CAK15 v Minister for Immigration
[2019] FCCA 2722
•27 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAK15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2722 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – affirming decision to refuse Protection (Class XA) Visa – whether failure to make obvious inquiry or to inform applicant of his ability to do so – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Immigrants and Emigrants Act 1948 (Sri Lanka) Migration Act 1958 (Cth), ss.424, 427, 476 |
| Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 AJLR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 Minister for Immigration & Citizenshipv SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 |
| Applicant: | CAK15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 446 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 19 August 2016 |
| Date of Last Submission: | 19 August 2016 |
| Delivered at: | Sydney (by video-link to Perth) |
| Delivered on: | 27 September 2019 (and delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr MGS Crowley |
| Solicitors for the Applicant: | Granich Partners |
| Counsel for the First Respondent: | Mr A Burgess |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the application filed 2 October 2015, as amended on 18 July 2016, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 446 of 2015
| CAK15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has applied for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision made by the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively), to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”). A copy of the Tribunal Decision is at Court Book (“CB”) 134-149.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Judicial Review Application filed on 2 October 2015, as amended by leave on 18 July 2016;
b)the affidavits filed on behalf of the applicant on 27 July 2016 by Jordan La Fontaine annexing a copy of the transcript of the Tribunal hearing (“Tribunal Transcript”) and 28 July 2016 by the applicant’s solicitor, Nathan John Draper (“Draper Affidavit” and “Mr Draper” respectively);
c)outlines of submissions filed by the applicant on 27 July 2016 and by the Minister on 28 July 2016;
d)the Court Book (“CB”), in which appears the Tribunal Decision dated 28 August 2015: CB 134-149; and
e)the transcript of the hearing before the Court on 29 July 2016 (“Transcript”).
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background
The background to the matter is as follows:
a)the applicant, a citizen of Sri Lanka, arrived in Australia as the holder of a student visa on 2 October 2007: CB 73. He was granted a further student visa which was cancelled on 21 April 2010 and the applicant became an unlawful non-citizen until he was apprehended on 17 July 2014: CB 73. He lodged an application for the Protection Visa on 8 August 2014: CB 1-57;
b)the applicant claimed to fear harm from government thugs if he returned to Sri Lanka because he and his family voted for the opposition party, the United National Party (“UNP”): CB 41. The applicant claimed that he and his family had been threatened: CB 41, and that government agents had been looking for him after his departure: CB 43;
c)at interview before the Delegate, the applicant further claimed that he would be harmed by thugs working for the People's Alliance Party (“PAP”) because he helped put up posters for a UNP candidate on 3 November 2005: CB 75;
d)the applicant claimed that on 3 November 2005, whilst putting up posters, ten people arrived and assaulted the applicant and then took him to a nearby warehouse (with banners of the PAP on display). The applicant was then assaulted further and sexually abused prior to being released. He struggled with and injured his assailant who was a convicted murderer (“Assailant”). In 2006 the applicant received verbal threats of violence originating from the Assailant and in 2008 the Assailant made inquiries in relation to the applicant's whereabouts: CB 76;
e)on 10 June 2015, the Delegate refused to grant the applicant the Protection Visa: CB 72-85. The Delegate found that the applicant was not credible and did not accept any of his claims of previous harm: CB 81; and
f)on 23 June 2015, the applicant lodged an application for review to the Tribunal: CB 86-104.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)found the applicant to have been an unreliable witness who had exaggerated if not fabricated his claims. The Tribunal reached that finding based on:
i)inconsistent evidence given on a significant matter;
ii)the delay in making his Protection Visa application; and
iii)the fact that he remained in Sri Lanka unharmed from November 2005 until 2007: CB 141 at [52];
b)did not accept that:
i)the applicant was politically active in Sri Lanka, that his family were known to be UNP voters, that he was involved in putting up posters or that he was abducted and raped: CB 142 at [55];
ii)the Assailant threatened to kill the applicant for causing him a bloody nose and for escaping. It further did not accept that the Assailant had any motive for wanting to seriously harm the applicant or that he was a convicted murderer: CB 142-143 at [56];
iii)the applicant faced any more than a remote chance of being abducted for ransom: CB 144 at [61];
iv)the applicant had been the subject of threats by members of opposition parties or members of the PAP: CB 144 at [62]; and
v)four men visited the applicant's house inquiring about him or in relation to a traffic violation: CB 144-145 at [63],
