CKV15 v Minister for Immigration
[2019] FCCA 2851
•9 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKV15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2851 |
| Catchwords: MIGRATION – Judicial review – decision of the former Refugee Review Tribunal – decision of delegate to not grant a protection visa affirmed – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Immigrants & Emigrants Act 1948 (Sri Lanka), s.45C Migration Act 1958 (Cth), ss.36, 45AA, 422B, 424A, 425, 476. Migration Regulations 1994 (Cth), reg.2.08F |
| Cases cited: Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 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 |
| Applicant: | CKV15 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 532 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 July 2016 |
| Date of Last Submission: | 8 August 2016 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 9 October 2019 (by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr MGS Crowley |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr PR Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That a writ of certiorari issue quashing the decision of the second respondent made on 26 October 2015.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 23 June 2014 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 532 of 2015
| CKV15 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”) to refuse the applicant a Protection visa (“Protection Visa”).
It should be noted, as it was by the Tribunal at CB 221 at [3], that while the applicant had made an application for a Class XA Protection Visa, by operation of s.45AA of the Migration Act and reg.2.08F of the Migration Regulations 1994 (Cth) (“Migration Regulations”) his application was taken to be, and always to have been, an application for a Temporary Protection Class XD visa. The consequence of this was that if the applicant were granted the Protection Visa, he would be permitted to remain in Australia on that Protection Visa only for three years.
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Sinhalese citizen of Sri Lanka who arrived in Australia as an irregular maritime of arrival on 17 July 2012: CB 29-31;
b)at his arrival interview undertaken on 7 August 2012 the applicant indicated he was having trouble with his wife’s family who had threatened to kill him and would not allow him to build his house on his mother-in-law’s land: CB 10. More importantly, at the interview the applicant indicated that he was paid, having been begged by his friend of 15-20 years, to drive the boat and was a member of the “crew”: CB 11;
c)on 15 October 2013 the applicant applied for the Protection Visa having made the following claims:
i)he was active in politics and did a large amount of work for the United National Party (“UNP”), the opposition party in Sri Lanka, which caused him to be threatened and assaulted by supporters of the opposition ruling party in his village including his brother-in law who has continued harassing his family members since the applicant departed for Australia: CB 44;
ii)the applicant reported the incidents to the police but they did not investigate to protect him due to “politically motivated reasons”: CB 44;
iii)he will be killed by supporters of the ruling party including his close relatives, the authorities will not protect him and he will be unable to find employment in other parts of the country: CB 45;
d)on 13 June 2014 the Delegate’s Decision was to refuse to grant the applicant the Protection Visa: CB 88-100;
e)on 23 June 2014 the applicant applied for review of the Delegate’s Decision by the Tribunal: CB 115-116;
f)the applicant attended a hearing before the Tribunal on 22 June 2015: CB 152-153, and on 26 June 2015 the applicant’s migration agent provided written submissions (“Submissions”) to the Tribunal while also attaching the “PAM3: Refugee and Humanitarian Protection visa Temporary Protection and Fast Track Assessment Process” Guidelines (“PAM3 Guidelines”): CB 156-219; and
g)on 26 October 2015 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 220-244.
