CFR16 v Minister for Immigration
[2019] FCCA 2744
•8 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFR16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2744 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection visa – extension of time application – no arguable ground. |
| Legislation: Migration Act 1958, ss.424AA, 424A Immigrants and Emigrants Act, Sri Lanka |
| Cases cited: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 |
| Applicant: | CFR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1727 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 8 April 2019 |
| Date of Last Submission: | 8 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 8 April 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Counsel for the first respondent: | Mark Hosking |
| Counsel for the second respondent: | No appearance |
| Solicitors for respondents: | Sparke Helmore Lawyers |
ORDERS
The application for an extension of time under s.477(2) of the Migration Act 1958 filed on 12 August 2016 and amended on 8 March 2019 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1727 of 2016
| CFR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)[1]
[1] Reasons for judgment were given orally on 8 April 2019. The applicant requested written reasons by a letter dated Wednesday, 18 September 2019. Registry advised chambers on Thursday, 19 September 2019 that the applicant requested written reasons. Chambers ordered a transcript of the reasons for judgment on Thursday, 19 September 2019 at 8:23pm on same day turnaround. Auscript provided the transcript of the reasons for judgment on Friday, 20 September 2019 at 6:05pm. The reasons for judgment were settled and sent to the applicant and the respondents by email on Thursday, 26 September 2019 at 11:30am.
This is an application for an extension of time in which to seek review of a decision made by the Administrative Appeals Tribunal. The applicant applied for a protection visa. He is a Tamil citizen of Sri Lanka.
The application to this court was eight days late. The Minister acknowledges that a delay of eight days is not of any great significance. The Minister concedes that he would suffer no prejudice if the extension of time were granted. However, the Minister submitted that the extension of time should not be granted because the applicant’s grounds have no reasonable prospect of success.
The matter was listed for hearing of the extension of time application on 30 January 2019. On that occasion, the applicant told the court that his lawyer had ceased to act for him only a few days prior to the hearing. Indeed, the solicitor for the applicant had signed a minute of proposed consent orders on 8 January 2019 pursuant to which the applicant was given further time to lodge an amended application, affidavits, a supplementary court book and written submissions. However, the amended application and other documents were not filed prior to the hearing on 30 January 2019.
Nevertheless, the court granted an adjournment of the hearing of the extension of time application until today. The applicant told the court that he expected to be able to obtain another lawyer and file appropriate material.
The applicant filed an amended application on 8 March 2019 and an affidavit. The amended application appears to have been drafted with the benefit of legal assistance. However, no lawyer has come onto the record for the applicant since his previous lawyer withdrew on 8 January 2019 and no lawyer appeared for the applicant at the hearing today. The applicant’s affidavit affirmed on 8 March 2019 exhibited a copy of a UNHCR report dated 23 July 2018 and the transcript of the hearing before the Tribunal.
The applicant claimed in his protection visa application that he feared harm on the basis of his Tamil ethnicity, his imputed pro-LTTE political opinion and his marriage to a Sinhalese woman. The applicant claimed that, in 2009, he was detained for a period of 90 days on suspicion of being a member of the LTTE. He also claimed that, following his release from detention, he was harassed by the Sri Lankan authorities until 2012, at which time he came to Australia.
The delegate refused the applicant’s application for a protection visa.
The applicant applied to the Tribunal for review of the delegate’s decision. The applicant was assisted by a migration agent in his application to the Tribunal. The agent provided written submissions to the Tribunal dated 24 May 2016. The applicant appeared before the Tribunal on 31 May 2016 for the purposes of a Tribunal hearing. The applicant was accompanied at that hearing by his migration agent.
The Tribunal affirmed the delegate’s decision in a decision dated 30 June 2016. The Tribunal accepted that the applicant had been detained in 2009 and that he had been held for 51 days. The Tribunal did not accept that the applicant had been harassed by the police or others after his release from detention. That finding was based on the applicant’s evidence about that issue being vague and inconsistent.
