CJD15 v Minister for Immigration
[2017] FCCA 769
•21 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJD15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 769 |
| Catchwords: MIGRATION – Judicial review application – Administrative Appeals Tribunal decision – protection visa – Sri Lankan citizen – whether particularisation of grounds of review – effect of failure to particularise – difficulties in fact-finding by administrative decision-makers in migration review proceedings – whether jurisdictional error – whether bias – whether delay constitutes bias – whether wrong issue considered or wrong question asked – effect of grant of asylum to friends in another country – relevance and effect of personal circumstances – whether inability to obtain or give evidence to administrative decision-maker. |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.36(2), 65(1), 476 |
| Cases cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 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 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 Minister for Immigration & Multicultural Affairs v Rajalingam & Ors [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 |
| Applicant: | CJD15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 517 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 2 March 2017 |
| Date of Last Submission: | 2 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 21 April 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms A Ladhams |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 517 of 2015
| CJD15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 9 November 2015 the applicant filed an application (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) to review a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) made on 26 October 2015. The AAT Decision affirmed a decision of a delegate dated 6 March 2014 (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), affirming the Delegate’s Decision to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The AAT Decision is at Court Book (“CB”) 264-303.
Background to the Judicial Review Application
The background to the Judicial Review Application is that:
a)the applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival on 22 July 2012: CB 16;
b)on 16 January 2013, the applicant applied for a Protection Visa: CB 1, stating that his main reasons for seeking protection are “based on fear of harm at the hands of the Sri Lankan Army on account of [his] Tamil ethnicity, [his] perceived association with the LTTE [the Liberation Tigers of Tamil Eelam] and because [he has] now claimed asylum in Australia”: CB 30;
c)the applicant was invited to attend a Protection Visa interview which took place on 12 December 2013: CB 84;
d)on 6 March 2014, the Delegate’s Decision was to not grant the applicant a Protection Visa: CB 91 and 104;
e)on 26 March 2014, the applicant lodged an application for merits review with the then Refugee Review Tribunal (“RRT”): CB 129. A hearing was held before the RRT on 5 and 12 May 2015 at which the applicant was assisted by an interpreter and represented by a migration agent: CB 208 and 224. The applicant submitted a further statement and a lengthy submission prepared by his solicitor/migration agent prior to the RRT hearing: CB 160-207;
f)following the RRT hearing, on 12 May 2015, the RRT sent to the applicant's solicitor/migration agent an invitation to comment on country information that could be the reason or part of the reason why the RRT may find that the applicant does not face a real chance of persecution in Sri Lanka or a real risk of significant harm if removed to Sri Lanka: CB 230;
g)the applicant's solicitor/migration agent provided a further submission (with documents annexed) to the RRT on 26 May 2015: CB 239-251; and
h)on 26 October 2015, the AAT affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 264 and CB 285 at [108].
The applicant claimed that he would face serious harm from the Sri Lankan Army (“SLA”) and other government authorities because of his:
a)Tamil ethnicity;
b)perceived links to the LTTE, which were said to arise from:
i)his origins from Jaffna, Northern Province;
ii)his close friendship with two LTTE members;
iii)the time he spent in Qatar in 2004-2008 and 2008-2010;
iv)his illegal departure from Sri Lanka; and
v)his extended presence in Australia as an asylum seeker, and
c)membership of the following social groups:
i)young Tamil males from Northern Province; and
ii)Tamil returned failed asylum seekers.
(CB 30-35 and 160-161).
The applicant raised a further claim at the 12 May 2015 RRT hearing involving two bomb blasts which occurred in 1999. Specifically, he claimed that on two occasions he transported friends to carry out the attacks without knowing what exactly they were doing, and that because the perpetrators of the attack are dead or no longer resident in Sri Lanka that responsibility falls to him. This was said to be the basis for the Sri Lankan authorities’ ongoing interest in him: CB 240.
