CCU15 v Minister for Immigration
[2018] FCCA 2445
•2 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCU15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2445 |
| Catchwords MIGRATION – Protection (class XA) visa – sole ground of review unparticularised – applicant obtained legal representation – lawyer failed to file amended application as ordered by consent – lawyer withdrew – no want of procedural fairness on the part of the tribunal – minister contended tribunal may not have had adequately considered the meaning of the phrase “intentionally inflicted” in the Migration Act – tribunal’s treatment of that phrase consistent with the High Court decision in SZTAL – application dismissed. |
| Legislation Migration Act 1958, ss.36(2)(a), 36(2)(aa), 499 |
| Cases cited Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| Applicant: | CCU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2324 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 2 August 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | None |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 16 October 2015 is dismissed.
The applicant pay the first respondent’s costs in the fixed sum of $6 400.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2324 of 2015
| CCU15 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
On 1 August 2012, the applicant arrived on Cocos Islands after departing Sri Lanka on a boat arranged by a people trafficker.
On 30 January 2013, the applicant applied for a protection (class XA) visa. The minister’s delegate refused the applicant the protection visa that he sought by decision made 29 April 2014.
On 2 June 2014 or thereabouts, the applicant applied to the Refugee Review Tribunal, now the Administrative Appeals Tribunal, for a merits review.
On 26 June 2015, the tribunal invited the applicant to appear before it to give evidence and to present arguments on 7 August 2015.
On 17 July 2015, the date for the hearing was moved to 20 August 2015. The applicant responded to the invitation stating he needed a Tamil interpreter. The hearing was duly convened on 20 August 2015. The applicant attended assisted by a Tamil interpreter. The hearing commenced at 10am and concluded at 1:11pm.
On 5 October 2015, the tribunal decided to affirm the delegate’s decision to not grant the applicant the protection visa that he sought.
On 16 October 2015, the applicant commenced this proceeding seeking judicial review of the tribunal’s decision. He relied on two grounds. He said the decision was affected by an error of law. He also said he was denied procedural fairness. As something of a narrative, he said he had applied for legal aid.
On 17 May 2018, I ordered the applicant by consent to file any amended application on which he wished to rely plus affidavit evidence and submissions by 25 June 2018. He failed to file any of those documents. He gave no particulars to his claims of error of law or denial of procedural fairness.
On 10 July 2018, his solicitor withdrew from this case.
In those circumstances, the question for me was whether the applicant had made out a case for the issue of constitutional writs on the ground of jurisdictional error.
Synopsis
For the reasons that follow, in my view this application for judicial review failed. I dismiss this proceeding and order the applicant to pay the minister’s costs.
Relevant factual recital
The applicant’s claims were recorded in a document filed with his protection application. They were entitled “statement of claims”. Relevantly paraphrased, the applicant claimed as follows[1] –
a)the applicant claimed to fear harm in Sri Lanka due to his Tamil ethnicity, his work as a fisherman, his suspected involvement with the Liberation Tigers of Tamil Eelam (“LTTE”), by reason of the fact that he was a failed asylum seeker and as a result of his illegal departure from Sri Lanka;
b)the applicant claimed he had been displaced a number of times as a result of conflicts between the LTTE and the Sri Lankan Army (“SLA”);
c)the applicant claimed that LTTE fighters would pay tribute to lost soldiers every year on 27 November, that in 2011 this occurred, and two officers of the SLA came to his home to question him about it, after which the applicant was taken to an army camp where he was denied involvement in the ceremony, that he was not believed and was thereafter detained in the camp, threatened and released on condition that he return to be questioned whenever ordered to do so;
d)the applicant claimed he would be punished by the navy for fishing without registration, his punishment being that he was required to push a boat across sand for several hours;
e)the applicant claimed he was otherwise harassed by army officers by reason of his Tamil ethnicity and by reason of his suspected involvement in the LTTE ceremony, as a result of which he was targeted for investigations whenever anything happened in the town, following which he came to Australia as he was tired of being harassed and humiliated; and
f)he claimed that since arriving in Australia, officers from the Criminal Investigation Department (“CID”) had come to his home looking for him, suspecting the applicant of his having fled his country, and that one month after his departure his father was taken to an army camp and questioned about the applicant’s whereabouts, after which CID officers searched through the applicant’s father’s telephone history.