c)the Tribunal was however willing to accept that the applicant had witnessed some form of violence between opposing parties in 2005, and that the applicant may have felt threatened as a result of that violence: CB 143 at [57]. The Tribunal did not accept that the applicant would face harm in the reasonably foreseeable future due to his political activity: CB 143 at [58] on the basis that 10 years had passed since the claimed incident, it had rejected the claim that he was threatened as a result of witnessing the incident, and the applicant did not have a profile identified by country information as requiring protection: CB 143 at [57];
d)having regard to country information, further did not accept that the applicant would face a real risk of serious harm as: a member of a cohort of youths in Sri Lanka who are not of the same political party as the government: CB 143 at [59]; or as a failed asylum seeker: CB 143-144 at [60]. Additionally, given that the applicant had departed Sri Lanka lawfully, it did not accept that the applicant would be liable for prosecution under the Immigrants and Emigrants Act 1948 (Sri Lanka): CB 144 at [60];
e)went on to consider the applicant's claims under the complementary protection criterion and did not accept that he faced a real chance of significant harm from the Assailant, or for any of the other bases claimed: CB 145 at [67]. It further was not satisfied that his removal from Australia and separation from his son amounted to significant harm as defined in the Migration Act: CB 145 at [68]; and
f)was not satisfied that the applicant met the criteria for the grant of the Protection Visa under s.36(2)(a) or (aa) of the Migration Act and the Delegate’s Decision was affirmed: CB 146 at [72].
Judicial Review Application
The Judicial Review Application, as amended on 18 July 2016 contained two grounds of review. However, the applicant only pressed ground 1, which is as follows:
The Tribunal's decision was vitiated by jurisdictional error by failing to make an obvious enquiry, or failing to inform the Applicant of his ability so to do, of Australian Services for Survivors of Torture and Trauma ['ASSeTS'], from which the Applicant had informed the Tribunal that he had received mental health services in relation to his sexual assault, [CB pp.137-8, paras. [23-24] which was central to a critical aspect of the Applicant's claim for protection, amounting to a constructive failure to exercise jurisdiction [Wei v Minister for Immigration and Border Protection [2015] HCA 51, per Nettle J]
Applicant’s submissions
The applicant submitted that:
a)he is a young Sri Lankan man who completed high school in Sri Lanka, and speaks English as a second language to a ‘reasonably good standard’: Tribunal Transcript p.19;
b)he arrived lawfully in Australia on a student visa, which was ultimately revoked for non-attendance at classes;
c)he is estranged from his Australian partner, and their four year-old son, who he stated he has not seen since he was four months of age: CB 49;
d)he and his partner lived together for a time in Echuca, Victoria. An Apprehended Violence Order (“AVO”) is or was apparently in place, which the Applicant stated he breached by attempting contact with his son on his birthday: Tribunal Transcript p.33;
e)he has been in immigration detention since 17 July 2014: CB 73;
f)since at least 9 April 2015, he has been detained at Yongah Hill Immigration Detention Centre: CB 75, in Northam, almost 100 kilometres North-East of Perth;
g)prior to being detained at Yongah Hill, he was detained at Marybyrnong Detention Centre on the outskirts of Melbourne;
h)whilst in detention at Marybyrnong Detention Centre, he applied for a Protection Visa on 8 August 2014: CB 123;
i)he prepared his Protection Visa application without professional assistance but said he was assisted by a fellow detainee, who he named, in filling out his Protection Visa application;
j)this was significant because he recounted orally to the Delegate an incident of rape he experienced in Sri Lanka which was not included in the written Protection Visa application;
k)the Tribunal in essence put to him that the incident of rape was a recent invention of his;
l)the Tribunal was also troubled by the apparent fact that he had not mentioned the rape in his bridging visa interviews: CB 48 at [25];
m)he provided the explanation that he was ashamed and embarrassed that he was raped. He stated to the Tribunal that he did not reference the rape in his written application for a Protection Visa because his fellow detainee was assisting him, and he did not wish to have that disclosed to him;
n)importantly, however, he stated that he had in fact raised the issue of his rape whilst in detention with mental health services providers, ‘ASeTTS’ (incorrectly referred to in the applicant’s documents as “ASSeTTS”) or Australian Services for Survivors of Torture and Trauma: Tribunal Transcript pp.22-23;
o)it was implicit in his account that he had sought out mental health services, and specifically raised with ASeTTS the very matter which the Tribunal put to him was a recent invention;
p)the Tribunal simply asked whether he had obtained ‘any report that you can … show me as to her assessment of your … of your condition’: Tribunal Transcript p.22;
q)at Tribunal Transcript p.22-23 he explained that he did not have such a report, and that the ‘nurse’ with whom he had been working had left the organisation, and the Tribunal simply moved on:
MEMBER: And did they give you any reports or anything about your … the – its assessment.[?]