AAT Decision
In the AAT Decision, the AAT:
a)considered that the applicant was not a reliable witness, finding that he had exaggerated or fabricated aspects of his claims: CB 277 at [72]-[73];
b)was not satisfied that the applicant faced a real chance of serious harm on the basis of being a young Tamil male from the north of Sri Lanka. The AAT accepted that the applicant had been questioned by the Sri Lankan authorities in the past, and had been released. Taking into account country information and its finding that the applicant is not of ongoing interest to the Sri Lankan authorities, the AAT considered that the applicant would not be targeted for harm if he returns to Sri Lanka now or in the foreseeable future. The AAT accepted that the applicant may be subject to general monitoring as part of the authorities' ongoing vigilance to prevent a resurgence of civil war, but was not satisfied that this would amount to a real chance of serious harm: CB 278-279 at [79]-[80];
c)accepted that two of the applicant's friends had joined the LTTE and that the applicant had been questioned about his knowledge of their activities. The AAT noted however that country information suggests that the Sri Lankan authorities distinguish between those who were active members of LTTE and those who may have had some association with such people. The AAT rejected, as not credible, the applicant's claim that the Sri Lankan authorities thought he was involved in raising funds for the LTTE or was a supporter of the global LTTE network. The AAT also rejected the applicant's claim that he was involved in transporting LTTE members to lay mines. The AAT placed weight on the applicant having being released after he was questioned by the Sri Lankan authorities. The AAT did not accept that the applicant was a person of interest to the Sri Lankan authorities, finding that he would not have been able to obtain a passport if he was. The AAT was not satisfied that the applicant had a well−founded fear of serious harm due to suspected links with LTTE combatants and LTTE bombings: CB 279-283 at [81]-[95];
d)was not satisfied that the applicant had a well−founded fear of serious harm because of his claim for asylum in Australia. The AAT noted country information that the applicant is likely to be fined around Rs 50,000 for his departure from Sri Lanka in breach of Sri Lanka’s domestic migration laws, and may be detained for a few days but will be granted bail. Although prison conditions are below international standards, the AAT was satisfied that any detention of the applicant would be for a short period and would not amount to serious harm. The AAT noted that country information suggested the applicant would not face harm from the authorities for reasons of having claimed asylum or for having spent substantial time outside of Sri Lanka: CB 283-284 at [97]-[99];
e)also considered the applicant's claims cumulatively: CB 284 at [100], and considered the applicant’s claims against the complementary protection provisions: CB 284-285 at [101]-[104], and concluded that the applicant is not a person to whom Australia has protection obligations: CB 285 at [105]-[107]; and
f)therefore, affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 285 at [108].
Judicial Review Application
In the Judicial Review Application the applicant sets out the following as his grounds of review:
1.Jurisdictional error.
2.Bias based on conscious or unconscious prejudice by ignoring relevant material.
3.Identifying a wrong issue on a wrong question.
(Copied from the Judicial Review Application without amendment).
On 9 December 2015 a Registrar of the Court ordered that the applicant file and serve:
a)any amended application including any particulars of the grounds;
b)any further affidavits; and
c)an outline of submissions.
(“Registrar’s Orders”).
The applicant did not comply with the Registrar’s Orders and has not filed any material in support of the Judicial Review Application, save for his affidavit previously filed on 9 November 2015 which only annexed the AAT Decision.
Despite his non-compliance with the Registrar’s Orders the applicant was given the opportunity to make oral submissions in support of the Judicial Review Application at the hearing. Those submissions were as follows:
a)that “friends” that had been on the same boat had been successful in obtaining asylum in other countries, and the applicant did not understand why his application for asylum in Australia had therefore been unsuccessful: Transcript, pages 3 and 7;
b)that the AAT identified a wrong issue or wrong question in relation to its consideration that the applicant came to Australia to have a better economic life: Transcript, page 4;
c)that the AAT was biased because it took “7 to 8 months” to make the AAT Decision: Transcript, page 4;
d)that it was not possible to give evidence or documentary evidence to the RRT hearings of the allegations made by the applicant: Transcript, pages 7 and 9; and
e)that his personal life was in turmoil, including being in the process of divorcing his wife in Sri Lanka, and had affected his ability to conduct the proceedings before the AAT: Transcript, pages 3-5 and 7-10.
Consideration
Jurisdictional error required
The AAT Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: 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 AAT, will only constitute jurisdictional error if the AAT:
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 AAT’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.
Particularisation of grounds required
The Court notes that none of the grounds are particularised. This alone provides a basis for each of grounds 1, 2 and 3 of the Judicial Review Application to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited), and in the Court’s view the Judicial Review Application can be dismissed for this reason alone.
