CCB15 v Minister for Immigration
[2017] FCCA 1001
•28 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCB15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1001 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in critical respects and other fears found not to be well-founded – whether the Tribunal came under a duty to enquire in relation to a partially translated document or whether the Tribunal mischaracterised the document considered – whether the Tribunal was unlawfully reconstituted or whether the Tribunal otherwise fell into error considered. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.19D Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36 |
| Cases cited: Applicant WAEE v Minister for Immigration [2003] FCAFC 184; (2003) 75 ALD 630 Azzi v Minister for Immigration [2002] FCA 24 Minister for Immigration v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 NABE v Minister for Immigration (No.2) [2004] FCAFC 263 |
| Applicant: | CCB15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2774 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 May 2017 |
| Date of Last Submission: | 4 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu of Stephen Hodges, Solicitor |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application as amended on 3 June 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2774 of 2015
| CCB15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 September 2015. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka, and an ethnic Tamil. He arrived in Australia on 7 July 2012 as an unauthorised maritime arrival. On 15 November 2012 he applied for a protection visa[1]. The applicant claimed to fear harm in Sri Lanka from the authorities and Tamil paramilitary groups. He claimed that he was assumed to have links with the Liberation Tigers of Tamil Eelam (LTTE) because of his involvement with the Tamil National Alliance (TNA). He further claimed that he had been the subject of extortion by such groups in the past and that he was required to provide rice or grain in order to protect himself and his family. When he ceased providing the rice or grain, he was threatened, forcing his family and him to go into hiding. The applicant also claimed to fear harm due to imputed links with the LTTE due to the involvement of his brother-in-law in the LTTE. The applicant also placed significance on the fact that he had fled Sri Lanka illegally. The applicant’s claims in support of his protection visa application were set out in a statutory declaration provided to the Minister’s Department[2].
[1] Court Book (CB) 50-76
[2] CB 32-26
The delegate refused to grant the applicant the visa[3]. The delegate found that the applicant had no links with the LTTE and was of no particular adverse interest to the Sri Lankan authorities or any associated paramilitary groups prior to the applicant's departure from Sri Lanka to Australia[4]. The delegate found the applicant’s testimony to be lacking in credibility[5]. In particular, the delegate found that the applicant “knew virtually nothing about the TNA”[6], and that his responses to questions asked of him at the interview appeared to be invented and contradictory to other responses he had provided to the Minister’s Department[7]. The delegate rejected the applicant’s claims and was not satisfied that the applicant was entitled to a protection visa due to the circumstances of his departure from Sri Lanka[8].
[3] CB 116-137
[4] CB 127 at [9]
[5] CB 127
[6] CB 126
[7] CB 127
[8] CB 132-133
The applicant applied to the former Refugee Review Tribunal (RRT) for review of the decision[9].
[9] CB 140-145
On 19 March 2014 the applicant’s representative sent to the RRT an extensive written submission in support of his review application[10]. By letter dated 29 October 2014 the RRT invited the applicant to a hearing scheduled for 14 January 2015[11] in response to which the applicant provided a completed Response to Hearing Invitation form[12]. The applicant attended the hearing on 14 January 2015 (first hearing) with his representative[13].
[10] CB 152-166
[11] CB 171
[12] CB 176-177
[13] CB 178-179
By letter dated 3 February 2015, the RRT invited the applicant to a resumed hearing scheduled for 1 April 2015[14], in response to which the applicant provided a completed Response to Resumption of Adjourned Hearing Notice[15]. The 1 April 2015 hearing date was then postponed[16] and the applicant was invited to a resumed hearing on 18 September 2015[17]. By letter dated 6 July 2015, the 18 September 2015 hearing date was then also “postponed”[18]. On 1 July 2015 the RRT was amalgamated with the Tribunal.
[14] CB 183
[15] CB 185
[16] CB 189
[17] CB 194-195
[18] CB 198-199
By letter dated 24 July 2015, the applicant was invited to a resumed hearing on 2 September 2015[19]. In the letter advising of the resumed hearing date, the applicant was notified that “Member Rozdilsky is no longer available to review your case. A different Member, Member Pinto, will finish the review”. The applicant provided a Response to Resumption of Adjourned Hearing notice – MR Division[20]. The applicant attended the resumed hearing on 2 September 2015[21].
[19] CB 201-202
[20] CB 204
[21] CB 208-209
At the resumed 2015 hearing the differently constituted Tribunal explained to the applicant that although the previously constituted Tribunal had been unable to complete the review, the reconstituted Tribunal had listened to the hearing recording and “it intended to have regard to all of that evidence”[22].
[22] CB 222 at [18]
Decision of the Tribunal
On 23 September 2015 the Tribunal affirmed the decision under review, giving reasons[23].
[23] CB 218-236
The Tribunal summarised the claims put to it at [16][24]. The applicant claimed to fear harm upon return to Sri Lanka due to his Tamil ethnicity, his imputed political opinion as an anti-government and pro-Tamil separatist arising from his involvement with the TNA, and his membership of a particular social group of failed asylum seekers. The Tribunal noted that following its reconstitution, it had listened to the recording of the first hearing and that it intended to have regard to that evidence[25].
[24] CB 221-222
[25] CB 222 at [18]
The Tribunal did not accept that the applicant had given a truthful account of his experiences in Sri Lanka and his reasons for leaving Sri Lanka[26]. The Tribunal did not accept that the applicant had any involvement with the TNA, except possibly for voting for it[27]. The Tribunal further did not accept the applicant’s claims to have been threatened by the TMVP (Karuna group)[28], and did not accept that the applicant would be imputed with a pro-LTTE political opinion for reason of his brother-in-law’s association with the LTTE[29]. The Tribunal did not accept that the applicant would suffer harm due to his ethnicity[30].