APPLICANT: Well .. we could – we couldn’t finish the assessment because she was … she’s gone. She’s not coming anymore.
MEMBER: ASSeTTS [sic] still exists though.
APPLICANT: Yeah, yeah. ASSeTTS [sic] still exists Your Honour [sic], I’m sorry I forgot about the name … the mental health nurse –
MEMBER: And –
APPLICANT: - she got, she’s gone, she’s … and I didn’t get any … slips after when she’s gone.
MEMBER: So you don’t have any report that you can … show me as to her assessment of your … of your condition [?].
APPLICANT: Ah that’s the thing, no … dear member
MEMBER: All right, okay. So … anyway … the – back to the claim […]
r)there was an obvious enquiry available to the Tribunal which would have addressed a fundamental question troubling the Tribunal and put against the Applicant: the question of recent invention of the applicant’s rape;
s)it was the Tribunal itself that noted that ASeTTS still existed, and so could have been made to answer a witness summons. Alternatively, there was very little inconvenience to the Tribunal in informing the applicant of that possibility, but very considerable inconvenience to the applicant (who was isolated from his family, unrepresented and had by then been in immigration detention for more than one year), to leave that proposition adverse to the applicant hanging unresolved;
t)the applicant does not contend there is a duty on the Tribunal to enquire, but the applicant contends that in the particular circumstances of this case the reasoning of Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22; (2015) 90 ALJR 213; (2015) 327 ALR 28; (2015) 148 ALD 226 at [49]-[51] per Nettle J is engaged; and
u)in failing to make an obvious enquiry with ASeTTS, or to inform the applicant of that possibility, but to peremptorily proceed to a conclusion having put to the applicant an allegation of recent invention, meant that the Tribunal failed to apply its mind to a central element of the applicant’s claim for protection.
Minister’s Submissions
The Minister submitted that:
a)the Tribunal is not required to make the case for an applicant before it; it is for the applicant to make their submissions and present supporting evidence: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 AJLR 584; (1999) 162 ALR 1; (1999) 55 ALD 1, CLR at [187] and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) ALJR 1909; (2003) 201 ALR 437; 75 ALD 1 at [57] per Gummow and Heydon JJ;
b)as to the suggestion that the Tribunal failed to make its own enquiries with ASSeTTS, while the Tribunal has the power to seek further information: Migration Act, s.424, and to require the Secretary of the Minister's Department to arrange for any necessary investigations: Migration Act, s.427(1)(d), its duty is to review the Delegate's Decision;
c)in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15 (“SZIAI”) the High Court set out the limited circumstances where the Tribunal may be obliged to make its own inquiry. In SZIAI the High Court held that the Tribunal, exercising its power of review under the Act, did not have a “duty to inquire”, but rather it had a “duty to review”. The High Court further held that only where there was a failure to make an “obvious inquiry of a critical fact, the existence of which is easily ascertained” could an argument be made that a jurisdictional error may have occurred: SZIAI at [24] per Heydon J. It has however been indicated that the circumstances in which a duty to inquire arises would be “rare and exceptional” and the fact that it might have been reasonable to make an enquiry does not amount to jurisdictional error: SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] per Bennett J;
d)in the present case, there is no failure to make any obvious inquiry about a critical fact, the existence of which was easily ascertained.
