CAE16 v Minister for Immigration
[2017] FCCA 2526
•4 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAE16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2526 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – principal applicant claiming a fear of harm in Sri Lanka on account of an imputed political opinion, her ethnicity and other reasons – additional claims made by the third applicant – principal applicant not believed – other fears by the applicants not well-founded – whether the Tribunal failed to consider claims or failed to set out its findings considered – jurisdictional error established in relation to a post hearing claim concerning a fear of abduction. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36 |
| Cases cited: ACI15 v Minister for Immigration & Anor (No.2) [2017] FCCA 261 SZGIZ v Minister for Immigration (2013) 212 FCR 235 SZRCN & Ors v Minister for Immigration & Anor [2012] FMCA 597 |
| First Applicant: | CAE16 |
| Second Applicant: | CAF16 |
| Third Applicant: | CAG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1999 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2017 |
REPRESENTATION
| Counsel for the Applicants: | Mr J Mack |
| Solicitors for the Applicants: | Westside Legal |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 30 June 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1999 of 2016
| CAE16 |
First Applicant
| CAF16 |
Second Applicant
| CAG16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 30 June 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Sri Lanka. Their claims as they relate to their fear of persecution on account of characteristics protected by the Refugees Convention are not relevant to these proceedings. Their only claims that are presently relevant are that they will face a real risk of significant harm as a necessary and foreseeable consequence of their removal, as those terms are defined by the Migration Act 1958 (Cth) (Migration Act).
The first applicant (applicant) and her husband arrived in Switzerland in 1995 and 1990 respectively.[1] They married there in 1995, and the daughter was born there in 2000, but is a Sri Lankan citizen.[2] They unsuccessfully sought asylum in Switzerland, but remained there with limited “work permits” until 2011.[3] The applicants arrived in Australia in February 2011 on tourist visas.[4]
[1] Court Book Pt.1 (CB1) 28
[2] CB1 28
[3] CB1 28, 30
[4] CB1 63, 68
On 16 March 2011, the applicant applied for a protection visa.[5] Her husband and daughter were included as members of her family unit in that application. On 27 May 2011, a delegate of the Minister refused to grant the visas.[6]
[5] CB1 1
[6] CB1 134
On 3 January 2012, the then Refugee Review Tribunal (RRT) affirmed the decision under review.[7] The applicants unsuccessfully sought judicial review in the then Federal Magistrates Court[8] and the Federal Court.[9]
[7] CB1 189
[8] SZRCN & Ors v Minister for Immigration & Anor [2012] FMCA 597 (12 July 2012)
[9] SZRCN v Minister for Immigration [2012] 134 ALD 258 (9 November 2012)
On 13 August 2013, the applicants lodged further applications for protection visas.[10] The daughter advanced protection claims of her own.[11] The husband was included as a member of the family unit.[12] The applications were accepted as valid on the basis of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration.[13]
[10] CB1 228
[11] CB1 257
[12] CB1 272
[13] (2013) 212 FCR 235
On 8 September 2014, the delegate refused to grant the visas,[14] and on 8 October 2014, the applicants applied to the Tribunal for review of this decision.[15] The applicants appeared before the Tribunal on 4 November 2015, 2 March 2016, 26 May 2016 and 15 June 2016.[16] On 30 June 2016, the Tribunal affirmed the decision under review.[17]
[14] CB1 389
[15] Court Book Pt.2 (CB2) 1
[16] CB2 60, 200, 260, 325
[17] CB2 362
The applicants’ claims for protection
In her original protection visa application, the applicant claimed to fear harm on the basis of imputed pro-Liberation Tigers of Tamil Eelam (LTTE) and anti-government political opinions.[18] The applicant relied on the same claims in her second application, and advanced additional claims to fear harm by reason of her involvement in Tamil diaspora activities in Australia, and that her daughter would be sexually assaulted and abducted because of the family’s involvement in those activities.[19] In a submission to the delegate by the applicants’ representative dated 6 August 2014,[20] and variously reiterated through more than ten separate submissions by the applicants’ representative to the Tribunal,[21] the applicant also claimed to fear harm on the following bases:
a)as a practising Hindu;[22]
b)as a Tamil woman, the applicant and her daughter would face sexual violence and harassment;[23]
c)having returned from a Western country, it would be known that she had sought asylum and would be imputed with a political opinion of supporting a separatist state for Tamils in Sri Lanka;[24]
d)her persecutors suspected her to be an LTTE supporter and sympathiser, and accordingly, she would also face significant economic hardship that would threaten her capacity to subsist;[25] and
e)the applicants, particularly the daughter, would face abduction, torture and sexual violence, as wealthy Sri Lankans or Sri Lankan Tamil expatriates perceived as wealthy.[26]
[18] CB1 26, 147
[19] CB1 323-324
[20] CB1 332
[21] 6 August 2014 (CB1 332); 27 October 2015 (CB2 18); three sets of submissions on 7 December 2015 (CB2 104, 150, 160); 16 December 2015 (CB2 187); two sets of submissions on 4 March 2016 (CB2 206, 217); 10 March 2016 (CB2 220); 17 March 2016 (CB2 223); 6 April 2016 (CB2 231); 19 May 2016 (CB2 245); 6 June 2016 (CB2 268); 12 June 2016 (CB2 286); 27 June 2016 (CB2 335); 29 June 2016 (CB2 356).
[22] CB1 332
[23] CB1 354
[24] CB1 360
[25] CB2 49
[26] CB2 347, 358
The daughter claimed to fear harm on the basis of her parents’ political activities in Australia, on the basis of her own pro-Tamil activities in Australia, that she would be unable to obtain state protection because she was Tamil, that she would be sexually harassed, that she would be abducted and her parents extorted, and that her parents would be harmed and she would be unable to subsist in Sri Lanka without them.[27]
[27] CB2 56
Tribunal’s decision
The Tribunal recognised the relevant effect of SZGIZ, and confirmed that it had assessed the applicant’s claims against the complementary protection criterion only, but that it had assessed the daughter and father’s claims against both criteria, as they were making their own claims for protection for the first time.[28]
[28] CB2 363: [4]-[6]
The Tribunal found the applicant not to be truthful or credible, and that she had concocted claims, and embellished and distorted evidence.[29] It accepted that the applicant grew up in Mullaitivu, and had done some work for the LTTE prior to 1995.[30] However, the Tribunal was “highly sceptical” of the claim that she had any key role in the work undertaken for the LTTE, and noted that many people had been forced to work for the LTTE while living in areas under their control.[31] Accordingly, it was not satisfied that the applicant would be of interest to the Sri Lankan authorities some 20 years after these activities[32] and that she would be imputed with a pro-LTTE opinion.[33]
[29] CB2 389: [173]
[30] CB2 368-369: [47]
[31] CB2 373, 383, 385, 391: [72], [133], [144] and [182]
[32] CB2 373: [72]
[33] CB2 385: [144]
The Tribunal assessed the applicant’s claim that during a trip to Sri Lanka in December 2010, she was detained for two days by Sri Lankan authority figures, and was slapped and raped until a ransom was paid for her release. The Tribunal found aspects of this claim to be inconsistent, far-fetched, implausible or unconvincing.[34] On the basis of those findings, in addition to its finding that the applicant was not of adverse interest to the Sri Lankan authorities in 2010, the Tribunal did not accept that the applicant was abducted, detained and assaulted in 2010.[35] On the basis of its adverse credibility findings, the Tribunal did not accept that unknown men continued to visit her sister’s house after this incident.[36]
[34] CB2 386-387: [150]-[153]
[35] CB2 387: [155]
[36] CB2 387: [157]
As for her time in Switzerland, the Tribunal accepted the applicant’s claims regarding donations to the LTTE before the end of the war, but did not accept that the applicants made the donations because they supported the group’s ideology.[37] Nor did the Tribunal accept the applicant’s claims about the phone calls and visit from Tamil youths, finding aspects of those claims to be implausible and far-fetched.[38]