Tribunal Decision
In the preliminary portions of the Tribunal Decision, the Tribunal:
a)summarised the applicant’s claims of his being active in politics for the UNP, being threatened and assaulted by supporters of the opposing party including his own family, being unable to seek protection from the police and that relocation was not possible as the applicant would not find employment or survive in other parts of Sri Lanka: CB 221 at [4]-[12];
b)discussed that the Delegate’s Decision and explained that while it accepted some aspects of the applicant’s claims concerning his political activities, it rejected that he was significantly involved in politics, considered the amount of time since the applicant had been active politically indicated he would not be of interest and that the applicant could choose to relocate if he wished and the applicant had in fact done so 16 years earlier and has had no interaction with his brother-in-law nor was there evidence to indicate the brother-in-law would now seek to harm him: CB 222 at [13];
c)noted the applicant’s evidence provided at the hearing including where he had lived in Sri Lanka, the availability of work and what the applicant had been doing since his arrival in Australia, including noting he was in receipt of worker’s compensation payments until 2017: CB 222 at [16]-[20];
d)discussed with the applicant his involvement in driving the boat to Australia, including the applicant stating he was paid by “A” to steer the boat, and he did so because he felt helpless at the time because he was being chased by his brother-in-law, and that this was the first and only trip where he had been driving or associated with people smuggling: CB 222-223 at [21]-[22];
e)summarised the evidence of the applicant concerning his political activity and fear of harm from his brother-in-law “SA” including:
i)he worked for the UNP in 2004 and attended meetings and handed out posters, though he did not pay a membership fee and confirmed he could not hold a senior position in the party: CB 223 at [24]; and
ii)the applicant was attracted to the UNP because he felt he would be safer if he aligned himself to a political party, though the UNP could not protect him so he started supporting and working for the Sri Lanka Freedom Party or the Alliance (“SLFP”) and undertook similar activities for them: CB 223 at [25]. The applicant was “fed up” after 2005 because the SLFP did not help him: CB 223 at [26];
f)asked the applicant why he would be harmed if he had not undertaken political activities for 10 years and if any person had tried to harm him since 2004 and 2005 to which the applicant replied the UNP and SLFP would want to harm him because he left them and they had beaten him in several incidents in 2004 for doing so, and he had good neighbours who warned him if SA was coming to kill him: CB 223 at [26];
g)put it to the applicant that even if it accepted he was beaten and harassed it questioned if that indicated he would be harmed now, and the applicant responded that people he was associated with were responsible for burning down houses so he may be perceived for being involved and when put to him that he does not appear to have been seriously harmed, the applicant replied he was not killed because he was perceived to have political connections to the UNP who would retaliate if he was harmed: CB 223 at [27];
h)referred to the applicant’s evidence concerning a land dispute with SA where the applicant explained that SA would get drunk and angry with him and beat him. SA and his wife did not allow the applicant to build the house as proposed and he was unable to continue building, he is no longer permitted to enter the land, he did not wish to relocate because he spent money on bricks and construction and as the title was in his mother-in-law’s name he could not sell it. The Tribunal put to him that as the applicant has now abandoned the land the motive behind his fear for SA no longer existed to which the applicant responded SA thinks the applicant will seek to re-claim the land and he fears for his life: CB 224 at [29]-[32];
i)directed the applicant to his evidence that the SLFP “destroyed” his house in 2004, to which he responded that SA is a police officer who has the support of politicians and so SLFP carried out the attack and he has not taken action to enforce his rights because his wife is asthmatic and he does not wish to stress her and when he did go to the police they did not take his complaint and asked him to leave, and he does not think that any action will be taken to enforce the law against a fellow policeman: CB 224 at [31]-[32]. The Tribunal referred the applicant to the evidence he gave the Delegate that this happened in 2008 to which he said he got the date wrong and it was 2004: CB 225 at [36];
j)asked the applicant to explain a poisoning incident where he recalled that SA had sent over a platter of food and he gave some to his cat who started foaming at the mouth and died, though he could not recall the exact year, but it was on the anniversary of his wife’s grandmother’s death and he never reported it as he felt there was no point in doing so: CB 224-225 at [33];
k)referred to the applicant’s evidence that his own brother had tried to kill him with a knife in 1996 because he was angry at him for marrying his wife. His brother lives in Kandy and he is unable to visit his mother because his brother lives there also and when put to him that the incident occurred 19 years ago he stated that people warn him whenever they hear his brother is in town: CB 225 at [34];
l)put to the applicant that he told the Delegate he commenced political activity with the SLFP rather than the UNP, and he stated that he was not in good mental health at the time and put to him that it may conclude he had fabricated the stories: CB 225 at [37]-[28];
m)asked the applicant if he was aware of the offence of illegal departure and he stated he was not aware, though when asked if he could pay a fine he stated he would be unable to pay that fine as his family lives in difficulty in Sri Lanka and although he receives workers compensation he has not had any income for 7 months: CB 225 at [41];
n)noted the applicant stated he feared harm from A who is waiting to be deported as he has many thugs and he also fears being questioned or charged with people smuggling: CB 226 at [43]; and
o)summarised the Submissions, including noting the explanation for not raising the claim to fear A was because a threat was made by A after the interview with the Delegate, and that as a result of the applicant steering the boat he fears prolonged detention as he will be considered a people smuggler and under the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”) he will not face a fair trial and the conditions he will be exposed to in prison give rise to harm under the Convention and complementary protection criterion: CB 226-227 at [45]-[49].
