CEJ15 v Minister for Immigration and Border Protection
[2019] FCCA 1038
•29 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CEJ15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1038 |
| Catchwords: PRACTICE AND PROCEDURE – Consideration of application to amend judicial review application – whether sufficient merit in proposed grounds of amended judicial review application. |
| Legislation: Evidence Act 1995 (Cth), s.140 Immigrants & Emigrants Act 1948 (Sri Lanka), s.45 Migration Act 1958 (Cth), Pt. 7 Div. 4, ss.36, 91R, 422B, 424A, 425, 476, 486I, Prevention of Terrorism (Temporary Provisions) Act, 1979 (Sri Lanka) |
| Cases cited: ACC15 v Minister for Immigration & Border Protection [2016] FCA 97 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 |
| Applicant: | CEJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 479 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 25 July 2016 |
| Date of Last Submission: | 25 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 April 2019 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant’s oral application to amend the application filed 20 October 2015 is dismissed.
The proceedings are to be adjourned to a directions hearing on 28 June 2019 at 2.00pm.
Costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 479 of 2015
| CEJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 20 October 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is in the Court Book (“CB”) at 326-354.
On 25 July 2016, the day of the hearing, the applicant handed up to the Court a proposed amended Judicial Review Application (“Proposed Amended Judicial Review Application”) and an outline of submissions. The Minister opposed leave being granted to rely on the Proposed Amended Judicial Review Application and the Court refused the applicant leave to amend his Judicial Review Application. The reasons for that refusal appear below at [22]-[32].
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Sri Lankan citizen of Sinhalese ethnicity who arrived in Australia as an unauthorised maritime arrival on 13 June 2012: CB 39-40;
b)on 4 November 2012 the applicant lodged a Protection Visa application, including submissions made by an agent: CB 22-85, and made the following claims:
i)the applicant and his family are actively involved, perceived to be influential within, and support the People’s Alliance (“PA”), and consequently supporters of the opposing United National Party (“UNP”) have beaten the applicant and his family several times, including in one incident in 2008 in which his property was attacked and burnt down which caused him to flee to another district: CB 54-55;
ii)the applicant’s brother was shot by the same UNP supporters when trying to assist the applicant as he was being beaten, having returned to the district sometime later in 2008 to visit his family, and when the applicant went to the police they refused to accept a complaint as the police were afraid of the UNP supporters who had committed the attack: CB 56;
iii)the applicant was a volunteer with the Sri Lankan police and provided information that caused the arrest and sentencing of three well known drug dealers, and in January 2010 the applicant again informed about a “load of drugs” which the police seized. The drugs purportedly belonged to prominent Sri Lankan parliamentarians (“MP’s”) and there were several attempts made to kill the applicant’s friends who were in the volunteer unit and assisted the applicant, and one of the applicant’s friends was shot and killed in March 2012: CB 57; and
iv)the applicant fled the country illegally so he will be harmed and subjected to harsh treatment if he returns to Sri Lanka: CB 58;
c)following an interview with the Delegate where the applicant made two additional claims, on 24 June 2013 the applicant’s agent sent a further statement which contains additional information relating to an incident that occurred in 2009 and written submissions in support of the applicant’s claims: CB 119-131;
d)on 13 August 2013 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 144-171;
e)on 21 August 2013 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 176-181;
f)on 18 August 2014 the applicant’s representative sent a pre-hearing submission to the Tribunal : CB 260-277;
g)on:
i)12 September 2014 the applicant attended a hearing before the Tribunal which was adjourned part heard (“First Tribunal Hearing”): CB 283-285;
ii)on 31 October 2014 the applicant attended a further hearing before the Tribunal which was adjourned part heard (“Second Tribunal Hearing”): CB 294-296; and
iii)on 28 November 2014 the applicant attended another hearing before the Tribunal (“Third Tribunal Hearing”): CB 313-315,
(together “Tribunal Hearings”);
h)on 4 December 2014 the applicant’s representative provided further submissions to the Tribunal for consideration (“Post-Tribunal Hearings Submissions”): CB 317-321; and
i)on 9 October 2015 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 326 and 354 at [181].
Tribunal Decision
The Tribunal:
a)confirmed that the applicant had provided evidence at the Tribunal Hearings with the assistance of an interpreter and his registered migration agent: CB 327 at [1]-[3];
b)summarised the relevant legal principles applicable to the Tribunal’s review of the Delegate’s Decision: CB 327-329 at [4]-[18]; and
c)noted that the applicant had made various claims and submissions, including:
i)claims made to the Department: CB 329-330 at [19];
ii)providing various untranslated documents in Sinhalese and submissions from his then legal representatives to the Department: CB 330 at [20];
iii)submissions from the applicant to the Tribunal prior to the First Tribunal Hearing: CB 331 at [22]; and
iv)a further statement from the applicant provided to the Tribunal, seemingly before the First Tribunal Hearing, responding to the Delegate’s Decision and making certain other claims: CB 331 at [22]; and
d)noted that it had read the Delegate’s Decision: CB 330 at [21]-[22].
The Tribunal summarised the applicant’s claims as including:
a)the applicant’s political activity with the PA, including the events in 2008: CB 329 at [19(a)-(c)];
b)that in 2009 the applicant provided temporary shelter to two friends who had had relationships with the wife of a member of the Presidential Security Team (“N”), and N had threatened the applicant and badly beaten one of his friends: CB 329 at [19(d)];
c)three men had beaten N very badly, and one of those men had subsequently disappeared and the applicant believed N was responsible for the disappearance, and the other two men are the men to whom the applicant provided temporary shelter, and it was through those two men that N had found out that the applicant had provided them with shelter: CB 329 at [19(e)];
d)the applicant “began volunteering” (which appears to be a euphemism for a type of informing or acting as an informant) for the Sri Lankan police in 2009 and he provided information that led to the arrest and sentencing of three men, and a son of one of the men jailed attacked the applicant for reporting his father: CB 330 at [19(f)];
e)the applicant and four friends discovered a “load of drugs” while volunteering for a local MP during the 2010 elections and reported this to the police who arrested and charged “J”. The applicant was later informed the drugs belonged to the local MP, and in 2011 several attempts were made by people connected with the MP to kill one of the friends involved, another friend was shot and killed in March 2012, and in September 2012 another died after consuming poison: CB 330 at [19(g)-(i)]; and
f)in summary, that the applicant feared harm for being a PA supporter, from N, as a result of his informing about the drugs, as a member of a particular social group of “persons who have come to the adverse attention of influential government ministers of the ruling PA”, from Buddhist monks on account of his being a Catholic, and as a person who has left Sri Lanka illegally and is returning as a “failed asylum seeker”: CB 330 at [19(j)].