[26] CB 222 at [20]
[27] CB 224 at [25]
[28] CB 224 at[26]
[29] CB 229 at [37]
[30] CB 228 [36]
The Tribunal also rejected the applicant’s claim based on his membership of a particular social group of failed asylum seekers because he lacked the risk profile of a person with “reasonably substantial LTTE links”[31]. The Tribunal was not satisfied that the applicant would be subjected to relevant harm for reason of his illegal departure from Sri Lanka, despite accepting that he would be questioned at the airport[32]. It relied on the fact that the immigration laws in Sri Lanka would not be applied in a discriminatory way, and were laws of general application[33].
[31] CB 227 at [35] and CB 229 at [38]
[32] CB 230 at [40]
[33] CB 231 at [42]
The Tribunal found that the applicant did not have a well-founded fear of persecution[34]. Separately, it was not satisfied that the applicant was entitled to protection under s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act)[35].
[34] CB 231 at [44]
[35] CB 233 at [52]
The present proceedings
These proceedings began with a show cause application filed on 12 October 2015. At the time of the trial of this matter, the applicant relied upon an amended application filed on 28 April 2017. There were five grounds in that application (of which the second ground was deleted).
I provided the applicant with the opportunity to further amend the application in order to better reflect the grounds of review as advanced during oral argument at the trial of the matter on 16 May 2017. A further amended application was lodged on 3 June 2017 and filed on 5 June 2017 in which four new grounds were added. Thus the final form of the application is as follows:
Ground 1
The AAT committed jurisdictional error by failing to apply the real chance test. In Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (3 June 1999) the Court held
When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there was a “real substantial basis ‘for the applicant’s claimed fear of persecution.
PARTICULARS
(i) The AAT had before it an “Extract from an Information Book of the Police Station, dated 20 April 2009” and also a letter dated 19 August 2012 from a member of Parliament [11].
(ii) The interpreter at the AAT hearing translated the Extract and it stated the applicant was accused of being a supporter of the LTTE by the Karuna Group “and has informed the army” [11].
(iii) After the evidence in (ii) above, given on 14 January 2015, the hearing resumed on 2 September 2014 with a differently constituted tribunal [18].
(iv) Dealing with the documents in (i) above, the new tribunal reported [26]: “During the hearing, the tribunal discussed the documents he provided to the Department. The Tribunal advised the applicant that it has concerns that the documents are not genuine and raised the issue of the availability of fraudulent documents in Sri Lanka.
(v) The documents at (i), particularly the Extract, were pivotal to the applicant’s case.
(vi) The AAT erred in that it did not sufficiently consider the possibility that the document was genuine, or even if not, was a real and substantial basis for the applicant’s fears.
Ground 2 – Abandoned
Ground 3
The AAT committed jurisdictional error because it failed to accord procedural fairness to the applicant in dealing with the documents referred to in Ground 1 (ii) above.
(i) The AAT found that the documents were “not genuine” [26]. This finding was made immediately after citing support for the contention that fraudulent documents are available in Sri Lanka. The inference is that the AAT found that the documents were fraudulent.
(ii) the AAT did not give reasons as to why the documents were found to be not genuine or fraudulent, part from the citation in (i);
(iii) The claim in the Extract document was pivotal to the applicant’s case.
(iv) The AAT cited no evidence in support of the conclusion that these particular documents were not genuine or were fraudulent,
(v) The respondent produced no documents or evidence to support the contention that these particular documents or evidence to support the contention that these particular documents were not genuine, despite having possession of the Extract for several years.
(vi) In proceeding in the above manner, the AAT failed to consider the integrity of the documents on the balance of probabilities, absent evidence that more than half of all documents originating from Sri Lanka were not genuine. No such evidence was referred to;
(vii) The AAT failed to take account that for the finding in relation to the documents (the DFAT Sri Lanka Country Report 16 February 2015) refers to identity documents, not police records.
(viii)There was no evidence particular to the documents cited in the AAT that enhanced or negated their integrity;
(ix) The AAT was required to note the general principles stated in Briginshaw by Briginshaw (1938) 60 CLR 336, see Sullivan v Civil Aviation Safety Authority 92013) 138 ALD600.
(x) The Extract document, being pivotal to the applicant’s case, should have been treated with “greater caution”.
Ground 4
The AAT’s findings at [CB 204, 46] is consistent with legal errors alleged by the applicants in SZTAL. Judgment is to be delivered by the High Court of Australia on 20/05/2017. The outcome of the matter could positively affect the applicant’s case.
PARTICULARS
(i) At [CB 204, 46] the [Tribunal] states “… I accept the applicant may experience poor prison conditions during his detention. … While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation. In these circumstances, the poor prison conditions to which he applicant may be subject do not of themselves constitute significant harm …”.
(ii)The outcome of SZTAL would determine if the [Tribunal] was correct in stating that “intention” needs to exist in order that any pain or suffering or extreme humiliation that the applicant may experience during any period of detention amount to significant harm.
(iii) As the judgment in SZTAL would be delivered in May, it is apt to adjourn the instant matter.
Ground 5
The AAT failed to follow the statutory requirements outlines under the Administrative Appeals Act 1975 when the applicant’s matter was “reconstituted” to a differently constituted Tribunal. The failure has adversely impacted the applicant.
PARTICULARS
1. The AAT states at CB [222, 17] that the applicant attended a hearing with the Tribunal as previously constituted on 14 January 2015.
2. The [AAT] states at [CB 222, 18] “Following the reconstitution of the matter to a differently constituted Tribunal, the applicant appeared before the Tribunal on 2 September 2014.
