CJO15 v Minister for Immigration
[2018] FCCA 446
•2 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJO15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 446 |
| Catchwords: PRACTICE AND PROCEDURE – Application for leave to rely on grounds contained in amended application filed without leave and on additional grounds contained in written submissions – whether permitting the applicant to rely on proposed grounds would be futile – leave to rely on proposed grounds refused. |
| Legislation: Migration Act 1958 (Cth), ss.422B(3), 424A Administrative Appeals Tribunals Act 1975 (Cth), ss.19D, 414 |
| Cases cited: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 |
| Applicant: | CJO15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3066 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 7 March 2017 |
| Date of Last Submission: | 7 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 March 2018 |
REPRESENTATION
| Solicitor for the Applicant: | Mr S Tambimuttu of Stephen Hodges Solicitors |
| Solicitor for the First Respondent: | Mr T Galvin of MinterEllison |
ORDERS
The applicant is not granted leave to:
(a)rely on grounds 2 and 3 of the amended application filed on 20 February 2017; and
(b)amend the application by adding the grounds identified as grounds 4 and 5 in the applicant’s written submissions filed on 24 February 2017.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3066 of 2015
| CJO15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Sri Lanka, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Claims for Protection
In his irregular maritime entry interview[1] the applicant claimed his older brother, N, was a newspaper reporter. In 2008 the CID (Criminal Investigation Department) caught N on his way home, took him to the applicant’s home and, after the CID provided a letter permitting the applicant to visit N, the CID took him to a police station. N was released after the applicant’s family obtained the assistance of a politician. “After a while” the CID started to give N problems, and N left for Qatar. The applicant claimed the CID was interested in N because he was a newspaper reporter. The applicant further claimed the CID again came looking for him in 2011. The applicant left Sri Lanka because he was afraid.
[1] CB11
In a statutory declaration that formed part of his application for a Protection visa,[2] the applicant claimed he left Sri Lanka because of N’s involvement with a Tamil newspaper. The applicant claimed his brother, N, joined a Tamil newspaper in the capacity of a part time news reporter while holding a full time position at a government institution. Sri Lankan authorities perceived the newspaper to be a tool used by the Liberation Tigers of Tamil Eelam (LTTE). The applicant said that during the “period 2005/2016” N “may not have been specifically targeted by Sri Lankan authorities”, but he said he was aware that the office of the newspaper for which N worked was attacked at least once by those who perceived the newspaper as expressing views against the Sri Lankan government.[3]
[2] CB95-100
[3] CB96, [8], [9]
The applicant also claimed that in 2011, when N was not at home, a van arrived; and two men wearing civilian clothes came to his house and asked if N was home. The applicant’s parents told the men N had gone to a nearby town and would be returning shortly. The men returned to the van which they moved away from the house “close to the entrance of the street”. Approximately 45 minutes later the van returned to the applicant’s house containing N and N’s friend. The men attempted to abduct N and N’s friend but neighbours and the applicant’s parents prevented them from doing so. After the men produced a letter showing the men were from the CID, N was taken away. N was released after the applicant’s parents approached a politician. While he was held, N was interrogated and physically assaulted. The CID later said they wanted to see N again, and they came to the applicant’s house twice in search of N. N left Sri Lanka for Qatar because his life was in danger.
Finally, the applicant claimed that approximately one to one and a half months after the CID’s initial attempt to abduct N, the applicant and his parents received a letter from the CID. One week later the CID again came to search for N. When they were informed N had left Sri Lanka, the CID insisted that N report at their office and threatened that the applicant’s family would face serious consequences if N did not report to the CID. The applicant then fled Sri Lanka.
The applicant claimed he feared harm if he were to return to Sri Lanka because of N’s occupation and involvement with the Tamil newspaper which was and continues to be perceived to express views against the government; and because Tamils who have claimed asylum in a western country will be perceived to have links with the LTTE.