The Tribunal detailed the evidence provided by the applicant, including:
a)a submission from the applicant’s representative responding to the Delegate’s Decision and addressing matters that arose in the Delegate’s Decision, including providing explanations for inconsistencies: CB 331 at [22];
b)that he fears returning to Sri Lanka because:
i)of corruption and what the politicians are doing;
ii)he is Sinhalese and cannot live there happily; and
iii)he has no protection there and two of his friends were killed because of the issues and problems with corruption and politicians: CB 332 at [29];
c)that the applicant is a member of the Sri Lankan Freedom Party (“SLFP”), a subset of the PA, and had been since he attained his voting rights, and he was President of the SLFP branch in his region, and has had trouble with the UNP: CB 332 at [30];
d)the applicant provided the Delegate with an untranslated letter verifying his status as President of the regional branch of the SLFP, and the Tribunal was able to confirm through an interpreter at one of the Tribunal Hearings that the letter affirmed the applicant’s position, although the letter was not on any official letterhead: CB 332 at [30]-[31];
e)he was President of the regional branch of the SLFP from 2010 until the time he came to Australia, and in that capacity he attended committee meetings every three months, collected information on the needs of his region, helped villagers obtain building materials from politicians to rebuild due to sea erosion, participated in political campaigns: CB 332-333 at [31]-[37], and when asked what appealed to him about the SLFP he stated “he knew them and they knew him”: CB 333 at [36];
f)that a temporary shed on his family’s land was burnt down by people from the opposition party because the applicant used to have MP’s visit and he was a leader in political activities, although it could have been because of his family background: CB 333-334 at [42];
g)the same men responsible for burning the shed down also had a conflict with his elder brother and father, and attacked the applicant and his brother in 2008, after which the applicant ran away, but upon returning the applicant was attacked and his brother was shot and the police did not help: CB 334 at [43]-[44]. The applicant’s father and brother in law have also been attacked by the same men: CB 334 at [45]-[46];
h)the problems with these men began in 2008, though the applicant could not recall the exact dates, however no further incidents occurred with these men after 2008 but the applicant still fears harm from them: CB 334 at [47]-[49];
i)with respect to his claim to fear harm from N, said that N had bashed him twice, and when asked why he had not mentioned being bashed before he said he had and the interpreter must not have interpreted this part: CB 334-335 at [50]-[53];
j)that N caused no further problems after this incident, however, he would harm the applicant on return to Sri Lanka as people had tried to kill N causing his face to be disfigured and that this has made him an angry and cruel person who can harm anyone: CB 335 at [55];
k)that because the applicant informed on the people convicted of the drug offences, the relatives of these people and the politicians they are connected with cause him to fear he may be harmed, and they did not get the opportunity to harm him previously only because the applicant had left the village: CB 336 at [58]-[59];
l)the men convicted of the drug offences are now out of prison and the applicant fears harm because these men are aware he gave information against them as village people have told him as much: CB 336-337 at [60]-[63], and as he “works in the civil protection force, he knows how this thing works. Drug dealers work with police officers and politicians”: CB 336-337 at [63];
m)how he became aware of the “drug load” and that his friends were threatened with firearms and received threatening calls. The applicant was not in the village so no harm could come to him, though if he goes back to Sri Lanka he fears harm as he has given information in two drug deals in the past and has had political problems so he is “pretty sure” that “all those incidents” will cause him to be harmed: CB 338 at [72]-[75];
n)he does not have a fear of harm for reason of being a Christian and does not remember making that claim: CB 338 at [76];
o)that while he stated in his entry interview the reason for coming to Australia was for economic reasons and because of poverty, he did so as he was asked to give brief answers and while poverty is still a reason, the “real reason” he became involved in politics was to alleviate the poverty: CB 339 at [81]; and
p)while it has been claimed that the applicant will face harm due to his political opinion after coming to the adverse attention of an MP, this was not an essential and significant reason for harm, rather it was personal revenge because the applicant gave information about drug deals that might hamper that MP’s political image, hence the applicant’s biggest fear is that MP: CB 341 at [99].
The Tribunal put to the applicant issues and country information for him to respond and comment upon, including:
a)the claims concerning the MP being implausible;
b)concerns arising from his entry interview, to which the applicant responded that he was cautious about disclosing things when he first arrived in Australia as he was suspicious of the interpreter: CB 339 at [83]-[84];
c)inconsistencies between the applicant’s evidence at the Tribunal Hearings and what was stated in his written claims: CB 339 at [85]; and
d)country information that indicated the current situation for those with a political profile returning to Sri Lanka, those returning as a failed asylum seeker, and those returning who had departed Sri Lanka illegally: CB 339-340 at [86]-[95].
The Tribunal observed that at the conclusion of the Third Tribunal Hearing the applicant requested another hearing to provide more “important information” concerning the current situation in Sri Lanka, but in circumstances where the applicant was given an opportunity to provide further written submissions and had already given evidence for over 8 hours it was satisfied he had ample opportunity to give his evidence and make submissions: CB 343 at [113].
The Tribunal noted that the applicant expressed concern with the adequacy of interpretation at the end of the First Tribunal Hearing. The applicant and his representative were invited to make submissions on the adequacy of the interpretation at the First Tribunal hearing, but no submissions were received, and at the Second Tribunal Hearing the Tribunal provided a different interpreter. No further submissions were received from, or issue taken by, the applicant in respect of the interpretation issue, and it was only the comment by the applicant at the end of the First Tribunal Hearing that expressed any doubt about the adequacy of interpretation. The Tribunal was satisfied that, on the evidence before it, and in the absence of any example or reason given by the applicant as to why he felt his evidence was not being properly conveyed to the Tribunal, that there were not any interpreting errors or failures to convey his evidence, and that the applicant was provided with a genuine and meaningful opportunity to provide evidence at the First Tribunal Hearing: CB 342-343 at [110].
The Tribunal explained that it did not believe that the concerns it held as to the applicant’s plausibility and the discrepancies in his evidence were as a result of interpreter error: CB 342-343 at [110]. The Tribunal observed that the applicant claimed he had not made claims in an earlier interview after his arrival in Australia (whether at the entry interview or another interview is unclear) because he was suspicious of the interpreter, but did not accept that this was why there were inconsistencies, omissions and implausibilities in the applicant’s evidence as he had failed to explain why he had been wary of providing correct information: CB 343 at [111]. The Tribunal was satisfied that the applicant was confident and forthright in the evidence he provided at the Tribunal Hearings, including challenging the country information put to him, and therefore any discrepancies or inconsistencies in his evidence could not be attributed to nervousness or anxiety: CB 343 at [112] (and as to which see, for example, CB 339 at [87] where the applicant asserts that the United States Ambassador to Sri Lanka has been accused of human rights violations, and CB 341 at 101 where the applicant suggests the Tribunal “should do its job properly” and “go to Sri Lanka” to “realise what is the truth”).
The Tribunal then assessed and made findings on the applicant’s claims. The Tribunal:
a)accepted the applicant and his family support the SLFP and may be known to be SLFP supporters, however, did not accept that this constituted “active involvement” in the SLFP, and noted the applicant’s evidence on his own political activities was vague and confusing: CB 343 at [114]-[115];
b)placed little weight on the letter stating the applicant was allegedly President of the regional SLFP branch as no official translation was provided, it was not on an official letterhead and was handwritten, and in any event the applicant’s oral evidence of how he came into the role lacked credibility and was “difficult to accept”: CB 343-344 at [116];
c)did not accept the applicant was President of the regional SLFP branch, however, accepted the applicant was an SLFP member and that he knew local politicians and conveyed to them the needs of other villagers, thus finding the applicant’s engagement in political activities, including as a driver for a secretary to an MP, was low level: CB 344 at [117];
d)noted that the applicant’s description of the harm he alleged his family had been subjected to was inconsistent and vague, and though it accepted the applicant’s family may have had some kind of dispute with opposition supporters in 2008 and that there was an altercation in 2008, it did not accept the applicant’s property was burnt down, nor that he and his brother were taken in for questioning by police, or that his father was subsequently beaten by one of the supporters when the applicant was in Australia: CB 344-345 at [120]-[126];
e)accepted the applicant stayed away from his village temporarily after an altercation but did not accept he continued to stay away out of fear for his safety, and that the altercations the applicant allegedly encountered were not politically motivated as the Tribunal did not accept the men allegedly responsible were opposition supporters. On the applicant’s own evidence he had no trouble from these men after 2008, and therefore he did not face a real chance of serious harm or real risk of significant harm from the men: CB 345-346 at [127]-[129];
f)found the claims concerning N to be implausible and far-fetched, noting the applicant’s evidence had differed in respect of this claim throughout the process, in particular the applicant’s involvement in the alleged dispute changed, and it did not accept the applicant faced a real chance of serious harm or a real risk of significant harm from N: CB 346 at [130]-[133];
g)accepted the applicant worked as a volunteer for the Sri Lankan police and that he passed on information about three drug dealers in 2010, but in light of his changing evidence as to why he feared harm for this reason, including that he had not been the subject of harm previously contradicting his claim to the Delegate that he was beaten up for passing on information, the Tribunal did not accept that the three drug dealers or their families were aware of the applicant having passed on any information responsible for their arrest and conviction: CB 347 at [136]-[138];
h)noted that the applicant had not faced any harm in the past as a result of providing this information despite having been in Sri Lanka for a further two years after doing so, and although it accepted that the men may have now been released, in light of the finding the applicant had not previously faced harm for this reason it did not accept that there is a real chance or risk that the applicant will face serious or significant harm in the reasonably foreseeable future, and rejected the evidence that the reason he did not face harm previously was because he did not live in the village: CB 347 at [139]-[140];
i)found the applicant’s evidence implausible and lacking in credibility with respect to the MP and the “drug load” the applicant alleged he reported upon as it lacked detail and was inconsistent: CB 348 at [141]-[142];
j)did not accept the applicant’s friends had been harmed, nor killed, for their involvement in giving information about the “drug load” as the evidence was inconsistent, implausible and lacking credibility, while the applicant’s evidence that he never received any threatening phone calls and was not harmed because he was not physically located in his village contradicted his claims those responsible were ruthless enough to dismember one of his friends: CB 348-349 at [143]-[144];
k)cited news reports that confirmed a “drug load” had been uncovered by police in 2010 and that the individual the applicant said was responsible was named in the report as having been arrested, however, the Tribunal was of the view that the incident would have been widely reported in the media and the general details, including the name of the drug trafficker and the MP allegedly involved, could easily have become known by the applicant through the media, and in light of the credibility concerns the Tribunal had about the applicant it did not accept the applicant had any involvement in the discovery of the drugs: CB 348-349 at [144];
l)did not accept that the applicant faces a real chance of serious harm, or a real risk of significant harm, from the MP or any of the MP’s associates, nor that he has come to the adverse attention of any of those people for the reasons claimed: CB 349 at [145];
m)accepted the applicant may continue to support and have some involvement with the SLFP, however, the activities are low level and the applicant did not claim to fear harm because of his political affiliation other than on the basis of the already rejected claims: CB 349 at [148];
n)referred to country information concerning the risk faced by SLFP supporters and that low level SLFP members and supporters do not face a real chance or real risk of serious or significant harm, and that incidents of violence are limited and concentrated to election times, therefore the applicant did not face a risk of harm as a result of his political membership and political activities now or in the reasonably foreseeable future: CB 349-350 at [149]-[150];
o)was satisfied that even if the applicant continued to provide information to the Sri Lankan police concerning crime in his area, that as it had found he was not previously the subject of any harm for this reason he would not be the subject of any harm in the future if he were returned to Sri Lanka: CB 350 at [151];
p)summarised country information concerning the treatment of returnees and failed asylum seekers and in light of the applicant’s circumstances and profile was not satisfied the applicant would face a real chance or risk of serious or significant harm: CB 350-351 at [152]-[157];
q)noted the country information concerning returnees who had departed Sri Lanka illegally and the risk of harm arising from s.45 of the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act), and again referring to the applicants circumstances and profile, including that he or his family would be able to pay any fine imposed, made a finding the I & E Act was a law of general application, and that whilst prison conditions were not of a high standard they were not intended to inflict serious or significant harm on those in prison, and was satisfied that there was not a real risk or real chance of the applicant suffering serious or significant harm for illegally departing Sri Lanka: CB 351-353 at [158]-[175]; and
r)considering the claims individually and cumulatively was not satisfied the applicant was owed protection obligations under s.36(2)(a) and (aa) of the Migration Act and affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 354 at [176]-[181].