3. Section 19D of the Administrative Appeals Act of 1975 states inter alia,
a. The President must give a “direction” if at any time before the hearing of a proceeding commences, the President revokes a direction under subsection 19A(1) in relation to the proceeding.
b. A reconstruction amounts to a “revocation” of a member, hence it is implied that the President ought to give a direction, it is mandatory requirement to do so.
c. The President “may revoke a direction under subsection 19A (1) in relation to the proceeding and give another such direction, if:
the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:
(i) stops being a member; or
(ii) is for any reason unavailable; or
(iii) is directed by the President not to take part in the proceeding; or
(b)the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding….”
d. The AAT does not state in the decision record on what basis that the reconstitution of the matter to a differently constituted Tribunal had occurred.
e. The AAT does not state in the decision record if the reconstituted Tribunal is acting under direction given by the President.
f. The AAT states that the applicant appeared before the Tribunal on 2 September 2014 this appears to be incorrect [CB 222, 18].
Ground 6
The AAT committed jurisdictional error as it overlooked its duty to enquire / request for a proper translation, when dealing with the police report (Extract from an Information Book of the Police station dated 20 April 2009) at [CB 44].
Particulars
1. The AAT considered two documents provided to the department by the applicant, namely an “Extract from an Information Book of the Police station dated 20 April 2009” and a letter dated 16 August 2012 by the Member of Parliament of the Batticaloa District [CB 220, 11].
2. “Extract from an Information Book of the Police station dated 20 April 2009” could be found at [CB 44] and the letter dated 16 August 2012 by a Member of Parliament of the Batticaloa Disrtict could be found at [CB 43].
3.The applicant confirmed to the AAT “that one is from the TNA and one is from the Police .…” [CB 220, 11].
4. The AAT states that the interpreter present during the AAT hearing “translated the report and stated that it says he was accused of being a supporter of the LTTE by the Karuna Group and has informed the army” [CB 220, 11].
5. The relevant portion of the audio recording of the Tribunal hearing which has been filed by way of an Affidavit on 26/5/2017 is reproduced below.
M and what about this document, it is an extract from the CID, what is this document
IWhat is this document
AThis is an information extract from the police station for an entry being made …
MAnd what is that what is that about
A About anonymous people looking for me so he did not know who they were and filed an entry
6.On the basis of the relevant portion of the transcript referred above it is submitted that the translator did not translate contents of the “Extract from an Information Book of the Police station dated 20 April 2009” (also referred to as the report).
7. Contrary to [CB 220, 11] the translator present during the AAT hearing did not translate the contents of the Extract from an Information Book of the Police station dated 20 April 2009 and did not state that the Extract / police report “... says he was accused of being a supporter of the LTTE by the Karuna Group and has informed the army”.
8. It is submitted that the AAT committed jurisdictional error as it overlooked its duty to enquire / request for a proper translation, when dealing with the police report after having considered this document.
Ground 7
The AAT committed jurisdictional error as it failed to consider an integer of the applicant's claim which is clearly evident on the basis of the relevant portion of the transcript referred above at Ground 6.
PARTICULARS
1. On the basis of the relevant portion of the transcript referred above at Ground 6, the applicant described the contents of the Extract from an Information Book of the Police station dated 20 April 2009. The applicant described the contents of the Extract / report as.
a. an information extract from the police station for an entry being made which was about anonymous people looking for him and that he did not know who they were and that he had filed an entry
2. It is submitted that the AAT failed to consider an integer of the applicant's claim which arose on the material that the AAT had considered.
3. The statutory task of the AAT was to consider all claims expressly made by the applicant or which clearly arise on the material before the AAT, this the AAT did not do. See: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 at [61] - [63] (Black CJ, French and Selway JJ).
Ground 8
The AAT committed jurisdictional error as it misunderstood and misconstrued contents of two documents that were provided to the Department and before the AAT [CB 220, 11], contents of which the AAT states [CB 220, 11], were translated by the interpreter during the AAT hearing.
PARTICULARS
1. On the basis of the transcript it appears the interpreter at 52.33 of the transcript interprets contents of the letter dated 16 August 2012 written by a Member of Parliament of the Batticaloa District (i .e. C Yogeswaran).
2. At 56.12 of the transcript the AAT questions the applicant about the Extract from an Information Book of the Police station dated 20 April 2009.
3. Clearly on the basis of the transcript, the interpreter nor the applicant stated that Extract / police report states “that it says he was accused of being a supporter of the LTTE by the Karuna Group and has informed the army”.
4. It is submitted the AAT misunderstood, misconstrued and confused contents of the letter dated 16 August 2012 written by a Member of Parliament of the Batticaloa District (i.e. C Yogeswaran) with the contents in the Extract / police report.
Ground 9
The AAT committed jurisdictional error as it failed to give the Extract from an Information Book of the Police station dated 20 April 2009, “proper, realistic, and genuine consideration” and engage with this particular evidence in a genuine and “active intellectual manner”. See: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713 (Gummow J) and See: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49] (Lindgren, Rares and Foster JJ).
PARTICULARS
1. The AAT failed to give the Extract / police report proper, realistic, and genuine consideration and engage with this particular evidence in a manner that could be perceived to be genuine and actively intellectual.
2. On the basis of the transcript it appears the interpreter at 52.33 of the transcript (at the request of the AAT) interprets contents of the letter dated 16 August 2012 written by a Member of Parliament of the Batticaloa District (i.e. C Yogeswaran) to a great extent.
3. However on the basis of the transcript at 56.12 it appears the AAT failed to direct the interpreter (present at the hearing) to translate contents of the Extract / police report to the extent contents of the letter dated 16 August 2012 was translated during the hearing.
4. The Extract / police report contains over 30 sentences in the Tamil language [CB 44] while the letter dated 16 August 2012 contains 18 sentences in the Tamil language [CB 43].