Claims before Tribunal
The applicant gave evidence and presented arguments to the Tribunal on 12 March 2015. The member constituting the Tribunal became unavailable and a different member of the Tribunal was assigned to review the application. That occurred pursuant to the exercise of the power conferred on the President of the Tribunal by s.19D(2) of the Administrative Appeals Tribunals Act 1975 (Cth) (AAT Act). At the hearing on 12 March 2015 the applicant claimed that his oldest brother, S, had been a senior LTTE officer. The applicant said he did not previously mention this claim because when he first came to Australia everyone told him not to disclose anything about the LTTE because it would be a problem for him.[4] The applicant said S joined the LTTE in 1989 or 1990 and that people from the applicant’s village would know that S was the applicant’s brother.[5] He also said that S was arrested for the assassination of a general of the Sri Lankan army (General) and sentenced in 2014 to 20 years imprisonment.[6] He said that his brother’s name in the LTTE was T, and it was by that name that the authorities searched for S.[7]
[4] CB465, [6]
[5] CB465, [7]
[6] CB467, [14]
[7] CB467, [14]
The applicant supported his claim in relation to his brother S by submitting photographs of S’s wedding and of the first birthday celebrations of S’s son. Those photographs included a moustached man whom the applicant claimed was a senior LTTE official (Photographs).[8] The applicant also submitted a document typed in English which purported to be a detention order in relation to S (Purported Detention Order).[9]
[8] CB355, 358, 359
[9] CB362
The applicant also said that many of the details in this statutory declaration are incorrect.[10] He said the CID arrested N in 2008, not in 2011.
[10] CB466, [11]
Tribunal’s reasons
The Tribunal did not accept as true the applicant’s claim that his brother N was arrested in 2008 as a result of his work as a part time reporter to any newspaper, or that N was accused of having links with the LTTE, or that N was told to report to the CID.[11] Among the matters on which the Tribunal relied was country information the Tribunal was satisfied showed that the newspaper for which the applicant claimed N worked was, at the time of N’s claimed arrest, under the control of the Karuna faction, which was a pro-government group.[12] Further, the Tribunal accepted N went to Qatar to work, but it did not accept N was of any interest to the Sri Lankan authorities at the time N left Sri Lanka or at any other time. The Tribunal, therefore, did not accept that the applicant was of any interest to the Sri Lankan authorities because of his relationship with N, or that there is a real chance that if he returns to Sri Lanka the applicant will be persecuted now or in the foreseeable future because he is a member “of a particular social group on the basis of being connected to a person or having a family connection with a person suspected of having LTTE involvement due to the media link as his representative submitted to the Department”.[13]
[11] CB481, [64]
[12] CB480, [63]
[13] CB481, [64]
Although the Tribunal accepted the applicant has an older brother, S, it did not accept that S is a former Lieutenant Colonel in the intelligence wing of the LTTE who is currently serving a sentence of 20 years imprisonment for the murder of the General. The Tribunal found that all media reports of the person who is in prison for having assassinated the General referred to him by a name that is different from the applicant’s family name. The Tribunal did not accept as genuine the Purported Detention Order. The document, as described by the Tribunal, was “a detention order in English in which it appears that [the applicant’s] brother’s name has been added since it is in larger type than the rest of the document”.[14] The Tribunal also did not accept the applicant’s claims that the moustached person who appears in the Photographs is a senior LTTE cadre.[15] The Tribunal did not accept the applicant was telling the truth in relation to S. The Tribunal also did not accept S had joined the LTTE, or that he was a Lieutenant Colonel in the LTTE, or that he is the person who has been serving 20 years imprisonment for the murder of the General. For those reasons, the Tribunal did not accept the applicant faced any real chance of being persecuted because of his association with his brother S.[16]
[14] CB481. The document is at CB362
[15] CB482, [67]
[16] CB483, [69]
The Tribunal also did not accept the applicant had a well-founded fear of persecution because of his Tamil ethnicity, or because he would be returning to Sri Lanka as a failed asylum seeker.
Course of judicial review proceedings
The application, as initially filed, contained three grounds of application. On 20 February 2017 the applicant filed an amended application. This was outside the time for filing an amended application that was provided for by the orders I made on 20 January 2016. The amended application adds substantial particulars to ground 1 and replaces the second and third grounds with different grounds. Further, the written submissions the applicant filed through his lawyer, include two additional grounds together with additional particulars to the amended application.
The Minister opposes the applicant relying on the amendment grounds purportedly made by the amended application filed on 20 February 2017, and on the additional grounds raised in the applicant’s written submissions. It was agreed that I would hear submissions on the merits of all grounds but that, when I consider the matter, I would first consider whether leave should be granted to the applicant to rely on the proposed amended grounds. Before I consider those grounds, it would be appropriate if I first briefly identify the principles I will apply when determining whether to grant the applicant leave.