[1] First respondent’s outline of submissions (filed on 21 February 2017) 2-3
The tribunal decided against granting the applicant the visa he sought. The following matters arose from the tribunal’s decision –
a)the tribunal accepted that the applicant was asked to answer questions about the LTTE ceremony in 2011;
b)the tribunal identified inconsistencies in the applicant’s account about what happened when he was questioned, that in his entry interview his written statement did not mention to he having suffered physical harm, yet during the tribunal hearing he asserted he had been beaten;
c)the tribunal found that the applicant had embellished his claims for the purpose of enhancing his application’s prospects;
d)the tribunal found, on the basis of the applicant’s evidence, that he was released from the camp at the request of his parents, that he was not questioned about the incident thereafter, and that his family had no connection to the LTTE;
e)the tribunal concluded that when the applicant was questioned the authorities had a general interest in him, with no specific interest, and thereafter the authorities expressed no interest in the applicant.
f)the tribunal had regard to a letter from a religious minister dated 10 August 2015;
g)the tribunal recognised the applicant’s claim that he was subsequently harassed but not harmed, and the tribunal found that that reflected the heavy-handed approach adopted following the end of the civil war, yet the applicant was not of specific interest, nor different to any other young Tamil man;
h)the tribunal considered the applicant’s claim that his father had been targeted by the authorities;
i)the tribunal considered a letter from a doctor provided in support of the applicant’s claim, but the tribunal acknowledged that the letter referred to an injury sustained at work in 2012, the tribunal concluding that the letter indicated that the applicant’s father was injured in a work accident, rather than by the authorities;
j)the tribunal accepted that the applicant’s father had been questioned about the applicant’s whereabouts, but the tribunal did not accept that the applicant’s father had been harmed by the authorities, and it did not accept that the authorities had made further inquiries of the applicant’s father in respect of the applicant;
k)the tribunal found, on the basis of country information, that the applicant did not need a permit to fish in his home area and so would not be denied the opportunity of earning a livelihood;
l)the tribunal did not accept that the applicant would be otherwise harmed by reason of his status as a fisherman;
m)the tribunal found, on the basis of country information, that the applicant would not be harmed by reason of his Tamil ethnicity;
n)the tribunal found, on the basis of country information, that the applicant would not be harmed as a failed asylum seeker;
o)the tribunal accepted that, having departed Sri Lanka illegally, the applicant would most likely be fined, but bailed;
p)the tribunal acknowledged that the applicant’s family could afford to pay the fine and provide bail;
q)the tribunal found that on arrival, the applicant would likely be charged under the Immigrants and Emigrants Act (Sri Lanka);
r)the tribunal found the applicant would receive bail but may be held in remand for a short time;
s)with respect to the refugee criteria, the immigrants and emigrants law was a law of general application and remand under it did not constitute persecution;
t)the tribunal found that the applicant would not be harmed while held on remand;
u)in relation to complimentary protection criteria, the tribunal found that the applicant would not be targeted for harm while on remand;
v)the tribunal found that detention for a short time did not constitute significant harm; and
w)the tribunal found the applicant would, ultimately, be fined, but he could afford to pay such a fine which, in any event, did not amount to serious or significant harm.
In this court
As observed above, the grounds of review were unaccompanied by particulars. Accordingly, it was not possible to tell on what factual or legal basis the applicant asserted that the tribunal fell into jurisdictional error. A significant line of cases in the Federal Court has held that grounds of application that are unsupported by particulars are amenable to dismissal. Those cases including WZATH v Minister for Immigration and Border Protection,[2] BHK15 v Minister for Immigration and Border Protection,[3] AQN15 v Minister for Immigration & Anor[4] and WZAVW v Minister for Immigration and Border Protection.[5] In this case, it was open to me to dismiss this application for the simple reason that the applicant failed to provide particulars of the grounds on which he relied.
[2] [2014] FCA 969
[3] [2016] FCA 569
[4] [2016] FCA 571
[5] [2016] FCA 760
True, that course was open. However, it seemed to me that the justice of the circumstances required me to engage in a more detailed consideration of the applicant’s claims with a view to my detecting and correcting any jurisdictional error. That is because the existence of jurisdictional error may materially affect the outcome, as the High Court has said on a number of occasions, including in FTZK v Minister for Immigration and Border Protection,[6] to choose but one such authority.
[6] [2014] HCA 26
Usually, although not exhaustively, jurisdictional error is demonstrated if it is shown that a tribunal –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or,
e)in some instances, made an erroneous finding or reached a mistaken conclusion.
That is the more classic formulation of the existence of jurisdictional error as held by the High Court in Craig v State of South Australia[7] and in Minister for Immigration and Multicultural Affairs v Yusuf.[8] Yet in Kirk & Anor v Industrial Court of New South Wales & Anor,[9] the High Court held it is not possible or desirable to attempt to mark the metes and bounds of jurisdictional error and that the formulation in the cases of Craig and Yusuf does not provide a rigid taxonomy of jurisdictional error.