5. It is submitted that the AAT ought to have directed the interpreter to translate contents of the Extract / police report to the extent the other document was translated by the interpreter under the direction of the AAT.
6. A document that contains 30 sentences ought to contain more information as opposed to a document that contains 18 sentences.
(applicant’s emphasis deleted)
In addition to the issues arising from the grounds in the amended application, it emerged at trial that there were two further issues impacting on Grounds 1 and 3. The first was whether the Tribunal came under an obligation to translate the police report (Police Extract), which was potentially significant to the applicant’s claims, especially in relation to his claim that he would be imputed with a pro-LTTE political opinion because of the involvement of his brother with the LTTE. The second concerned the manner in which the Tribunal had dealt with the Police Extract in connection with the applicant’s claims of membership of the TNA rather than in relation to his claim based on the activities of his brother. This raised an issue of whether the Tribunal had, in effect, overlooked relevant material by mischaracterising it. These issues are reflected in the additional Grounds 6 to 9 in the further amended application.
The Police Extract had apparently been translated orally at the final Tribunal hearing. I gave the applicant the opportunity to provide a transcript of that translation. That was done on 26 May 2017. I also gave the parties the opportunity to make post-hearing submissions in relation to the additional grounds. Both the applicant and the Minister took up that opportunity.
It also emerged in oral argument that while Ground 5 raised a technical issue concerning alleged non-compliance with the requirements of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in relation to the reconstitution of the Tribunal, the applicant is also asserting a lack of procedural fairness following the reconstitution because of the impact of the first hearing, which preceded the reconstitution. I gave the applicant the opportunity to amend Ground 5 to raise both issues and to make submissions in relation to it. I required the Minister to file a supplementary court book containing any documents relating to the reconstitution issue. That was done on 24 May 2017. I gave a like opportunity to the Minister to make further submissions. Ground 5 was not, however, amended in the further amended application and the applicant made no further submissions about it. That may reflect the anodyne nature of the documents in the supplementary court book.
I received as evidence the court book filed on 9 December 2015 and the supplementary court book filed on 24 May 2017. I also received the affidavit of Fernando Rodrigo made on 26 May 2017, to which is annexed an extract from the transcript of the Tribunal hearing on 2 September 2015.
In his supplementary submissions, the Minister sought leave to file and rely upon an affidavit of Ben Wilson made on 3 July 2017 for the purpose of correcting errors in the applicant’s transcript. I have decided to grant that leave and the affidavit is before me. I also received into evidence the affidavit of Rohan John White made on 4 July 2017, to which is annexed an instrument of appointment of former senior member Keher as an acting senior member of the RRT (and the MRT).
Consideration
Grounds 1 and 3 – did the Tribunal fail to apply the “real chance” test or fail to accord procedural fairness to the applicant in relation to the Police Extract?
At [11] of its reasons the Tribunal said[36]:
The applicant provided documentation to the Department, including an Extract from an Information Book of the Police station, dated 20 April 2009 and a letter, dated 16 August 2012, by a Member of Parliament of the Batticaloa District. Both documents are in Tamil. During the hearing held in September 2015, the applicant was asked about the documents provided to the Department. The applicant indicated that one is from the TNA and one is from the Police when he lodged a report in 2009. The interpreter translated the report and stated that it says he was accused of being a supporter of the LTTE by the Karuna Group and has informed the army. An anonymous group came looking for him and he fled to another country to save his life.
[36] CB 220
The Tribunal considered the documents (which had not been considered by the delegate) at [26] of its reasons[37]:
During the hearing, the Tribunal discussed the documents he provided to the Department. The Tribunal advised the applicant that it has concerns that the documents are not genuine and raised the issue of the availability of fraudulent documents in Sri Lanka.[38] Having considered these documents, the Tribunal does not accept that they are genuine and does not accept that the applicant was a member of the TNA or an active supporter of the TNA who assisted in election campaigns and other activities. The Tribunal also does not accept his claims that persons came to his home looking for him in April 2009 or that he and his wife were threatened at that time. Nor does the Tribunal accept that he was required to give bags of rice or patty to the Karuna Group such that he was required to give 20% of his income to the Karuna group or that they came to his home and threatened him or verbally assaulted his wife. The Tribunal does not accept that the applicant was in hiding and does not accept that his wife has received threatening telephone calls since the applicant's departure from Sri Lanka. Nor does the Tribunal accept that the applicant's wife contacted someone from the TMPV called Sinnathamby to assist herself and her husband.
[37] CB 224
[38] See Department of Foreign Affairs and Trade, Country Report: Sri Lanka, 16 February 2015, 5.42
which states that document fraud is prevalent in Sri Lanka.
It is apparent that the Tribunal rejected the documents on the basis of a finding that the documents were not genuine. Putting to one side the question of whether the Tribunal could reach such a conclusion without having detailed knowledge of their contents, there is a question whether the Tribunal mischaracterised the Police Extract on the basis of the oral translation by the interpreter at the hearing. The Tribunal appeared to treat the Police Extract as bearing upon the applicant’s TNA claim although there was nothing in the oral translation which linked the document to that claim. It could equally have borne upon the applicant’s claim in relation to his brother.
To the extent that the Tribunal was correct in its characterisation of the Police Extract, it did not fall into error.
In that regard, I accept the Minister’s submissions on these grounds of review. In the first ground, the applicant asserts that, by reference to Minister for Immigration v Rajalingam[39], the Tribunal erred in failing to apply the real chance test. The applicant says that the failure to apply the test arose in respect of the Tribunal’s consideration of the two documents which the applicant provided to the Department in support of his protection claims[40].
