Cki15 v Minister for Immigration and Border Protection

[2021] FCCA 417

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKI15 v Minister for Immigration and Border Protection [2021] FCCA 417

File number(s):

MLG 2540 of 2015

Judgment of:

JUDGE BLAKE

Date of judgment:

10 March 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – Protection Visa – whether there are inaccuracies in the Tribunal’s decision – whether the Tribunal failed to consider information – whether the Applicant was unable to participate in the Tribunal or Court hearing due to his health – invalid section 438 certificate – not material to any issue – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 438

Migration Regulations 1958 (Cth) cl 866.221(2), 866.22(4) of Schedule 2

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26

Minister for Immigration and Citizenship v MZYTS [2013] FCAFC 114, [68]-[70].

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

Number of paragraphs:

40

Date of hearing:

19 February 2021

Place:

Melbourne

Advocate for the Applicant:

In person

Solicitor for the Applicant:

None

Counsel for the Respondents:

Mr Hosking

Solicitor for the Respondents:

Clayton Utz Lawyers

ORDERS

MLG 2540 of 2015

BETWEEN:

CKI15

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	10 MARCH 2021

THE COURT ORDERS THAT:

1.The Application filed on 16 November 2015 be dismissed.

REASONS FOR JUDGMENT

JUDGE BLAKE:

INTRODUCTION

1. This is an application for review of a decision made by the Administrative Appeals Tribunal ('Tribunal') on 20 October 2015. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection visa ('visa').

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The Applicant is a citizen of Sri Lanka. He is also of Sinhalese ethnicity. The Applicant arrived in Australia as an unauthorised maritime arrival on 11 August 2012. He applied for the visa on 20 March 2013. The Applicant provided a statement of claims with his application and attended an interview with the Department on 6 December 2013.

4. In the statement of claims, the Applicant claimed, among other things, to fear harm in Sri Lanka on the basis of a dispute with a neighbouring boat yard and due to his brother in law's political involvement. He stated that people attended his home and beat him. He believed this incident was connected with him organising a petition against the boat yard. The Applicant further claimed that his brother in law was attacked because of his political activities and, because he spent a lot of time with his brother in law, he fears that he will also be at risk of harm.

5. On 10 March 2014, a delegate of the Minister refused to grant the visa (‘Delegate’s decision’). The delegate found that the Applicant did not meet the criteria set out in subsections 36(2)(a) or (aa) of the Migration Act 1958 ('Act') and clauses 866.221(2) and 866.221(4) of Schedule 2 of the Migration Regulations 1994.

6. On 13 March 2014, the Applicant applied to the Refugee Review Tribunal (as it then was) for review of the Delegate's decision.

7. On 27 March 2014, a delegate of the Minister provided the Tribunal with a notification that pursuant to section 438 of the Act, certain information was not to be disclosed to the Applicant.

8. On 19 October 2015, the Applicant attended a hearing at the Tribunal with the assistance of an interpreter. The Applicant's migration agent attended via telephone.

9. On 20 October 2015, the Tribunal affirmed the Delegate’s decision not to grant the Applicant the visa.

10. The Applicant filed his application for review in this Court on 16 November 2015 (‘Application’) along with a supporting affidavit. He was, and remains, unrepresented.

11. On 30 August 2018, the Minister filed an affidavit by Allison Anne Clark affirmed on 30 August 2018. That affidavit details the documents that were the subject of the section 438 certificate. The substance of the affidavit is that the Minster no longer makes any claim for public interest immunity over the documents.

12. On 30 October 2019, the Applicant filed a short affidavit which attached a USB containing video footage of the funeral for his brother in law in Sri Lanka. The Applicant also filed, on 30 October 2019 and 4 December 2019, two bundles of documents. While those bundles were marked as submissions, in fact they attached documents sought to be relied on by the Applicant. The Minister filed written submissions on 26 August 2019.

13. On 23 December 2019, the Minister filed a list of references and an affidavit by Lucy Margaret Broughton which annexed a transcript of the Tribunal’s hearing.

14. It is appropriate to record that paragraphs [10] to [13] above are but a brief summary of what has occurred since the matter came into this Court. The matter has taken some time to come on for hearing, even by the standards of this Court. It is not necessary for present purposes to traverse that entire history and I have not done so, except to note the following. The delays have occurred for reasons including the Applicant’s change of address and the transfer of the matter between Court registries, the Applicant not having access to a Court Book and the need to conduct an in person hearing given some issues that arose with interpretation of documents. In person hearings have been suspended for a number of months in Melbourne because of prolonged lockdowns associated with COVID 19.