The Tribunal noted a letter that had been provided by the applicant’s wife. The Tribunal gave details of that letter to the applicant verbally during the hearing. The Tribunal considered that the letter from the applicant’s wife supported its view that the applicant would not be of adverse interest to the Sri Lankan authorities if he returned to Sri Lanka. The Tribunal considered the applicant’s various claims and concluded that he did not face a real risk of serious or significant harm if he were to return to Sri Lanka.
The first ground in the application filed on 12 August 2016 and amended on 8 March 2019 (“the application”) is:
The Administrative Appeals Tribunal (hereinafter referred as ‘the Tribunal’) made a jurisdictional error by failing to proceed in accordance with s 424A of the Migration Act 1958 (Cth) (Act).
Particulars
a)The Tribunal alleged that it had provided to the Applicant by email sent on 31 May 2016 (email) a copy of a letter from his estranged wife of the Applicant (see Court Book filed by the Minister on 15 February 2017 at (CB 206-209).
b)The applicant says that he never received this letter sent to Clare Playfair as they had already discontinued representing the applicant immediately after the hearing. The the said letter dated 17 July 2014 from his estranged wife was obtained by his previous solicitor after the application was filed at the Federal Circuit Court.
c)The applicant brought to the notice of the Honourable Judge Riley that he did not receive the second letter and the Judge instructed on 30 January 2019 to the Minister's lawyers Sparke Helmore to provide the applicant a copy. The applicant did not receive a copy of the second letter till to date.
d)Although the Tribunal purported to proceed in accordance with s 424AA of the Migration Act 1958 at the hearing of the matter, the email ought to have constituted a fresh invitation for comment in accordance with s 424A of the Migration Act 1958.
e)The email did not observe the requirements of s 424A of the Migration Act 1958.
f)Relevantly, s428(3)(d) of the Migration Act 1958 only partially absolve the Tribunal from compliance with s 425(1). While the provision excuses the Tribunal from inviting an applicant to give evidence, it does not excuse the Tribunal from inviting the applicant to present arguments about the issues arising in the case: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1: 249 ALR 58; [2008] FCAFC 138 (SZHKA) at [21] per Gray J, where his Honour considered s 428(5) which prior to 1 July 2015 was in the same terms as s 428(3)(d).
(errors in original)
The letter that the applicant’s wife sent to the Australian ambassador in Colombo dated 17 July 2014 is contained at pages 2 to 3 of the supplementary court book filed on 22 March 2019. It is as follows:
…
FOR RETURNING [THE APPLICANT] OF [ADDRESS IN AUSTRALIA] TO SRI LANKA
Hon Ambassador,
I reside in the address [address omitted] of the house which belongs to my father with my father named [names omitted].
My parents are carrying out fisheries industry in Mannar area. I also support them for their business and often I visit there.
At the time I went to visit my parents I could meet [the applicant] of [location omitted] and I build a love affair with him. After that we married at the Roman Catholic Church [address omitted] with the consent of parents on 30th of January 2007.
After the marriage I live with my husband of the house which belongs to my father and gave support to the business of my parents.
But my husband was suspected by the police that he supported to L.T.T.E and was taken into custody on [precise date omitted] by the [police station omitted] Police. And he was under the custody order [number omitted]. After the inquiry he was produced to the Negombo Magistrate Court under case No [number omitted].. After that, he was released on [precise date omitted] from the court of Negombo upon the request of [police station omitted] police that, he does not have any connection with terrorist activities.
Again we lived with my parents by supporting them to the business. After that I came to learn that, my husband left the country and went to Australia by the Boat bearing No. [number omitted] on [precise date omitted]. Currently, he lives in Australia with employing [address omitted]. I have been living since two years in my father’s house and my husband’s father’s house without my husband. But now my husband’s parents has prevented me come to their house.
I am 35 years married women. I do not have a child. Therefore, I am seriously suffering from psychologically due to that reason. My husband’s parents blame me by saying about children. My husband has requested the Visa and has produced the reason that, he is searched by the police on the suspect that he connect to the terrorist activities. But I declare that, he is a person who released from the court under case No. [case number omitted] on the request of the [police station omitted] police on bearing [number omitted] upon the judgment that he has not any relation with terrorist activities. Accordingly, He will not take into custody if he came to Sri Lanka and he will be able to live with me by giving support to the business of my parents.