[39] [1999] FCA 719; (1999) 93 FCR 220
[40] CB 220 at [11]
As I have noted above at [18], the first document identified, being the Police Extract from an information book of a police station dated 20 April 2009, was thought to have been translated by the interpreter at the 2 September 2015 hearing from Tamil to English. The Tribunal records that the interpreter stated that the Police Extract “says he was accused of being a supporter of the LTTE by the Karuna Group and has informed the army”[41]. The second document identified was a letter dated 16 August 2012 from a Member of Parliament of the Batticaloa District. It appeared at the trial of this matter that no translation, either written or oral, was given in respect of the letter. The applicant described the letter as being “from the TNA”[42].
[41] CB 220-221 at [11]
[42] CB 220 at [11]
The transcripts provided by the parties after the trial have revealed some factual confusion about precisely what was translated at the Tribunal hearing.
At page 4 of the Wilson affidavit (and the first page of the annexed transcript), the interpreter (interpreting the applicant's oral evidence given in Tamil) translates the contents of the letter from the Member of Parliament from the Batticaloa District. Subsequently, at page 4, lines 20-21 and 26, the member asked the applicant what the Police Extract was about.
The interpreter (at page 5, line 1-3) interpreted:
It is about the anonymous people who came looking for him so he did not know who they were and he filed an entry.
Following this exchange, the Tribunal asked the applicant further questions to elicit more details about the events described by the applicant, in particular in relation to the alleged attempts made by the extorters to assault the applicant's wife.
The transcript reveals three relevant things:
a)first, the Tribunal's reference at [11] of its decision record to the interpreter's translation of the “report” actually appears to be a reference to the letter from the Member of Parliament. The Tribunal's summary of the contents of that document is broadly consistent with the translation given by the interpreter, as recorded at page 4, lines 1-16. It is apparent that the reference by the Tribunal at [11] to the Karuna Group is a reference to the “paramilitary group” that appears in the transcript[43];
b)secondly, the applicant gave evidence that the Police Extract was also about the anonymous people who came looking for him; and
c)thirdly, there is no indication that either the letter from the Member of Parliament or the Police Extract contained any information or support for a claim that the applicant feared harm from the LTTE because of his brother's involvement with the LTTE. Each of the documents appears to have related to the applicant's claims to fear harm from the LTTE because of his TNA affiliation.
[43] The Tribunal earlier in its reasons referred to the Karuna Group as a “Tamil paramilitary group”: CB 219 at [3]
The applicant was given an opportunity at the hearing to tell the Tribunal what each of the documents, including the Police Extract, said. Whilst the Tribunal did not request a verbatim translation of the Police Extract, there was no reason (let alone a duty) for it to have requested it, having regard to the applicant's evidence of what it contained; that is, it contained a report by him to the police concerning the anonymous people who came looking for him (as referred to in the letter from the Member of Parliament).
The Tribunal addressed in broad terms the documents provided by the applicant to the Minister’s Department. At [26] it found as follows[44]:
Having considered these documents, the Tribunal does not accept that they are genuine and does not accept that the applicant was a member of the TNA or an active supporter of the TNA who assisted in election campaigns and other activities.
[44] CB 224
The Tribunal’s finding in relation to the documents provided to the Minister’s Department followed immediately its finding at [25] as to the applicant’s lack of involvement with the TNA (except perhaps by voting for the party) and that the applicant’s claims regarding involvement with the TNA and the claims that flowed from his problems with the Karuna group were manufactured.
There is no error in the Tribunal rejecting material submitted to corroborate protection claims where the Tribunal has, independently of the corroborative material, formed an adverse view of the credibility of the applicant[45]. As the Full Federal Court explained in Minister for Immigration v SZNSP[46], it still then remains for the Tribunal to assess the corroborative documents by reference to their “nature, content and quality” before rejecting them. This the Tribunal did, including by reference to country information as to the availability of fraudulent documents in Sri Lanka. As the Full Court opined in SZNSP[47]:
In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it.
[45] Re Minister for Immigration; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
[46] [2010] FCAFC 50, (2010) 184 FCR 485 at [36]
[47] at [36]
Such a process of reasoning does not suggest a misapplication of the real chance test.
The question remains, however, whether the Tribunal’s characterisation of the Police Extract was correct. There is a question whether the Tribunal knew enough about the document to link it to the applicant’s TNA claim as opposed to the claim concerning his brother. Given the potential significance of the document, there is also a question whether the Tribunal should have obtained a written translation of it.
The error, if there was one by the Tribunal, did not result in a want of procedural fairness.
The applicant does not clearly articulate on what basis the impugned finding resulted in the applicant being denied procedural fairness, but in the particulars to the ground, he refers to a failure by the Tribunal to give reasons for the finding. To the extent that the allegation is a breach of s.430, such a breach is not a jurisdictional error. In any event, the Tribunal did give (admittedly brief) reasons for its findings in relation to the documents, and as explained above in response to the first ground, no error arose from its reasoning.
As to a denial of procedural fairness otherwise, no such ground can be made out. In particular, the Tribunal records that it advised the applicant that it had concerns that his documents were not genuine, and it raised with him the country information on which it relied[48].
[48] CB 26 at [26]
Lastly, the applicant’s submission at [7] of his written submissions, in support of particular (vii) of Ground 3 of the amended application, is mistaken. Paragraph 5.42 of the DFAT Country Report, Sri Lanka, 16 February 2015 (referred to by the Tribunal in a footnote at paragraph [26] of the decision record) states the following:
Document fraud is prevalent in Sri Lanka due in part to the lack of computerised databases to store information. Government departments continue to keep most records in hard-copy format. Applicants are able to obtain genuine identity documents by submitting forged supporting documents. Counterfeit documents are the primary cause of fraud within the NIC [National Identity Card], passport and driver’s licence issuance processes.