Judicial Review Application
The applicant was unrepresented in proceedings before this Court. The applicant told the Court that he did obtain some assistance in drafting the Proposed Amended Judicial Review Application from a lawyer he saw in Sydney.
The Judicial Review Application sought relief from the “Independent Protection Assessment Reviewer”. On the material before the Court the applicant was not the subject of an Independent Protection Assessment and as such the relief he seeks in that respect is unavailable. The Judicial Review Application as filed contained three formulaic grounds that the Court has encountered in a number of judicial review applications by citizens of Sri Lanka, and which are as follows (transcribed verbatim):
1. Not following the rules of natural justice.
2. Error of law on the face of the record.
3. Review of delegated legislation on grounds of ultra virus.
The applicant filed an affidavit together with the Judicial Review Application annexing to that affidavit a copy of the Tribunal Decision.
The Minister filed a Response seeking that the Judicial Review Application be dismissed because it was not affected by jurisdictional error.
By virtue of orders of a Registrar of this Court made on 25 November 2015 (“Registrar’s Orders”) the applicant was provided an opportunity to file:
a)an amended Judicial Review Application and any further affidavits by 20 January 2016; and
b)an outline of submissions by 13 June 2016.
The Court notes that Order 2 of the Registrar’s Orders specifically provided that “ … all evidence relied upon by the parties must be presented by way of affidavit and in the event that a party seeks to rely on evidence of the contents of any sound recording, the party must file and serve a transcript verified by affidavit”.
The applicant did not comply with the Registrar’s Orders. Rather, he:
a)on 4 July 2016 filed an affidavit, attaching an affirmation (“Affirmation”) and three documents, marked I (“Document I”), II (“Document II”) and III (“Document III”) respectively; and
b)handed up in Court on the day of the hearing, 25 July 2016, and sought leave to rely upon the Proposed Amended Judicial Review Application and an outline of submissions (“Applicant’s Outline of Submissions”), addressed by the Court below at [22]-[32].
The Minister opposed the applicant being granted leave to rely on the Proposed Amended Judicial Review Application on the basis the applicant had failed to comply with the Registrar’s Orders and that the proposed grounds lacked merit.
At the hearing the Minister relied upon the affidavit of David John Ian Carroll affirmed 4 July 2016 (“Carroll Affidavit”).
When preparing these Reasons for Judgment the Court has also had regard to the transcript of the hearing on 25 July 2016.
Consideration – leave to rely on the Proposed Amended Judicial Review Application
The Court notes that the grounds of the Proposed Amended Judicial Review Application were detailed and indicate that they were drafted by a person with some understanding of judicial review proceedings before this Court, and, likewise, the Applicant’s Outline of Submissions. There is, however, no lawyer on the record for the applicant, nor was the Proposed Amended Judicial Review Application certified pursuant to s.486I of the Migration Act by the lawyer who allegedly prepared it (or by any lawyer).
The Court has the power to allow an amendment to pleadings at any stage of the proceedings: Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), r.7.01(a), and in doing so it may take into account case management principles: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 at [30] per French CJ and [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Federal Circuit Court of Australia Act 1999 (Cth), ss.3 and 42; FCC Rules, r.1.03. Otherwise, the considerations that the Court may take into account include:
a)the nature of the proposed amendment and whether it is futile;
b)whether substantial prejudice or injustice which could not be compensated for will be caused to another party;
c)whether the proposed amendment is made in good faith; and
d)the stage in the proceedings at which leave is sought: Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 at [27] per Judge Manousaridis, citing Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8] per Stone J.
The applicant filed no affidavit in support of the Proposed Amended Judicial Review Application explaining why it was that he had not filed it earlier. The applicant made oral submissions at hearing in which he stated that:
a)he went to Sydney the week before the hearing to meet a lawyer, but did not go earlier than this as he could not afford the travel expenses: Transcript, page 3;
b)he tried hard to find a lawyer in Western Australia, but he could not find one: transcript, page 3; and
c)in respect of the grounds in the Proposed Amended Judicial Review Application, the interpreter at the time “tried to make a shorter what he was saying” and did not explain it properly “so some facts were missed out”: Transcript, page 5.
