CGN15 v Minister for Immigration
[2017] FCCA 318
•28 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGN15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 318 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – protection visa application – citizen of Sri Lanka – whether bias – whether wrong issue or wrong question addressed – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2A), 65, 476, 499 Prevention of Terrorism Act 1979 (Temporary Provisions) Act 1979 (Sri Lanka) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 SZTAL & Anor v Minister for Immigration & Border Protection [2016] HCATrans 276 |
| Applicant: | CGN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 516 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 23 February 2017 |
| Date of Last Submission: | 23 February 2017 |
| Delivered at: | Perth |
| Delivered on: | 28 February 2017 |
REPRESENTATION
| For the Applicant: | In person (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
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 516 of 2015
| CGN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 18 November 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) 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”) under s.65 of the Migration Act. A copy of the Tribunal Decision dated 23 October 2015 is at Court Book (“CB”) 205-230.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Sri Lanka, arrived in Australia as an illegal maritime arrival on 10 August 2012: CB 89;
b)on 19 December 2012, the applicant lodged an application for the Protection Visa: CB 1-33;
c)the applicant claimed to fear harm on the basis of his Tamil ethnicity and imputed political opinion. The applicant specifically claimed that:
i)during the 1980's the Liberation Tigers of Tamil Eelam (“LTTE”) controlled the area in which his family lived and due to fighting the applicant's family fled to India in 1984 where they resided for a period of three years: CB 34 at [5];
ii)in 1987, the applicant’s brother joined the LTTE and the applicant never saw him again: CB 34 at [7];
iii)the applicant’s brother joining the LTTE caused a lot of problems for the applicant's family and government soldiers attended the family home: CB 34 at [8];
iv)the applicant’s family then resided in India between 1989 and 1991: CB 34 at [7]-[9];
v)in 2006, the applicant was detained by the Sri Lankan Army (“SLA”) for six days. During that time he was questioned about the LTTE and beaten: CB 35 at [12];
vi)from 2004 until his departure he was detained and questioned by the SLA on approximately 10-15 occasions. On those occasions he was detained from anywhere between a few hours to a day and was beaten: CB 35 at [13]-[14];
vii)in the 2009 election he supported a candidate for the Tamil National Alliance (“TNA”), including handing out flyers: CB 35 at [15], and CB 92 (confirming that it was the TNA which the applicant supported);
viii)in March 2011, the applicant supported a TNA candidate in local council elections and approximately three months after the election he was warned against distributing flyers, threatened and advised he was being monitored: CB 35 at [17]-[18]. The applicant moved and stopped work after receiving the threats: CB 137, and he left Sri Lanka approximately twelve months later: CB 35 at [20];
ix)the Sri Lankan government was supporting Singhalese fishermen from out of the area to fish in their area resulting in fish stocks being depleted and impacting on livelihoods: CB 35 at [21];
x)the Sri Lanka Navy (“SLN”), who gave out fishing ID necessary to fish in the area, forced the applicant to do unpaid labour at least once a week in order to obtain a fishing ID: CB 36 at [22]; and
xi)in January 2015, four to five CID officers attended the applicant's house in Sri Lanka and asked his wife where he was: CB 137 at [6];
d)on 10 December 2013, the Delegate refused the grant of the Protection Visa: CB 88-104; and
e)on 17 December 2013, the applicant lodged an application for merits review of the Delegate’s Decision with the Tribunal: CB 105-111.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)following a hearing on 25 September 2015, affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 169-172 and 205-230;
b)accepted that:
i)the applicant was a Tamil fisherman from Mannar: CB 218 at [49];
ii)although the applicant would be required to obtain a fishing pass from the Department of Fisheries it did not accept that the applicant would continue to have the problems with the SLN that he claimed to have had in the past: CB 219 at [51];
iii)the applicant’s brother joined the LTTE in 1987, and because government soldiers went to his home, his family moved to India between 1989 and 1991: CB 219 at [54];
iv)the applicant’s brother died in 2009 and that Sri Lankan authorities were aware of his death: CB 219 at [54];
v)the applicant handed out flyers for TNA candidates in elections: CB 220 at [57];
vi)the applicant departed Sri Lanka illegally and if he returned would be charged under Sri Lanka’s domestic migration laws and may be briefly detained: CB 221 at [59]. The Tribunal however found that such process was the result of a non-discriminatory law of general application: CB 221 at [59]; and
vii)upon return to his home he would be verified by the CID or police within a few days: CB 223 at [63].