The Tribunal provided various extracts of country information regarding the treatment of political activists in Sri Lanka, the effectiveness of police protection, illegal departure and the treatment of returnees and summarised the applicable legal provisions at Appendix A and Appendix B respectively: CB 237-244. The Tribunal further noted and referred to the legal principles applicable to the assessment of credibility of applicants claiming protection, including that while an account may not seem credible or plausible the applicant should in any even be given the benefit of the doubt: CB 227-228 at [55]-[59].
Having outlined the preliminary matters referred to above, the Tribunal when assessing the applicant’s credibility and claims against s.36(2)(a) of the Migration Act:
a)found the applicant gave vague responses, in particular with respect to his political activities, appeared rehearsed and unconvincing in the hearing before it, and that the applicant claimed to the Delegate that he commenced his political activities with the SLFP but then switched to the UNP, but before the Tribunal he claimed he commenced with the UNP and switched to the SLFP, and this inconsistency severely undermines the credibility of his evidence: CB 228 at [60];
b)noted that while it should, and does, ignore minor inconsistencies the applicant’s mixing of the “temporal order” of the political parties he claims to have been involved was significant as if he had indeed been associated with the two political parties in any significant way as he claimed it would be most unlikely that he would have confused the order, and that the applicant did reverse the order indicates the applicant was not recounting what had actually occurred: CB 228 at [60];
c)considered the applicant’s responses were at times evasive and parts of his evidence were confused and muddled, providing specific examples of such, while country information further undermined the credibility of the applicant as the country information suggests that a person such as the applicant who does not have a profile as a political activist is not a person facing a real chance or real risk of serious or significant harm in Sri Lanka: CB 228 at [60];
d)formed the view that the confusion or inconsistencies in the applicant’s evidence were not due to the passage of time or other claimed factors, but rather because he fabricated his claims of involvement in the SLFP and the UNP, and his claim of fearing harm in Sri Lanka for reasons of his political opinion: CB 229 at [61];
e)referred to the applicant’s claim that he was not in a good state of mental health at the time he had given inconsistent evidence to the Delegate, but noted that he did not claim that he was suffering any mental health problems at the time of the Tribunal hearing and appeared lucid, and therefore it did not accept the applicant suffered, or suffers, any relevant mental illness, though recognised he may have been under some stress in presenting his claims and evidence before but was able to fully participate in the hearing and was not hampered by any mental health problem: CB 229 at [62];
f)found the applicant gave confused evidence as to his claimed political activities which undermined his credibility, as had he been recounting his own experiences his account would have been clearer, therefore, when having regard to all of his evidence and his vague and general description of his political activities, and the inconsistent evidence as to the order of the parties he was involved with it was not satisfied he was involved in the UNP or the SLFP: CB 229-230 at [64];
g)as a result of the finding he was not involved in political activities, found the applicant had no profile such that now, some 10 years late, the risk that he would be harmed was remote, and afforded little weight to a handwritten letter on a plain piece of paper rubber stamped “Divisional secretariat Councillor, Nimal Rathnayaka, Gammana 4, Rajangana Road, Thambuttagama”, given the negative assessment that had been made of his credibility, his lack of political activity and the “form of the letter”: CB 229-230 at [64];
h)considered the claim the applicant has become a known supporter of the UNP and that this puts him at risk of serious harm, but having regard to the lack of significant profile and the country information was not satisfied the applicant faced a real chance of serious harm as claimed and for the same reasons did not accept his claim that he had to evade harm in the past and that he was able to do so because he had good neighbours and they would tell him if SA was coming to kill him: CB 230 at [65];
i)when having regard to his insignificant political activities and profile, the Tribunal did not accept that the applicant was beaten in several incidents in 2004, or that he would be regarded as having relevant links to those who might have burned down houses given this was highly speculative in any event and the applicant lacked any actual or perceived political activity or profile: CB 230 at [65];
j)accepted some country information indicated a degree of political alignment by the police at various times however having rejected the applicant was being threatened with serious harm he did not require protection, and as he has never engaged in any significant political activity his claim that his brother in law in Sri Lanka has continued harassing his family members on the basis of the applicant’s claimed past political activities was rejected: CB 230 at [66];
k)found on all the evidence before it there is not a real chance the applicant’s level of political activity of involvement will increase so that it amounts to a real chance of serious harm now or in the reasonably foreseeable future in Sri Lanka, and having regard to all of the evidence rejected the claim the applicant faces a real chance of serious harm for reasons of his actual or imputed political opinion now or in the reasonably foreseeable future if he returns to Sri Lanka: CB 230 at [67]-[68];