e)first, the inquiry was not obvious. The applicant made no request for the Tribunal to make any inquiries; furthermore, there can be no suggestion that the applicant expected such inquiries to be made or was under any misapprehension that the Tribunal would in fact make its own inquiries;
f)the applicant was aware that the late introduction of the claim was in issue by virtue of findings in the Delegate's Decision: CB 78, and discussions with the Tribunal at the Tribunal hearing: CB 137-138 at [23]-[25]. The applicant was provided with the opportunity to provide the Tribunal with further evidence after the Tribunal hearing: CB 120, and took up that opportunity: CB 122-126. Furthermore, the applicant was specifically asked whether he could provide a report in relation to his consultation with ASSeTTS but his evidence to the Tribunal was that he could not obtain a report: CB 138 at [23]. Accordingly, if the Tribunal could not be satisfied on the basis of the material presented that the applicant's claims were genuine it did not have a duty to make further enquiries: see Minister for Immigration & Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12;
g)secondly, there was no “critical fact” to be ascertained from any inquiry. A finding that the applicant had discussed the claimed rape with ASSeTTS could not have disturbed the Tribunal's findings;
h)the assessment of the relevant claim formed only part of the Tribunal's assessment of the applicant's credibility. The Tribunal Decision notes that the Tribunal's finding in relation to the applicant's credibility was based on: CB 141 at [52]:
i)inconsistent evidence, not just in relation to the claimed rape, but also his political associations: CB 142 at [54];
ii)the fact that the applicant remained in Sri Lanka for an extended period of time after the claimed incident without facing harm; and
iii)the significant delay in lodging the Protection Visa application.
i)furthermore, the Tribunal's concerns in relation to the claim were not limited to the fact that the rape specifically had not been raised prior to the interview with the Delegate, but also the fact that the applicant had made no previous claim to have been abducted or assaulted in any general way: CB 142 at [55];
j)as noted in SZIAI, the inquiry could not be critical to the decision in circumstances where, if it were confirmed that the applicant's statement was true (i.e. that he had discussed the claimed rape with ASSeTTS), this would have added nothing more to the evidence than what was effectively conveyed by the applicant himself: SZIAI at [26] per Heydon J;
k)as was the case in Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 (“SZRTF”), at best, further enquiries may have confirmed that the applicant had discussed the claim at some previous point in time but “numerous other questions remained to be decided before the tribunal could be satisfied that the respondents were entitled to protection visas”: SZRTF at [40] per Katzmann J; and
l)the applicant has further not established that any critical fact could have been easily ascertained. There is no information before the Court to indicate what information might have been elicited if the Tribunal had undertaken the enquiry which was said to have been critical: SZIAI at [25] per Heydon J.
Consideration
In the Tribunal Decision at CB 141-142 at [52] and CB 142 at [54]-[55] the Tribunal observed as follows;
52. Having carefully considered all of the claims and evidence in this case, the Tribunal finds the applicant to be an unreliable witness. As will be discussed in further detail in following paragraphs, the Tribunal finds the applicant has been inconsistent on a very significant matter and this undermines his claim that he is in need of protection against returning to Sri Lanka. The Tribunal also finds the fact that the applicant remained in Sri Lanka from November 2005 until 2007 without being harmed undermines the credibility of his claim that he faces a real risk of harm in Sri Lanka. Further, the Tribunal considers the significant delay between the applicant arriving in Australia in October 2007 and making the application some seven years later in August 2014, raises significant doubts about his claim to have a subjective fear of returning to Sri Lanka, and questions the gravity of the harm he claims he faces. Having regard to all the evidence, and in light of these findings, the Tribunal assessed the applicant to be an unreliable witness who has exaggerated, if not fabricated, his protection claims so as to remain in Australia.
54. The applicant initially claimed to fear serious harm if he returns to Sri Lanka because of not being in the same political party as the ruling party in Sri Lanka. He claims in his written statement that he was threatened by thugs from the government because he and his family voted for the UNP, Subsequently, the applicant has modified his claim before the delegate by stating that he was not a political activist, and then claimed he was putting up posters when confronted by opposition members who assaulted him, including sexually assaulting him.