The Court makes the following observations and findings:
a)the Judicial Review Application has been on foot for over 9 months;
b)by virtue of the Registrar’s Orders the applicant had almost two months to file an amended Judicial Review Application in compliance with the Registrar’s Orders, and therefore had ample opportunity to file an amended Judicial Review Application within the period prescribed by the Registrar’s Orders;
c)there was a period of a further five months before written submissions were due to be filed and at no time until 20 July 2016 (six days before the hearing) did the applicant contact the Minister’s lawyers indicating that he still sought, or would be seeking, to file an amended Judicial Review Application, and, likewise, no contact was made with the Court indicating that the applicant sought, or would be seeking, to file an amended Judicial Review Application;
d)the Minister received a copy on 20 July 2016, notwithstanding the outline of submissions and the Proposed Amended Judicial Review Application were dated 15 July 2016, and this was after the written submissions of the Minister had been filed, and while the Minister is a model litigant, it is nonetheless a timely and costly exercise for the Minister to prepare submissions to address matters the applicant no longer wishes to press and to address grounds not previously raised on short notice;
e)the applicant at no stage prior to hearing sought any extension of time in which to file the Proposed Amended Judicial Review Application or the Applicant’s Outline of Submissions, but rather on the day of the hearing simply handed up the Proposed Amended Judicial Review Application in Court and the Applicant’s Outline of Submissions;
f)the Court accepts the applicant may have approached lawyers in Western Australia, though there was no indication when he attempted to do so or as to the extent of any such attempts;
g)in any event, it is well accepted that an applicant ultimately has no right to legal representation or assistance in migration proceedings in the federal courts: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTIv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J; WZAWB v Minister for Immigration & Anor [2016] FCCA 1345; (2016) 309 FLR 398 at [86]-[90] per Judge Lucev, and that the applicant could not find a lawyer in Western Australia is not, of itself, sufficient to explain delay or satisfy the Court he should be allowed to rely on the Proposed Amended Judicial Review Application, although it is a fact which must be weighed when assessing whether leave ought to be granted for the applicant to rely on the Proposed Amended Judicial Review Application: ADN15 v Minister for Immigration & Border Protection [2016] FCA 810 at [29] per Charlesworth J;
h)the applicant says he flew to Sydney the week before the hearing to meet with the lawyer who allegedly prepared the Proposed Amended Judicial Review Application, and the applicant says he did not do so earlier as he had to save for the travel expenses, but there is nothing before the Court by way of evidence of the applicant’s financial records to verify this explanation, but even if the explanation is accepted it does not alter the fact of the lateness of the applicant’s actions;
i)the applicant also said that when the “green document” (which it can be inferred is the CB, usually referred to, at least in the Perth Registry, as the “Green Book”) “came to me, the lawyer looked at it and said these are the things I’m going to write, but he [the applicant] was not aware what the lawyer was writing”: Transcript, page 7. The Court notes that the CB was filed on 14 January 2016, more than six months prior to the hearing, and that the applicant’s submission concerning what then occurred in relation to the CB is not necessarily consistent with his submission about not seeing a lawyer until a week before the hearing, and might explain why the applicant referred to his “previous lawyer” in the course of submissions: Transcript, page 5;
j)in any event, the fact that the applicant is unaware of what “the lawyer” wrote, does not necessarily assist the applicant to argue that the Proposed Amended Judicial Review Application was made in good faith;
k)the applicant states that it was a lawyer that prepared the Proposed Amended Judicial Review Application and the Applicant’s Outline of Submissions, however, no lawyer appears on the record for the applicant and the Proposed Amended Judicial Review Application contains no certification by a lawyer that the single ground of the Proposed Amended Judicial Review Application has a reasonable prospect of success: Migration Act, s.486I;
l)the delay in making the Proposed Amended Judicial Review Application is considerable, it being made:
i)more than nine months after the Judicial Review Application was filed;
ii)more than seven months after the Registrar’s Orders were made, and more than five months after the date which the Registrar’s Orders provided for the filing of any amended application; and
iii)at the latest possible moment, namely, at hearing, in circumstances where the Proposed Amended Judicial Review Application is dated 15 July 2016, that is, 11 days before the hearing;
m)there must be some prejudice to the Minister, and there must be further costs incurred in dealing with the Proposed Amended Judicial Review Application served on the Minister six days before the hearing, in circumstances where the Minister had already filed an outline of submissions dealing with the grounds as set in the Judicial Review Application;
n)given that there is no evidence of the applicant’s financial circumstances, it is very difficult to ascertain whether there is any likelihood that a costs order in relation to the Proposed Amended Judicial Review Application would ever be met by the applicant if made by the Court; and
o)in circumstances where:
i)the applicant is not aware of, and plainly has no understanding of, the terms of the Proposed Amended Judicial Review Application; and
ii)the Proposed Amended Judicial Review Application is made at the last possible moment at hearing,
it is not possible to conclude that the application to amend in terms of the Proposed Amended Judicial Review Application is one made in good faith.
In all the above circumstances, the Court is not satisfied the applicant’s explanation for the delay in filing the Proposed Amended Judicial Review Application is sufficient to warrant leave being granted to file the Proposed Amended Judicial Review Application. It remains, however, for the Court to consider whether the single ground of the Proposed Amended Judicial Review Application might have sufficient arguable merit to warrant leave being granted to file the Proposed Amended Judicial Review Application.
The single ground of the Proposed Amended Judicial Review Application is as follows:
1. The Tribunal breached section 425 and/or 424A of the Migration Act.
Particulars
a. By making findings on the Applicant’s evidence in [110] given during the first hearing which the applicant complained that the interpreter was not conveying his evidence and the Tribunal’s questions accurately, the Tribunal failed to apply the statutory procedural fairness obligations imposed by section 424A or section 424AA of the Act, including the provision of clear particulars of information relevant to the Review;
b. By making findings on the Applicant’s evidence in [111] the Tribunal did not accept that any inconsistencies, omissions or implausibilities in the Applicant’s evidence resulted from his suspicions of giving correct information because at an earlier, unspecified interview he had a Sinhalese speaking Tamil interpreter, the Tribunal failed to apply the statutory procedural fairness obligations imposed by section 424A or section 424AA of the Act, including the provision of clear particulars of information relevant to the Review,
c. The Applicant was therefore denied the opportunity of gaining favourable credit inferences on his evidence which may have occurred had the proper statutory procedures been followed.
In respect to particular (a) of the ground in the Proposed Amended Judicial Review Application the Court makes the following observations and findings:
a)to amount to jurisdictional error the standard of interpretation at a Tribunal hearing must be so inadequate that it may deprive an applicant of a real and meaningful opportunity to participate in the Tribunal hearing, such that the applicant was prevented from giving evidence and the conclusions formed on the basis of the inadequately interpreted evidence were material to the outcome of the applicant’s Protection Visa application: SZRMQ v Minister for Immigration & Border Protection & Anor [2013] FCAFC 142; (2013) 219 FCR 212; (2013) 139 ALD 436 (“SZRMQ”) at [78] and [80] per Robertson J; Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507; (1999) 92 FCR 6; (1999) 56 ALD 231 at [26] per Kenny J (“Perera”);
b)the applicant and his representative were invited by the Tribunal to make submissions on any interpretation issues. The representative made post-Tribunal Hearing submissions, but did not make any submissions concerning any alleged interpretation or misinterpretation issues. The applicant was given a reasonable opportunity to present his view on any alleged interpretation or misinterpretation issues, and it was not for the Tribunal to ensure that the applicant took the best advantage of that opportunity: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383;
c)there is nothing in the form of a transcript of the First Tribunal Hearing before the Court that would enable it to determine if what the applicant alleges were misinterpretations or inadequate interpretations occurred, and, if they did occur, whether they were material to the outcome of the Tribunal Decision; and
d)it follows that the applicant was afforded procedural fairness by being given the opportunity to put evidence of any material misinterpretation at the First Tribunal Hearing before the Tribunal, but having been afforded that opportunity the applicant failed to put any evidence on the issue before the Tribunal (or subsequently before this Court), and therefore there is no evidence of any material misinterpretation affecting the Tribunal Decision, and therefore particular (a) does not establish jurisdictional error in the Tribunal Decision.
In respect of particular (b) of the ground in the Proposed Amended Judicial Review Application the Court makes the following observations and findings:
a)the Tribunal is not required to put to the applicant the existence of “doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; and
b)credibility findings are primarily findings of fact for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 per McHugh J, but adverse credibility findings might involve jurisdictional error where they deny an applicant procedural fairness or are made on an illogical or unreasonable basis, that is, the error must be one going essentially to the jurisdiction of the Tribunal: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706; at [17] per Jacobson J; SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [27]-[31] per Flick J. In this case, there were plainly logical and rational reasons for the Tribunal to doubt the applicant’s credibility: see [11] above, and the applicant had ample opportunity over the First, Second and Third Tribunal Hearings to satisfy the Tribunal of the credibility of his claims and he did not do.
In relation to particular (c) it cannot be made out as neither of particulars (a) or (b), upon which it is contingent, were made out.
In all the above circumstances, the Court is not satisfied that the Proposed Amended Judicial Review Application has sufficient merit to warrant leave being granted to file the Proposed Amended Judicial Review Application.
Accordingly, at hearing, the Court refused leave for the applicant to file the Proposed Amended Judicial Review Application.
Submissions on the Judicial Review Application
Applicant’s Submissions
At the hearing on 25 July 2016, after addressing the applicant’s request for leave to amend his application, the Court invited the applicant to make submissions on the Judicial Review Application, he stated:
a)his lawyer explained to him that some of the documents he submitted were not translated to English and that he was now in possession of other newspaper articles that he should have provided to the Tribunal, and that was why he “missed it”, the Court inferring this to mean why he was not granted a Protection Visa, and he now wishes to submit a whole new set of documents;
b)an organisation, who the applicant cannot remember the name of, advised him not to provide all the information at the beginning and that he should withhold certain information until later so he was misled;
c)he was not told in advance that the documents he submitted were required to be translated to English;
d)all he has said throughout was the truth and he had never given any false information or evidence but somehow what he was presenting did not “come out well”; and
e)the applicant can prove that there is no democracy in Sri Lanka and that the documents and information relied on by the Tribunal are false.
Minister’s Submissions
The Minister filed submissions in accordance with the Registrar’s Orders and submitted that with respect to the grounds of the Judicial Review Application, without particulars the grounds must be dismissed as it cannot be said to establish any basis for jurisdictional error and the grounds are therefore meaningless.