Now I am getting cure from [doctor’s name omitted] for my psychological condition and still I suffering from said sorrows without my husband.
Accordingly I humbly request from you that, please be taken my sorrow for your attention and take necessary steps to return my husband to Sri Lanka. Because I would like to live with him in matrimonial home and I want to see a child before my death.
Please be good enough to my consideration.
I have enclosed following documents for your kind consideration.
1.Two copies of Marriage certificate that prove the marriage at Marriage Registrar Office and [name of church omitted] Church.
2.Photos of Engagement
3.Certified copy of N.I.C. of me and my husband
4.Certified copy of my birth certificate
5.Copy of case report that released my husband from court
6.Medicar report that is shown my psychological condition
(errors in original) (emphasis in original)
The letter dated 22 December 2014 sent by the applicant’s wife to the ambassador at the Department of Immigration and Border Protection is at page 1 of the supplementary court book and is as follows:
…
Dear Sir/Madam
Regarding Submitted documents
I [name and address omitted] Sri Lanka posted documents about my visa to Department of Immigration & Border Protection Australia on [date omitted]. Still I didn’t get any reply for that. I kindly request a reply as soon as possible.
…
The Tribunal provided a summary of the longer letter during the hearing before the Tribunal in accordance with s.424AA of the Migration Act1958 (“the Act”).
Section 424A of the Act provided that:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application for review; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non-disclosable information.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
Section 424AA of the Act provided that:
(1)If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)if the Tribunal does so – the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
As can be seen, s.424A(2A) of the Act permits the Tribunal to not comply with the balance of s.424A of the Act if it gives clear particulars of the relevant information to the applicant and invites the applicant to comment on or respond to the information under s.424AA of the Act. Section 424AA of the Act permits the Tribunal to give to the applicant verbally clear particulars of information that would be the reason or a part of the reason for affirming the decision under review.
If the Tribunal seeks to avail itself of the procedure under s.424AA of the Act, it must also, as far as reasonably practicable:
a)ensure that the applicant understands why the information is relevant to the review;
b)invite the applicant to respond; and
c)advise the applicant that he or she may seek additional time to respond.
The transcript of the Tribunal hearing is annexure B to the applicant’s affidavit affirmed on 8 March 2019. It contains the following:
a.at page 40, lines 33 to 39:
[MEMBER]So I'm going to explain what the information is, why I think it's relevant, and what the consequences would be if I were to rely on that information and then I'm going to ask you if you want to comment or respond to it now or if you want some time. If you don't understand anything that I've said, please let me know and if you want some time to think about it or to talk to your lawyer, please say so and I will give you that time and you can decide how you would like to respond.
b.at page 41:
i.lines 8 to 10:
[MEMBER]If you just let me finish, I'll give you all the information and then you can tell me whether you would like to respond now or whether you want some time.
ii.lines 18 to 21:
[MEMBER]…She refers to your protection claims of being searched on suspicion of connection to terrorist activities and declares that you were released on the request of the Negombo police on the finding that you did not have involvement with terrorist activities.
iii.lines 23 to 24:
[MEMBER]She states that you will not be taken into custody if you return to Sri Lanka and that you will be able to live with her and support her parents' business.
iv.lines 27 to 31:
[MEMBER]So this information is relevant to me because your wife's actions in sending that letter and her request for you to be returned to Sri Lanka don't appear to be consistent with your claims of facing a well-founded fear of persecution or a real risk of significant harm in your country.
c.at page 41, lines 33 to 45, and page 42, lines 1 to 3:
[MEMBER]It's also relevant because your wife's failure to mention that you were harassed, threatened or under suspicion in her letter may lead me to conclude that your claims of being under suspicion, having been harassed, threatened and harmed after your release from detention in 2009 are not credible. It may also lead me to have doubts about your general credibility and the credibility of all your claims including that you have been or are of interest to the authorities after 2009 or that your wife's family may harm you upon return.