55. The Tribunal finds the applicant's evidence in respect of his claim to have been politically active, and to have been attacked for the claimed political activity, to be inconsistent in critical areas. For example, in his written statement he simply claims he and his family were threatened, whereas subsequently he claimed he was abducted and raped. When this inconsistency was put to the applicant at the hearing, he sought to explain not having raised the abduction and sexual assault earlier by claiming a fellow detainee assisted him preparing the written application and that he did not want that person to know about the claimed rape. As put to the applicant at the Tribunal hearing, while the Tribunal may accept he might be embarrassed to tell his fellow detainee that he was raped, the Tribunal does not accept that he would not have disclosed that he was abducted and assaulted in a general way had he in fact experienced that. The Tribunal also notes the applicant's inconsistency in terms of the weapon he claims his attacker held while assaulting him. At the Tribunal hearing he claimed his attacker was armed with a pistol, whereas in the written submission received after the hearing he refers to being raped at knifepoint. Having regard to all of the evidence, and in particular to the inconsistencies the Tribunal has found in the applicant's evidence, the Tribunal rejects his claim that he was politically active in Sri Lanka, or that he and his family were known to be UNP voters. Based on all of the evidence before it, the Tribunal finds the applicant does not have a profile as a political activist or a dissident or of any kind that would attract adverse interest in him by members of opposing political parties of by members of the Sri Lankan government, or anyone else. Based on the applicant's inconsistent evidence, and having regard to its assessment of the unreliability of his evidence, the Tribunal rejects his claims that he was involved in putting up posters upon the request of a … [name deleted] who the applicant claims worked for a member of parliament. The Tribunal cannot, on the evidence before it, positively dismiss the possibility that … [name deleted] exists and works for an MP, however, having regard to all of the evidence the Tribunal does not accept the applicant became actively involved in putting up UNP posters during the 2005 election. These findings, coupled with the applicant's evidence that he remained living in his own home with his parents in Sri Lanka for almost two years after the claimed attack, and the 7 years delay in applying for protection after arriving in Australia, all lead the Tribunal to reject the applicant's claim that he was abducted and raped as he claims in November 2005, or at any other time while in Sri Lanka. In arriving at this finding, the Tribunal carefully considered the applicant's responses when these adverse factors were put to him at the hearing where he said, for example, that he was not aware of protection visas, and that "for some reason … [the Assailant] did not harm him during the two years he remained in Sri Lanka after the claimed rape. The Tribunal does not find his attempted explanations credible.
There are a number of documents related to the applicant’s interaction with ASSeTTS, which Mr Draper (the applicant’s solicitor) obtained with the client’s authority from ASSeTTS: Draper Affidavit at [3]. It is necessary to observe that the information is extremely limited, but is as follows:
a)a letter from ASSeTTS dated 20 July 2016 as follows:
To whom it might it concern,
We can confirm that …[applicant’s name] Was …[date of birth deleted] commenced counselling at Asetts in January 2015 and he disengaged during initial assessment stage.
If you have any questions please don’t hesitate to call me on …[telephone number deleted].
…
Intake & Allocation Counsellor
b)on 20 July 2016 Mr Draper wrote to the Counsellor who had provided the 20 July 2016 letter and asked as follows:
Do you have his file with any documents or notes taken during consultations with the client, and if so, could kindly forward these to me.
c)on 21 July 2016 the Counsellor replied to Mr Draper as follows:
Unfortunately, it is outside ASeTTs capacity to provide more information about clients who disengaged from our services.
There does not appear to be any dispute that ASeTTs provided counselling services to persons who, like the applicant, were in detention at the Yongah Hill Immigration Detention Centre. The court notes that although the applicant told the Tribunal that he had no assessment because the mental health nurse had “gone”: Tribunal Transcript at p.23, the ASeTTs documents in the Draper Affidavit indicate that the applicant “disengaged during initial assessment stage”: Draper Affidavit, Annexure NJD 1.