As a model litigant, the Minister did consider it appropriate to address the Court on whether the Tribunal fell into error in not drawing to the applicant’s attention new country information it relied upon when considering the applicant’s claims concerning illegal departure. While this was not a ground of the Judicial Review Application, the Minister made submissions as to why there was no failure to comply with s.425(1) of the Migration Act. Those submissions were as follows:
a)the new country information relied upon by the Tribunal following the Third Tribunal Hearing was the Department of Foreign Affairs and Trade Country Information Report Sri Lanka dated 16 February 2015 (“2015 Report”);
b)a new issue did not arise between the date of the Third Tribunal Hearing and the date of the Tribunal Decision, and in any event, even if the publication of the 2015 Report gave rise to a new issue, it was not a matter that had to be disclosed given that it arose from material that was excluded by reason of s 424A(3)(a) of the Migration Act;
c)if the Court assumes the 2015 Report gave rise to a new “issue” for the purposes of s.425(1) of the Migration Act, an example being that while there was no payment required for bail for an arrested returnee to be released there was a requirement for a family member to act as guarantor, the Tribunal did not have to disclose this to the applicant because it arose from country information and by reason of s.424A(3)(a) of the Migration Act clear particulars of such do not have to be given to an applicant;
d)if s.425(1) of the Migration Act were not read in the manner suggested, the purpose of s.424A(3) of the Migration Act would be undermined and while s.425(1) of the Migration Act does not in express terms exclude issues that arise from information otherwise caught by s.424A(3) of the Migration Act, it must be read in that way in order for the latter to have work to do;
e)in ACC15 v Minister for Immigration & Border Protection [2016] FCA 97 at [29] per Gilmour J (“ACC15”), in obiter, held that information coming within the scope of s.424A(3)(a) of the Migration Act need not be brought to the attention of an applicant, thus s.425(1) of the Migration Act will not require the disclosure of information that would otherwise be caught by s.424A(3)(a) of the Migration Act;
f)by the time the Tribunal Decision was made, the Tribunal had before it country information that led it to find that no payment was required for bail though a family member was to act as guarantor and it was that information, or its significance, that had not been disclosed to the applicant. At the Tribunal Hearing the Tribunal advised the applicant that the information before it was that he would be placed in custody but released on personal bail unless he was suspected of certain matters and the applicant did not take issue with that information;
g)the circumstances in this case differ from SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”) as unlike the issue that the Tribunal had not drawn to the attention of the appellant in that case, the issue that the applicant in the present case had not had drawn to his attention, being the change in the bail requirements, was not a matter that was personal to the applicant but one that applied generally to all returnees who had left Sri Lanka illegally and who on return were charged with illegal departure;
h)the relevant “issue” before the Tribunal was whether the applicant would face serious or significant harm as a result of being in custody and being exposed to the poor Sri Lankan prison conditions as a result of being charged with illegal departure and that issue arose from the country information before the Tribunal at the Tribunal Hearings, and was raised with the applicant;
i)it is readily apparent that the issue that arose from the 2015 Report either did not raise a new issue in the sense envisaged by s.425 of the Migration Act, or was, arguably, only a sub-issue, and the Carroll Affidavit reveals that the Tribunal already had country information that a person taken into custody after being charged with leaving Sri Lanka illegally would be released on bail after a guarantee being provided by another person, this was raised with the applicant and he was informed that, given he had many family members in Sri Lanka, and had not been involved in people smuggling or received previous convictions, it appeared to the Tribunal that he would be released on bail and accordingly, the issue was raised;
j)even if a new issue did arise from the 2015 Report, it was not dispositive as the Tribunal referred to the requirement under Australia legislation that the cruel or unusual treatment or punishment must be intentionally inflicted, and degrading treatment or punishment must be intended to cause extreme humiliation, and concluded that there was no such intention on the part of the Sri Lankan government; and
k)further, even if the Tribunal had raised the 2015 Report with the applicant, and as a result of the applicant’s response the Tribunal had found that the applicant would not be released on bail but would remain in custody until the hearing of the charge and then released after being fined, that would not have resulted in a finding of significant harm as a result of the applicant having to endure poor prison conditions for up to a few months rather than a few days.
Consideration of the Judicial Review Application
Jurisdictional error required
The Tribunal Decision may be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the Tribunal may constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL.
The onus is upon the applicant to satisfy the Court that there is a jurisdictional error in the Tribunal Decision: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
Lack of particulars
The Minister submitted that the lack of particulars renders the grounds of review in the Judicial Review Application meaningless.
The federal courts have held that a failure to particularise an originating application in migration judicial review proceedings means that the grounds cannot succeed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; BCJ16 v Minister for Immigration & Anor [2017] FCCA 2943 at [13] per Judge Lucev (but compare now DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [9] per Colvin J where the Federal Court held that it will rarely be appropriate to dismiss a ground of review in a migration case for lack of particularisation where a party is self-represented, and that an applicant ought to be given an opportunity to explain orally the matters with which they take issue). Notwithstanding the want of particularisation, the Court nevertheless offered the applicant an opportunity to make oral submissions and identify with some particularity what it was he was alleging were the errors he refers to in the grounds of the Judicial Review Application. The applicant still failed in his oral submissions at hearing to particularise the alleged errors in the grounds in the Judicial Review Application, and the Judicial Review Application can be dismissed for this reason alone.
The Court is however aware that the applicant is a self-represented litigant for whom English is not a first language, and who lacks familiarity with the Australian administrative and legal system. In those circumstances the Court must be alert to ensure that any possible jurisdictional error is not overlooked: MZAIB v Minister for Immigration & Border Protection & Anor [2015] FCA 1392; (2015) 238 FCR 158 at [112] per Mortimer J, and see also what the Federal Court has more recently said as to this Court necessarily having “to pursue a more active role in the review that it undertakes of the Tribunal decisions … and to do so in a manner not necessarily confined to the arguments or concerns raised for resolution by an unrepresented claimant”: EII17 v Minister for Immigration & Border Protection [2018] FCA 1863 at [16] per Flick J. The Court will therefore need to consider, firstly, independently, the grounds of the Judicial Review Application, and, secondly, the applicant’s Affirmation and Documents I, II and III and his oral submissions, and the Minister’s contentions on the 2015 Report.
Ground 1
Ground 1 alleges that the applicant was denied what is commonly referred to as procedural fairness. As this was a case to which s.422B of the Migration Act applied, the Tribunal was not required to afford the applicant “normal” procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court, and on the basis of the materials before the Court, the Court is satisfied:
a)the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal Hearing: SZBEL, and the applicant attended each of the three Tribunal Hearings, and at each the Tribunal Hearings the applicant was assisted by an interpreter and his representative: CB 253, 283, 289, 294, 302 and 313;
b)while the applicant, at the conclusion of the First Tribunal Hearing, raised an issue as to whether the interpreter was conveying his evidence or the questions of the Tribunal accurately, the applicant and his representative were invited to make submissions on that issue but did not do so: see [28(b]] above. In the Second and Third Tribunal Hearings the services of a different interpreter were used, and the Tribunal found at CB 342-343 at [110] that it was satisfied the applicant had a meaningful opportunity to participate in the Tribunal Hearings. In the absence of any transcript of the Tribunal Hearings, the Court cannot be satisfied that, if there was any error in interpretation at the Tribunal Hearings (and in particular the First Tribunal Hearing which appears to be the only one of the Tribunal Hearings about which the applicant makes complaint in this regard), that it was so inadequate to have prevented the applicant from giving evidence or caused an error which was material to any adverse conclusion in the Tribunal Decision: SZRMQ at [78] and [80] per Robertson J; Perera at [26] per Kenny J; Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [17] per Mansfield and Selway JJ;
c)the applicant’s representative provided written submissions to the Tribunal before and after the Tribunal Hearings, and also appears to have partaken in a discussion with the Tribunal in at least the Third Hearing: CB 260-277, 317-321 and CB 341 at [100];
d)the applicant gave evidence for approximately eight hours in total and the Tribunal carefully and in great detail summarised the oral evidence at CB 331-339 at [23]-[81], and in that summary there is nothing to suggest there was any issue or matter, including the interpretation issue addressed at [42(b)] above, that inhibited the applicant from partaking in, giving evidence to and putting arguments at the Tribunal Hearings: SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ;
e)the Tribunal gave reasons why it did not consider it necessary to convene a fourth Tribunal hearing: CB 343 at [113], and the Court does not consider there was anything unreasonable in denying this request. The applicant had been given a real and meaningful opportunity to make his arguments, put submissions and provide evidence, and in any event indicated he wished to provide further information regarding country information, but not about his specific claims, and was invited to make submissions in writing if he wished to do so, and his representative did so, but as those submissions did not address country information it can be inferred that the applicant had chosen not to provide, or make any further reference, to any further country information; and
f)the Tribunal put to the applicant country information and issues arising from the evidence he had given and noted the response of the applicant to each of the matters put to him: CB 339-341 at [82]-[103], and the applicant’s representative also provided post-Tribunal Hearing submissions on the issues that were put to the applicant during the Tribunal Hearings, including matters of credibility: CB 342 at [104].