This may lead me to doubt that you would face a real change of serious harm or a real risk of significant harm if you returned to Sri Lanka and that may lead me to conclude that you're not owed protection obligations in Australia. So if I were to rely on that information that I've just explained to you, it would be the reason, or part of the reason, to affirm or agree with the delegate's decision to refuse your application for protection. Did you understand the information and why I think it's relevant? Do you want to respond now or do you want to talk to your lawyer about it first?
d.at page 42:
i.lines 33 to 35:
[MEMBER]I will adjourn for 10 minutes and you can tell me whether you'd like to make a response when you come back or in any other way. Okay. So I'm just going to adjourn and step out the room at 12.30 pm.
ii.lines 41 to 43:
[MEMBER]The hearing is resumed at 12.40 pm. Okay. So after having that break, did you want to respond to the information that I put to you now at this hearing or in another way, another time?
e.at page 43, lines 4 to 5:
[APPLICANT’S AGENT] We will probably do both. He wants to make some comments and then we’ll follow up with some other - - - …
f.at page 49, lines 39 to 45:
[APPLICANT] Would I be able to get a copy of the letter that my wife sent to you?
[MEMBER]Well, my obligation is to give you the particulars of the information that I had to put to you and I've done that. I've given you basically the information that she's provided in that letter. That is of importance to me for the making of my decision.
g.at page 50, lines 5 to 12:
[MEMBER]You might be able to. I'm inclined not to give it to you at this stage. I will have another think about it, but basically all the information that is relevant in terms of you - what I think is relevant and if I were to rely on it, what I would be relying on is that information, but, look, I'll have a think about it. We've had a long hearing, so I'll just have a think about it and see if there's anything else. Okay. So I think we'll stop now because I don't have any more questions and I think we've gone on for quite a while today. Okay.
It can be seen from those passages in the transcript that the Tribunal did provide to the applicant particulars of the aspects of the applicant's wife's letter that might have been the reason or part of the reason for affirming the delegate's decision. The Tribunal also gave the applicant an opportunity to respond immediately or to have time to respond. The Tribunal took a break to enable the applicant to communicate with his migration agent about the letter, and the applicant chose to respond immediately, even though the Tribunal had indicated that the applicant could respond in another way at another time if he wished.
The applicant complains that the Tribunal did not comply with s.424A of the Act. However, the applicant's argument fails to appreciate that the Tribunal can comply with s.424A of the Act by following the procedure in s.424AA of the Act.
In relation to particular (a) to this ground, the court book shows that the Tribunal did send a copy of the letter to the applicant on the same day as the hearing. The email is dated 31 May 2016 and is at CB206. It says:
…
Dear Ms Hughes
I am writing in relation to an application for review by the Migration and Refugee Division of the AAT.
The Tribunal has considered the request for a copy of the letter from the applicant’s wife, which was discussed at today’s hearing and now encloses a copy of that letter.
The Tribunal requests that any further information or comments that you wish to provide should be received no later than 7 June 2016.
If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333.
…
The applicant claimed in particular (b) that he did not receive that letter because the agent had discontinued representing the applicant immediately after the hearing. However, the applicant told the court today that the agent had continued acting for him up until the time when the Tribunal's decision was handed down. The applicant told the court that his agent had said that she would prepare a response to the wife's letter but did not do so.
The applicant provided to the court today a letter dated 18 March 2019 from himself to his former agent. It is exhibit 1. He said that he had only recently discovered that the Tribunal sent to his agent a copy of his wife's letter to the Australian embassy in Colombo but that the agent did not inform him of this and his lack of response has gone against him.
It may be in this case that the agent was negligent. However, there is nothing to indicate that the agent participated in a fraud on the Tribunal. In these circumstances, the agent's and the applicant's failure to respond to the email sent to the agent enclosing a copy of the wife's letter is not indicative of jurisdictional error on the part of the Tribunal.
Particular (c) concerns the second letter sent by the applicant's wife. The Minister did eventually provide that letter to the applicant in the form of a supplementary court book. It did not add any information that falls within the notion of information as that word is used in s.424A and s.424AA of the Act. As such, whether the applicant was given it or not could not have made any difference to the Tribunal's decision.