    THE APPLICATION

15. There is one ground in the Application.  It provides as follows:

    The AAT erred in not giving consideration to the evidence relating to the Applicant’s individual circumstances. Also the AAT erred in not giving consideration to the evidence provided that the Applicant will suffer significant harm by the Sri Lankan authorities upon his return to Sri Lanka. I provided evidence to suggest that as a failed asylum seeker I would suffer harm and persecution in the hand of government authorities. Also I provided evidence to confirm that the offenders who had caused harm to me already would cause harm again. All that evidence, provided, has not been considered by the tribunal. Accordingly the AAT erred as a matter of law.

16. The Applicant filed with the Court a number of documents in support of the Application.  In light of the Applicant being unrepresented, I have reviewed those documents closely to ascertain whether they give rise to any claims that may suggest the presence of jurisdictional error. Based on my review of the documents, and the Applicant’s oral submissions before me, the Applicant contends that:

    (a)there are significant inaccuracies in the Tribunal decision record relating to an incident in Darwin in 2012 that the Applicant raised with the Tribunal;

    (b)various matters were not taken into account by the Tribunal including, the death of the Applicant’s brother in law in December 2016;

    (c)he was unwell before the Tribunal and unable to participate to the best of his ability;

    (d)he has an issue with his memory and/or recollection, he has had an MRI and he therefore experienced difficulty during the course of the hearing before me because he was unable to respond to the best of his ability to the submissions made by the Minister.

17. Finally, while the Applicant did not raise the issue, consideration needs to be given to whether any jurisdictional error arises from the initial decision of the Minister to claim public interest immunity over the documents that were the subject of the notice under section 438 of the Act.

18. I firstly deal with the contentions contained within the Grounds of review.  The legal principles that I am to apply were helpfully summarised by the Minister in his written outline of argument.  In summary, the Tribunal may fall into jurisdictional error if it fails to consider a substantial, clearly articulated argument relying upon established facts, or a claim that clearly arises from the material before it.  Further, the Tribunal may fall into jurisdictional error if it ignores material of sufficient importance that, by ignoring that material, the Tribunal can be said to fail to perform its statutory task of conducting a review: see Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26, [24] (Gummow and Callinan JJ), [95] (Hayne J); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [60], [63]; Minister for Immigration and Citizenship v MZYTS [2013] FCAFC 114, [68]-[70].

19. The single ground of review identifies a number of claims that the Applicant says were not considered.  A review of the Tribunal’s reasons, however discloses that they were considered.

20. The Applicant claims the Tribunal did not give consideration to his individual circumstances. In my view, the Tribunal was aware of the Applicant’s claims and circumstances. The individual circumstances of the Applicant were summarised in paragraph [1] of the Tribunal’s reasons and the Applicant’s claims were summarised by the Tribunal at paragraph [2] of its reasons. Those paragraphs are extracted below:

    1.The applicant is a citizen of Sri Lanka. He is aged in his early 30s. He is of Singhalese ethnicity and is from Negombo in the Western province of Sri Lanka. He arrived in Australia as an undocumented Illegal Maritime Arrival on 11 August 2012. He was transferred to Christmas Island Detention Centre, but later released into the community on a Bridging visa.

    2.The applicant applied to the Department of Immigration for the Protection visa on 20 March 2013. The applicant claimed that he feared harm in Sri Lanka due to an assault on his brother in law which may have been related to his brother in law's involvement with a political party, the United National Party (UNP). The applicant also claimed that his wife suffered a stillbirth following an assault in 2004. At the Tribunal hearing, the applicant also claimed that he was associated with an assault against a villager which occurred in Darwin several months ago, and the villagers and family of the victim will harm him upon his return to Sri Lanka.

21. In addition to the above, the Tribunal further outlined the Applicant’s claims at paragraphs [5]-[17] of its reasons. 

22. The summary of claims prepared by the Tribunal is an accurate summary of what the Applicant put to the Tribunal: see the Applicant’s statement claims at Court Book 71-73, the submission made by the Applicant’s representatives at Court Book 217-223 and the Statutory Declaration of the Applicant at Court Book 221.