l)was not satisfied that there is a dispute with the applicant’s brother-in-law such that he is motivated to seriously harm the applicant as there was no evidence he had inflicted serious harm on the applicant notwithstanding he had repeated opportunity to do so, and when having regard to the unreliability of the applicant’s evidence, the long standing nature of the claimed dispute, the absence of serious harm or consequence, and any evidence of escalation of the dispute, the Tribunal rejected the applicant’s submission that he faced a real chance of serious harm in the reasonably foreseeable future at the hands of SA: CB 231 at [69];
m)stated all of the claims and evidence the applicant had made in respect of his being a suspected people smuggler and a member of the crew driving the boat to Australia, and accepted the country information indicated a returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can be charged with an offence under s.45C of the I & E Act for organising people smuggling and that returnees from Australia have been charged with people smuggling offences and other criminal offences which they allegedly committed before departure: CB 231 at [70]-[71];
n)concluded the applicant was not invited by A to drive the boat for a reward as claimed, or that A had threatened to harm him or accused him of people smuggling activities or to report him to the Australian authorities, and was satisfied that upon return to Sri Lanka he will not be regarded by the authorities as a person who has facilitated or organised a people smuggling venture, and therefore found that upon his return to Sri Lanka, the applicant will not be detained for a longer period of time than other failed asylum seekers who left Sri Lanka on a people smuggler vessel and will not face a real chance of serious harm for reasons of being suspected as a person involved in people smuggling activities: CB 231-232 at [72]-[73];
o)having regard to the I & E Act and country information as to its application found it is not discriminatory in its terms, and as to its application it does not have a differential impact on a particular section of the population but rather is applied to all Sri Lankan nationals who depart that country in a manner in breach of the I & E Act, and is therefore a law of general application that is not selectively enforced or implemented in a way that is discriminatory: CB 232 at [74];
p)considered whether the injuries sustained in the motor vehicle accident in Australia might prevent the applicant from gaining any work which would enable him to pay any fine imposed under the I & E Act and more generally to subsist, and then referred to his previous occupation as a fisherman and accepted that this can be a strenuous occupation while noting the applicant submitted no evidence to indicate that he could not resume employment and found that the applicant is able to resume some form of employment if he returns to Sri Lanka and would generate income to maintain himself, any dependents, and pay the I & E Act fine by instalments, and therefore this did not amount to serious harm: CB 232-233 at [75];
q)outlined various country information sources detailing the risk of harm to a failed asylum seeker and found that as the applicant will not be perceived or suspected of engaging in those activities that may bring him to the attention of the authorities, it was satisfied that he will not be held for a longer period of time in detention and the risk of mistreatment is low: CB233-234 at [76]-[77]; and
r)considering the applicant’s claims individually found that he does not face a real chance of serious harm on the basis of those individual claims should he return to Sri Lanka now or in the reasonably foreseeable future, hence he did not meet s.36(2)(a) of the Migration Act: CB 234 at [79].
In considering the complementary protection criterion in s.36(2)(aa) of the Migration Act, the Tribunal:
a)for the same reasons it considered the applicant’s claim to fear harm for reason of his political opinion the Tribunal found his past political activities to be “negligible” and that there was no real risk that he will suffer ‘significant harm’, and similarly in respect of the claim of harm due to his association with people smuggling, and it therefore rejected the claim, and found that the applicant will be viewed as a “passenger” and faces no real risk of harm for being perceived as a people smuggler: CB 234 at [81] and CB 235-236 at [85];
b)accepted the possibility of a land dispute with SA was plausible but the applicant abandoned the building of the house and ultimately abandoned the property without suffering ‘significant harm’, and therefore the dispute is not at a level where SA, or anyone else, intended or intends to cause the applicant significant harm, while also noting the applicant’s evidence on the poisoning was vague and rejected that evidence, and finally, placing aside various issues with the claim the applicant’s house was burnt, the Tribunal addressed the claim SA would perceive the applicant would want to reoccupy the land, and found that the applicant remained in Sri Lanka for 8 years after the dispute and alleged burning of the house by SA without harm and was not satisfied he would face significant harm on return by SA: CB 234-235 at [82];
c)rejected the claim the applicant was stabbed by SA as exaggerated: CB 234-235 at [82], and considered the claim the applicant’s brother threatened to harm the applicant as not giving rise to risk of significant harm, despite accepting there was some continuing animosity, as it did not accept that his brother has a genuine intention to cause ‘significant harm’ to the applicant as they have lived in the same country for 19 years, and if it was his brother’s intention to significantly harm the applicant then he has had ample opportunity to do: CB 235 at [83];
d)having regard to the country information and PAM3 Guidelines did not consider any period the applicant would be temporarily detained in prison and exposed to uncomfortable and unpleasant conditions amounted to significant harm, noting that his detention will be “relatively brief” and the risk of being significantly harmed by prison guards, or suffering significant harm for reasons of the poor prison conditions is remote: CB 235 at [84];
e)was satisfied that there were not substantial grounds for concluding the applicant had a real risk of significant harm as a consequence of his being removed from Australia and returned to Sri Lanka: CB 236 at [86]; and
f)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 236 at [87]-[90].