c)did not accept that:
i)the applicant had been forced to do unpaid labour for the SLN: CB 218 at [50];
ii)the applicant would not be able to make a living as a fisherman if returned to Sri Lanka: CB 219 at [52];
iii)there was a real chance that the applicant would be rounded up, detained and beaten because of his Tamil ethnicity if he returned to Mannar: CB 219 at [53];
iv)after the end of the civil war in 2009 the applicant’s family had problems because his brother had joined the LTTE: CB 220 at [56];
v)the applicant had been threatened because of his support for the TNA or that he would be threatened, harmed, killed or otherwise persecuted for reason of his support of Tamil political parties if he returned to Sri Lanka: CB 221 at [58];
vi)Sri Lankan authorities had been looking for the applicant prior to his departure or had been looking for him at any time since then: CB 221 at [59];
vii)there was a real chance that the applicant would be persecuted as a Tamil: CB 222 at [60];
viii)the applicant fell within any of the categories identified to be at a risk of harm from the Sri Lankan authorities: CB 223 at [63]; and
ix)there was a real chance that the applicant would be persecuted because he would be returning to Sri Lanka as a failed asylum seeker or because of any political opinion which he may be perceived as holding or because he is Tamil: CB 222 at [62];
d)in considering the complementary protection provisions, the Tribunal had regard to its previous factual findings: CB 223-224 at [65]-[69]; and
e)did not accept that spending up to a fortnight in gaol on remand amounted to significant harm as defined in s.36(2A) of the Migration Act: CB 225 at [70], or that there was any intention to inflict treatment amounting to significant harm: CB 225 at [71]-[72].
The Court notes that on the basis of the alternate findings in [3(e)] above, the matter is not affected by the appeal from the judgment given by the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69: see SZTAL & Anor v Minister for Immigration & Border Protection [2016] HCATrans 276.
Grounds of the Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. Jurisdictional error.
2. Bias based on conscious or unconscious prejudice by ignoring relevant material.
3. Identifying a wrong issue on a wrong question.
Consideration of grounds of Judicial Review Application
The requirement for jurisdictional error
The Tribunal Decision is only liable to be set aside upon review if it involves jurisdictional error: Plaintiff S157/2002 v 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. 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.
The grounds generally
The grounds of the Judicial Review Application are pro-forma or formulaic and are not sufficiently particularised to make them meaningful. They do not identify the jurisdictional error alleged on the part of the Tribunal. As such, the Judicial Review Application seemingly constitutes no more than a request for the Court to engage in merits review based on the applicant's dissatisfaction with the Tribunal Decision which is a task that the Court cannot undertake: 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 per Brennan CJ, Toohey, McHugh and Gummow JJ; Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”);
Ground 1
Ground 1 is an unparticularised assertion of error by the Tribunal, the failure to particularise the ground of review being sufficient basis for the ground of review to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited) (“WZAVW”); WZAVL v Minister for Immigration &Anor [2015] FCCA 2388 at [26] per Judge Lucev (“WZAVL”).
Ground 1 cannot therefore succeed, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 2
In ground 2, the applicant has made no attempt to comply with the requirement that the serious allegation of bias made by him be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1; CLR at 531 per Gleeson CJ and Gummow J (“Jia Legeng”). There is no evidence:
a)that the Tribunal member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper evaluation of the relevant materials before him which were relevant to the decision to be made: Jia Legeng CLR 519 at [35] and 531 at [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ, or that the Tribunal ignored any relevant material. In that regard, the Court observes that the Tribunal Decision is lengthy (running to some 26 pages, inclusive of an attachment in relation to the relevant law) and some 90 paragraphs (including the paragraphs with respect to the relevant law), and contains a detailed consideration of the claims and evidence by reference to the applicant’s claims and submissions, which are discussed in detail before conclusions are arrived at, in relation to both the Refugee Convention and complimentary protection criteria.
Like ground 1, ground 2 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [9]-[10] above.
In the circumstances, ground 2 is not made out, and therefore does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Subject to exercising its power in a manner which does not manifest jurisdictional error, it is for the Tribunal to consider the claims made by the applicant: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321, and to identify the material that it finds relevant to its reasoning and to give it appropriate weight: Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [46] per French, Sackville and Hely JJ.
In this matter the Tribunal considered the claims made by the applicant, and in so doing did not identify a wrong issue based on a wrong question, and nor did it ask itself the wrong question. Rather, the Tribunal:
a)set out, considered and made findings in relation to the applicant’s claims, evidence and materials in a very detailed manner: CB 206-218 at [1]-[48];
b)set out and referred to relevant country information throughout the Tribunal Decision: CB 210-225 at fnn.2-41 and CB 226 at fn.43;
c)correctly identified the relevant law: CB 227-230, Attachment A at [1]-[14]; and
d)drew conclusions that were reasonably open to it on the evidence and materials before it, for the reasons it gave: CB 218-226 at [49]-[76].