[37] CB2 387: [158]-[159]
[38] CB2 388: [160]-[165]
On the basis of country information, the Tribunal did not accept that the applicant faced a real risk of harm in Sri Lanka on the basis of her Hindu religion.[39] Nor did it accept that the applicant and her daughter would face a real risk of harm as Tamil women, noting the reports provided by the applicants’ representative on the problems of crime and of sexual violence in Sri Lanka.[40]
[39] CB2 375, 390: [82] and [180]
[40] CB2 393-394: [198]
The Tribunal noted that the applicant had returned to Sri Lanka at least twice,[41] most recently in 2009 and 2010, and that there was nothing before it to indicate why the applicant would be unable to return to Sri Lanka on her own passport.[42] Further, the Tribunal did not accept that the applicant’s residence in a western country would cause her to be imputed with an adverse political profile.[43]
[41] See CB2 375: [84] and CB2 364: [15]
[42] CB2 375, 393: [85] and [193]
[43] CB2 393: [193]
The Tribunal accepted that the applicant had engaged in pro-Tamil activities in Australia, but did not accept that she did so due to a genuine belief in the LTTE. It considered that this was an attempt to enhance the applicant’s claims for protection in Australia.[44] In any event, the Tribunal did not accept that any involvement in these activities would impute the applicant with a pro-LTTE view that would bring her to the adverse attention of Sri Lankan authorities.[45]
[44] CB2 389: [166]-[172]
[45] CB2 391: [188]
On the basis of its findings above, the Tribunal concluded that the applicant did not meet the criterion in s.36(2)(aa) of the Migration Act.[46]
[46] CB2 394: [200]
In relation to the daughter’s claims, the Tribunal found the daughter to be generally honest, but considered that she had only limited knowledge of the situation in Sri Lanka.[47] The Tribunal accepted that the daughter was involved in pro-Tamil activities in Australia, but did not accept that she held or would be imputed with a separatist or pro-LTTE political view on that basis[48] or because of her parents.[49] In relation to her claims to fear sexual harassment or abduction, the Tribunal noted that there was no evidence to suggest that all women and girls faced a real risk or real chance of falling victim to such things.[50] Nor did it accept that the evidence before it suggested that there was a real chance that she would be abducted in order to extort money from her parents.[51] The Tribunal concluded that the daughter did not meet the criteria in ss.36(2)(a) or (aa) of the Migration Act.[52]
[47] CB2 396: [218]
[48] CB2 396: [222]
[49] CB2 397: [223]
[50] CB2 397: [226]-[227]
[51] CB2 397: [227]
[52] CB2 397-398: [229] and [231]
The Tribunal noted that the husband did not advance any claims of his own, other than to give evidence that he had not returned to Sri Lanka for 25 years and that there was an army camp in his local area.[53] In the absence of any further articulation of a claim to fear harm, the Tribunal concluded that the husband did not meet the criteria in ss.36(2)(a) or (aa) of the Migration Act.[54]
[53] CB2 378: [102]
[54] CB2 398, 399: [237] and [240]
The present proceedings
These proceedings began with a show cause application filed on 26 July 2016. I granted leave to the applicants to rely upon an amended application filed on 5 October 2017. The grounds in the amended application are:
1. The Second Respondent (Tribunal) failed to consider claims raised by the First Applicant as to why she would face a real risk of significant harm as a necessary and foreseeable consequence of her removal from Australia.
Particulars
a. In submissions provided to the Tribunal on 27 October 2015, the First Applicant's advisors provided information indicating that women faced discrimination in employment in Sri Lanka.
b. In its decision, the Tribunal failed to consider whether the First Applicant would face a real risk of significant harm if removed to Sri Lanka on the basis of discrimination in employment on account of her gender.
c. The Tribunal's failure to consider this claim amounted to jurisdictional error.
2. The Tribunal failed to consider claims and evidence put by the First Applicant to the Tribunal as to the risks of harm she would face as a wealthy Sri Lankan or as a Sri Lankan Tamil expatriate perceived as wealthy.