Ground 1
The applicant has not identified the nature of the jurisdictional error that he relies on in ground 1. To the extent that the applicant is asserting some other, unidentified, jurisdictional error, no jurisdictional error is evident in the AAT Decision.
The AAT Decision sets out the relevant law in detail: CB 276-277 and 301-303 at [65]-[71] and [130]-[144]. The AAT applied that law and considered the applicant’s Protection Visa claims in detail: CB 278-285 at [77]-[107]. There is nothing to suggest any breach of the AAT’s procedural fairness obligations: Migration Act, Pt.7 Div.4. The AAT numerous times, and in detail, put to the applicant issues that were likely to be adverse to the applicant’s Protection Visa claim, including country information likely to be relied upon by the AAT in making the AAT Decision: CB 265-274 at [19]-[60]. The AAT’s consideration of the applicant’s claims was comprehensive and it made findings and reached conclusions that were open to it on the evidence, including its adverse view of the applicant’s credibility. There is nothing illogical or irrational in the AAT’s reasoning, and there is an evident and intelligible justification for the conclusions in the AAT Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ (“Li”).
Ground 1 does not establish any jurisdictional error in the AAT Decision.
Ground 2
An allegation of bias is a serious matter which must be made distinctly 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 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”).
The allegation of bias made on the basis of delay in delivering the AAT Decision is not made out. The AAT Decision took five and a half months to deliver, not seven to eight months as alleged by the applicant. Notwithstanding that, the delay is not, of itself, sufficient to constitute bias. Without more, it is difficult to see how a delay in making an administrative decision might constitute bias, at least where the delay is not extraordinarily long, and the delay in the delivery of the AAT Decision in this case is not extraordinarily long. The applicant has not otherwise distinctly or clearly proven that the AAT was either consciously or unconsciously biased because it ignored relevant material. No ignored relevant material has been identified, let alone, how or why it caused the AAT to be biased in any way. There is no evidence:
a)that the AAT member had a pre-existing state of mind which disabled him from undertaking, or rendered him unwilling to undertake, any proper assessment of the applicant’s credibility: Jia Legeng at [35] and [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 AAT, might reasonably apprehend that the AAT member may not have brought an impartial mind to the assessment of the applicant’s credibility: 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.
The very careful and detailed manner in which the AAT has properly dealt with the applicant’s claims weighs against any suggestion of bias in the AAT Decision (and may, to some extent, account for the delay).
Ground 2 does not establish any jurisdictional error in the AAT Decision.
Ground 3
The issue for the AAT to determine was whether to grant the applicant a Protection Visa. The AAT correctly set out the relevant law and Protection Visa criteria: CB 276-277 and 301-303 at [65]-[71] and [130]-[144].
The AAT assessed each of the claims made by the applicant, and did so comprehensively: CB 276-285 at [64]-[107], including those claims:
a)raised in the applicant’s original statutory declaration provided with his Protection Visa application;
b)in the applicant’s further statement and pre-hearing and post-hearing submissions to the then RRT; and
c)made orally at the then RRT hearing.
There is nothing in the AAT Decision to indicate that the AAT identified any wrong issue, or asked any wrong question; or, as it is put in ground 3, “a wrong issue on a wrong question”. At hearing the applicant submitted that the AAT had identified a wrong issue or wrong question by focusing upon the applicant allegedly having left Sri Lanka for economic reasons. There was, however, no substantive, or even arguably incidental, consideration given by the AAT to economic issues. That is because the applicant did not make any claims based upon his economic circumstances. Further, apart from an issue in relation to the transfer of land to his brother when the applicant returned to Sri Lanka after several years in Qatar, and the consideration of that issue in the context of the applicant’s return to Sri Lanka in circumstances where he alleged he feared persecution, and an observation by the applicant that he was not in Australia to work or to earn money but that he works to help pass the time: CB 271 at [46], CB 272 at [49], CB 273 at [57], CB 274 at [60] and CB 282 at [92], no “economic” issues appear to have been raised before the AAT. The issues that were raised, as described above, were raised in the context of the applicant’s possible return to Sri Lanka, and his allegation of a fear of persecution or significant harm upon return, but were not raised in the context of any fear of any kind of economic harm to the applicant were he to return to Sri Lanka. The issues raised by the applicant at hearing do not identify any wrong issue, or wrong question which was asked, by the AAT, or considered by the AAT in the AAT Decision.