Like grounds 1 and 2, ground 3 is also an unparticularised assertion of jurisdictional error which cannot succeed: see [9]-[10] above.
Ground 3 is therefore not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Further matters raised at hearing
At the hearing of this matter the applicant tendered a letter (which has been marked as Exhibit 1) which he sought to rely on. Counsel for the Minister made certain observations in relation to the applicant’s letter which are dealt with below. Relevantly, the letter was in the following terms:
3)My submission is that as my brother was a member of the LTTE I will be targeted as a failed asylum seeker returning to Sri Lanka with perceived connections with the LTTE.
4)I fear that I will be arrested under the Prevention of Terrorism Act and suffer human rights abuses at the hands of the armed forces of Sri Lanka.
5)The situation in Sri Lanka as far as the Tamils are concerned is far from satisfactory.
6)The Second Respondent followed the Ministerial Direction number 56 to use the DFAT material in a manner which went against the principles of a fair assessment of the country situation in relation to persons like me and thereby fell into Jurisdictional Error.
7)I submit the following documents in furtherance of my application:
a)Document marked I – article by Bruce Haigh a former diplomat.
b)Document marked II – An extract from the Oakland Institute of the USA entailed: The Long Shadow of WA – The Struggle for Justice in Post War Sri Lanka
c)Document marked III – An extract a report entitled: Information Report: Sri Lanka October 2016 submitted by Nalliah Suriyakumaran, father Pan Jordon, A Ratnakanthan, Chris Slee and Michael Cook.
8)At present I have a well-founded fear of returning to Sri Lanka of fear of persecution.
(Transcribed from Exhibit 1 without amendment).
For the sake of convenience the Court will simply treat paragraphs [3] to [8] of Exhibit 1 as additional grounds 4 to 9, and deals with those grounds below.
Ground 4
Ground 4 does no more than repeat the substance of an essential part of the applicant’s case before the Tribunal, namely that the applicant will be targeted as a failed asylum seeker returning to Sri Lanka with perceived connections to the LTTE as a result of his brother having been a member of the LTTE.
The Tribunal dealt with this matter below noting the applicant’s claim in relation to his brother: CB 206 at [4] and [11], noting the applicant’s claim that even after the end of the Sri Lankan civil war in 2009 (and as it transpired the death of his brother in the same year) the applicant claimed mis-treatment at the hands of the Sri Lankan authorities. The Tribunal accepted that the applicant’s brother joined the LTTE in 1987, and that the family subsequently moved from 1989 until 1991 as a consequence of Sri Lankan government soldiers coming to their home asking about his brother. The Tribunal set out the applicant’s claims consequent upon the death of his brother, namely that because his brother had died the Sri Lankan authorities “thought that he and his family might do something”: CB 219 at [54]. The Tribunal noted that the applicant had not mentioned his being taken and detained after the end of the civil war because his brother had been in the LTTE, and found that the applicant’s claims that he had not done so because no one had asked him to consider it not to be credible, particularly given that he had assistance from his representatives in preparing the statutory declaration accompanying his application for the Protection Visas: CB 219 at [54]. The Tribunal dealt with country information, and the decision of the UK Upper Tribunal in GJ v Secretary of State for the Home Department (post-civil war: returnees Sri Lanka CG [2013] UKUT 319 (IAC) (“GJ”), which identified categories of people and activities which would put them at real risk of persecution if they returned to Sri Lanka: CB 220 at [55]. The Tribunal went on to find that the applicant did not claim to have been involved in any such activities, and was not seemingly within any of the identified categories, and found that, on the evidence, it did not accept that there was a real chance that if the applicant returned to Sri Lanka now or in the reasonably foreseeable future he would be harassed, monitored, arrested, detained, beaten, killed or otherwise persecuted because his brother was in the LTTE from 1987 until his death in 2009: CB 220 at [56].
The bare submission which is ground 4 takes the matter no further, and, ultimately, what the applicant seeks to do in this ground is to have the Court review the factual conclusions reached by the Tribunal, after the Tribunal had carefully weighed the evidence before it and arrived at a finding open to it on the evidence. That is a task which this Court is not permitted to carry out: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Quin CLR at 35-36 per Brennan J.