Particulars
a. In submissions provided to the Tribunal on 27 June 2016, the First Applicant's advisors provided information indicating that wealthy Sri Lankans have been kidnapped for ransom.
b. In its decision, the Tribunal failed to consider whether the First Applicant would face a real risk of significant harm if removed to Sri Lanka as a wealthy Sri Lankan at risk of being kidnapped for ransom.
c. On 30 June 2016 at 9:44am, the First Applicant's advisers provided a submission to the Tribunal advancing a claim that the Applicants would be at risk if removed to Sri Lanka because of their “particular social group as wealthy Sri Lankans or Sri Lankan Tamil expatriates perceived as wealthy”. This submission also provided additional country information in support of the Applicants' claims.
d. The Tribunal's decision was made at 11:43am on 30 June 2016.
e. In its decision, the Tribunal did not refer to the submission provided on 30 June 2016, its contents, or the claim raised in respect of the First Applicant regarding the risk of harm as a “wealthy Sri Lankan” or “Sri Lankan Tamil expatriate perceived as wealthy” in its decision.
f. The Tribunal failed to consider the submission of 30 June 2016, the evidence contained within it, or the claims raised within it.
g. The Tribunal's failure to consider these claims, or the evidence contained within the submission of 30 June 2016, amounted to jurisdictional error.
3. In the alternative, the Tribunal erred by failing to set out its findings on material questions of fact for the purposes of s.430(1)(c) of the Migration Act 1958 (Cth).
Particulars
a. The Tribunal failed to set out its findings as to whether the First Applicant would face a real risk of significant harm through discrimination in employment on the basis of her gender if removed to Sri Lanka.
b. The Tribunal failed to set out its findings as to whether the First Applicant would face a real risk of significant harm as a wealthy Sri Lankan or as a Sri Lankan Tamil expatriate perceived as wealthy if removed to Sri Lanka.
c. The Tribunal's failure to comply with the requirements of s 430(1 )(c) amounted to jurisdictional error
I have before me as evidence the court book in two volumes filed on 26 September 2016.
Consideration
Ground 1 – did the Tribunal fail to consider a claim based on gender discrimination?
Applicants’ submissions
In submissions provided to the Tribunal on 27 October 2015, the applicants’ representative argued, relevantly, that “there is persistence of discrimination against women in the labour market in Sri Lanka”.[55] In its decision, the Tribunal acknowledged that the applicants’ representative’s submissions of 27 October 2015 argued that “women faced discrimination in employment” in Sri Lanka.[56]
[55] CB2 40
[56] CB2 368 at [43]
Despite the acknowledgment that submissions were made on this particular topic, the decision sets out no findings as to whether the applicant would face a real risk of significant harm from discrimination on the basis of gender. The applicant contends that the absence of reference to this aspect of the submission in setting out the Tribunal’s findings supports the conclusion that the Tribunal did not take it into account.[57]
[57] Minister for Immigration v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT) at [72]
The Tribunal, in order to be “satisfied” as to whether the applicant (or indeed any of the applicants) met the criteria under s.36(2)(aa), was required to form a correct understanding of the bases on which the applicants claimed that they faced a real risk of significant harm in Sri Lanka.[58] The evidence before the Tribunal is said to have been sufficient to establish that the fear of discrimination on the basis of gender was one of these bases. This claim was either raised directly (by the applicant’s representative in submissions) as a reason why the applicant would face a real risk of significant harm in Sri Lanka or, in the alternative, may be said to have arisen “squarely” on the material before the Tribunal,[59] given the way in which it was articulated.[60]
[58] Minister for Immigration v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 (MZYTS) at [34]
[59] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58]
[60] at CB2 40
The applicants submit that this claim cannot be considered to be an irrelevant consideration, or else to be so inconsequential that to “overlook” this particular claim would still mean that the Tribunal had considered the first applicant’s application.[61] This claim regarding the prospect of discrimination is relevant as a reason why the first applicant would face a “real risk” of significant harm as a necessary and foreseeable consequence of her removal to Sri Lanka.