23. Having identified the Applicant’s claims and summarised them, the Tribunal proceeded to consider and deal with the claims.  The first matter to note is that the Tribunal had concerns about the Applicant’s credibility: see paragraphs [19]-[30] of the Tribunal’s reasons.  A critical finding made by the Tribunal was that the ‘applicant has manufactured his claims to fear harm in Sri Lanka’ (at [30]).  There are then the other conclusions reached by the Tribunal. The Tribunal:

    (a)considered it likely that the Applicant’s claims relating to his brother in law’s involvement with the UNP had been manufactured: at paragraph [25] of the reasons;

    (b)considered that even if the Applicant’s brother in law had some involvement with the UNP, the Applicant did not genuinely fear harm for this reason: at paragraph [25] of the reasons;

    (c)was not satisfied that the Applicant was ever sought by persons in Sri Lanka as a result of an assault against his brother in law: at paragraph [26] of the reasons;

    (d)found the incident with the boat yard which resulted in the Applicant’s wife suffering a stillbirth occurred, but did not accept that the Applicant has any continuing interest in agitating the issue and was not satisfied that the Applicant genuinely feared harm in relation to this issue, or that there is a real chance that the Applicant will suffer serious harm due to the incident in 2004 on his return: at paragraph [27] of the reasons;

    (e)did not accept there was a real chance the Applicant would face harm as a result of the incident in Darwin: at paragraph [28]-[29] of the reasons.

24. As to whether the Tribunal considered the harm the Applicant may face by reason of being a failed asylum seeker, this was dealt with comprehensively by the Tribunal at paragraphs [31]-[36] of its reasons.  Among other things, the Tribunal accepted that the Applicant left Sri Lanka illegally by boat and came to Australia to seek asylum (at [31]).  It also accepted that the Applicant would be questioned at the airport and bailed upon a hearing by a magistrate (at [33]).  The Tribunal noted that the Applicant had previously been charged for illegal departure (at [34]), but considered independent evidence in concluding that the Applicant would not be subject to a custodial sentence and the prospect of him being detained for a prolonged period as a penalty for illegal departure was remote (at [35]).  The Tribunal ultimately concluded that that the Applicant would not face a real chance of serious harm in Sri Lanka or a real risk of significant harm: see paragraphs [31]-[44] of the reasons.

25. Further, as to the question of whether the Applicant would face harm in the future by reason of the harm he claimed to face in the past, these matters were also addressed by the Tribunal: see paragraphs [19]-[30] of the Tribunal’s reasons, noting in particular paragraph [24] where the Tribunal deals with the attack upon the Applicant’s brother in law in 2009 and paragraph [27] which deals with the situation in relation to the boat yard.

26. Within the single ground of review, the Applicant has not identified any other evidence or material that he says was not considered by the Tribunal.  In my view, having regard to the above, there is nothing contained within the single ground of review that would give rise to any finding of jurisdictional error by the Tribunal. The Tribunal correctly identified the Applicant’s claims, considered them, and made findings in respect of them.

27. The next matter that emerges concerns the Applicant’s claims that there were significant inaccuracies in the Tribunal’s decision relating to the events in Darwin in 2012.  The Minister produced the transcript from the hearing before the Tribunal.  Pages 17-19 of the transcript capture the exchange between the Tribunal and the Applicant in relation to the Darwin incident in 2012.  The relevant parts of the transcript are set out below:

    THE INTERPRETER:  Something happened in Darwin. So in Darwin, my brother-in-law had a - quite a problem with another man, and he got - and that other man also ..... to hospital. He was about to die. So now the - now that incident - ..... of that incident face to Sri Lanka, and they ..... my brother-in-law attack one person here, and who is about to die now in hospital. And now was people - I don't who they are - waiting in Sri Lanka for the arrival of my brother-in-law, to attack him or kill him.

    MS PINTO:Well, I don' t really understand this incident in Darwin, how it has any - Sri Lanka, [CKI15]. Could you explain that, please?

    THE INTERPRETER:  Can I ask him ..... Can I ask him - yes, he attacked the person called [L] - ..... brother-in-law. That [L] is in hospital now. My brother-in-law was jailed for six months before. Now, the - the victim - party also waiting until my brother-in-law's arrival, to kill him or attack him.

    MS PINTO:Who is [L]?

    THE INTERPRETER:  He's also- he's also came by boat in - from our village.

    MS PINTO:Okay. And what's this got to do with you, this [L] who was attacked, and your brother-in-law, what, he was imprisoned in Australia for six months for the assault, was he?

    THE INTERPRETER:  Well, in hospital, I had to make statements - there was one gentleman called ..... also asked me to give the statements. All the statements I have given, accusing my brother-in-law. So I took the victim to the hospital and I wait here. I wouldn't- and now the victim's family in Sri Lanka is thinking that I am responsible for that.

    MS PINTO:But why would they think that, if you took him to the hospital, and his - and your brother-in-law has been jailed in relation to this incident? I really don't see why they would think that you were responsible, [CKI15].