Particular (d) is not correct. The Tribunal was not obliged to do more than it did under s.424A and s.424AA of the Act. It was not necessary for the Tribunal to invite the applicant to another hearing. It was not necessary for the Tribunal to repeat in its email dated 31 May 2016 why the information was relevant. The Tribunal had already explained that orally at the hearing.
In relation to particular (e), it was not necessary for the Tribunal to observe the requirements in s.424A of the Act, provided that it complied with the requirements of s.424A(2A) of the Act. In my view, it did so in this case.
Particular (f) does not add anything in this case. The Tribunal did invite the applicant to a hearing and raised relevant issues with him.
The applicant, in his oral submissions today, took particular issue with the attachments to his wife’s letter dated 17 July 2014. He noted that one of those attachments was an extract from a register of marriages. He accepted that the extract was genuine. It is an extract of a marriage registration between the applicant and his wife. He said that it contained a falsehood in that it discloses his wife’s ethnicity as Tamil when her ethnicity is Sinhalese. The applicant said that the Tribunal erred by not drawing that document to his attention.
However, the Tribunal specifically proceeded in its reasons for decision on the basis that the applicant’s wife is considered to be Sinhalese. The Tribunal set out at paragraph 121 of its reasons for decision various concerns that it had about the applicant’s claim that his wife was Sinhalese, but stated expressly that it proceeded on the assumption that the wife and her family are considered to be Sinhalese. In these circumstances, it cannot be concluded that anything in the extract of the register of marriages could have been the reason or part of the reason for affirming the decision under review. As such, it was not necessary for the Tribunal to give the applicant details of the extract of the register of marriages.
The applicant also told the court that one of the wife’s letters was signed in Sinhalese and the other in Tamil. The applicant argued that the Tribunal should have realised that and realised that something untoward had occurred. However, this issue is not something that the Tribunal could have been aware of, assuming that the Tribunal is not familiar with the Sinhalese or Tamil languages. It was not information that would have been the reason or part of the reason for affirming the decision under review. Consequently, it was not necessary for the Tribunal to give the applicant particulars of that information.
There were other attachments to the wife’s letter dated 17 July 2014. However, they did not contain anything that, on any view, could be perceived as information that would be the reason or part of the reason for affirming the decision under review. Page 4 of the supplementary court book is a registered post receipt. Page 5 of the supplementary court book is a photocopy of an envelope. Pages 6 to 8 of the supplementary court book are a copy of a document which is in substantially the same terms as a document provided by the applicant himself to the Tribunal. That is at CB123. That means that that document falls within the exception in s.424A(3)(ba) of the Act. Page 9 of the supplementary court book is a certificate of marriage relating to the marriage between the applicant and his wife. It was not the reason or part of the reason for affirming the decision under review. The same may be said for page 10 of the supplementary court book which is the extract from the register of marriage. Pages 11 and 12 of the supplementary court book are the wife’s birth certificate. Page 13 of the supplementary court book is the applicant’s ID card. Page 14 of the supplementary court book is a bill of lading. Page 15 of the supplementary court book is the wife’s ID card. Page 16 of the supplementary court book is a letter about the wife’s mental health.
In my view, it is not arguable that the Tribunal failed to comply with its obligations under s.424A and s.424AA of the Act.
Ground 2 in the application is:
The Tribunal made a jurisdictional error by failing to accord the Applicant procedural fairness.
Particulars
a)The Tribunal referred at (CB 222) [in paragraph 58] to two letters sent by the estranged wife of the Applicant.
b)The email only provided one letter from the applicant's estranged wife of the Applicant (sic).
c)Whether for the purposes of complying with s 424A of the Migration Act 1958 or according procedural fairness at common law the Tribunal, having decided to provide one letter to the Applicant, was required also to provide the other letter to the Applicant for completeness or at least indicate that the other letter was substantially the same or materially identical to the letter the Tribunal did so provide.
The Tribunal did not need to provide in the email a copy of the second letter because it did not contain any information that would be the reason or part of the reason for affirming the decision under review. Ground 2 is not arguable.