Principles
Under r.7.01(1) of the Federal Circuit Court Rules 2001 (Cth) the Court may “allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court . . . thinks fit”. The principles that should guide the exercise of that discretion may be taken to be those identified by Stone J in Medich v Bentley-Smythe Pty Ltd:[17]
[L]eave to amend should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for. These considerations require the Court to take account of the nature of the proposed amendment, whether it is made in good faith, the stage in the proceedings at which leave is sought, the nature of the prejudice that may be caused and the means by which such prejudice might be redressed. The question of delay is relevant to these considerations however it is not the purpose of the Court to punish a party for delay in seeking an amendment.
[17] [2010] FCA 494 at [8]
Ground 1
The first ground of application, being a ground that is contained in the application as it was originally filed, is as follows:
The AAT committed jurisdictional error by failing to apply the real chance test, and did not consider the possibility that its findings might be wrong.
The ground itself contains the following passage from the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam:[18]
When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution.
[18] [1999] FCA 719 at [62]
Ground 1, at least in part, is directed to the Tribunal’s findings in relation to the applicant’s claim that the moustached person in the Photographs was an LTTE cadre. In particular, the ground is directed to the following emphasised passage from the Tribunal’s reasons:[19]
[The applicant’s] representative submitted that in his opinion the person in the photographs closely resembled images of [the LTTE cadre] which were available online and that a reasonable decision-maker would draw the conclusion that the person in the photographs closely resembled images of [the LTTE cadre]. As I put to him, I am unable to see closely the resemblance. I accept the person in the photographs has a moustache as did [the LTTE cadre] according to the images of him which appear online but this appears to me to be too slim a basis on which to base a positive identification.
[19] CB482, [67]
The particulars to ground 1 claim that a “positive identification” by the Tribunal of the LTTE cadre was not needed because the Tribunal would not have been able to make such identification in any event because the Photographs were taken in 2003, and the Tribunal did not indicate the publication date of the photographs of the LTTE cadre it viewed as a basis for comparing the photographs on which the applicant relied; and also because it is unlikely the images of the LTTE cadre the Tribunal would have viewed on line would have been in civilian clothing.[20]
[20] Paragraph (iii) of particulars
In addition to these matters, the particulars claim:
a)The Tribunal made no point of the applicant’s having only raised the claim in relation to S before the Tribunal.[21]
b)The Tribunal had sufficient information regarding S.[22]
c)The Tribunal failed to make a finding about S’s involvement in the LTTE.[23]
d)The Tribunal failed to consider the real chance that S was a senior LTTE, or that an infamous LTTE leader attended family functions, or that S is currently detained on charges of killing a senior army official, or that the applicant’s father was missing for many years and presumed killed.[24]
e)But for these errors, the Tribunal should have found the applicant had a profile that would have allowed him to be afforded protection as a refugee.[25]
f)The Tribunal failed to understand written submissions made by the applicant’s representative, particularly the submission that the applicant faces a real chance of persecution due to “the higher number of military presence”.[26]
g)It was not reasonably open to the Tribunal to find that a different name was inserted on the document that purported to show the detention of S.[27]
h)The Tribunal failed to consider the applicant may not have wanted to disclose S’s LTTE connections before 12 March 2015 as a court proceeding in Sri Lanka was going on in connection with S.[28]
[21] Paragraph (iv) of the particulars
[22] Paragraph (v) of particulars
[23] Paragraph (vi) of particulars
[24] Paragraph (vii) of particulars
[25] Paragraph (viii) of particulars
[26] Paragraph (ix) of particulars
[27] Paragraph (x) of particulars
[28] Paragraph (xi) of particulars
Ground 1, when considered with the first eight of the particulars, claims that the Tribunal failed to factor into its assessment of the risk of harm the applicant might face in the foreseeable future the probability that the events the applicant claimed occurred in the past did in fact occur. The other particulars, however, appear to state independent grounds.
In his written submissions the Minister submits that the Tribunal understood the correct test and that the Tribunal’s findings and reasons are entirely consistent with the Tribunal having correctly understood that test.[29] The Minister also submits that none of the particulars on which the applicant relies can be made out or manifest any jurisdictional error by the Tribunal.
[29] First Respondent’s Written Outline of Submissions, [24]
I first deal with ground 1 to the extent it relies on Minister for Immigration & Multicultural Affairs v Rajalingam.[30] The ground proceeds on the assumption that Rajalingam requires a Tribunal to factor into its assessment of the risk of future harm the probability of an applicant’s claims of the happening of past event’s being incorrect. That assumption, however, is incorrect.