The cited paragraph of the DFAT Report refers unambiguously to the prevalence of document fraud in Sri Lanka. It was open to the Tribunal to rely on this information in the way it did. No error is revealed.
Ground 4 – the “intentional” infliction of harm
The applicant contends that the Tribunal erred in finding that the poor prison conditions in Sri Lanka were not intentionally inflicted. The applicant concedes that the decision of the Full Federal Court in SZTAL v Minister for Immigration [2016] FCAFC 69 is against him but notes that the High Court is considering the issue following a grant of special leave.
Consistently with other decisions raising this issue, I have decided not to await the High Court decision (which the applicant incorrectly claims was to be delivered on 20 May 2017). The Court is bound by the decision of the Full Federal Court and, on the basis of that decision, the applicant’s assertion is rejected.
Ground 5 – the reconstitution of the Tribunal
In Ground 5, the applicant asserts that the Tribunal failed to follow statutory requirements under the AAT Act, in particular those in s.19D.
There are a number of problems with the applicant’s argument.
First, the applicant asserts in the ground that by reason of the alleged failure by the President to follow the requirements of the AAT Act, it “adversely impacted the applicant”. The applicant does not explain in what way he was adversely affected. There is no apparent basis for this assertion. Not only was the applicant advised by the Tribunal that a new member would finish the review[49], but he was invited by that member to attend a further hearing.
[49] CB 201
Secondly, and in any event, the argument is premised upon a bald assertion, of which there is no evidence before the Court. That is, the premise that the President of the Tribunal failed to give a direction under s.19D of the AAT Act. Presuming that the President was required in this case to give such a direction in connection with the reconstitution of the Tribunal, the applicant’s argument hinges upon an assumption that the direction was not made. That assumption is itself based upon the absence of any evidence that a direction was made. The applicant bears the onus to prove the premise upon which his argument is based. He has not done so. For this reason alone, the fourth ground fails.
In his written submissions, the applicant advances that the “decision made by the reconstituted Tribunal, does not refer to/indicate that statutory requirements outlined in section 19D of the [AAT Act] were met”[50]. However, there is neither any requirement in s.19D itself, nor in s.430 of the Migration Act, that the Tribunal’s decision record set out such requirements.
[50] [13]
The supplementary court book filed by the Minister on 24 May 2017 discloses that on 1 July 2015 the President of the Tribunal delegated his powers, relevantly under s.19D of the AAT Act, to the Deputy Presidents and Senior Members. The powers or functions listed in Column 1 and 2 of Schedule A included those in s.19D(1) and s.19D(2)(a). Pursuant to that delegation, on 8 July 2015 Acting Senior Member Keher deconstituted the Tribunal. Mr Keher was appointed to act as a senior member of the Migration Review Tribunal and the Refugee Review Tribunal by instrument dated 25 June 2015[51]. By virtue of Item 5 of Schedule 9 of the Tribunals Amalgamation Act 2015 (Cth), Mr Keher continued after 1 July 2015 to act in the capacity of senior member of the Tribunal until the end of his appointment on 24 July 2015. Mr Keher was, after 1 July 2015 and at the time he made the relevant authorisation, a person who continued as an acting member of the Tribunal at the level of senior member.
[51] see Annexure A to the affidavit of Rohan John White made on 4 July 2017
The documents relating to the reconstitution of the Tribunal in respect of the applicant's review appear at SCB[52] 9-14. These include an email dated 22 July 2015 from Chris Boghossian, Caseload and Statistics Officer at the Tribunal to Irene O'Connell recommending the reconstitution of a number of cases before the Tribunal[53]. One of the cases that was recommended to be reconstituted, to Member Susan Pinto, was the applicant's matter[54].
[52] Supplementary Court Book
[53] SCB 9
[54] see SCB 11
On 23 July 2015 Senior Member Kira Raif gave a direction constituting or reconstituting the Tribunal for the purposes of the reviews set out in the schedules described in the direction[55]. The reconstitution of the Tribunal to Member Susan Pinto for the applicant's review was confirmed on the Tribunal's case management system[56]. There is consequently in my view no issue as to the validity of the reconstitution in these proceedings.
[55] SCB 13-14
[56] SCB 12
The applicant also asserts that, following the reconstitution, the Tribunal adopted a procedurally unfair procedure in relying upon what had occurred at the earlier Tribunal hearing. The applicant suggests that the Tribunal should have started afresh following the reconstitution. The applicant seeks to draw support from the case of SZHKA v Minister for Immigration[57] but that case is readily distinguishable, as it turned on the failure by the Tribunal to conduct a further hearing. Here a further hearing was conducted and there was no reason for the Tribunal to refrain from referring to the earlier hearing to inform its decision.
The additional grounds
The applicant’s submissions
[57] [2008] FCAFC 138
Ground 6
The applicant makes the following submissions in respect of Grounds 6 to 9.