Ground 3 in the application is:
The Tribunal erred in its finding at (CB 234) [in paragraph 127] without evidence that the applicant has the support of his parents, siblings or wife (or her family) would be able to act as guarantors to assist him being granted bail which is an unfounded assumption and made a jurisdictional error of legal unreasonableness.
Particulars
a)The Tribunal made an arbitrary assumption, or lacked an evident and intelligible justification, as to the scope for provision by the parents or siblings of the Applicant toward the Applicant in the form of being guarantors: DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 at [33].
b)Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind.
c)The Tribunal said at (CB 216-217) [in paragraph 29] of its decision “The applicant provided credible evidence, in the form of a copy of translations of pages of a Sri Lankan court document dated 29 May 2009 indicating that the applicant was arrested in Negombo on 22 April 2009 on suspicion of involvement in terrorist activities and/or connection to a terrorist group. The document also indicates that a detention order was issued allowing the applicant to be detained for a period of 90 days and that a magistrate ordered the applicant's release on 29 May 2009… The Tribunal therefore accepts the applicant was detained on April 2009 on suspicion of involvement in terrorist/LTTE activities and held for 51 days.
d)The Tribunal said at (CB217) [in paragraph 30] “The applicant provided detailed and relatively consistent evidence about his experiences in detention ... It accepts the applicant's account that he was subjected to various abuse and torture such as having his two thumbs tied together, being stripped naked and beaten in order to make him admit that he was an LTTE member as credible in light of country information regarding treatment of suspected LTTE members detained by authorities.
e)The applicant states the Tribunal's finding and assertion is ludicrous to state that the applicant's impecunious family members and his estranged wife (or her family) would be able to act as guarantors to assist him being granted bail for release which is an unfounded assumption.
[f]The findings and the conclusion reached by the Tribunal at (CB234) [in paragraph 127] involved an unfounded factual assumption about the nature and extent of support that the applicant was able to obtain from his family members and his estranged wife (or her family) in Sri Lanka. (See DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353).
This ground concerns a finding that the Tribunal made at paragraph 127 of its reasons for decision. In that paragraph, the Tribunal found that the applicant would be granted bail if he were charged with an offence under the Immigrants and Emigrants Act and, if required, his parent, siblings or wife or her family would be able to act as guarantors. The applicant argued this finding was made without evidence and was legally unreasonable.
The applicant relied on DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353. In that case the Immigration Assessment Authority considered that the applicant's mother would be able to sell some land to pay for any bail money that may have been required. The court found that not only was there no evidence for that conclusion, there was evidence to the contrary.
The situation in the present case is different because the Tribunal found at paragraph 124 of its reasons for decision, based on country information, that there is no payment required for bail. The Tribunal said:
… In most cases, returnees who plead not guilty to the charges have been granted bail on personal recognisance immediately by the magistrate or may require a family member to act as guarantor. There is no payment required for bail…
DHK16 is quite different because there was no reason to suppose in the present case that the family members would be required to advance any money on the applicant's behalf. There was evidence before the Tribunal at CB13 to CB17 that the applicant and his wife had lived with the applicant's family before he left for Australia. It seems to me that it was open to the Tribunal to infer that one of his family members would act as guarantor for him in circumstances where no payment was required.
The applicant also relied on ARK16 v Minister for Immigration and Border Protection [2018] FCA 825. In that case, the court considered the delegate's handling of a claim to waive a certain condition on the grounds of compelling and compassionate circumstances. The compelling and compassionate circumstance was said to be that the applicant's sister had postnatal depression and six children to look after. The applicant in ARK16 said that his sister's husband could not assist the sister because the husband worked long hours. The delegate found information on the departmental file to the effect that the applicant's sister had another brother, with whom she was residing. The delegate considered that the other brother would be able to provide the support the sister needed.
The court in ARK16 considered that this was a denial of common law procedural fairness. The court noted in paragraph 41 of its reasons for judgment that the decision-maker is not obliged to give details of information or adverse conclusions which would obviously be open on the known material. The court considered that it was not obvious on the known material that the other brother would be able to provide the necessary support. The court noted that families are different and different individuals within families may be able to provide different levels of support. In ARK16, nothing was known about the other brother’s circumstances. The court in ARK16 considered that there had been a denial of procedural fairness.