Ground 3 does not establish any jurisdictional error in the AAT Decision.
Further ground of review – comparison with friends’ asylum treatment
The AAT specifically considered the applicant’s assertions concerning the grant of asylum in other countries to the applicant’s “friends”: CB 283 at [94]. In one case, the AAT noted that the mere assertion that one of the friends had been granted protection in Germany (an assertion made on the basis of information said to have been obtained through Facebook) did not advance the applicant’s claim as the applicant had “not provided details of the basis on which his friend was granted protection”: CB 283 at [94]. In the other case, the applicant’s position was distinguished from that of the other friend, because in the papers produced by the applicant to the then RRT reference was expressly made to a warrant which existed in relation to that friend’s activities with the LTTE, and which appeared in papers interpreted for a foreign court considering that friend’s asylum claim: CB 283 at [94]. The AAT distinguished the applicant’s position because there was no such warrant for the applicant’s arrest for any activities with the LTTE, and because the AAT had already concluded that the applicant was not the subject of any adverse interest by the Sri Lankan authorities: CB 283 at [94]. In those circumstances, it is the Court’s view that there is nothing to indicate jurisdictional error in the rationale or logic utilised by the AAT in arriving at its conclusion with respect to the asylum allegedly granted to the applicant’s friends overseas, and the applicant’s position as an asylum seeker in Australia: Li at [76] per Hayne, Kiefel and Bell JJ. Ultimately, the AAT did as it was statutorily obliged to do: it made its own determination on the basis of the facts of the applicant’s case as they were before the AAT. In those circumstances, no jurisdictional error can be discerned by the Court in the AAT Decision insofar as it relates to the treatment overseas of the applicant’s friends’ asylum claims vis-à-vis the applicant.
Further ground of review – personal circumstances
The applicant made an impassioned plea at hearing concerning the circumstances of his divorce from his wife, his absence from Sri Lanka for most of the past 15 years (much of the earlier period spent working in Qatar), and his general family circumstances. These matters were, in a general sense, before the AAT, and the AAT observed that the applicant did not seek a spousal or family visa, and that his wife and family did not want to come to Australia: CB 272 at [49] and CB 274 at [60]. There was no specific or discernible claim made to the Tribunal that the applicant feared any harm by reason of his personal circumstances. These matters were simply part of the general background factual matrix which was before by the AAT in arriving at its determination that the applicant was not entitled to a Protection Visa because he had neither a well-founded fear of persecution nor a fear of significant harm if he was returned to Sri Lanka in the near or foreseeable future. Nothing in the AAT Decision, which so far as was relevant had regard to the applicant’s personal circumstances, establishes jurisdictional error in the AAT Decision.
Further ground of review – inability to give or obtain evidence and documents
The applicant says that he was unable to obtain the necessary evidence (be it oral, affidavit or documentary evidence) to support his case, and that the AAT should have drawn certain inferences, in particular from the fact that the applicant had remained out of Sri Lanka for the better part of the 15 years prior to the AAT Decision, as to the harm that he faced if he returned to Sri Lanka.