It may be that a decision maker has no general duty to seek additional material. However there are certain situations in general administrative law in which a decision-maker who unreasonably fails to ascertain relevant facts that may be known to be readily available will be taken to have exercised the decision-making power improperly[58]. The relevant paragraphs from the judgment by Justice Allsop, as his Honour was then known, are reproduced below:
[58] See Azzi v Minister for Immigration [2002] FCA 24 (25 January 2002) at [102]-[104]
In Rahman, supra, French J noted at [25] that generally a decision-maker is entitled to rely upon materials supplied by the applicant and has no duty to seek additional material. He referred to Turner v Minister for Immigration and Ethnic Affairs [1981] FCA 65; (1981) 35 ALR 388, 392-93 (Toohey J), Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587 (Mason J) and Enichem Anic Srl v Anti-Dumping Authority [1992] FCA 579; (1992) 111 ALR 178, 190 (Hill J, with whom Gummow J agreed). However, he noted that while it is no part of the duty of the decision-maker to make the applicant's case for it, there may be cases in general administrative law in which a decision-maker who unreasonably fails to ascertain relevant facts known to be readily available will be taken to have exercised the decision-making power improperly. His Honour referred to what was said in Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170. Further, French J noted (at [30]) that upon judicial review at common law or under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act):
The Court is entitled to consider those facts which were known to the decision-maker, actually or constructively, together only with such additional facts as the decision-maker would have learned but for any unreasonable conduct by him - Prasad at 169 (Wilcox J) and Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; (1985) 8 FCR 167 at 178 (Toohey J).
French J noted that the Full Court in Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 had confirmed (at 50) the possibility that, in certain circumstances, the failure of a decision-maker to make inquires would vitiate, as being unreasonable, the purported exercise of a power. The Full Court there said:
One may say that the making of a particular decision was unreasonable - and, therefore, an improper exercise of the power - because it lacked a legally defensible foundation in the factual material or in logic. But, equally, one may be able to say that a decision is unreasonably made where, to the knowledge of the decision-maker, there is readily available to him or her other factual material, likely to be of critical importance in relation to a central issue for determination, and which has not been obtained.
His Honour also noted the suggestion in Detsongjarus v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1990) 21 ALD 139 at 143 that a failure to enquire, by considering only the material produced by the applicant, may in some circumstances breach a duty to act fairly towards the applicant, so that while the decision-maker is not obliged to make the applicant's case and may ordinarily decide an application on what the applicant puts forward, the decision-maker may sometimes be obliged to make further inquiries where the decision-maker knows that there is available other factual material likely to be of critical importance in relation to a central issue for determination.
(applicant’s emphasis retained)
The Tribunal was aware that the Extract from an information book of the police station dated 20 April 2009 was an important document, pivotal to the applicant's claims for protection and due to this reason appears to have used the services of the interpreter who was present during the hearing to translate two documents. The Tribunal states that the interpreter translated the Police Extract from an information book of the police station dated 20 April 2009. However, the transcript of the audio recording does not reveal that the interpreter translated the contents of this document to any extent.
The Tribunal was aware that an English translation of the Police Extract was likely to be of critical importance in relation to a central issue for determination. This translation, however, was not requested or obtained by the Tribunal. The applicant submits that, while the Tribunal is not obliged to make the applicant's case for him and may ordinarily decide an application on what the applicant puts forward, in circumstances such as the present the Tribunal was obliged to make further enquiries where the Tribunal was aware that there was available other factual material (eg an English translation) likely to be of critical importance in relation to a central issue for determination.
Therefore for these reasons the applicant submits that that the Tribunal breached its duty to act in a fair and reasonable manner towards the applicant. He further submits that the Tribunal exercised its discretionary powers in not requesting an English translation in a manner that appears to be unreasonable and improper.
Ground 7
In NABE v Minister for Immigration (No.2)[59] the Full Court of the Federal Court said as follows:
… a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would be or could be dipositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error ...
[59] [2004] FCAFC 263 at [63]
The applicant submits as particularised in Ground 7 that the Tribunal committed jurisdictional error as it failed to consider an integer of the applicant’s claims, that integer of the claim being that the applicant claimed that anonymous people were looking for him. This integer of the applicant's claim arose when the applicant attempted to describe the contents of the Police Extract from an information book of the police station dated 20 April 2009.
Ground 8
As particularised in Ground 8 the applicant submits that the Tribunal misunderstood and misconstrued contents of two documents that were provided to the Department and before the Tribunal. Both documents were of importance to the applicant's claims, however on the basis of the transcript of the relevant portion of the audio recording it is said to be clear that the Tribunal misunderstood, misconstrued and confused contents of the letter dated 16 August 2012 written by a Member of Parliament of the Batticaloa District with the contents in the Extract from an information book of the Police station dated 20 April 2009.
Ground 9
The applicant relies on the particulars in Ground 9.
Minister’s submissions – Grounds 6 to 9
Ground 6
The applicant asserts that the Tribunal “overlooked its duty to enquire/request for a proper translation” in respect of the Police Extract. There is no general duty on the Tribunal to make enquiries[60]. Neither does this case fall into the category of case where the Tribunal ought to have made an obvious inquiry about a critical fact, the existence of which would have been easily ascertained. Indeed, the applicant does not assert that the Police Extract contained any particular critical fact. Rather, he says that “the [Tribunal] was aware that an English translation of the Extract was likely to be of critical importance in relation to a central issues for determination”[61]. There is no basis for the applicant's assertion.
[60] Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
[61] Applicant's supplementary submissions filed 12 June 2017 at [4]
There is no duty on the Tribunal to make enquiries, but there is also no duty on the Tribunal to arrange for the translation of documents submitted to it by an applicant. Findings to this effect were made recently by Judge Street in Nguyen v Minister for Immigration& Anor [2016][62]. The Minister submits that this is not a case where what is alleged is a mistranslation or a non-translation of oral evidence of an applicant at a Tribunal hearing that results in a denial of a fair hearing[63].
[62] FCCA 2731 at [50]
[63] see for instance Perera v Minister for Immigration [1999] FCA 507; (1999) 92 FCR 6; SZRMQ v Minister for Immigration [2013] FCAFC 142; (2013) 219 FCR 212; and SZSEI v Minister for Immigration [2014] FCA 465
Further, the ground should not succeed, having regard to the other findings of the Tribunal. First, noting that the letter from the Member of Parliament and the Police Extract were documents given by the applicant for the purpose of supporting his claim to fear harm as a result of his affiliation with the TNA, it is significant that the Tribunal found that the applicant had no involvement with the TNA as he claimed, except that he may have voted for the party[64]. Secondly, and in any event, the Tribunal found the applicant's documents were not genuine[65].