The present situation is distinguishable because the applicant had previously been supported by his family in the sense that he lived with them. The support that they might be required to give in the present case was minimal compared with the support that would be needed by a person with six children and post-natal depression. It seems to me that it was open to the Tribunal to consider, in all the circumstances of this case, that someone in the applicant’s family would be prepared to be his guarantor.
Ground 3 is not arguable.
Ground 4 in the application is:
The change of government and the new information of the country information the Administrative Appeals Tribunal's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).
Particulars
a)The delegate's decision was dated 24 March 2014 when the political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa which was not taken to consideration by the delegate. Rajapaksa's administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa's return could see Tamil activists and perceived dissidents targeted once again.
b)The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants’ protection claims in Australia.
c)According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation.” at [para 55] of the said report.
d)The Special Rapporteur was told about the surveillance of Tamil civil society, including women's groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.
e)The Special Rapporteur said “When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of wide spread institutional stigmatisation of a single community. [para 56] of the said report.
f)The Special Rapporteur said in his conclusion “The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.
g)According the above new information as there is a material change in the applicants’ circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants’ country of claimed of protection, such as a change in the political or security landscape.
This ground relates to country information from 2018. Obviously, that information was not before the Tribunal when it made its decision on 30 June 2016. This ground has no prospect of success.
Ground 5 in the application is:
The Administrative Appeals Tribunal alleged in general terms, the situation for Tamils in Sri Lanka in relation to their civil and human rights has improved contrary to the overwhelming independent country information on human rights in Sri Lanka. However, the DFAT reports do not follow that the situation will continue to improve.
Particulars:
a)Where the political situation in a country is "fluid", political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating)-of the political situation in Hungary and Poland in recent years.
b)The Guardian Australian Edition dated 27 October 2018 reports “Sri Lanka in political turmoil after prime minister Wickremasinghe sacked” President replaces PM with former strongman Mahinda Rajapaksa sparking constitutional crisis.
c)The Guardian Australian Edition dated 27 October 2018 also said “The Sri Lankan Tamil parties extended support to Sirisena in the last presidential elections in 2015 to keep Rajapaksa away from power. By removing Wickremesinghe as prime minister, the moderate gains achieved in the last three years, by raising the trust of the Sri Lankan Tamil community on the State in implementing reconciliation measures in post-war Sri Lanka, may wither away. The JO and SLPP, led by Rajap[a]ksa, also consistently opposed any move towards reconciliation and political concessions to Tamil community.”
d)The applicant states that this process of the Tribunal was unreasonable. The Tribunal failed to explain why it preferred the DFAT reports in the review materials in light of the very serious allegations made in the country report “Silenced: survivors of torture and sexual violence in 2015 of the International Truth & Justice Project Sri Lanka January 2016”.
e)Failure to consider this information by the Tribunal in its review is a jurisdictional error.
This ground has no prospects of success for the same reasons as ground 4.
Ground 6 in the application is:
The Administrative Appeals Tribunal made a jurisdictional error by failing to consider the mental health claim of the Applicant's or integer thereof or an important item of evidence or by failing to give proper genuine and realistic consideration to the Applicant's case or by being legally unreasonable.
Particulars
a)It is said that "There are a variety of factors that make it difficult for an asylum seeker to present a comprehensive account of their claims, including: literacy, language, culture, a lack understanding of the RSD system and the complexities of that system; limited access to legal representation and difficulty with memory recall and in telling painful and often traumatic experiences (Hunter et al 2013). Interviews conducted with asylum seekers trying to navigate the legal system show they find the legal process to be confusing, inconsistent and demeaning" (Australian Red Cross 2013; Commonwealth of Australia 2012, UNHCR 2013) (See Mental Health and Legal Representation for Asylum Seekers in the “Legacy Caseload” Mary Anne Kenny, School of Law, Murdoch University; Nicholas Procter, School of Nursing and Midwifery, University of South Australia; Carol Grech, School of Nursing and Midwifery, University of South Australia. Corresponding author: [email protected].