[61] cf Minister for Immigration v SZNPG [2010] FCAFC 51 at [28]
Discrimination may, in certain circumstances and if of sufficient intensity, amount to “degrading treatment or punishment” (identified as one of the forms of “significant harm” in s.36(2A) of the Migration Act, and as defined in s.5) as an affront to human dignity. This Court, having regard to the former European Commission on Human Rights’ decision in East African Asians v United Kingdom[62] (East African Asians), has previously found that “as a matter of statutory construction …, whether or not regard is had to international jurisprudence such as the East African Asians case, … the s.5(1) definition [of degrading treatment] could encompass differential treatment of a kind that caused and was intended to cause extreme humiliation because of the racial basis for that treatment, even if the same treatment on some other ground would not satisfy the definition”.[63]
[62] (1981) 3 EHRR 76
[63] SZSVT v Minister for Immigration & Anor [2014] FCCA 768 (SZSVT) at [62]. Judge Barnes refrained, however, from determining whether, and to what extent, “it is to be accepted as a legal principle that the racial nature of differential treatment would render that treatment degrading in certain circumstances”: SZSVT at [62]
The European Commission on Human Rights’ decision in East African Asians, and Judge Barnes’ decision in SZSVT, are expressed in terms of racial discrimination. The former, in particular, notes[64] that “as generally recognised, a special importance should be attached to discrimination based on race”.[65] There is said to be no basis in principle why such reasoning could not extend from race based discrimination to discrimination based on gender. It is said to follow that the claim raised that the applicant and the third applicant may face discrimination in employment on the basis of their gender required consideration as a claim that they would thereby face a real risk of significant harm.
[64] at [207]
[65] quoted in SZSVT at [41]
Although the Tribunal found that Tamil women do not “generally face a real risk of being victims of sexual assault or any other crime”,[66] the applicants submit that it does not follow that the Tribunal considered, or made findings in relation to, the applicant’s claim that she would face discrimination in employment on account of her gender if removed to Sri Lanka. The Tribunal’s statement that its conclusion in respect of the applicant was made “[a]fter considering the applicant’s claims individually and cumulatively and taking account of all the relevant evidence”[67] is said not to be sufficient to indicate that the above-noted considerations were actually taken into account.
[66] CB2 393-394 at [198]
[67] CB2 394 at [200]
The Tribunal’s failure to consider the applicant’s claims in this regard is said to have amounted to jurisdictional error. As in MZYTS, the Tribunal’s reasons do not disclose that it formed a “state of satisfaction” as to whether the first applicant would face a real risk of significant harm as a result of discrimination on the basis of her gender.
Minister’s submissions
The Minister notes that the 32 page submission prepared by the applicants’ representative and submitted to the Tribunal on 27 October 2015 makes reference to a UN Committee report about discrimination against women in the labour market.[68] The extracted report focuses on discrimination against women and girls in various areas, which included employment, decision-making, land ownership, education, sexual harassment, and other forms of violence against women. The submission asserted that employment discrimination experienced by females, particularly Tamil females and Tamil females suspected as LTTE supporters in Sri Lanka, amounted to persecution.[69] However, the claim advanced in the submission was more confined. The submissions contended that in the applicant’s case, her persecutors suspected her as an LTTE supporter and sympathiser, and accordingly, she would also face significant economic hardship that would threaten her capacity to subsist.[70] It was nowhere stated that the applicant feared significant harm arising from employment discrimination in Sri Lanka on the basis of her gender.
[68] CB2 22
[69] CB2 49
[70] CB2 49
The Minister submits that this issue was not subsequently raised or further explained in the numerous submissions to the Tribunal, nor is there any evidence before the Court to suggest that the applicant gave evidence at any of the four hearings before the Tribunal that she feared employment discrimination in Sri Lanka amounting to significant harm on the basis of her gender. As such, there is said to have been no “substantial, clearly articulated argument relying upon established facts”[71] that the applicant faced a real risk of significant harm by reason of employment discrimination on the basis of gender. Insofar as a claim of economic hardship was advanced, it was premised on the applicant’s claims as to her actual and imputed LTTE profile, which the Tribunal comprehensively rejected.
