CFJ15 v Minister for Immigration

[2016] FCCA 1900

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1900

Catchwords:
MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Sri Lankan citizen – alleged denial of procedural fairness – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth), pt.7, div.4, ss.36(2)(a) and (aa), 65, 91R, 422B, 424A, 424AA, 425, 474, 476

Cases cited:

AQN15 v Minister for Immigration & Anor [2016] FCCA 58

Minister for Immigration& Border Protection v WZAPN [2015] HCA 22; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480
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
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
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
SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577

WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

Applicant: CFJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 488 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 25 July 2016

Date of Last Submission: 25 July 2016

Delivered at: Perth

Delivered on: 25 July 2016

REPRESENTATION

For the Applicant: In person by telephone (with the assistance of an interpreter)

Counsel for the First Respondent: Ms E Tattersall

For the Second Respondent:	Submitting appearance, save as to costs
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. That the application be dismissed.

2. That the applicant pay the first respondent’s costs in the sum of $5,800 by 25 October 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 488 of 2015

CFJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore and later edited)

Introduction

1. On 26 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”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 29 September 2015 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 under s.65 of the Migration Act (“Protection Visa”). A copy of the Tribunal Decision is at Court Book (“CB”) 202-227.

Ground of review

1. There is a single ground of review which says “lack of procedural fairness” (transcribed verbatim).

Applicant’s affidavit

1. The applicant filed an affidavit with the Judicial Review Application which says that it annexes the Tribunal Decision, but which also annexes:

   a)the Tribunal’s letter of 30 September 2015 advising the applicant’s migration agent of the Tribunal Decision; and

   b)the migration agent’s letter of 6 October 2015 advising the applicant of the Tribunal Decision and that the migration agent is unable to assist in the next process, which is the Judicial Review Application to this Court.

Registrar’s orders

1. On 11 November 2015 a Registrar of this Court made orders allowing the applicant to file and serve:

   a)any amended application giving complete particulars of each ground of review, and any affidavit containing additional evidence (including any transcript of a Tribunal hearing) by 21 January 2016; and

   b)written legal submissions 42 days before the hearing in this Court.

2. The Registrar made further orders by consent on 21 January 2016 extending the time for the applicant to file any amended application or affidavit to 29 February 2016.

3. The applicant has not filed an amended application, any affidavit or any written legal submissions. The Court notes that although the Minister enquired as to whether the applicant had sought to file an amended application last Friday, the applicant told the Court that he had not done so, and that nothing has been filed by the applicant, or on the applicant’s behalf.

Applicant’s submissions to the Court

1. When the applicant appeared before the Court he made submissions to the following effect:

   a)he would be arrested, charged and prosecuted upon his return to Sri Lanka;

   b)that he had information that the authorities in Sri Lanka had been looking for him and were still looking for him;

   c)that the Tribunal was not in a position to know what it was that the Sri Lankan authorities would do; and

   d)the government information upon which the Tribunal relied did not reflect the true position in Sri Lanka,

   and that if he returned to Sri Lanka he would be in fear of his life at the hands of the Sri Lankan authorities.

Applicant’s claims

1. The applicant’s claims in the statement accompanying his application were that:

   a)in 2007 he and his father were detained and interrogated by the Sri Lankan army and tortured: CB 50 at [8];

   b)after the incident he and his father would be interrogated and tortured by military officers every time there was an attack by the LTTE (the Liberation Tigers of Tamil Eelam): CB 50 at [9];

   c)in 2008, the suspicion and harassment of the applicant increased: CB 50-51 at [10];

   d)in 2011 a friend who had similar issues with the Sri Lankan military was kidnapped: CB 51 at [11]; and

   e)the applicant moved, however the Sri Lankan military found out where his parents lived and harassed them: CB 51 at [15].

2. In summary, therefore, the applicant claimed to fear harm on the basis of his imputed political opinion, illegal departure and membership of a particular social group of failed asylum seekers and a returnee who fled Sri Lanka unlawfully.