The AAT Decision is detailed, long and carefully examines all of the applicant’s claims and the evidence put forward by the applicant, including, for example, the following:
a)whether there were attempts to kill the applicant by the Sri Lankan authorities in 2000: CB 277 at [74];
b)allegations concerning his being involved with LTTE members, and in particular in transporting LTTE members who were laying mines: CB 277 at [74]; CB 279-280 at [83]; CB 281 at [87] and CB 283 at [94];
c)the circumstances in which his friends had made their asylum claims overseas, and a comparison with the circumstances of the applicant making his claim in Australia: CB 279 at [81];
d)the applicant’s absence from Sri Lanka for much of the 15 years prior to the AAT Decision, and in particular his absence whilst working in Qatar, and his return to Sri Lanka in 2010 to deal with a property dispute with his brother: CB 277 at [74];
e)the applicant being questioned on a range of matters by the Sri Lankan authorities, including why he went to Qatar, and his subsequent release, which the AAT considered to be indicative of the fact that the applicant was not a person of adverse interest to the Sri Lankan authorities: CB 278 at [80];
f)the applicant’s claim based on his time in Qatar that he was suspected of fund raising for the LTTE, which the AAT found not to be the case, because it was not a claim raised prior to the AAT hearing, and because the applicant was not seized and detained by the Sri Lankan authorities when he returned to Sri Lanka from Qatar: CB 279 at [82]; and
g)the fact that the applicant had been granted a passport after his alleged involvement in student protests in 1998 to 2000, and his subsequent renewal of that passport which enabled him to leave Sri Lanka to take up work in Qatar, being indicative of the fact that he was not the subject of adverse interest by the Sri Lankan authorities, and the AAT’s rejection of his claim to have paid bribes in order to secure that passport, with the AAT noting that Sri Lanka had sophisticated monitoring systems and watch lists at its airports which would have prevented the applicant’s multiple departures for Qatar from Sri Lanka if he was of interest to the Sri Lankan authorities: CB 277 at [74]; CB 282 at [89] and [91].
The Court notes that the applicant submitted a very lengthy 48 page pre-AAT hearing submission prepared by his solicitor/migration agent, which included a shorter statutory declaration or statement from the applicant: CB 160-207, and as will be evident from what is set out above: at [5], [13], [20]-[24] and [26] above, the AAT had regard to all of the applicant’s claims (which were extensive) in making the AAT Decision.
The applicant’s case concerning an alleged inability to give evidence or obtain documents is not assisted by the fact that he did submit various documents from diverse sources to the AAT including:
a)complaints or inquiries by the Human Rights Commission of Sri Lanka based in Jaffna to the Sri Lanka Army in 2007 in relation to the alleged disappearance of a person other than the applicant: CB 72 and 77;
b)a letter from a Justice of the Peace in Jaffna dated 19 November 2012 referring to unidentified armed persons threatening the applicant when he went to Colombo and stayed there from 2000 to 2004, and indicating that if he returned to Jaffna “his life is not secured”: CB 76; and
c)documents obtained after the 12 May 2015 RRT hearing, but submitted within a fortnight of it, from one of the applicant’s friends in France, being that friend’s French Residence Card, and a decision of the French National Asylum Court in relation to that friend’s asylum claim: CB 274 at [61] and CB 239-240, and the subsequent forwarding of a translation of the order of the French National Asylum Court in relation to the friends asylum application: CB 253-255.
The applicant cannot therefore say that he did not have the opportunity to submit documents, nor that documents were not submitted, to the AAT. The Court notes that from the time of making his Protection Visa application to the time of the AAT Decision the applicant was represented by a solicitor/registered migration agent who, as set out above, made lengthy submissions both pre and post the AAT hearing on behalf of the applicant. The Court further notes that there is no evidence before the Court, nor seemingly before the AAT, of any difficulty in obtaining evidence or documents from Sri Lanka, or, perhaps more pertinently, of any efforts by the applicant or his solicitor/migration agent to obtain evidence or documents which were not obtained, or even what that evidence or documents might have been. The Registrar’s Orders provided an opportunity to provide such evidence on affidavit, but that opportunity was not taken up by the applicant, either within the relevant time, or otherwise. In any event, there is nothing to indicate jurisdictional error on the part of the AAT in relation to the applicant’s inability to give evidence or obtain documents: as indicated above, the applicant was invited to a hearing (which took place over two days), and made both pre and post-AAT submissions.
At hearing before this Court the applicant submitted that he could not have submitted further evidence to the AAT regarding his treatment by the SLA and other government authorities because if they had tortured him then they would not provide evidence of having done so, and that the AAT therefore needed to accept that the events claimed occurred. It is not, or would not be, controversial or unusual that a person alleging torture would not have evidence from their torturers, particularly so, where the allegation of torture is against government entities. The submissions, however, fail to deal with two fundamental aspects of the AAT’s exercise of jurisdiction:
a)no jurisdictional error arises because an applicant presents their case in a certain way – because it was for the applicant to advance whatever evidence in support of his claims to the AAT, and for the AAT to determine the application on that evidence: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 at [187] per Gummow and Hayne JJ; and
b)that the AAT is not required to uncritically accept the applicant’s claims: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ.