Judicial Review Application
The applicant filed the Judicial Review Application in this Court on 18 November 2015. By leave of a Registrar of this Court, the applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”) on 2 March 2016, and the affidavit of Patricia Ng Phaik Kim affirmed 1 March 2016 annexing a transcript of the hearing before the Tribunal (“Tribunal Transcript”). The applicant and the Minister filed written submissions on 7 July 2016 and 18 July 2016 respectively.
On 18 July 2016 the Court made orders by consent allowing the applicant to file a further Amended Judicial Review Application and the applicant did so that same date (“Further Amended Judicial Review Application”). The written submissions filed previously had addressed the grounds in the Further Amended Judicial Review Application, and it was those grounds of review the Court considered when the matter came on for hearing on 22 July 2016.
At the conclusion of the hearing the Court made orders for the filing of further submissions by the applicant and the Minister to address matters arising in the course of oral submissions. These submissions were directed at the Court’s discretion to grant relief and whether, if an error were identified, there would be utility in granting the relief sought as the outcome would inevitably have been the same.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Further Amended Judicial Review Application;
b)the Tribunal Transcript;
c)the Court Book (“CB”) in which appears the Tribunal Decision at CB 220-244;
d)the various outlines of submissions filed by both the applicant and the Minister;
e)the transcript of the hearing before the Court on 22 July 2016 (“Transcript”).
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
The requirement for jurisdictional error
This Court exercises a power of judicial review limited to determining the legality of the Tribunal Decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J. Where a decision is found to involve jurisdictional error, that decision lacks legal foundation and consequently may be regarded in law as no decision at all: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 76 ALJR 598; (2002) 187 ALR 117.
The legality of the Tribunal Decision may be impugned on the basis of jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: 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. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), so too will unreasonableness: 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.
Grounds
Grounds 1-3 of the Further Amended Judicial Review Application largely take issue with [72]-[73] of the Tribunal Decision, and for that reason it is necessary to set them out in their entirety:
72. The Tribunal then considered whether the applicant was in fact invited by [A] to steer the boat for reward of Rs 700,000. The Tribunal is not satisfied this was in fact the case. It reaches this conclusion having found the applicant to be an unreliable witness who appears to have fabricated evidence to bolster his application for a protection visa. The Tribunal also notes the applicant claimed he could not afford to pay Rs 50,000 even though he claimed he was paid Rs 200,000 by [A], and he had been working, or on workers compensation, in Australia. The Tribunal considers the applicant has fabricated his claim to have been steering the boat and has done so for the purposes of strengthening his protection visa claims. Having regard to its assessment of the unreliability of the applicant's evidence, and that he has fabricated critical parts of his claims and evidence, the Tribunal rejects the applicant's claim that [A] has threatened to harm him for accusing him of people smuggling activities, or for reporting him to the Australian authorities.
73. Having regard to all of the circumstances, the Tribunal is satisfied that upon return to Sri Lanka the applicant will not be regarded by the authorities there as a person who has facilitated or organised a people smuggling venture it arrives at this finding on the basis that it finds no evidence before it that the applicant has been charged with people smuggling by the Australian authorities. Further, it is satisfied that the details of his protection claims, including the claim that he steered the boat for short periods, will not be available to the Sri Lankan authorities, unless the applicant himself declares that, which the Tribunal does not believe he would do. There is therefore no reason for the authorities to suspect he is a person who has committed an offence under Section 45C of the I&E Act. The Tribunal therefore does not accept the proposition that upon his return to Sri Lanka, the applicant will be detained for a longer period of time than other failed asylum seekers who left Sri Lanka on a people smuggler vessel, or that he will face a real chance of serious harm for reasons of being suspected as a person involved in people smuggling activities. In these circumstances, the Tribunal rejects the proposition that the applicant would be viewed as a person involved in organising or assisting in people smuggling. The Tribunal does not accept that it would be difficult for the applicant to convince the Sri Lankan authorities of this. In these circumstances, it does not accept the applicant will face prolonged detention by the Sri Lankan police or CID while investigating his involvement with people smuggling.
