CED15 v Minister for Immigration
[2016] FCCA 3082
•30 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CED15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3082 |
| Catchwords: MIGRATION – Judicial review – protection visa – failure to take into account relevant considerations. |
| Legislation: Migration Act 1958 (Cth), ss.425, 430 Federal Circuit Court Rules 2001 (Cth), sch.3 |
| Cases cited: Minister For Immigration Cultural Affairs & Yusef [2001] HCA 30 MZZSK v Minister for Immigration & Anor [2014] FCCA 883 |
| Applicant: | CED15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2358 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 9 November 2016 |
| Date of Last Submission: | 9 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 30 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Wood |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 21 October 2015 and amended on 13 October 2016 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2358 of 2015
| CED15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Tamil Sri Lankan male. He is a Hindu. He left Sri Lanka in May 2012.
The applicant’s counsel filed lengthy written submissions with large portions of text appearing in footnotes which does not add in ease of reading.
Somewhat unhelpfully the applicant’s submissions do state that the applicant makes no submissions in support of grounds 1 to 5 of the amended application but is silent as to whether or not the applicant is still proceeding with those grounds. When asked counsel indicated those grounds were not being pressed.
The applicant’s submissions also contains a section titled preliminary submission the importance of Tribunal’s written statement of decision, reasons, findings and evidence then makes general statements and extracts a lengthy quote from the High Court decision of Minister For Immigration Cultural Affairs & Yusef [2001] HCA 30 (“Yusef”). Unless the applicant is making a specific complaint with respect to the Tribunal’s obligations pursuant to section 430 of the Migration Act 1958 (Cth) (“Migration Act”) these general submissions are of no assistance is merely restating the law.
Ground six and ground seven (a)
Ground six complains that the Tribunal fell into jurisdictional error by taking into account irrelevant considerations. This complaint centres around negative findings the Tribunal made about the applicant’s credibility.
The complaint under ground seven (a) is made under the umbrella of failing to consider the applicant’s claim in several respects. Some of the submissions are repetitive. For example ‘particular a’ refers to the later provision of evidence and complains that:
[T]he Tribunal failed to have regard to the fact that the later provision by the applicant of further claims or evidence was not contradictory or inconsistent, but the organic development and gradual revelation of his history.
This is really inviting a merits argument. The assessment of credibility is a matter for the Tribunal.
It is convenient to address ground six and seven (a) together.
The applicant emphasises that his initial statements made clear that they were a summary only. The applicants fear is that he has the right under section 425 of the Migration Act to give evidence and present arguments at the hearing and is not obliged to at any earlier stage.
At [8] of his written submissions the applicant refers to the Tribunal’s:
[P]erceived inconsistencies (and especially developments) in the applicant’s evidence about the killing of his neighbours, the burglary of his shop, the Army’s demand that go to the camp and his claim to have been tortured by the army.
The applicant complains that the Tribunal took into account and regarded as important when assessing the applicant’s credibility the fact that the applicant did not reveal that his neighbours who were murdered were related to him as the father of the family who was murdered was his cousin. The applicant complains that this breaches his right under section 425 of the Migration Act as he was penalised for waiting until the hearing to give evidence including further evidence of the new claims for new details.
There is no escaping the fact that the family who were murdered were related to the applicant was a significant factor. This omission cannot be explained by saying this initial statement was a summary and this was merely providing further detail. I do not accept this as an accurate characterisation. It is not an insignificant detail.
The applicant relies on the decision of Judge Jones in MZZSK v Minister for Immigration & Anor [2014] FCCA 883 and in particular [57]-[60]. However, that case was dealing with different circumstances. It is also necessary to refer to [56] of Her Honour’s judgment.
56. Manifestly, the critical issue identified by the Tribunal arising in relation to the decision under review was the discrepancies in the applicant’s claim that he was a homosexual male. To take into account these discrepancies as a basis for proceeding to determine the applicant’s application for review without taking further action to allow or enable the applicant to appear before it, is, in my opinion, inconsistent with the purpose of the statute conferring the discretion. For those reasons, in my opinion, the Tribunal took into account an irrelevant consideration.