In order for the applicant to succeed he must demonstrate that there was an obvious enquiry about a critical fact the existence of which might be easily ascertained. The critical factor said to be the raising by the applicant in discussions or counselling with ASeTTs of the fact that he alleged he had been sexually assaulted in Sri Lanka as a consequence of his political activities. The applicant argued that, following WEI at [51] per Nettle J, that the Tribunal could simply have picked up the phone to check the information with ASeTTs or issued a summons to ASeTTs to produce documents relating to the applicant. There are a number of difficulties with the suggested obvious enquiry, particularly in terms of whether or not the critical fact (as to whether or not the applicant raised the issue of sexual assault in Sri Lanka) is easily ascertained.
a)it is not obvious there is any documentation, by way of notes or otherwise, of the discussions between the applicant and whoever counselled him at ASeTTs;
b)it is not known who counselled him at ASeTTs. In the absence of any written information, which ASeTTs seems either unwilling or unable to supply, it would be necessary for the Tribunal to issues a summons to the responsible officer at ASeTTs for the production records which may or may not exist;
c)alternatively, it might be necessary to summons the person to whom it is that the applicant alleges that he spoke, which would entail further enquiries as to who that person was, as the applicant does not appear to know, or recall that person’s name, and where they are, before summonsing them (if that be possible). Assuming that the person has been summonsed, the enquiry would need to proceed along the lines of that person, if they were able to recall what occurred, telling the Tribunal whether or not the applicant raised an issue as to his sexual assault in Sri Lanka, and if so what was raised. Setting the matter out in this way makes it evident that the test in SZIAI of an easily ascertainable critical fact is not met, because the critical fact is not easily ascertainable, and is thus far removed and factually distinguishable from the example in Wei at [51] per Nettle J;
d)the applicant is not assisted by the ASeTTs correspondence which indicates that he was counselled, because, as the Court observed at hearing, the applicant could have been counselled about anything: Transcript, p.14.
It is also not the case that the issue as to whether or not the applicant was sexually assaulted was necessarily a critical fact when the Tribunal Decision is read as a whole. There were plainly a number of other issues which affected the Tribunal’s view as to the applicant’s credibility and the likelihood of the applicant having suffered harm in Sri Lanka. In that regard, the Court notes that:
a)the applicant gave inconsistent evidence according to the Tribunal in relation to other matters including his political associations: CB 142 at [54]-[55];
b)the applicant remained in Sri Lanka for a not inconsiderable period of time after the alleged incident and did not face any further harm: CB 141-142 at [52]; and
c)finally, and notably, the applicant did not make a Protection Visa application until he had been in Australia for almost seven years, two and a half years as a student on a student visa which was cancelled, and then for four and half years as an unlawful non-citizen until he was apprehended, and only then, when he was in immigration detention did he apply for the Protection Visa. In Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 per Heerey J, the Federal Court observed that the existence of a delay in making an application for a Protection Visa “was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s fear of persecution. It is a rational consideration open on the material”. To similar affect: see also DZADW v Minister for Immigration & Border Protection [2014] FCA 1338 at [19] per Mansfield J.
The enquiry that the applicant says the Tribunal ought to have made was also not an obvious enquiry in circumstances where the issue having been raised at the Tribunal hearing: tribunal transcript at pp. 22, 24 and 37. The Tribunal then gave the applicant an opportunity to make further submissions in relation to issues raised at the Tribunal hearing after the Tribunal hearing, and the applicant availed himself of that opportunity. In that regard the applicant forwarded a submission which appears a CB 123-126, in which he addressed the claim of alleged sexual assault, but, in effect, added nothing to the essence of what he told the Tribunal, and made no mention at all of any interaction with a Counsellor from ASeTTs, let alone having told ASeTTs about the sexual assault.
In the above circumstances, the Court is not persuaded that there was an obvious enquiry about a critical fact the existence of which could have been easily ascertained by the Tribunal, and which would have given rise to a jurisdictional error by reason of a constructive failure to exercise jurisdiction. Ground 1 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that the Tribunal decision is not affected by jurisdictional error, and it follows that the judicial Review application, as amended on 18 July 2016, must be dismissed. There will be an order accordingly.
There will also be an order that the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Deputy Associate:
Date: 27 September 2019
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