Tribunal Decision

1. The Tribunal Decision:

   a)considered that while certain aspects of the applicant's evidence was credible, other important aspects of his evidence were not credible, and ultimately rejected his evidence as unreliable, exaggerated or fabricated: CB 206 at [23];

   b)considered that the applicant's failure in his entry interview to make any mention of his fear of returning to Sri Lanka because of his perceived support of the LTTE seriously undermined his claims: CB 207 at [27];

   c)considered it plausible that the applicant and his father were intercepted by an LTTE boat, their fuel taken and that they were questioned by the Sri Lankan Army (“SLA”) on their return to shore: CB 210 at [40];

   d)accepted the applicant's evidence that he was released by the SLA after questioning, but considered that had the Sri Lankan authorities viewed the applicant as someone with LTTE links:

   i)the Sri Lankan authorities would not have released him: CB 210 at [44] and [47]; and

   ii)that the applicant would have experienced difficulties passing through checkpoints: CB 211 at [45];

   e)found that it was pure speculation that the applicant’s friend had been kidnapped by the Sri Lankan authorities for assisting the LTTE and did not accept that there was a parallel between that person and the applicant: CB 211 at [49];

   f)due to inconsistencies in the applicant's evidence, did not accept that the Sri Lankan authorities visited his parents, and found that the applicant and his family did not have a profile consistent with those who were the focus of monitoring by the Sri Lankan government, namely those “who seek to rebuild the LTTE and who seek Tamil separation”: CB 211 at [50];

   g)found that the Sri Lankan authorities:

   i)did not have an ongoing interest in the applicant for any claimed links with the LTTE: CB 211 at [48];

   ii)did not accept that the applicant was ever perceived to be a supporter or sympathiser of the LTTE by the Sri Lankan authorities: CB 211 at [49]; and

   iii)did not accept that the applicant would suffer serious harm for reason of perceived links to the LTTE that would amount to persecution for reasons of his actual or imputed political opinion: CB 211 at [51];

   h)did not accept:

   i)the claim (raised at entry interview) that the applicant took a leading role in protesting against the Indian fishing trawlers, noting that he was never questioned or arrested about his role in the protests;

   ii)that simply participating in the Indian fishing trawlers protests was sufficient to bring him to the adverse attention of the Sri Lankan authorities: CB 212 at [55]; and

   iii)that the applicant had been imputed with a political belief in opposition to the Sri Lankan authorities as a result of his involvement in the Indian fishing trawlers protests: CB 212 at [56], or that there was a real chance that applicant would face harm upon return to Sri Lanka as a result of his involvement in those protests: CB 212 at [57];

   i)in relation to the applicant's illegal departure and return as a failed asylum seeker did not accept that the applicant's profile would be higher than any other returnee to Sri Lanka such that he would be treated differently: CB 213 at [67], having noted that he previously travelled (to the UAE on the way to Italy) and returned to Sri Lanka on his own passport without difficulty: CB 213 at [61];

   j)accepted that the Sri Lanka authorities would assume that he was a failed asylum seeker: CB 213 at [68], but noting in particular that the applicant is not Tamil: CB 214 at [70], found that the applicant did not fall within one of the classes of people the country information regarded as being of risk upon return to Sri Lanka: CB 214 at [71];

   k)based on Department of Foreign Affairs and Trade reports, found that the applicant would not be imputed with a political opinion as a result of applying for asylum and would not be harmed because he was a failed asylum seeker: CB 214 at [73];

   l)relying on country information, accepted that the applicant would likely be charged for departing Sri Lanka illegally: CB 215 at [77], and that he may face a short term of detention: CB 216 at [80], but found that the applicable legislation was a law of general application, and was not a law applied in a discriminatory manner, or for a Convention reason: CB 215 at [77] and that he would be granted bail, and that such treatment (short detention and grant of bail) did not meet the requirements of s.91R(l)(c) of the Migration Act: CB 215-216 at [79]-[80];

   m)found that there was only a remote chance that the applicant would be perceived as a LTTE supporter or sympathiser, and that the risk the applicant faced of serious harm was not at the level of a real chance: CB 216 at [81];

   n)found that the applicant did not, in all the circumstances, face a real chance of persecution by reason of his illegal departure from Sri Lanka, and found that the applicant did not satisfy s.91R(1) of the Migration Act: CB 216 at [82];

   o)in considering the complementary protection criteria, relied on its previous findings: CB 217 at [88] and CB 218 at [95], and whilst accepting that prison conditions in Sri Lanka were poor and overcrowded, did not accept that a relatively short period being held in remand amounted to an act or omission by which severe harm is intentionally inflicted: CB 217 at [91]-[92], or that there was an intention on the part of the Sri Lankan authorities to inflict cruel or inhuman treatment or punishment on failed returning asylum seekers: Cb 218 at [93]; and

   p)was not satisfied that the applicant met the criteria for the grant of the Protection Visa in s.36(2)(a) or (aa) of the Migration Act, and affirmed the Delegate’s Decision: CB 218 at [100]-[102].