Further, the applicant’s contention that he could not produce evidence regarding his torture from the government does not mean he could not produce evidence of his torture from other sources. As stated at [28] above, the applicant did in fact submit various documents in support of his claims. The applicant may well not have been able to get evidence of torture from the authorities, however, he could have provided evidence of torture from other sources (such as family and his friends who obtained asylum elsewhere), but did not do so. To the extent that the applicant put evidence before the AAT the AAT comprehensively considered it: see [20]-[24] and [26]-[27] above, and therefore any disagreement with the AAT’s conclusions are outside the purview of this Court as they seek impermissible merits review: see [36] below.
Australia’s federal courts have long recognised the difficulties inherent in fact-finding by administrative decision-makers in cases where people seek protection in Australia as refugees: see Minister for Immigration & Multicultural Affairs v Rajalingam & Ors [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 and the detailed analysis at [31]-[67] per Sackville J (with whom North J agreed at [129]), in the course of which at [61] per Sackville J it was said that “the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information”.
In SZNOX v Minister for Immigration & Citizenship [2009] FCA 1233 at [18]-[19] per Barker J the Federal Court observed as follows:
It is generally understood that the primary decision-maker in considering an application such as that made by the appellant, and the Tribunal on an administrative review application, is not obliged to consider whether the applicant has discharged some onus of proof: Yao-Jing Li v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275. Rather it is for the applicant to provide evidence and argument sufficient to enable the decision-maker to establish the relevant facts: Minister for Immigration and Multicultural Affairs v Lat [2006] FCAFC 61. The decision-maker is not required to make out the applicant's case for him or her: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. There is then no obligation, or onus that governs the Tribunal's decision-making such that it may only make findings where it has no doubt, or that it must give the applicant “the benefit of the doubt” when making findings. In some situations, however, as in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, an applicant may be entitled to the benefit of the doubt, for example, where they are generally credible but unable to substantiate all of their claims. The question of “doubt” may also be considered relevant in some other decision-making contexts, as discussed in Minister for Immigration and Indigenous Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
In Rajalingam, at [67], Sackville J explained, by reference to such cases as Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, the circumstances in which the Tribunal might need to take account of doubt, in the following terms:
[67] In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT's reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
In this case the AAT did not entertain any real doubt as to its conclusions on material questions of fact. A fair reading of the AAT Decision indicates that the findings made, and especially those as to credibility, were open to the AAT.
The AAT considered the ultimate question of satisfaction: namely, whether it was satisfied that the applicant had a well-founded fear of persecution for a Convention reason or significant harm for complementary protection purposes. The AAT considered the ultimate question in proper form, having regard to:
a)the prescribed criteria; and
b)relevant sections (including section 36(2))of the Migration Act: CB 276 at [63]-[64]; CB 285 at [105]-[107]; CB 301-303 at [130]-[144].
The AAT considered the applicant’s claims based on all of the information available, and in particular the written and oral testimony, and written submissions, of the applicant. The AAT’s failure to be satisfied that the facts required to be established to satisfy the criteria for the grant of the Protection Visa had been established was based on:
a)factual findings from information provided by the applicant, and country information referred to by the AAT; and
b)a belief that the applicant had not been truthful in a number of his claims,
the latter being a factual finding as to credibility. The AAT was therefore entitled to reject the applicant’s claims. The Court further notes that the AAT did not need to have rebutting evidence available to it before it could lawfully find that a particular factual assertion made by the applicant was not made: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J, provided that disproportionate weight has not been given to a factor illogically or irrationally reasoned: Li at [72] and [76] per Hayne, Kiefel and Bell JJ, which was not the case here. It is not the task of this Court to review the merits of the AAT Decision: 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 274-275 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Multicultural Affairs v Eshetu & Anor [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [128], [130] and [131] per Gummow J; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 at [15] per Ryan, Jacobson and Lander JJ; SZGZQ v Minister for Immigration & Multicultural Affairs [2007] FCA 62 at [13]-[14] per Greenwood J.
For the above reasons the Court considers that there was no jurisdictional error in the AAT Decision in relation to the applicant’s inability to give evidence or provide documents at the RRT hearings, or subsequently.
Conclusion and orders
The Court has concluded that the applicant has failed to establish any jurisdictional error in the AAT Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 21 April 2017
0