[64] CB 224 at [25]
[65] CB 224 at [26]
Ground 7
The applicant contends that it was an integer of the applicant's claims, and not considered by the Tribunal, that anonymous people were looking for him. The Minister submits that there is no substance to this ground. It appears from the transcript that the claim that anonymous people were looking for him was a matter referred to both in the letter from the Member of Parliament as well as in the Police Extract. Nevertheless, the Tribunal was cognisant of the assertion, as reference is made to the claim at [11][66]. From the transcript, in particular at page 5, lines 1-3, the applicant's claim that anonymous people were looking for him was part of his claim that he feared harm as a perceived supporter of the LTTE due to his being a TNA sympathiser. The Tribunal dealt with this claim[67]. As the Full Federal Court said in Applicant WAEE v Minister for Immigration[68]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
[66] CB 221
[67] CB 224 at [25]
[68] [2003] FCAFC 184 at [47]; (2003) 75 ALD 630 at 641
The applicant's assertion that anonymous people were looking for him was subsumed in the Tribunal's findings regarding the applicant's association with the TNA.
Ground 8
The applicant asserts that the Tribunal misunderstood and misconstrued the contents of the letter from the Member of Parliament and the Police Extract, by reference to the transcript. As noted above, there appears to be some confusion over the Tribunal's use of the word “report” in [11]. It appears that the Tribunal when referring to the interpreter having translated the contents of the “report” was actually referring to the letter from the Member of Parliament. Even if the Tribunal were mistaken in its reference to the two documents, it summarised accurately the translation that was given by the interpreter during the hearing. The Minister submits that no jurisdictional error arises.
In any event, the Minister submits that the ground is defeated having regard to the Tribunal's finding that the applicant's documents were not genuine[69].
[69] CB 224 at [26]
Ground 9
The Minister submits that the applicant's contentions in this ground should be rejected for the same reasons as submitted by the Minister in respect of New Ground 6. There was no duty on the Tribunal to ask the interpreter to give a verbatim translation of the Police Extract. The Tribunal did however ask the applicant to tell it what the Police Extract was about, which the applicant did.
Once again though, the ground cannot succeed having regard to the Tribunal's rejection of the document as not genuine. That finding was open to the Tribunal in light of the adverse credibility findings it made in respect of the applicant[70], and having regard to the availability of fraudulent documents in Sri Lanka[71].
[70] Minister for Immigration v SZNSP [2010] FCAFC 50 at [36]
[71] CB 224 at [26]
Resolution – Grounds 6-9
I prefer the Minister’s submissions in relation to these grounds. The applicant’s claims for protection turned significantly on his asserted involvement with the TNA. The Tribunal discussed the evidence concerning the applicant’s past experiences in Sri Lanka at [21]-[28]. It is plain from [20] of the Tribunal decision that the Tribunal reached an adverse credibility conclusion concerning the applicant’s account of his experiences in Sri Lanka and did not accept that he had had any involvement with the TNA, apart from possibly voting for it. The Tribunal found that the applicant did not genuinely fear harm in Sri Lanka by reason of an actual or imputed political opinion.
The documents in issue form a part of the Tribunal’s assessment. The Tribunal at [11][72] focussed upon the Police Extract, although it was the letter from the Member of Parliament which had been read by the interpreter. At [26][73] the Tribunal stated that it did not accept that the documents were genuine. It is apparent from the Tribunal’s reasons that the rejection of the documents turned in part on the Tribunal’s rejection of the applicant’s claims and evidence more generally concerning the TNA, and in part on the country information about document fraud in Sri Lanka. Both of those concerns were discussed with the applicant at the Tribunal hearing.
[72] CB 220-221
[73] CB 224
In relation to Ground 6, I reject the contention that the circumstances called for an enquiry by the Tribunal in order to obtain a further or written English translation of the documents. In my view, the Tribunal did not misunderstand the documents and a further or better translation of them would not have made any difference. The Tribunal formed the view that the applicant’s claims concerning the TNA were manufactured and the documents were simply part of that manufactured claim. That conclusion was supported by the country information concerning document fraud in Sri Lanka. The conclusions reached by the Tribunal were open to it on the material before it and no further enquiry was required.
In relation to Ground 7, in my view the applicant’s claim that anonymous people were looking for him was an item of evidence and not an integer of his claims. The applicant’s political claim was that he would be imputed with a pro-LTTE opinion because of his involvement with the TNA. There was no other reason proffered why anonymous people would have been looking for him. I agree with the Minister that the assertion that anonymous people were looking for the applicant was dealt with in the Tribunal’s findings regarding the applicant’s association with the TNA.
In relation to Ground 8, while it does appear that there is some confusion over the Tribunal’s use of the word “report” at [11] of its reasons, the Tribunal did not make any material distinction between the two documents. In the Tribunal’s view, both the documents had been fabricated in order to support a false claim of association with the TNA. The error in terminology at [11] of the Tribunal’s reasons does not point to, let alone establish, any jurisdictional error.
In relation to Ground 9, I agree with the Minister that there was no duty on the Tribunal to ask the interpreter at the hearing to provide a verbatim translation of the Police Extract. It is apparent from the transcript that the Tribunal learned enough about the Police Extract to understand what was in it. The Tribunal was entitled to conclude, as it did, that the Police Extract, like the letter from the Member of Parliament, was a fabricated document provided in order to support the applicant’s false claim of association with the TNA. This ground also fails.
Conclusion
The applicant is unable to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 August 2017
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