57. The Tribunal also took into account the absence of any material to support the claims which it found were inconsistent. This consideration misconceives the legal obligation on the applicant who had been invited to appear at the Tribunal hearing. Although applicants or their representatives may well provide submissions and evidence to a Tribunal, they are not legally obliged to do so.
58. In SZJQP[v Minister for Immigration & Citizenship [2007] FCA 1613], his Honour Gilmour J dealt with considerations the Tribunal had taken into account in exercising its discretion under s.426A. One such consideration was failure of the applicant to complete the “Response to Hearing Invitation” enclosed with the notice of invitation sent to the applicant in accordance with s.425 of the Act. His Honour stated at [41]:
“41. Whilst there are plainly very practical reasons for making such requests of the applicant, he was under no legal obligation to comply with those requests. Section 425 (one) is clear in its terms. The invitation to the applicant is “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. It contemplates that such evidence, oral or documentary or both, which of course might well go beyond the content of the written application for the protection visa, will be given, and any arguments will be presented, at the hearing. I consider it irrelevant to the exercise of discretion that the applicant did not reply to this letter prior to the scheduled date of the hearing.”
59. His Honour’s reasoning apply with equal force, in my opinion, to the Tribunal’s consideration regarding the absence of any material to support the applicant’s claims. There was no obligation on the applicant to provide such material prior to the hearing. Section 425 contemplates that the applicant will give evidence and present arguments, including material in support of his claims, at the hearing. Consequently, this was an irrelevant consideration.
60. For these reasons I am satisfied that the Tribunal took into account irrelevant considerations and in so doing acted unreasonably in a legal sense such as to constitute jurisdictional error.
The first respondent submits that in order to establish jurisdictional error on the basis of irrelevant consideration it is necessary to establish that the decision maker took into account a consideration which the Migration Act forbids the decision-maker from taking into account. Mason J discussed this issue of failed to take into account in Minister for Aboriginal Affairs v Peko-Wallsend (1996) 174 CLR 24 (“Peko-Wallsend”) where he said at pp.39-40:
Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:
(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision …
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see R v Australian Broadcasting Tribunal;; Ex parte 2HD Pty Ltd (1979) 27 ALR 321 ; 144 CLR 45 at 49–50, adopting the earlier formulations of Dixon J in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757–8, and Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision …
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at 228).
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …
The respondent submits that the applicant’s complaint cannot be made out because section 425 does not contain any express or implied prohibition with respect to the Tribunal having regard to the timing of the applicant’s claims. The first respondent submits that there is nothing in this section which implies that the Tribunal is not entitled to take into account the timing of the applicant’s claims when assessing credibility. The language in the section is plain. I accept this submission.
The issue before Judge Jones was whether or not it was legally unreasonable for the Tribunal to exercise its discretion to make a decision on review when the applicant failed to appear in circumstances where the applicant had not already provided evidence to support his claim. The circumstances in this case are entirely different. Furthermore, there is nothing in Her Honour’s reasoning nor in s.425 which prevents the Tribunal from considering the time of evidence in circumstances where an applicant chooses to give evidence prior to the hearing. This is one part of a standard assessment of credibility and where the notion of recent invention arises.
The applicant has not established a jurisdictional error under these grounds.
Ground seven (b)
This complaint focuses on the Tribunal’s references to the applicant’s initial statements and later claims in interviews and is characterised as a failure to consider.
I note that at Court Book 13 (which contains part of the applicant’s initial interview) and the questioner says “I need you to tell me everything that happened to you, and all the reasons why you left Sri Lanka.” The applicant replies “there is no guarantee for my life, I will be persecuted.” The questioner then asked “so why would you be persecuted? Why was the [sic] no guarantee for your life? I need you to tell me all the reasons why you couldn’t live there any more.” The applicant then refers to the shootings and the fact that his neighbour was one of the people shot dead. He said he came out of the house and says that he saw an armed unit in uniform. They saw him and wanted him to come out of the house but he did not. He said they broke his front gate. The arrival interview form was completed on 20 August 2012. The applicant prepared a statutory declaration which appears at Court Book pages 80-83. The applicant points to the first paragraph of that statement where he says that it is only a summary of his claims for protection and non-exhaustive statement and that he would provide further information with respect to his protection claims during his interview. This post dates his entry interview. The applicant complains that [70] of the Tribunal’s decision unfairly characterises his evidence. In fact that paragraph he is complaining about this respect is [71] where the Tribunal says:
[A]s noted in the delegate’s decision records, the applicant’s account of what happened when he saw the SLA outside his neighbour’s house has been somewhat confused. His initial statement did not refer to the SLA is seeing him as they left the house or beating his gate.