In the circumstances, the Court does not consider the Tribunal has failed to provide the applicant with procedural fairness in accordance with the Tribunal’s statutory obligations under the Migration Act.
Ground 1 of the Judicial Review Application therefore fails to identify any jurisdictional error and must be dismissed.
Ground 2
Without particulars it is difficult for the Court to determine what “error of law” the applicant is alleging in the Tribunal Decision, and none immediately appears evident on the face of the record, given:
a)the Tribunal extensively detailed the applicant’s claims and the evidence he provided at each of the Tribunal Hearings, including the specific matters put to him. The Tribunal had regard to the written submissions filed before and after the Tribunal Hearings by the applicant’s representative, but it sought to make alternative arrangements for the applicant upon expressing concerns about the interpreter in the First Tribunal Hearing, and also in having the Tribunal Hearing transferred from Melbourne to Perth and adjourned to allow the applicant and a new representative time to prepare: CB 245-249, 253, 262-276 and 317-321;
b)the Tribunal summarised the applicable statutory provisions including ss.36 and 91R of the Migration Act, the appropriate Ministerial Direction and the applicable legal principles and considerations: CB 327-329 at [5]-[18], and applied those principles in the Tribunal Decision;
c)the Tribunal referred to principles taken from High Court and Federal Court authorities in respect of assessing the credibility of a Protection Visa applicant: CB 342 at [107]-[108], and at CB 342-343 at [109]-[112] the Tribunal specifically addressed the credibility concerns it had about the applicant applying those principles;
d)there is no indication the Tribunal approached the review with a closed mind or that there was any prejudgment on any of the issues or matters the Tribunal was required to consider, rather the Tribunal adopted an open and engaging approach to the review and on the face of the Tribunal Decision actively engaged with the claims and evidence before it; and
e)the Tribunal referred to and footnoted the various sources and extracts from country information and information on the Departmental file that it relied upon in assessing the applicant’s claims.
In all the above circumstances, ground 2 of the Judicial Review Application fails to disclose any jurisdictional error in the Tribunal Decision.
Ground 3
In the absence of identification of any delegated legislation the subject of ground 3, or any identification of any excess of power in relation to, or in the application of, any delegated legislation by the Tribunal in the Tribunal Decision, ground 3 is meaningless and is not made out, and consequently no jurisdictional error in the Tribunal Decision is established by ground 3 of the Judicial Review Application.
Affirmation and documents I, II and III
In the Affirmation the applicant:
a)at [2] asserts “judicial error” (which the Court has taken to mean “jurisdictional error”) by the Tribunal in the Tribunal Decision “by not accepting the documents I produced and arriving at the fact that I did not face a serious harm if I returned to Sri Lanka”;
b)at [3]-[6] repeats various factual matters concerning his alleged involvement in reporting drug trafficking and the serious implications that had for him, that he was poor and had no-one to protect him, that his brother was shot in 2008 and had no protection from the police, and that N was a dangerous person;
c)at [7] says that:
The police and the armed forces act under the Prevention of Terrorism Act of Sri Lanka which gives them immunity and their actions cannot be questioned by any court of law.
d)at [8] produces Document I, being a letter from a Member of Parliament and Minister in the Sri Lankan Government dated 29 June 2016, attesting to the security situation in Sri Lanka as it relates to the applicant;
e)at [9] produces Document II, being a letter from the applicant’s parish priest in Sri Lanka dated 30 June 2016, attesting to the applicant’s good character; and
f)at [10] produces Document III, being a document purporting to extract various provisions of the Prevention of Terrorism (Temporary Provisions) Act, 1979 (Sri Lanka) (“POT Act”), and asserts that the POT Act “gives extra ordinary powers to the armed forces and the police in Sri Lanka, from which the police can act against me under the influence of persons opposed to me under the given circumstances”.
The various factual matters asserted at [3]-[6] of the Affirmation, when read in conjunction with [2] of the Affirmation do no more than invite the Court to undertake impermissible merits review of the Tribunal Decision, contrary to long established principle: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”), and do not therefore establish jurisdictional error in the Tribunal Decision.
Insofar as Documents I and II are concerned the Court observes that both post-date the Tribunal Decision, appear to have been prepared for the purposes of these proceedings, and deal with purely factual matters which are the province of the Tribunal, and as such are once again a plea for impermissible merits review of the Tribunal Decision: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ, and do not therefore establish jurisdictional error in the Tribunal Decision.
The assertions concerning the POT Act at [7] and [10] (read in conjunction with document III) were not claims expressly made by the applicant before the Tribunal, and were therefore matters that the Tribunal was not expressly required to consider. In any event, it was unnecessary for the Tribunal to have regard to the POT Act in circumstances where the clear inference from the facts found is that upon return to Sri Lanka the applicant would not, and would not be considered to be, a terrorist under the POT Act, or a person of any interest to the Sri Lankan authorities on any account: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [36], [45] and [65]-[68] per Barker J (“WZATI”). That said, the applicant then faces the difficulty adverted to by the Federal Court in WZATI at [75] per Barker J, namely:
The difficulty with the appellant’s submission is that the question of who would suffer serious harm in what circumstances was fully considered by the Tribunal and it formed the conclusion, on the country information available to it, that a person in the position of the appellant would not in fact be likely to suffer serious harm.
It follows from the above that there is nothing in the Affirmation or Documents I, II or III which establishes jurisdictional error in the Tribunal Decision.
Oral Submissions
The applicant made a number of oral submissions that the Court has outlined at [33] above. Many of the applicant’s submissions appeared to seek impermissible merits review of the Tribunal Decision, and to the extent the applicant made submissions that he could prove the country information relied upon in the Tribunal Decision was wrong or incorrect, and that if he was given a further opportunity he could provide further documents to Court to prove that: Transcript, pages 6 and 10, the Court cannot consider them. The country information relied upon in the Tribunal, and the accuracy of that country information, is a matter for the Tribunal and not the Court: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ. Further, it is apparent that the documents the applicant seeks to provide to the Court, or says he could provide to the Court, would simply be for the purpose of inviting the Court to disagree with a factual conclusion already reached by the Tribunal: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 at [8] per Nicholson J, and would involve the Court in engaging in impermissible merits review: Wu Shan Liang, CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In respect to the applicant’s claims he was not told in advance that his documents needed to be in English and that there not being in English was the reason his previous lawyer said he “missed it”: Transcript, page 5 (which presumably is a reference to missing out on the grant of a Protection Visa), the Court notes as follows:
a)on the three Tribunal Hearing invitations sent to the applicant and his representative, it is stated that “[a]ny documents or written arguments sent to the Tribunal should be in English or be translated by a NAATI accredited translator”: CB 239, 254 and 289 (at CB 254 and 289 the words “qualified translator” are used instead of “NAATI accredited translator”);
b)the applicant’s various representatives (including those who responded to the Tribunal Hearing invitations) were registered migration agents: CB 232, 247, 273, 277, 298, 310, 317, 320 and 327 at [3];
c)there is no obligation on the Tribunal to translate foreign language documents. In S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [49] per Moore J the Federal Court said:
Circumstances can arise where the failure of a Tribunal to obtain the translation of a document, or at least where it fails to inform the applicant who has furnished the document that it does not propose to rely it because it was not translated and thus deny the applicant an opportunity to explain its contents, will result in a denial of procedural fairness: see X v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 319. However generally the Tribunal is not obliged to obtain a translation of documents furnished by the applicant in a foreign language at least in circumstances where the Tribunal ascertains the gist of the material if it is significant: see Cabal v Minister for Immigration & Multicultural Affairs [2001] FCA 546;
d)the Tribunal bought to the applicant’s attention the untranslated documents, and obtained assistance from the interpreter in translating at least one of those documents: CB 332 at [31]. It is apparent the Tribunal afforded the untranslated documents little weight for reasons other than, but still including, that they were untranslated. In the context of rejecting the applicant’s claim to have been SLFP President it is clear that the weight given to the untranslated documents was but one factor as the Tribunal also had concerns about the credibility of the claim and the applicant’s oral evidence. At CB 343-344 at [116] the Tribunal stated that:
…The letter that he referred to as evidence of this is handwritten and does not bear any official SLFP letterhead. Although the interpreter summarised the letter at hearing, no official translation has been provided. As such, the tribunal gives little weight to this letter. The applicant's evidence about how he came to this role lacked credibility; the tribunal finds it difficult to accept that he would have become branch president because the villagers had selected him and told him he had to accept the post, as opposed to the applicant actively seeking such a position. His evidence about the previous president was also vague; the tribunal would expect that, had the applicant been active in the SLFP and subsequently chosen as branch president, he would have been able to name his immediate predecessor.
e)further, it cannot be said that it was unreasonable for the Tribunal to not obtain a translation of the documents when the applicant was clearly on notice he should have done so, the applicant was represented, there was some ten weeks between the First and Third Tribunal Hearings in which translations might have been obtained, and the documents were not entirely rejected on the basis they were untranslated, but also because of concerns as to the form of the documents, the plausibility of the claim and the applicant’s credibility in general: AIZ15 & Anor v Minister for Immigration & Anor [2016] FCCA 2122 at [38] per Judge Smith.