Consideration

1. The Tribunal Decision is only reviewable by this Court if it is affected jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [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. Further, an error by the Tribunal, will only 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 relevant statute: 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.

2. In Minister for Immigration& Border Protection v WZAPN [2015] HCA 22; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480 (“WZAPN-High Court”) the High Court of Australia found that the application of s.91R(2)(a) of the Migration Act, referring to a threat to a person’s life or liberty as an instance of serious harm for the purposes of s.91R(1)(b) of the Migration Act, required an evaluation of the likely circumstances of the loss of liberty feared by a claimant for refugee status, and that both the Convention and s.91R of the Migration Act embody an approach concerned with the effects of actions upon persons in terms of harm to them, but that that approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence: WZAPN – High Court at [52] and [70]-[71] per French CJ, Kiefel, Bell and Keane JJ, and Gageler J agreeing at [100]. The High Court expressed its agreement with the approach of the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577 (“SZTEQ”) wherein the Full Court said that s.91R(2)(a) of the Migration Act was not to be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s.91R(1)(b) of the Migration Act and Article 1A(2) of the Convention: WZAPN – High Court at [4]-[5] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100], referring to SZTEQ at [59] and [154] per Robertson, Griffiths and Mortimer JJ. The High Court said in WZAPN – High Court that the language of each of the conditions in s.91R(1) and (2)(a) of the Migration Act calls for a qualitative judgment in order to determine whether it is satisfied in any case, which involves an evaluation of the nature and gravity of the alleged serious harm: WZAPN – High Court at [35], [41] and [45] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100].

3. In WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (“WZAVW”) the Federal Court observed as follows:

   Ground two is, I agree, an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed: WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60] and upheld in WZATH v Minister for Immigration and Border Protection[2014] FCA 969.

4. In this case, the applicant has failed to particularise the ground of review. Moreover, there is no evidence from which any particulars might be drawn by the Court, and, in the circumstances, that is sufficient to warrant the dismissal of the Judicial Review Application: see WZAVW at [35] per Gilmour J, and the cases there cited. See also AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard.

5. There is no evidence before the Court, nor is it apparent from the Tribunal Decision, that the Tribunal failed to afford the applicant procedural fairness in connection with the Tribunal hearing and the making of the Tribunal Decision. The lack of evidence is important given that there have been two orders of Registrars of this Court affording the applicant the opportunity to put on evidence in relation to his ground of review, and the applicant has failed to do so.

6. In this matter:

   a)the Tribunal invited the applicant to attend a hearing before it: CB 147-150, 176-179 and 184-187;

   b)the applicant attended the Tribunal hearing: CB 194; and

   c)at the Tribunal hearing, the Tribunal discussed with the applicant its concerns: see for example CB 209 at [34] (questioning and capture by the LTTE), 209 at [37] (disappearance of his friend), 213 at [63] (treatment in Sri Lanka of returned failed asylum seekers) and 215 at [76] (liability to be charged and detained upon return to Sri Lanka for earlier illegal departure).

7. As this was a case to which s.422B of the Migration Act applied, the applicant was entitled only to the rights afforded 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. Rather, the applicant was invited to and attended, and gave evidence at, the Tribunal hearing, and had matters which concerned the Tribunal put to him for comment. Thereby, the applicant was afforded procedural fairness: Migration Act, s.425(1); 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.

8. It is further not apparent that the Tribunal was required to put any information to the applicant pursuant to ss.424A or 424AA of the Migration Act in circumstances where to the extent that the Tribunal:

   a)relied upon any information recorded in the Delegate’s Decision that information was given to the Tribunal and falls within the exception in s.424A(3)(b) of the Migration Act; and

   b)may be said to have relied upon inconsistencies in the evidence given by the applicant the Tribunal’s subjective appraisals, thought processes or determinations in relation to the evidence is not "information" for the purpose of the sections: 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 J, Callinan J, Heydon J, Crennan J.

9. There was, therefore, in all the circumstances, no failure by the Tribunal to afford the applicant procedural fairness.

10. Further, it is clear that the Tribunal undertook the required qualitative judgment to determine if it was satisfied that the applicant would be exposed to serious harm on return to Sri Lanka.

Conclusion and orders

1. It follows from the foregoing that the single ground of review in the Judicial Review Application has not been made out. The Judicial Review Application must therefore be dismissed, and there will be an order to that effect. In the circumstances, there must also be an order for costs. The Minister seeks costs in the sum of $5,800, and there will be an order that the applicant pay the Minister’s costs in that amount by 25 October 2016.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 27 July 2016