In the circumstances, ground 4 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 5
Ground 5 asserts that the applicant fears arrest under the Prevention of Terrorism Act 1979 (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”) and that he will suffer human rights abuses at the hands of the armed forces of Sri Lanka.
The Court notes that the applicant made no claim with respect to the POT Act before the Tribunal, and therefore the Tribunal could not, and did not, make any jurisdictional error with respect to any claim under the POT Act. Further, and in any event, any assertion that the Tribunal failed to have regard to the implications of the POT Act for the applicant upon return to Sri Lanka as a failed asylum seeker is irrelevant, because the Tribunal found that the applicant would not be imputed with perceived links to the LTTE, and that he was not a person who came within any of the categories likely to attract the attention of the Sri Lankan authorities as a person with perceived LTTE links, upon his return, either now or in the reasonably foreseeable future: CB 222-223 at [63], and see [20] above.
It was therefore unnecessary for the Tribunal to have regard to the POT Act, as it would not apply to the applicant: WZATI v Minister for Immigration & Anor [2014] FCCA 2750 at [45] per Judge Lucev (“WZATI”), from which the applicant unsuccessfully appealed to the Federal Court: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 (“WZATI Appeal”), with the Federal Court observing that “having considered the terms of the Tribunal’s decision, and the review of it made by the primary judge, no jurisdictional error is indicated in the Tribunal’s decision and no error can be detected in the decision of the primary judge”: WZATI Appeal at [68] per Barker J. WZATI was applied to the same effect in WZATX v Minister for Immigration & Anor [2016] FCCA 2949 at [24] per Judge Lucev (“WZATX”). The relevant factual findings here are indistinguishable from WZATI and WZATX, and the same result must follow.
In the above circumstances, ground 5 is not made out, and evinces no jurisdictional error in the Tribunal Decision.
Ground 6
Ground 6 does not assert jurisdictional error at all, but merely makes an assertion that the situation in Sri Lanka is far from satisfactory for Tamils. Be that as it may, that does not establish jurisdictional error in the Tribunal Decision. Moreover, and in any event, the Tribunal carefully considered the situation of the applicant upon his return to Sri Lanka, and found that:
a)the applicant did not fit within any of the categories of persons likely to be detained and put at real risk of persecution on return to Sri Lanka: CB 220 at [55]-[56], CB 223 at [63], and see [20] above;
b)his brief detention (if that occurred) in prison upon his return by reason of his having left Sri Lanka illegally did not constitute significant harm for the purposes of the Migration Act: CB 225-226 at [70]-[73]; and
c)the UNHCR was in fact encouraging refuges to return the applicant’s his home town, and that it would not be doing so if there was a risk of harm or persecution of persons so returning: CB 224 at [67].
Insofar as ground 6 seeks to establish jurisdictional error, it does not do so, and simply amounts to an invitation to this Court to review part of the fact-finding made by the Tribunal, which is not part of the Court’s task in the circumstances of this case: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Quin CLR at 35-36 per Brennan J.
In the circumstances, ground 6 is not made out, and does not establish any jurisdictional error in the Tribunal Decision.
Ground 7
Ground 7 asserts that the Tribunal fell into jurisdictional error by following Ministerial Direction No 56 to use DFAT material in a manner contrary to principles of a fair assessment of the country situation in relation to persons such as the applicant.
In Attachment A to the Tribunal Decision the Tribunal notes that in accordance with Ministerial Direction No 56, made under s.499 of the Migration Act, the “tribunal is required to take account of … any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration”: CB 229 at [11].
The Tribunal has taken account of a significant number of DFAT documents prepared in relation to the situation in Sri Lanka, including documents relating specifically to persons with links to the LTTE: see CB 210 at [23] (“DFAT Thematic Report – People with Links to the Liberation Tigers of Tamil Eelam”); DFAT Country Reports from November 2012 and February 2015: CB 214-217 at [37]-[43] at fnn.11-21; see also CB 218-219 at [50]-[51] at fnn.23 and 25; CB 220-222 at [58]-[61] at fnn.29-32; CB 223 at [65] at fnn.35 and 37; CB 224-225 at [69] at fnn.40 and 41.
The information principally relied upon by the Tribunal was the UNHCR Report entitled “Helping Sri Lankan Refugees Come Home” from April 2013 and the UK Upper Tribunal decision in GJ. That country information was consistent with the DFAT country information insofar as it said that it was only certain categories of persons with perceived links to the LTTE who were of interest to the Sri Lankan authorities. As set out above: see [20] above, the Tribunal made a finding of fact that the applicant was not within any of those categories of persons of interest, and was not a person of interest to the Sri Lankan authorities on account of any perceived LTTE links.