It follows from the above that there is no error, jurisdictional or otherwise, in the Tribunal Decision in respect of any alleged failure to have the untranslated documents translated.
As to the assertions the applicant’s evidence did not come out well, this is not a matter that gives rise to jurisdictional error. The Tribunal commented that the applicant appeared “confident and forthright”: CB 343 at [112], when giving evidence, and it was a matter for the Tribunal to make assessments of the applicant’s evidence, demeanour and credibility.
The applicant also asserted that he was advised by an organisation, but which he could not name, that he should not provide all his documents to the Tribunal “at the beginning”: Transcript, page 6, and therefore that he was misled by that organisation in relation to his review by the Tribunal (“Alleged Fraud”). At Transcript pages 5-6 the following exchanges took place between the applicant and the Court (emphasis added):
THE INTERPRETER: My previous lawyer said that the documents I submitted were originally in Singhalese, so I should have translated them into English and got some copies. And also that I should have made these newspaper articles available. The lawyer said that’s why I missed it.
HIS HONOUR: See, that doesn’t mean that the tribunal has made a jurisdictional error. It just means that you have failed to put information before the tribunal which you should have put before the tribunal.
THE INTERPRETER: Yes. I admit that, but now I am submitting a whole set of documents with translations.
…
THE INTERPRETER: I was advised by a certain organisation that I shouldn’t submit everything at the beginning, that I should withhold certain information and give them later, so I was misled by a certain organisation.
…
THE INTERPRETER: The organisation name must be in the documents, but he doesn’t remember the name of the organisation.
It is not apparent from the documents before the Court (including the CB) what organisation the applicant might be referring to as having given him the advice concerning the Alleged Fraud.
Fraud by a third party will vitiate the Tribunal Decision where the fraud stultifies the Tribunal’s decision-making processes, inhibiting the Tribunal from exercising the statutory function with which it is endowed by the Migration Act: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35; (2007) 232 CLR 189; (2007) 81 ALJR 1401; (2007) 237 ALR 64; (2007) 96 ALD 510 (“SZFDE”) at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.
The Alleged Fraud was not a ground of the Judicial Review Application nor the Proposed Amended Judicial Review Application, and was not referred to in the Affirmation. But it is plain from the applicant’s oral submissions that he alleges, not in the language of the law, but in language plain enough, that the Alleged Fraud has been perpetrated as a result of his being misled with respect to the placement of documents before the Tribunal.
Where an applicant alleges fraud against a third party vitiating the Tribunal’s decision-making process an applicant must have an opportunity to go into the witness box to give evidence, with the knowledge of the issues needed to be addressed: SZRUR v Minister for Immigration & Border Protection & Anor [2013] FCAFC 146; (2013) 216 FCR 445; (2013) 305 ALR 557; (2013) 138 ALD 46 (“SZRUR”) at [39]-[40] per Robertson J, [53] per Allsop CJ and [59]-[60] per Mortimer J. The level of satisfaction required in cases where fraud is alleged is that which was required in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336; [1938] ALR 334 (“Briginshaw”), CLR at 363 and 368 per Dixon J; Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17; (2008) 245 ALR 501; (2008) 100 ALD 443 (“SZLIX”) at [33] per Tamberlin, Finn and Dowsett JJ; The Briginshaw standard is now codified in s.140 of the Evidence Act 1995 (Cth): Commonwealth & Anor v Fernando [2012] FCAFC 18; (2012) 200 FCR 1; (2012) 287 ALR 267; (2012) 126 ALD 10 at [128] per Gray, Rares and Tracey JJ.
There may be a number of hurdles for the applicant to overcome in relation to the Alleged Fraud, including:
a)that the applicant was represented during the Tribunal Hearings;
b)the extensive time (approximately eight hours) over which the applicant provided oral evidence to the Tribunal, and during which he seemingly did not mention the Alleged Fraud;
c)the fact the applicant raised new details throughout the Protection Visa process, including before the Tribunal (although on one view that might not be inconsistent with the applicant’s assertion that he was told not to provide everything “at the beginning”);
d)that the applicant was provided with opportunities, of which he availed himself through his representative, to make further submissions and provide further information to the Tribunal, and in which he seemingly did not mention the Alleged Fraud;
e)that the Alleged Fraud was not included as a ground in the Proposed Amended Judicial Review Application apparently drafted by a lawyer;
f)that the Alleged Fraud was not raised until oral submissions were being made on the Proposed Amended Judicial Review Application;
g)that the applicant was unable to recall what organisation it was that gave him the advice now said to constitute the Alleged Fraud; and
h)if advice was received by the applicant to the effect alleged, if the advice was merely negligent it may not constitute a fraud vitiating the Tribunal’s decision-making process: SZFDE at [45] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ; SZLIX at [33] per Tamberlin, Finn and Dowsett JJ.
It nevertheless is the case that the applicant has not given evidence concerning the Alleged Fraud: at hearing when the issue was raised the applicant, perhaps unsurprisingly, did not ask to do so; the Minister did not suggest to the Court that the applicant do so; and the Court, regrettably, overlooked the requirement for the applicant to do so. The applicant is entitled to give evidence concerning his allegation: SZRUR at [39]-[40] per Robertson J, [53] per Allsop CJ and [59]-[60] per Mortimer J, and it is not too late to afford the applicant that opportunity. The issue arises as to how best that opportunity might be afforded to the applicant given that:
a)there are some legal complexities involved, for example, whether the conduct asserted to constitute the Alleged Fraud is fraud or negligence;
b)there is an evidentiary standard that has to be met; and
c)there may be difficulties in the applicant providing or obtaining the necessary evidence, and it is possible that there may be disputed issues of fact requiring resolution at hearing.
The applicant is unrepresented, does not have English as a first language, and lacks any proper familiarity with the Australian legal system and legal and evidentiary principles relevant to the Alleged Fraud. Having regard to those circumstances, and as a whole to the nature of the documents filed by the applicant in these proceedings and his presentation at hearing, and given the nature of the issues involved in the Alleged Fraud, the Court is of the view that to have the applicant prepare and present his own case concerning the alleged fraud would not be in the interests of justice, especially given that it would, with respect, be likely to be of little assistance to the Court or to the applicant himself.
In the above circumstances the appropriate course is to refer the applicant to a Registrar of this Court to see if pro-bono assistance can be obtained from a lawyer or lawyers (preferably competent and experienced Counsel and solicitor) to assist the applicant, but only with respect to the Alleged Fraud. That referral, pursuant to r.12.02 of the FCC Rules, is an administrative act, and does not require further explanation or an order for referral to be made in these proceedings: Schokker v Federal Commissioner of Taxation (No 2) [2000] FCA 1734; (2000) 106 FCR 134; (2000) 181 ALR 597; Fuller v Toms [2012] FCA 27; (2012) 247 FCR 440 at [94] per Barker J. The referral process will however take time, as will the process of consultation between the applicant and any lawyer or lawyers who accept the referral. For that reason there will be an order adjourning the proceedings to a directions hearing at which the Court will consider the appropriate future programming orders in the proceedings in relation to the Alleged Fraud.
Setting aside the Alleged Fraud which will be dealt with as set out in [65] above, the Court finds that the applicant’s oral submissions do not otherwise establish any jurisdictional error in the Tribunal Decision.
Was the Tribunal required to put the 2015 Report to the applicant?