[71] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at [24]; also NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68]; ACI15 v Minister for Immigration & Anor (No.2) [2017] FCCA 261 at [32]
The Minister submits that it is apparent from the Tribunal’s decision record that it was alive to, and considered, the country information presented by the applicant relating to discrimination faced by women in Sri Lanka.[72] However, the Tribunal proceeded to make findings on the actual claims advanced, or clearly arising on the evidence in relation to the applicant. The Tribunal was not required to make findings on every factual matter addressed in the voluminous country information submitted, or indeed, in generic submissions made by the applicants’ representatives.
[72] CB2 368: [42]-[43]
Resolution
The only express claim made by the applicant was one of asserted persecution based upon the applicant’s membership of the particular social group of Tamil women.[73] That claim could only have been considered by the Tribunal under the complementary protection criterion, following the limitation on its jurisdiction arising from the decision in SZGIZ. It is hard to see how the claim arose under the complementary protection criterion. The particular social group asserted would be irrelevant to such consideration, being an element of a Refugees Convention nexus argument.
[73] See CB2 49
The Tribunal did purport to consider the applicant’s other claims under the Refugees Convention.[74] The purported consideration of the applicant’s claims under s.36(2)(a) of the Migration Act can be put to one side. That was an error but not an error going to jurisdiction and, in any event, was to her advantage.
[74] from [143]
There was no express consideration in the Tribunal’s complementary protection assessment of the applicant’s employment prospects or whether she might be affected by societal discrimination. In my opinion, however, if there were an error made by the Tribunal in that regard, it would not go to jurisdiction because the claim was not put as a claim of complementary protection. The Tribunal made a determined effort to deal with the voluminous and numerous submissions put to it on behalf of the applicants and the failure to deal with one small element of those claims which was put in support of the applicant’s claims to be a refugee, and which did not obviously bear upon the complementary protection assessment, was in my view of little consequence.
I otherwise agree with the Minister’s submissions in relation to this ground.
Ground 2 – did the Tribunal fail to consider a claim that the applicant risked harm as a wealthy Sri Lankan or as a Sri Lankan Tamil expatriate perceived as wealthy?
Applicant’s contentions
The applicants’ submissions to the Tribunal of 27 June 2016 included a section entitled “Reports on abductions of wealthy people in Sri Lanka”, which contained country information to this effect.[75] The decision acknowledges[76] that on 27 June 2016 the applicants’ representative provided “several articles on kidnapping of wealthy Sri Lankans for ransom”.
[75] CB2 347-354
[76] CB2 376 at [90]
The applicants submit that the provision of information on this topic, identified as such, was sufficient to “squarely” raise a claim that the first and second applicants would face a real risk of significant harm on this basis if removed to Sri Lanka.
The applicants’ submissions to the Tribunal of 30 June 2016 included the statement[77] that “the applicants, particularly their minor child will face abduction, torture and sexual violence due to the applicants[’] active and imputed political opinion and activities and their particular social group as wealthy Sri Lankans or Sri Lankan Tamil expatriates perceived as wealthy.”
[77] at CB2 358
The applicants’ submissions of 30 June 2016 were provided to the Tribunal around two hours before the Tribunal made its decision. This does not demonstrate that the Tribunal was not required to take these submissions into account. “[A]n administrative decision-maker is required to make [its] decision on the basis of material available to [it] at the time the decision is made”.[78] The actual knowledge of the Tribunal, or at the least, the constructive knowledge (to adopt the language in Peko-Wallsend of Mason J, as he then was) of the 30 June 2016 submissions is established by the inclusion of the submission in the court book.
[78] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 45 per Mason J; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 by Hayne and Heydon JJ at [101] and by Kiefel J at [143]
The applicants submit that, notwithstanding the Tribunal knew of the submission, it impermissibly ignored the material contained therein.
In order to fulfil its statutory task, a tribunal is required to form a correct understanding of the bases on which a visa applicant claims to have a fear of persecution, or to face a real risk of significant harm, in their country of nationality.[79] Both the 27 June 2016 and 30 June 2016 submissions, whether individually or cumulatively, establish that fear of harm as “wealthy people in Sri Lanka” or as “Sri Lankan Tamil expatriates perceived as wealthy” were bases on which the applicants feared that they would face a real risk of significant harm if removed to Sri Lanka.