    THE INTERPRETER:  So he says the people would think that I am the person who took my brother-in-law out from jail by giving false evidence, but they are ..... him.

    MS PINTO: And I'm still a bit puzzled as to how these people are connected with the previous assault.

    THE INTERPRETER:  This is a separate incident. There's no connection.

    MS PINTO: Okay. Is there any other reason that you fear harm in Sri Lanka, [CKI15]?

    THE INTERPRETER: That [L], when he was drunk, he's coming to attack me, and that's why I'm plan to go to Tasmania.

    MS PINTO: When did this actually happen?

    THE INTERPRETER: Attack here, you mean?

    MS PINTO: But when did this happen? Yes. When did this incident with [L] happen?

    THE INTERPRETER: About nine months ago.

    MS PINTO: And, what, [L] is still in hospital now, is he?

    THE INTERPRETER:  No. He had a big operation -part of his skull removed. Now he is at home.

    MS PINTO: Okay. I've got a statutory declaration - September 2015. It's not 5 signed, but it doesn’t include anything at all about [L]. Well, why- why have you not told your representative about this issue?

    THE INTERPRETER: So I don't know who, but one of the lawyers rang me, and I explained everything, what has happened about this - including this incident as well. But I believe that maybe that Amal's lawyer called me.

    MS PINTO: Okay. It sounds to me like a criminal incident. It sounds like your brother-in-law may- may well have some - he seems to be involved in these altercations. I can't really see what it's got to do with you, [CKI15]. It sounds like your brother-in-law had a fight with somebody who came on the same boat, and he's been jailed for that. I can't see why that has any connection with you, why anyone would want to harm you for that reason, when you were the one who took this person to the hospital and gave evidence against your brother-in-law.

    THE INTERPRETER: So the ..... who I once admit in hospital - when he gets drunk, he always attacks ..... attack me, say that I am the person who took my brother-in-law out of jail by giving false evidence.

    MS PINTO: Okay. So what I'm actually wondering, [CKI15], is you're somebody who's lived outside of Sri Lanka for quite some time. Okay. You've said…

28. The Tribunal dealt with the incident in Darwin in 2012 at paragraphs [28]-[29] of its reasons.  Those paragraphs are extracted below:

    28.The Tribunal has also considered the applicant's claims, raised during the Tribunal hearing, that he also fears harm in relation in an incident in Darwin where his brother in law had a fight with someone and the person was admitted to hospital. The applicant stated that the person whom [M] had a fight with is called [L] and he is from the same area of Sri Lanka and travelled to Australia by boat from Sri Lanka. The applicant told the Tribunal that he took [L] to hospital and gave a statement to the police about his brother in law's involvement in the incident. His brother in law was jailed for six months in relation to the incident and [L] was quite seriously injured and has had surgery on his skull. The applicant fears harm in relation to this incident because [L]’s family and the community may think he was involved. When asked how this is connected to the incident which occurred in 2009, the applicant stated that it has no connection but when [L] is drunk he tries to attack him and says that he was responsible for getting [M] out of jail. When asked when the assault occurred, the applicant stated that it was over a year ago. When asked why it was not included in the statutory declaration or the submission provided in September 2015, the applicant stated that he told the representative.

    29.The Tribunal is prepared to accept that the applicant's brother in law had a fight with a person in Australia who is from the applicant's village. The Tribunal does not accept, given that it was the applicant who took [L] to hospital and assisted the police with their inquiries, and it was his brother in law who was convicted and received a custodial sentence, that he will be harmed in Sri Lanka as a result of this incident. The Tribunal again considers that the applicant's claims in relation to this incident are vague and unpersuasive and indicative of the fact he has no genuine fear of harm from villagers or [L]’s family. The Tribunal considers it evident that the applicant is attempting to rely on this incident to establish further claims for protection in Australia. The Tribunal is not satisfied, having considered the evidence in relation to this incident, that there is a real chance that the applicant will suffer serious harm upon his return to Sri Lanka as a result of an assault by the applicant's brother in law on [L] in Australia. The Tribunal does not accept the applicant's claims at the hearing that he is planning to leave Darwin for Tasmania because of his fear of [L].

1. When the transcript and the Tribunal’s reasons are considered, the following becomes apparent.  First, the Tribunal member went to great lengths to understand the Applicant’s claim in relation to this matter notwithstanding apparent difficulties in extracting information from the Applicant, and notwithstanding that it was being raised for the first time in the Tribunal.  Second, allowing for the difficulties in extracting particulars of information from the Applicant, I am unable to discern any inaccuracy of substance in the Tribunal summary and treatment of this aspect of the Applicant’s claim.  I do not accept the submission by the Applicant that there were inconsistencies in the Tribunal’s account which are in any way material.