[30] [1999] FCA 719
Where the Tribunal has determined it is not satisfied that claimed past events occurred or did not occur, it is open to the Tribunal to assess the probability of future harm on the basis or in part on the basis of its not being satisfied the events occurred or did not occur.[31] That implies that it is open to the Tribunal to consider evidence that is relevant to whether a claimed past event occurred or did not occur for the purpose of determining whether it is satisfied the past event occurred or did not occur; and if the Tribunal is not satisfied the event occurred or did not occur, the Tribunal need not have regard to that evidence for the purpose of assessing the probability of the applicant’s having a well-founded fear of being persecuted. Where, on the other hand, the Tribunal is uncertain on the basis of the evidence that is before it about whether claimed past events occurred or did not occur, it may be appropriate for the Tribunal to incorporate into its assessment of the probability of future harm its assessment of the probability of the claimed past event’s having occurred or not having occurred. The circumstances in which the Tribunal may be required to do so were considered by Sackville J in Rajalingam.[32]
[31] I repeat here what I said in BFK15 v Minister for Immigration & Anor [2017] FCCA 1933 at [33]-[35]
[32] Minister for Immigration & Multicultural Affairs v Rajalingham [1999] FCA 719
In Rajalingam Sackville J (with whose reasons North J agreed) stated the following principles:[33]
[33] This part of my reasons substantially reproduces what I said in SZTFI & Anor v Minister for Immigration & Anor [2014] FCCA 740 at [25] and [26]
a)There are circumstances in which the Tribunal “must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur”. The Tribunal “must not foreclose reasonable speculation about the chances of the hypothetical future event occurring”.[34]
b)The Tribunal “performs its fact-finding task as an administrative decision-maker”, which means it cannot simply apply the civil standard of proof to all fact-finding; that is particularly so because the Tribunal “must frequently make its assessment on the basis of fragmented, incomplete and confused information” and “that it has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator”.[35]
c)Given (b), “it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence”. When, however, the Tribunal:[36]
is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important in the applicant’s case . . . the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
d)The question whether in any given case the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to its own reasons:[37]
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) that 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. . . . . 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.
[34] [1999] FCA 719 [60]
[35] [1999] FCA 719 [61]
[36] [1999] FCA 719 [62] (emphasis added)
[37][1999] FCA 719 [62]
It will be seen, therefore, that, under these principles, the Tribunal may be required to incorporate into its assessment of future risk of harm its assessment of the probability of past events having occurred or not occurred only if the Tribunal is uncertain about whether the claimed past events occurred or did not occur. The Tribunal, however:[38]
is not required to determine the veracity of past events as a mere possibility. Rather, the Tribunal is required to assess the material before it and to reach a conclusion on the occurrence of those events to see if they provide a basis, a foundation, for a fear of persecution. Where the Tribunal expresses no doubt as to its findings of fact, where the Tribunal simply does not accept that certain events took place, the Tribunal is not obliged to consider the chance of the fact being true or the event having occurred . . .
[38] SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [53]
The question, therefore, is whether the Tribunal was uncertain about any of the matters referred to in the first eight particulars to ground 1. In my opinion that question is to be answered in the negative. The Tribunal did not manifest any uncertainty about whether the moustached person in the Photographs whom the applicant claimed was the LTTE cadre was in fact the LTTE cadre. The Tribunal was unable to entertain the possibility that, on the basis of the applicant’s say-so, and the applicant’s representative’s opinion, that the moustached person in the Photographs was the same person as was depicted on the online images of the LTTE which the Tribunal observed. Nor is there any suggestion the Tribunal was uncertain about the other matters referred to in the particulars. In particular, the Tribunal made unequivocal findings that it did not accept S “has ever been in the LTTE” or that “he has ever been arrested or gaoled in Sri Lanka”.[39]
[39] CB482, [69]
The tenth particular (being the ninth particular in the applicant’s written submissions) claims the Tribunal failed to understand the applicant’s representative’s submission that the applicant faces a real chance of persecution due to “the higher number of military presence”. As noted by the Minister, this particular refers to the submission the Tribunal identified in paragraph 24 of its reasons.[40] The Tribunal noted the applicant did not expand on the submission or explain why the military presence meant the applicant faced a real chance of being persecuted. The applicant has not identified the respects in which he claims the Tribunal failed to understand this claim. The Tribunal plainly understood the claim, but found that, without further elaboration, it went nowhere.
[40] First Respondent’s Written Outline of Submissions, [31]
The eleventh particular (being the tenth particular in the applicant’s written submissions) is not arguable. It was reasonably open to the Tribunal to find that S’s name was inserted on the Purported Detention Order to show that S was detained.