[79] Minister for Immigration v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [34]
Despite the submissions of 27 June 2016 (which “squarely”, if not explicitly, raised a claim that the applicants would be at risk as “wealthy people in Sri Lanka”), and the submissions of 30 June 2016 (which raised a claim that the applicants would be at risk as “wealthy Sri Lankans or Sri Lankan Tamil expatriates perceived as wealthy”), the decision does not address the question of whether the applicant or the second applicant would face a real risk of significant harm on these bases. At best, the decision addresses an unrelated question of whether the applicant would face a real risk of significant harm “because she will be returning from a western country”.[80]
[80] CB2 393 at [197]
In MZYTS, the Full Federal Court[81] noted that the RRT’s decision at issue “suggest[ed] no consciousness of the contents of … post-hearing materials”, even given acknowledgment of their existence. This was noted so as to emphasise “the absence of any consideration” of that material. The applicants submit that, in this case, the Tribunal’s decision suggests no consciousness of the contents of the submissions of 27 June 2016 (insofar as those documents indicate that the risk of abduction was a basis for the first applicant’s fear of harm upon return) and no consciousness of the contents or existence of the submissions of 30 June 2016.
[81] at [41]
The applicants submit that the decision further fails to refer to the country information cited in the submissions of 27 June 2016 with regard to the risk of harm faced by wealthy people in Sri Lanka.[82] This is said not to be a case where there is an inference available that the Tribunal considered the applicants’ claim but simply preferred other material as to the risks that the first or second applicant would face as wealthy people, or as Sri Lankan Tamil expatriates perceived as wealthy, upon return to Sri Lanka.
[82] as in MZYTS at [42]
One would expect, and the applicants say they are entitled to expect, that if the Tribunal considered the existence, or content, of the submissions of 30 June 2016, this would have been disclosed in the decision. In this case, the relevance of further submissions explicitly articulating a basis upon which the applicants would face harm if removed to Sri Lanka, as in SZRKT, is said to be “so high that the obvious inference [was that] the absence of reference … supported the conclusion that the Tribunal did not take it into account”.[83] The Tribunal’s failure to refer to this submission, and its failure to refer to material in the 27 June 2016 submission regarding abductions of wealthy Sri Lankans, is said to have been “indicative of omission and ignoring, not weighing and preference”.[84]
[83] SZRKT at [72]
[84] MZYTS at [50]
The Tribunal accepted that the third applicant “fears she may be abducted by people wanting to extort money from her parents”, but did not accept that there was a real chance that she would be abducted for this reason.[85] The consideration of risks of abduction for extortion in the context of the third applicant’s claims is said not to demonstrate that these claims, or the evidence provided in support of these claims, were considered in respect of the claims of the applicant or the second applicant.
[85] CB1 397 at [227]. The text of the decision states that “the evidence does suggest that this means there is a real chance that the applicant daughter would be abducted”. It is plain that this is a typographical error and that, from context, the word “not” after “does” was mistakenly omitted
The applicants submit that the Tribunal’s failure to consider the applicant’s and the second applicant’s evidence and claims in this regard amounted to jurisdictional error. In addition to its failure to form a state of satisfaction as to bases for the first and second applicants’ claim to fear harm, as in Ground 1, the Tribunal failed to consider material that was relevant to the prospective exercise of its powers.[86]
[86] Minister for Immigration v Yusuf (2001) 206 CLR 323 at [82]-[84]; Minister for Immigration v SZJSS (2010) 243 CLR 164 at [27]
Minister’s contentions
The Minister submits that the Tribunal’s consideration and rejection of this claim must be viewed in the context in which it was made. In her statutory declaration of 29 October 2015, the third applicant claimed that she would be a target and would be abducted to extort money from her parents, since they had stayed in Western countries for a long time.[87] On 27 June 2016, the applicants’ representative submitted country information about abductions of wealthy people in Sri Lanka.[88] Except for one report relating to the abduction of a Tamil businessman, all of the country information related to the abduction of the children of wealthy people. In the submission emailed to the Tribunal on 30 June 2016, the applicants’ representative mentioned having previously provided evidence of abductions of wealthy Sri Lankans and their relatives in Sri Lanka to extort money, and submitted that the applicants, particularly the third applicant, would face abduction as wealthy Sri Lankans or Sri Lankan Tamil expatriates perceived as wealthy.[89] Thus, the claim advanced regarding harm to the applicants as wealthy Sri Lankans or Sri Lankan Tamil expatriates perceived as wealthy is said to have been clearly centred on the claimed risk that the third applicant would be at risk of abduction.