b)It is also said in the above Report "It is well documented that after arrival in a new country asylum seeker deal with a raft of issues such as bereavement, mental health problems, cultural and language barriers (Sinnerbink et al 1997, Procter 2005). Asylum seekers in the legacy caseload, however, are experiencing an additional and unique series of policy and legislative shifts in their status resolution "journey" in Australia. This "journey" includes detention; release into the community with limited support and on-going uncertainty around their visa status. All of which ultimately culminates to imbue a detrimental effect upon their mental health.”
c)According to DFAT Report 23 May 2018 on Sri Lanka Mental health services are scarce and institutional capacity to respond to mental health needs is weak. Mental illness is not widely discussed in Sri Lankan society and the stigma attached to those who seek treatment discourages others from doing so. Anecdotal evidence suggests a high incidence of trauma related illnesses following the conflict, especially in the Northern and Eastern Provinces. Collective trauma, a lack of mental health support and high unemployment, especially among the young, have contributed to an increase in alcohol and drug abuse, suicide, domestic and societal violence in recent years. At [2.16].
d)The applicant has been attending counselling sessions from 2017 to date at the Forum of Australian Services Survivors of Torture and Trauma (FASSTT) in Foundation House at Sunshine Office 163 Harvester Road, SUNSHINE VIC 3020, treating him for symptoms consistent with depression, anxiety and PTSD.
e)The Tribunal's reasoning did not properly consider the relevant Applicants' claims of fear of harm for returning to Sri Lanka for reasons associated with his mental health.
f)The applicant's mental health condition is manageable while he is in Australia. However, if he is required to return to Sri Lanka, he is likely to become distressed and his mental health condition is likely to deteriorate. This aspect was not dealt by the Tribunal in its decision while he is arrested and detained after arrival in Sri Lanka.
g)It was appropriate for the Tribunal to do so as it may be jurisdictional error not to obtain country information about the mental health facilities in Sri Lanka which is central to the formation of the Tribunal's state of satisfaction as to the Applicant's claims (Minister for Immigration and Border Protection v MZYTS (2013) 230 FCAFC 114 at [74]).
This ground concerns the applicant’s mental health. The applicant told the court today that he did not make any claim to the Tribunal in relation to his mental health. That is confirmed in paragraph 57 of the Tribunal’s reasons for decision. The last sentence of that paragraph is:
… No medical evidence has been provided indicating that the applicant suffers from any psychological or medical issues that would affect his evidence and the tribunal is satisfied that he was able to meaningfully participate in the hearing before it.
As is very well established, the Tribunal is not obliged to consider claims that are not articulated or that do not clearly arise from the materials before it. There was no reason for the Tribunal to consider any issues relating to the applicant’s mental health. There is no prospect of ground 6 succeeding.
The applicant in reply said that the Tribunal did not tell him that, in an attachment to her letter, his wife said that she was Tamil. However, the Tribunal did not need to say that because it was not a reason or part of the reason for affirming the decision under review.
As previously mentioned, the Tribunal proceeded on the basis that the applicant’s wife was considered to be Sinhalese. The Tribunal considered the applicant’s claims about the applicant’s wife at considerable length in paragraphs 60 to 69 of its reasons for decision.
The applicant said in reply that he attempted to give some documents to the Tribunal about the police summoning him at the time of the Tribunal hearing but that the Tribunal refused to accept those documents.
That is not accurate. The Tribunal did accept the documents but did not accept the complexion that the applicant wished to place upon them. The Tribunal explained at paragraphs 71 to 77 of its reasons for decision that it had credibility concerns about the documents for various reasons, including the prevalence of document fraud in Sri Lanka. The Tribunal put this to the applicant during the hearing. The Tribunal concluded at paragraph 77 of its reasons for decision that it gave little weight to the documents relating to the police summoning the applicant. In my view, there is no arguable ground in relation to the Tribunal’s handling of the police summons.
All in all, I am not persuaded that any of the applicant’s grounds has a reasonable prospect of success. I have looked at the Tribunal’s reasons for decision and at various parts of the court books. I have been unable to discern anything that could amount to an arguable ground.
Consequently, the application for an extension of time will be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 26 September 2019
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