The Tribunal was entitled to have regard to its choice of particular country information, to weigh that country information, and make reasonable factual findings based on that country information, if it put the country information to the applicant, which it did: CB 213-218 at [29]-[48]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ; VTAG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291; (2005) 87 ALD 333.
The applicant was found not to be a person who would be suspected of having LTTE links: CB 222 at [62]. Once the Tribunal made that finding there was no need for it to consider the harm faced by suspected LTTE members: MZABA v Minister for Immigration & Border Protection & Anor [2015] FCA 711; (2015) 234 FCR 425 at [87] per Bromberg J.
The country information relied upon by the Tribunal was both relevant and relatively recent, and was therefore country information to which it was appropriate for the Tribunal to both have regard to, and rely upon, in reaching the Tribunal Decision. Further, insofar as the DFAT Reports were concerned the Tribunal was obliged to have regard to those pursuant to Ministerial Direction No 56 which applied by reason of s.499 of the Migration Act.
There is nothing in the Tribunal’s application of the country information, and in particular for these purposes the DFAT Reports, to the facts as found, which would indicate any unfairness to the applicant in the use of the DFAT Reports. When regard is had to the facts considered by the Tribunal, and the findings made, the use of the DFAT Reports to support a conclusion that the applicant was not a person who would be of interest to the Sri Lankan authorities by reason of any perceived LTTE links was one which was open on the evidence.
In all the above circumstances, ground 7 is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 8
The applicant sought to submit further documents in support of his Judicial Review Application, namely:
a)an article published in The Age newspaper on 6 February 2017 by Bruce Haig a former diplomat (“Haig Article”);
b)an extract from a report published by the Oakland Institute in the United States in 2015, being the Executive Summary to that report (“Oakland Institute Executive Summary”); and
c)an extract from a report entitled “Information Report: Sri Lanka – October 2016” (“Information Report”), seemingly prepared by five individuals and dated December 2016.
On an application for judicial review of a decision of the Tribunal it is not open for this Court to have regard to material which was not capable of being put before the Tribunal because it post-dated the Tribunal Decision. To do so would be to embark upon fact-finding, and not judicial review, in respect of material which because of its post-Tribunal Decision origins, cannot give rise to jurisdictional error in the Tribunal Decision. The choice of country information and the factual findings arising from it, where those factual findings are, as here, open on the available material, are matters solely for the Tribunal as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (“NAHI”). The Tribunal cannot commit jurisdictional error by failing to have regard to relevant material which was not in existence at the time of the Tribunal Decision, and the Court cannot have regard to such material: WZATI Appeal at [70] per Barker J. On this basis, the Court cannot have regard to the Haig Article or the Information Report as they both post-date the Tribunal Decision.
As to the Oakland Institute Executive Summary it is not possible to tell whether or not it post-dates the Tribunal Decision made on 23 October 2015. The most that can be said in relation to the Oakland Institute Executive Summary is that it bears a copyright claim marked 2015, and the text (which is only a page and a half) refers to incidents as late as the proposed release of a United Nations report in March 2015, and its postponement for six months following the election of a new government in Sri Lanka in January 2015. In any event, the Oakland Institute Executive Summary was not before the Tribunal, and there is nothing in the Oakland Institute Executive Summary which would indicate that, other than in a very general sense, it has any relevance to the claims of the applicant. In particular, it does not deal with the claims specifically made by the applicant. Even if it did, it would be no more than an impermissible invitation for the Court to conduct a merits review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Quin CLR at 35-36 per Brennan J.
In the circumstances, the documents referred to at ground 8 are not admissible, and the Court has had no regard to them. The Minister’s objection to the documents going into evidence before the Court, made at the hearing before the Court, is therefore upheld.
In the circumstances, ground 8 cannot be made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground 9
The applicant’s bare assertion in ground 9 is that he has a well-founded fear of returning to Sri Lanka and a fear of persecution if he does so. This is an unparticularised assertion which cannot succeed for that reason: WZAVW at [35] per Gilmour J; WZAVL at [26] per Judge Lucev. In any event, it is again an invitation to the Court to conduct impermissible merits review: Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Quin CLR at 35-36 per Brennan J.
Ground 9 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that:
a)none of the grounds of review have been made out;
b)no jurisdictional error has therefore been established in the Tribunal Decision; and
c)it follows from (a) and (b) that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 28 February 2017
24
3