2. The next matter which arises does so by virtue of the material submitted by the Applicant to the Court and the Applicant’s submissions to this Court.  Among other things, the Applicant asserts that his brother in law was murdered in Sri Lanka shortly after his deportation from Australia, and shortly after he obtained a passport in Sri Lanka.  The Applicant produced video evidence of the funeral. The Applicant claims that he will suffer a similar fate if returned to Sri Lanka.

3. The Applicant faces at least two difficulties with this submission.  First, the events upon which he relies are events which occurred after the Tribunal delivered its reasons.  Self-evidently, they cannot be a foundation for jurisdictional error in the reasoning of the Tribunal.  Secondly, by this submission, the Applicant invites the Court to review the merits of his claim.  It is well-established that the Court is unable to undertake a review on the merits.

4. Before me, the Applicant claimed that he was not in a fit state of mind when he appeared before the Tribunal.   He also claimed that his participation in the hearing before me was hampered by reason of difficulties he has in recollecting events.  I note the following in relation to these submissions from the Applicant.  First, the Applicant was represented during the hearing before the Tribunal.  He also had representation prior to the Tribunal hearing and written submissions were received from his representative.  Second, the Applicant produced no evidence either to the Tribunal or before this Court as to his medical condition and whether any such condition prevented him from being able to participate in the Tribunal proceedings.  Third, insofar as the proceedings in this Court were concerned, the Applicant appeared by himself (with the assistance of his employer and an interpreter), and there was nothing in the Applicant’s presentation or appearance before me which caused me to have a concern that the Applicant was unable to participate in the hearing.  In all of those circumstances, it cannot be said that the Applicant has been denied procedural fairness either by the Tribunal or by the Court.

5. Finally, there is the issue about the documents that the Minister initially sought to claim were subject to public interest immunity.  Subsequent to the Tribunal hearing, the Minister withdrew any claim for privilege.  The documents were provided to the Applicant prior to the hearing before me, and I have read the documents in the course of determining this matter.

6. The Minister accepted that the notification under section 438 of the Act in relation to the documents was invalid. The Minister also accepted that the Applicant was not informed of this prior to the hearing before the Tribunal. The Minister therefore accepts that the Applicant was denied procedural fairness because of these events and that there has been a breach of the inviolable limitation governing the conduct of a review.

7. While the Minister accepts all of the above, the Minister contends that the breaches did not amount to jurisdictional error because they were not material in the sense contemplated by the High Court of Australia in Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3.

8. I have reviewed the documents the subject of the purported notification under section 438 of the Act. The only ones with potential relevance to the matters considered by the Tribunal are those contained at folios 111-117. Those documents are emails relating to enquiries to ascertain whether the Applicant had a right to remain in Italy. The conclusion in those documents is that the Applicant did not have a right to remain in Italy. Ultimately, the Tribunal found that the Applicant did not have a right to remain in Italy, consistent with the Applicant’s claims. The chain of emails is not, therefore, material to any issue and the non-provision of those documents to the Tribunal therefore does not give rise to jurisdictional error. The answer may have been different, and the documents material, if the Tribunal had concluded that the Applicant had a right to remain in Italy.

9. The other documents the subject of the purported section 438 notice are not relevant to any issue that would have realistically affected the outcome of the Tribunal’s decision. Folio 80 appears to be an assessment checklist. Folio 143 is an email concerning the Applicant’s application for a protection visa. The Minister accepted that the notification under section 438 should never have been issued and from what I have seen, it is difficult to disagree with that proposition.

10. It is appropriate to record that the Applicant placed a number of other documents before the Court in support of his case.  They included, by way of example, references from people he has met, including churches, and current and former employers.  It appears that the Applicant is reasonably settled in Australia and is making a meaningful contribution.  While the Applicant is to be commended for this, the regrettable fact for him is that it does not assist him in the present application.  Nor do other events upon which he seeks to rely which post-date the Tribunal decision.  Ultimately, as I explained to the Applicant when he was before me, this Court is unable to review the merits of the Tribunal’s decision.

    CONCLUSION

11. For all of the above reasons, I am satisfied that the Tribunal’s decision is not affected by jurisdictional error.  The Application for review must be dismissed.

12. I have not heard the parties on costs.  It seems appropriate to do so given the length of the proceedings.  I will now hear the parties on costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:
Dated: 10 March 2021