Whilst it is true that in his entry interview he referred to an armed unit in uniform seeing him and breaking his front gates it is important to refer to the rest of the Tribunal’s findings in that paragraph which is of far greater significance.
At [70]-[71] of the Tribunal decision, the Tribunal does not accept the applicant’s reasons for merely referring to the family who was shot as his neighbours in his initial interviews and only claiming that the head of the family was his cousin much later the Tribunal placed some significance on his failure to disclose that in his interview and in his statutory declaration. At [5] of his statutory declaration he refers to “my neighbour and his wife and two children had been shot dead.” The Tribunal did not accept that the neighbour was his cousin he would not have said so earlier. The Tribunal was entitled to make that finding about the applicant’s credibility. That is not an example of an “organic development” of the applicant’s story.
The comments of the High Court in Peko-Wallsend referred to at [13] above are relevant here. I draw attention to the comments in (c) above which is particular here with respect to the comments about the army and the gate. It is an error within jurisdiction.
It is well established that the fact that the Tribunal does not refer to every item of evidence without more does not lead to the conclusion that the Tribunal failed to consider that evidence. Section 430 of the Migration Act does not require the Tribunal to identify and discuss each item of evidence and the decision of the High Court of Yusef which the applicant quotes at length in a fortnight in his submissions to is not support that contention. The High Court observed that the act requires the Tribunal to set out findings on questions of fact which it considered to be material to the decision and must give the reasons it had for reaching that decision.
Ground 7(b) is not made out.
Ground seven (c ) – (g) and ground eight
The remaining grounds are conveniently dealt with together as they concern the conditions of return to Sri Lanka after having left Sri Lanka illegally in breach of the Immigrants and Emigrants Act. The Tribunal addresses various this at [95] onwards of its decision.
The applicant complains that the Tribunal failed to actively engage and consider the country information. In support of this submission the applicant referred to Court Book pages 89, 90, 92, 93, 95, 96, 97 and 99. The applicant acknowledges that the Tribunal states that it considered the country information and argues that it should be inferred that having regard to the breadth and depth of the material it failed to actively engage with the material. The applicant also accepted that the Tribunal is not obliged to refer to every piece of evidence. The parts of the Court Book the applicant refers to do with the detailed country information is part of the applicant written submissions prepared on 29 November 2012. The country information contains reports prepared in 2010, 2011 and 2012. The Tribunal decision was handed down in 24 September 2015. The Tribunal is not limited to only considering country information in the applicant's submissions.
The Tribunal refers to country information including information from the Department of Foreign Affairs and Trade (“DFAT”) that Tamils returning to Sri Lanka are subject to the same treatment as any other citizen returning to Sri Lanka. It discusses various sources of country information and notes [96] in particular that whilst some reports indicate that returnees have been harmed those are returnees with the natural or perceived connection to the LTTE and the Tribunal does not accept that the applicant has or would be perceived to have that connection. The Tribunal also noted that whilst it was aware of there being allegations of a small number of returnees being tortured and mistreated many of those allegations have been made anonymously and often to third parties and that the information for diva referred to there being thousands of asylum seekers who have returned but relatively few allegations of torture or mistreatment.
At [99] the Tribunal refers to as an assessment of the country information before it, including those contained in the submissions from the applicant’s representative. The Tribunal also refers to [101] its findings including with respect to the applicant’s specific claims regarding his adverse profile and general claims is a Tamil that the Tribunal did not accept that there was a real chance that the applicant would face indefinite detention or physical assault or torture.