The 2015 Report was published on 16 February 2015. The Third Tribunal Hearing concluded on 28 November 2014, and the applicant’s post-Tribunal Hearing submissions were received on 4 December 2014. Thus, the applicant was not on notice that the Tribunal would be relying on information in 2015 Report. The Tribunal extensively refers to the 2015 Report when considering if there was a “Future risk based on being a failed asylum seeker or having sought asylum in a western country” and a “Future risk of harm on the basis of the applicant’s illegal departure from Sri Lanka”: CB 350-353 at [152]-[175]. In both circumstances the Tribunal found that the applicant would not face a real chance of serious harm or a real risk of significant harm on this basis.
The Tribunal also refers to a “Freedom from Torture, Tainted Peace: Torture in Sri Lanka since May 2009” which appeared to have been dated August 2015: CB 350 at fn.10. However the Court notes the extent to which the Tribunal refers to this is to state that returnees of Tamil ethnicity or having Liberation Tigers of Tamil Eelam links were on some occasions singled out, however, as the applicant was Sinhalese and had made no claims to hold any such links there was no need to address this: CB 350 at [153], and the Court need not consider this reference further.
The issue before the Court is therefore whether the Tribunal was required to bring to the applicant’s attention the 2015 Report on which it relied, or if the Tribunal failing to seek the applicant’s comment on information relied on by the Tribunal from the 2015 Report deprived the applicant of the “real and meaningful opportunity” to appear before the Tribunal and put argument and evidence which is required by s.425 of the Migration Act. In SZBEL the High Court found that in order to comply with s.425(1) of the Migration Act, the Tribunal must provide an opportunity for the applicant to give evidence and present arguments on the determinative and dispositive issues. The Court notes that the Delegate’s Decision found the applicant was not at risk of harm by reason of his illegal departure from Sri Lanka, and that he might receive a fine for his illegal departure, but that no custodial sentence would be imposed: CB 164-165.
The information in the 2015 Report that the Tribunal relied upon was DFAT country information indicating that the applicant would not be required to make any payment to secure his release for any offence under the I & E Act, but that a family member would be required to act as guarantor: CB 351 at [159]-[160].
The Tribunal then makes the following findings at CB 352 at [165] and [168]:
165.The tribunal places weight on the DFAT advice above and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act before appearing before a court hearing regarding bail. The applicant’s parents and brothers are present in Sri Lanka to guarantee his bail and the tribunal finds on the evidence before it that they will be able to do so.
...
168 When questioned at the hearing, the applicant did not suggest he would be unable to pay a fine in that range. Given his evidence that he has previously worked in Sri Lanka and would be able to do so again and his evidence that his father and brothers are working, the tribunal finds on the evidence before it that the applicant and his family would be able to pay the fine imposed upon him if convicted.
The dispositive issue in the Delegate rejecting the claim the applicant would suffer a real chance or real risk of serious or significant harm was that the applicant would be charged and receive a fine and would not receive a custodial sentence and be released straight from the airport: CB 164-165. The Tribunal found that the applicant may be placed in custody on remand until he could appear before a Magistrate, this being for no more than a “few days maximum”: CB 340 at [94]. The Tribunal stated at CB 340 at [92] that:
92. The tribunal explained that information before it stated that he would be placed in custody but released on personal bail unless he was suspected of people smuggling or had previous convictions and not complied with bail conditions. It advised him that on the information before it, the tribunal may find that he would be released on personal bail.
While the Tribunal stated it explained to the applicant only that he would be released on personal bail, and not that a family member was required to act as guarantor for his release, in the Carroll Affidavit at [3] the following was stated by the Tribunal to the applicant in the Third Hearing:
So our information is that people who return to Sri Lanka are charged with this offence, are placed in custody for a short period of time and then are released on personal bail, which is not money, it’s when someone comes and guarantees that you will attend a court date in the future. It appears that most people are being granted that personal bail, apart from people suspected in being involved in people smuggling, or people who’ve previously been convicted of offences in Sri Lanka and who haven’t complied with bail conditions. So given that you have many family members remaining in Sri Lanka it seems to me that, and you haven’t been involved in people smuggling or had previous convictions, it seems to me that you would be released on bail.
In VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178 (“VJAF”) the Full Court of the Federal Court considered if the Tribunal had fallen into error in failing to put to an applicant, and to invite the applicant to comment upon, country information that it took into account after the hearing. In VJAF at [19] per Black CJ, Sundberg and Bennett JJ, the Full Court of the Federal Court found there was no denial of procedural fairness in failing to put new country information to an applicant, and in particular that:
… in the present case, no denial of procedural fairness could have been established. The Tribunal had already “discussed” recent country information that was adverse to the appellant’s claim with him at the hearing. …. That is, there was no additional information adverse to the appellant contained in those reports. The adverse nature of the information had already been discussed with the appellant at the hearing.
The Tribunal described and put to the applicant the information on which it relied in the Tribunal Decision: specifically, it said to the applicant that someone was required to act as a “guarantor” in order for the applicant to be released on bail: Carroll Affidavit at [3]. The adverse nature of the substance of the information had therefore been discussed and put to the applicant. The Tribunal clearly advised the applicant that when referring to “personal bail”, this referred to a guarantor, and ultimately found that given the applicant has many family members in Sri Lanka he would have a guarantor to secure his release: CB 352 at [165]-[166]. On the evidence before the Court, it is apparent that the Tribunal did not fail to comply with its statutory obligations under s.425 of the Migration Act. In the Court’s view no new issue arose from the 2015 Report, the Tribunal put to the applicant the substance of the information it relied upon to make the finding the applicant would not suffer a chance or risk of harm.
Even if the Court were to find that a new issue had arisen from the 2015 Report, it cannot be said that the Tribunal ought to have put that information to the applicant for comment pursuant to s.424A(1) of the Migration Act. Country information within the ambit of s.424A(3)(a) of the Migration Act is not required to be bought to the attention of the applicant nor would a failure to do so be a breach of s.425 of the Migration Act. In ACC15 at [29] per Gilmour J the Federal Court considered if the Tribunal had breached s.425 of the Migration Act and stated:
In any event, were it necessary, the information relied upon by the Tribunal as to the granting of bail was country information which, by reason of s 424A(3)(a) of the Migration Act, is not required to be brought to the attention of the appellant.
Albeit obiter, this Court is bound by such comments: Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union of Australia (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[55] per Judge Lucev.
In BEV15 v Minister for Immigration & Border Protection [2016] FCA 507 (“BEV15”) at [57]-[59] per Bromwich J the Federal Court considered, again obiter, the relationship between ss.424A(3)(a) and 4425(1) of the Migration Act, but in conclusion at [59], which is ultimately on all fours with this case, observed that:
59. Irrespective of whether the obligation to bring the matter to the attention of the appellant was absolved by s 424A(3)(a), or instead was still required by s 425(1) to be raised by the Tribunal in the absence of it already being known by the appellant, there was no need for any additional notification in this case because the issue was plainly known. Moreover, the Tribunal raised with the appellant the fact that the country information suggested that he would be held briefly in a prison and when he went to court he would get bail.
As the Court has observed at [75] above the Carroll Affidavit evidences that information as to bail conditions and the requirement for a guarantor was conveyed to the applicant at the Third Tribunal Hearing, and thus the applicant can be taken to have constructive knowledge of those matters, and therefore s.425(1) of the Migration Act was satisfied.
In the circumstances of this case, the applicant did not need to be put on notice of the Tribunal’s reliance on the 2015 Report as the relevant information was put to the applicant in the Third Tribunal Hearing. Further, and in any event, a failure to put the relevant information to the applicant was not necessarily material to the Tribunal Decision as the Tribunal found at CB 353 at [172]-[175] that the prison conditions in Sri Lanka did not amount to serious or significant harm and that the I & E Act was a law of general application: CB 352 at [163].
The Court is satisfied that the applicant has not been denied procedural fairness by reason of the Tribunal’s references to and reliance on the 2015 Report.
Conclusions
The Court has concluded that:
a)leave ought not be granted to amend the Judicial Review Application in terms of the Proposed Amended Judicial Review Application, and the applicant’s oral application to amend the Judicial Review Application must therefore be dismissed;
b)the applicant is entitled to give evidence in relation to the Alleged Fraud;
c)because of the complexity of the issues associated with the Alleged Fraud the Court will issue a referral certificate for pro-bono assistance to be sought for the applicant;
d)the proceedings are to be adjourned to a directions hearing on 28 June 2019 at 2.00pm; and
e)it is not otherwise satisfied that any jurisdictional error is established or apparent in the Tribunal Decision; and
f)costs will be reserved.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 April 2019
5
56
6