member of the LTTE and indeed went further and stated (albeit mistakenly) that the Tribunal believed that the delegate had not accepted that the uncle was a member of the LTTE). Taken in the context of the other statements made by the Tribunal member, firstly identifying to the applicant at the outset that the Tribunal member was not bound by decisions of the Department and, secondly, by the comments made at pp.22 and 24 of the transcript (even leaving aside the second comment on p.24 and the comment on p.26) it is clear that the issues were apparent, at least sufficiently for the Tribunal member to have discharged their obligations under s.425.

Particular (b)

1. I turn then to the second particular of the grounds of review, namely that the Tribunal mischaracterised the findings of the delegate.  I accept that the Tribunal did mischaracterise those findings.  The Tribunal was in error because the delegate accepted that the uncle was a member of the LTTE, yet the Tribunal proceeded on an assumption that the delegate had not so accepted that fact.

2. The fact that the Tribunal member made an error in this regard is not determinative of the outcome, but rather one must consider the consequences of that error in the hearing process in this case.  It was open to the Tribunal to accept or reject any finding made by the delegate; the Tribunal was not bound by the delegate’s findings.  The Tribunal had an obligation to independently review the entirety of the case.  A Tribunal member is neither persuaded nor dissuaded as to findings of particular facts by a finding of the delegate: to allow a finding of the delegate to persuade a Tribunal would be to usurp the role of the Tribunal as an independent merits reviewer.

3. The consequence of the error in this case, had the Tribunal not mentioned it to the applicant, could have been that the applicant was left assuming that there was no issue as to his uncle’s membership of the LTTE and could have led to failure to comply with s.425 as described in SZBEL.  However, in this case, the Tribunal member clearly articulated these matters to the applicant, putting him on notice that the Tribunal member did not accept that the uncle was a member of the LTTE.  Whilst this may have misstated the formal findings of the delegate, it did not ultimately result in a failure to provide a proper hearing or a procedurally unfair process.  Nor, could it be argued, that the applicant lost the benefit of a proper reading of the delegate’s decision, as the Tribunal is an independent merits reviewer, not bound by the findings of the delegate.  In the circumstances, I am not persuaded that in the context of this case that this error by the Tribunal (the error in reading the delegate’s decision) results in any procedural unfairness or jurisdictional error.

Particular (c)

1. The final matter that was argued was that, at paragraph [53], the Tribunal had overstated its description of what had occurred in the transcript.  Paragraph 53 provides:

   53  The tribunal advised that it had concerns regarding the credibility of his some of evidence given that it appeared vague and implausible.  It questioned whether his uncle was an LTTE member, noting the delegate did not accept that he was and put to the applicant that the campus where his uncle was appeared to be for those internally displaced from the conflict.  It noted that not all Tamils living in the North were LLTE members.

2. Counsel focused on the use of the word “questioned”.  When viewed in the abstract this appears somewhat stronger than the actual exchange that took place in the transcript as quoted above.  However, the decision of the Tribunal and the exchange that took place must be seen in the context of a hearing process where, as noted above, the Tribunal is required to ensure that an applicant is on notice of the issues, but also to refrain from conducting themselves in a way that would create a reasonable apprehension of bias or an indication of pre-judging the issues.

3. As a result, the language of the Tribunal member in the transcript must necessarily be less forthright than might be imagined in the abstract, if one didn’t have to have regard to the rules relating to apprehended bias.  In this context, it is fair to say that the issue was raised, and to that extent the use of the word “questioned” is a synonym.  At best, it seems to me, that counsel’s argument is that the language used in paragraph [53] is somewhat infelicitous.

4. Even if I were to accept counsel’s argument in this regard (which I do not) one must again return to the question of what consequence this would have on the proper hearing of the case.  Paragraph [53] is simply a background paragraph recounting what occurred in the hearing.  In the proceedings before me, I have the transcript of the precise exchanges that took place in that hearing and therefore how the Tribunal recounted the hearing process is of little relevance, save to the extent that it may indicate that the Tribunal member had not properly considered the evidence that was given.  The applicant’s argument in this case does not go nearly so high.  In the circumstances, I am not persuaded that this is a ground for judicial review.

5. Ultimately, I am not persuaded that the applicant has established a ground for judicial review in this case, and therefore I dismiss the application with costs.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 1 September 2017