The eleventh particular in the applicant’s written submissions (which does not appear in the amended application) is also not arguable. It is premised on facts which the Tribunal, for reasons that were reasonably open to it, was not satisfied existed.
For these reasons ground 1 fails.
Proposed ground 2
Ground 2, as stated in the amended application filed on 20 February 2017, is as follows:
The AAT’s findings at [CB487 Paragraph 83] is consistent with legal errors alleged by the applicants in SZTAL. This matter was heard by the High Court as special leave has been granted by the HCA for the appeal to proceed. The outcome of the matter to be heard by the HCA could affect the applicant’s case.
The particulars to this proposed ground refer to the Tribunal’s findings that it did not accept “that the pain and suffering caused by overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment of punishment’ in subsection 5(1) of the Migration Act”, and that the Tribunal did not accept that “overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of degrading treatment or punishment’.
This ground relies on the High Court setting aside the orders of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection.[41] The appeal in that case, however, was dismissed.[42] For that reason, it would be futile to permit the applicant to rely on proposed ground 2. I therefore propose to order that the applicant not have leave to rely on proposed ground 2 of the amended application.
[41] [2016] FCAFC 69
[42] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Proposed ground 3
Ground 3, as stated in the amended application filed on 20 February 2017, is as follows:
The AAT failed to provide the applicant a copy of DFAT Country Report – Sri Lanka 16 February 2015 that the AAT has relied upon to make adverse findings [CB477, 51-56]
PARTICULARS
(i)DFAT Country Reports are not accessible to the general public.
(ii)The AAT committed jurisdictional error as a copy of DFAT Country Report – Sri Lanka 16 February 2015 that the AAT has relied upon to make adverse findings was not provided to the applicant.
The applicant made no submissions in his written submissions in relation to proposed ground 3 other than to repeat the ground itself. At the hearing before me Mr Tambimuttu submitted that “the whole division of 424A should be fair and just, the way it conducts itself, and that’s based on section 422B(3) of the act”.[43] Thus, it appears that Mr Tambimuttu accepts that s.424A of the Migration Act 1958 (Cth) (Act) applied to country information on which the Tribunal relied. Mr Tambimuttu, however, submits that the Tribunal’s exercise of that power is governed by s.422B(3) of the Act which provides that, in applying Division 4 of Part 7 of the Act, the Tribunal “must act in a way that is fair and just”. Mr Tambimuttu further submitted it was “questionable” whether the exclusion provided for by s.424A(3) of the Act applied,[44] although Mr Tambimuttu did not explain why the application of s.424A(3) to the country information on which the Tribunal relied was questionable.
[43] T15.15
[44] T15.20
Proposed ground 3 is not arguable for the reasons submitted by the Minister. First, the country information on which the Tribunal relied is information “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” within the meaning of s.424A of the Act.[45] Thus, s.424A of the Act did not apply to the country information. Second, the Tribunal is not obliged to provide country information to an applicant for comment before it may rely on such information.[46] Third, the Tribunal in any event put to the applicant for his comments the substance of the country information on which the Tribunal did rely.[47]
[45] First Respondent’s Written Outline of Submissions, [36] referring to SZMCD v Minister for Immigration and Citizenship [2010] FCAFC 46 at [82]-[83]
[46] First Respondent’s Written Outline of Submissions, [36] referring to VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAP 82 at [27]-[28]
[47] CB477, [51], [52]
For these reasons, it would be futile to permit the applicant to rely on proposed ground 3. I propose to order, therefore, that the applicant not be given leave to rely on ground 3 of the proposed amended application.
Proposed ground 4
Proposed ground 4, as set out in the applicant’s written submissions, is as follows (emphasis in original):
The AAT failed to refer to in [sic] the decision record and or consider any findings that the differently constituted tribunal is likely to have made. The differently constituted tribunal conducted the hearing on 12 March 2015, and thereafter for a period of 5 months the applicant’s case remained assigned and under review of the differently constituted tribunal.
PARTICULARS
(i)The Member directed to finish the review [CB375], stated at [CB492, 69] that the reason the hearing in March 2015 (conducted by the differently constituted tribunal) was adjourned was to provide the applicant an opportunity “to demonstrate that the man who had been convicted in relation to the assassination of [the General] was in fact [the applicant’s] older brother …”
(ii)On the basis of the above it is submitted that it is unlikely that . . . the tribunal differently constituted made no findings of fact when it adjourned for a very specific reason. It is also unlikely that the tribunal differently constituted made no findings of fact during the 5 month period the applicant’s case remained assigned and under review of the differently constituted tribunal.