[7] (1995) 184 CLR 163
[8] (2001) 206 CLR 323
[9] (2010) 239 CLR 531
It is also necessary to point out that the applicant bears the onus of establishing the existence of jurisdictional error as the High Court held in Minister for Immigration and Citizenship v SZGUR.[10] The minister is not required to make out the applicant’s case, as was held in Abebe v Commonwealth of Australia,[11] nor is the tribunal required to make out the applicant’s case as the Federal Court held in Minister for Immigration and Citizenship v Le.[12] It falls to the applicant to establish the relevant factual foundation of his application, as was held in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs.[13]
[10] (2011) 241 CLR 594
[11] (1999) 197 CLR 510
[12] (2007) 164 FCR 151
[13] [2005] FCAFC 117
With that introduction, it is necessary to now turn to the grounds on which the applicant relied.
Ground one
Despite being invited to amend most recently by consent orders made by me on 17 May 2018, the applicant chose not to amend his application. Instead, he relied on paragraph 1(a) that contained the assertion that the tribunal’s decision was affected by an error of law. The minister disputed that assertion. I detected no error of law in the tribunal’s reasoning. It seemed to me that the tribunal correctly –
a)set out the essential elements of s 36(2)(a) and s 36(2)(aa) of the Migration Act (“Act”);
b)recorded the salient aspects of PAM3, ministerial direction 56 and s 499 of the Act;
c)set out in full the terms of the applicant’s statement;
d)recorded the salient elements of the applicant’s agent’s post-hearing submissions;
e)identified the delegate’s consideration of the matters in issue;
f)addressed the observations in Guo Wei Rong v Minister for Immigration and Ethnic Affairs,[14] where the Full Court held that care must be taken when addressing credibility so that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been adopted;
[14] (1996) 64 FCR 151
g)referred to and relied upon the holding of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[15] on the issue of credibility;
[15] (1996) 185 CLR 259
h)identified that when assessing credibility, the benefit of the doubt should be given to asylum seekers who are generally credible, but who may be unable to substantiate their claims;
i)stated that the tribunal is not required to accept uncritically all or any of the allegations made by an applicant, relying on the cases of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs,[16] Selvadurai v Minister for Immigration and Ethnic Affairs[17] and Kopalapillai v Minister for Immigration and Multicultural Affairs;[18]
[16] (1994) 52 FCR 437
[17] [1994] FCA 1105
[18] (1998) 86 FCR 547
j)stated that the tribunal was concerned about the applicant’s credibility in reference to the actual treatment he suffered at the hands of the authorities in Sri Lanka;
k)had regard, in paragraph 38 of its reasons, to the applicant’s evidence of the beatings he said he received and that such evidence was embellished;
l)recorded its analysis of the applicant’s claim that he felt he had been a target of the authorities’ attention and concluded that the evidence revealed that at no time was the applicant harmed by the authorities;
m)analysed the applicant’s claims that the applicant’s father had been targeted by the authorities concluding that it was not satisfied that the applicant’s father was harmed by the authorities;
n)concluded that it was not correct that the authorities had sought the applicant in the manner claimed by him;
o)addressed the contention that the applicant would be detained because of his brother-in-law;
p)addressed the contention that the applicant would face difficulties as a fisherman in Sri Lanka including the contention that while fishermen in Sri Lanka face economic challenges those challenges do not amount to serious or significant harm;
q)analysed the applicant’s claims about his identity, background and imputed political opinion, especially his claims arising from his being a young male Tamil from the north of Sri Lanka concluding that he did not face a real chance of serious harm because of his Tamil ethnicity, his gender, or his age;
r)analysed the applicant’s claims that Tamils had difficulties by reason of their language, race and religion concluding that such a claim was not made out and that the applicant did not face a real chance of serious harm or a real risk of significant harm on that account; and
s)relied on country information when addressing the applicant’s claim that he will be harmed because he is a failed asylum seeker concluding that the applicant does not face a real risk of significant harm for that reason, or as an illegal departée.
In my view, the tribunal’s conclusions that the applicant failed to satisfy s 36(2)(a) or s 36(2)(aa) of the Act were open. I detected no error, let alone jurisdictional error.
Ground one also involved an allegation that the applicant was somehow denied procedural fairness. He did not develop this ground. I was unable to distil any want of procedural fairness.
The minister filed supplementary submissions concerning the suggestion that the tribunal may not have adequately dealt with the applicant’s claims having regard to s 5 of the Act and the meaning of the phrase “intentionally inflicted”. In view of the High Court’s interpretation of the point in SZTAL v Minister for Immigration and Border Protection,[19] it seemed to me that the tribunal’s treatment of the point was consistent with the High Court’s approach in SZTAL.
[19] [2017] HCA 34
Today I asked the applicant to tell me in his words what he said the tribunal did wrong. In response, he said he was unable to go back to Sri Lanka because if he did he would only face more problems. He said he was dissatisfied with the outcome of the tribunal hearing. To my mind that was not jurisdictional error.
All grounds of his application to this court failed.
Conclusion
This proceeding is dismissed. I order the applicant to pay the minister’s costs in the fixed sum of $6 400.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 3 September 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Statutory Construction
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Natural Justice
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