The Federal Court considered the use of country information in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10. The assessment of country information is a task for the Tribunal and not the Court. It is apparent from a fair reading of the Tribunal’s decision that it actively engaged with the material before it including comparing and contrasting sources of country information as is apparent from [96] and making an assessment of the outcome of the country information. It is also apparent from [99] that it considered all the country information including the country information in the applicant’s submissions.
In so far as the applicant complains About the Tribunal’s findings with respect to the availability of family members to secure the applicant’s bail this issue has been dealt with in the Federal Court of Australia decisions of the Minister for Immigration and Border Protection vSZTQS [2015] FCA 1069 (“SZTQS”) and SZTAP v Minister for Immigration and Border Protection [2015] FCA FC 175 (“SZTAP”). As the Full Court observed in SZTAP the case of SZTQS dealt with in fact specific circumstances where the applicant had a particular profile. The Full Court at [76] of that decision said that:
SZTQS does not stand for a high level proposition that every reference to a family member being required to provide surety is a breach of section 425 subsection (1) of the Migration Act.
The factual circumstances of this case are very different to the case of SZTQS.
It is also important to note that the issue about bail comes from country information and prison conditions. The applicant put detailed country information before the Court. The applicant could have addressed the issue of bail in his submissions.
With respect to particular (f) this is mentioned in a couple of paragraphs in the applicant’s written submissions appearing at CB 228 to 229. It is clear that this arises out of country information the applicant is not point to any other place where he made this claim. The respondent argues that this was not a claim made by the applicant which arises squarely on the material. There is no transcript of the hearing before the Tribunal. The first respondent refers to Minister for Immigration and Citizenship and SZRMA [2013] FCAFC 161 at [70] where the Full Court of the Federal Court states:
In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, Gummow and Callinan JJ at [24] (with whom Hayne J agreed at [95]) said that the Tribunal is obliged to address “a substantial, clearly articulated argument relying upon established facts”. In NABE, the Court at [58] said:
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
Unlike in Kirushanthan Paramanathan v Minster for Immigration and Multicultural Affairs [1998] FCA 1693 the Tribunal in that case acknowledged receiving country information report but did not make any other reference to it.
Particular (g) complains about the Tribunal’s regard to the DFAT country report. As the respondent points out the Tribunal refers to this report specifically at several points in its decision. The fact that it does not specifically refer to part of the decision the applicant wishes to draw attention to does not mean that it did not have regard to the report and make the appropriate assessment as it was required to do.
It cannot be inferred from a fair reading of the Tribunal’s decision that it overlooked the applicant’s claim. So far as the applicant complains that the Tribunal to not specifically refer to his claim that returnees faced harm after they released and returned to their homes I accept the first respondent’s submissions that this was subsumed in the findings of greater generality.
Some of the applicant’s argument strays into the area of impermissible merits review. There is no substance to the applicant’s complaint with respect to the Tribunal’s assessment of country information and the findings the Tribunal breached with respect to the conditions the applicant is likely to face upon his return to Sri Lanka. The applicant relies on the decision of the Applicant M190 of 2002 and Minister For Immigration and Multicultural and Indigenous Affairs [2003] FCA 1362. This decision is an example of a jurisdictional error by reason of failing to take into account a relevant consideration but does not assist the applicant’s case as it is not analogous. The applicant refers to other well-known decisions with respect to the failure to consider. It is not necessary to refer to all of them.
The Tribunal clearly had regard to the country information before it including country information provided by the applicant. It is a matter for the Tribunal to determine the weight to give is to that information. The Tribunal performed its task in this regard.
The applicant also complains that the Tribunal’s decision taking into account the country information to for it with respect to the conditions upon return were legally unreasonable. Legal unreasonableness has been discussed in several cases including In Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) Crennan and Bell JJ said, at [135] and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] to [66]. The decision must be “so unreasonable that no reasonable person could have come to it”.[1]
[1] See Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24, p.41.
None of the applicant’s grounds are made out. The application must be dismissed.
Counsel agreed that the successful party should be awarded costs in accordance with the Federal Circuit Court Rules 2001 (Cth) Schedule 3, item 3. I will so order.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 30 November 2016
0
21
3