In his oral submissions Mr Tambimuttu submitted that s.19D of the AAT Act, being the provision pursuant to which the matter was assigned to a differently constituted Tribunal, required the newly constituted Tribunal to “continue” the proceeding; that this prevented the newly constituted Tribunal from considering the matter de novo, and that the Tribunal as previously constituted may have made some finding of fact which the newly constituted Tribunal would have been bound to adopt.
This ground is not reasonably arguable. First, there is nothing to suggest the Tribunal, as originally constituted, made any findings. Second, it is difficult to see how the previously constituted Tribunal could have made any finding until it made a decision. Given the previously constituted Tribunal did not make any decision, the inference that should be drawn, and which I do draw, is that the previously constituted Tribunal made no finding. Third, what s.19D(4) of the AAT Act requires to be continued is the proceeding. That requires the Tribunal member, as reconstituted, to discharge the functions under Division 4 of Part 7 of the Act. That includes the duty cast by s.414 of the Act to “review the decision”. That duty cannot be diminished by a direction that may be made under s.19D of the AAT Act.
For these reasons, it would be futile to permit the applicant to rely on proposed ground 4 as set out in the applicant’s written submissions. I propose to order, therefore that the applicant not be given leave to rely on the proposed ground 4 as set out in the applicant’s written submissions.
Proposed ground 5
Proposed ground 5, as set out in the applicant’s written submissions, is as follows:
The AAT deviated from a positive finding made by the delegate regarding the “risk according to UNHCR Guidelines” that the applicant’s brother who was journalist faces in Sri Lanka [CB248 and 249], see SZBEL.
PARTICULARS
(i)Though the AAT put the applicant on notice that more broadly the AAT would not be accepting that the applicant’s journalist brother would have problems with the Sri Lankan Government [CB475, 47], the delegate accepted that the applicant’s brother was a “journalist” and that being a journalist there was a “risk according to the UNHCR Guidelines” that the applicant’s brother faced in Sri Lanka. The AAT’s reasoning for not accepting that the applicant’s brother would have problems with the Sri Lankan Government was due to a different reason (i.e. because the [name lf newspaper] was pro government group).
(ii)The AAT when putting the applicant on notice that it would not be accepting that the applicant’s journalist brother would have problems with the Sri Lankan Government ought to have given consideration to the reason for the delegate to draw the inference that the applicant’s journalist brother would have problems with the Sri Lankan Government.
(iii)It is erroneous to state that the applicant’s journalist brother would not have problems with the Sri Lankan Government without addressing the reason which the delegate relied upon to draw a positive inference.
The ground, as stated, is not arguable to the extent it relies on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[48] In SZBEL the High Court considered the Tribunal’s obligations under s.425(1) of the Act to inform an applicant of the issues arising under the delegate’s decision the applicant should expect he or she should address when he or she appears before the Tribunal. The High Court said:[49]
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
[48] [2006] HCA 63
[49] [2006] HCA 63 at [35]
Nothing the High Court said in SZBEL can be taken as requiring the Tribunal to consider findings made in the course of the decision under review, or the reasoning by which the decision under review was arrived at. That the Tribunal, therefore, may not have addressed the reasons on which the delegate relied for being satisfied the applicant’s brother, N, was a journalist for an Tamil newspaper, does not mean the Tribunal did not identify to the applicant the issues arising in relation to the decision under review. The proposed ground itself accepts the Tribunal put the applicant on notice that it did not necessarily accept that the applicant’s brother would attract the adverse interest of Sri Lankan authorities.[50]
[50] CB475, [47]
In any event, the Tribunal’s reasons show the Tribunal went further than putting the applicant on notice that it would not necessarily accept that N would attract the adverse interest of Sri Lankan authorities; the Tribunal put to the applicant for his comments the very matters on which the Tribunal relied for finding that the newspaper for which the applicant claimed his brother N worked was under the control of a pro-government faction.[51]
[51] CB475, [47], [63]
For these reasons, it would be futile to permit the applicant to rely on proposed ground 5 as set out in the applicant’s written submissions. I propose to order, therefore that the applicant not be given leave to rely on the proposed ground 5 as set out in the applicant’s written submissions.
Disposition
I propose to order that the applicant not be granted leave to rely on grounds 2 and 3 of the amended application filed on 20 February 2017, that the applicant not be granted leave to amend the application by including the grounds identified as grounds 4 and 5 in the applicant’s written submissions, and that the application be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 2 March 2018
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