[87] CB2 56: [6]
[88] CB2 348-354
[89] CB2 357-358
Contrary to the applicants’ assertions at [29] of their submissions, the Tribunal expressly referred to the country information provided on 27 June 2016.[90] The Minister contends furthermore, that given that the submission on 30 June 2016 merely referred to country information already provided and reiterated the claims advanced, it is unsurprising that the Tribunal did not expressly refer to that submission, particularly in light of the voluminous submissions advanced by the applicants’ representative. There is said to be no substance to the applicants’ contention that the Tribunal failed to consider the submission on 30 June 2016, the country information references, or the claims raised within it.
[90] CB2 376: [90]
The Tribunal considered the third applicant’s claim that she feared that she would be abducted because people would think that they had money as they had lived in a Western country.[91] While it acknowledged that crimes such as kidnapping were a significant problem in Sri Lanka, the Tribunal found that the evidence did not suggest that there was therefore a real chance that the third applicant would be abducted in order to extort money from her parents or for any other reason.[92] The Minister submits that that finding was sufficient to dispose of the claimed harm faced by the applicant as a wealthy Sri Lankan or Sri Lankan Tamil expatriate perceived as wealthy. In any event, the rejection of that claim is said to have been “subsumed” in the Tribunal’s more general findings that the applicant would not face a real risk of significant harm because she would be returning from a Western country or as a victim of crime.[93]
[91] CB2 394-395: [204]-[213]
[92] CB2 397: [227]
[93] CB2 393-394: [197]-[198]; Minister for Immigration v Yusuf (2001) 206 CLR 323 at [91]; Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
Resolution
In my opinion, this ground of review has been established and, in that regard, I prefer the submissions of the applicant. In contrast to Ground 1, I do not consider that the reference to a particular social group in the representative’s submission had any significance. The claim was expressed more generally. The Tribunal carefully considered the claim in respect of the applicant’s daughter but did not consider it in relation to the applicant herself. It is arguable that such consideration was unnecessary as the applicant most at risk was the third applicant and, if the Tribunal was satisfied she would not be harmed, it might logically follow that the applicant would not be harmed either. It is also relevant that a claim of abduction by the applicant in 2010 was rejected on its facts by the Tribunal.
As outlined at [40] above, the relevant claim appears at CB2 357-358 where the applicants’ representative stated:
We have previously provided evidence of abductions of wealthy Sri Lankans and their relatives in Sri Lanka to extort money from them. We submit that the applicants, particularly their minor child will face abduction, torture and sexual violence due to the applicants active and imputed political opinion and activities and their particular social group as wealthy Sri Lankans or Sri Lankan Tamil expatriates perceived as wealthy.
In my opinion, while the claim focused on the applicant daughter, it extended to all of them and it needed to be considered in relation to the applicant, not least because she had claimed to have been abducted in 2010 (albeit that claim was rejected on the facts).
Apart from short visits in 2010 and 2011, the applicants have been out of Sri Lanka since 1995 and had lived different lives in Switzerland and Australia. There was an issue of substance of how they might be viewed on their return to Sri Lanka. The applicants’ representative had submitted country information to the Tribunal on 27 June 2016 on the abduction of wealthy people in Sri Lanka[94] and the consideration of the claim in respect of the third applicant did not remove the need for the Tribunal to consider the claim also in relation to the applicant herself.
[94] CB2 335
I conclude that the Tribunal fell into error by failing to consider the abduction claim in relation to the applicant and I accept that the error goes to jurisdiction.
Conclusion
The applicants have succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. I will grant relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 4 December 2017
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