(Identifiers omitted)
Ground 1
Ground 1 is as follows:
The Tribunal’s decision was vitiated by jurisdictional error by a denial of procedural fairness in concluding that the Applicant had ‘fabricated a claim to have steered a people smuggling vessel’ (the Steering Conclusion) when the Applicant was not on notice that the Steering Conclusion was an ‘issue arising in relation to the decision under review’ under s.425 of the Migration Act 1958 (Cth.).
Particulars
1A. The Minister’s delegate refused the Applicant’s application for a Protection (Class XA) visa on 13 June 2014.
1B. The delegate’s Decision Record did not identify as an issue whether or not the Applicant had steered a people smuggling vessel, but refused the application on entirely separate grounds.
1C. The Tribunal did not raise the issue of whether or not the Applicant had steered a people smuggling vessel in writing or orally at the hearing on 22 June 2015 before the Tribunal ran out of time, and invited written submissions at large on ‘anything… we don’t cover’.
1D. The Tribunal questioned the Applicant orally on the issue of whether the Applicant had a well-founded fear of persecution in Sri Lanka in light of the Applicant’s evidence that he had refused previous requests to steer a people smuggling vessel.
1E. The Applicant’s representative filed written submissions reciting the grounds of the Applicant’s claims, including claims for complementary protection. It was not apparent to the Applicant or his representative that the question of whether or not the Applicant had steered the people smuggling vessel was newly in issue.
1F. The Tribunal proceeded to affirm the delegate’s decision inter alia on the basis that the Applicant has ‘fabricated his claim to have been steering the boat’ in its Decision Record of 29 October 2015.
(Emphasis in original)
Applicant’s Submissions
The applicant’s submissions were as follows:
a)the applicant has maintained since his arrival that he had steered the people smuggling vessel in return for money and named three persons, including A, who were involved and disclosed the pre-trip logistics;
b)the issue of whether the applicant was steering a people smuggling vessel was not dispositive before the Delegate and the Tribunal did not put to the applicant or advise him that the question of whether or not the applicant steered or was a member of the “crew” on the people smuggling vessel was now in issue;
c)the Tribunal addressed the issue of whether it was the first occasion the applicant had steered a people smuggling vessel and that was inadequate to tell alert the applicant that it was in issue whether or not he was in fact steering the boat, while the Tribunal’s questioning signals the Tribunal’s acceptance of the proposition that he was steering the vessel on at least one occasion;
d)of the 83 paragraphs in the Tribunal Decision there are just three references to the evidence concerning his involvement in steering the boat;
e)the Tribunal touches upon a related issue in questioning the applicant about previous refusals to steer a vessel in the context of inquiring if the applicant had a well-founded fear of persecution in Sri Lanka, as if so he would have accepted the first offer to steer a people smuggling vessel, however, this is also inadequate for procedural fairness purposes as it signals to the applicant that the Tribunal had accepted the proposition that he was steering the vessel on at least one occasion;
f)given the premise of the questioning was that the applicant had steered the boat on at least one occasion, it is singularly inapt to convey that there was a serious issue as to whether the applicant was in fact a member of the crew or that that fact was in jeopardy, rather it was assumed that he had done it on at least one occasion;
g)the thrust of the exchanges between the Tribunal and the applicant is that the emphasis was not on whether or not the applicant was in fact steering the boat, but it was upon the resources at the applicant’s disposal to meet a fine were he repatriated to Sri Lanka;
h)what SZBEL stands for was that the applicant really had no focal point and no direction in which to put the evidence or make submissions and to satisfy s.425 of the Migration Act the applicant must have brought to his attention the question towards which the submissions are to be directed;
i)there is an element of circularity in the Minister’s proposition as if the issue is not raised by the Delegate, evidence needs to be produced by the applicant for the Tribunal to consider it but the Minister contends that if the applicant introduces the evidence, procedural fairness rights are thereby waived and that just does not correlate with SZBEL; and
j)the Tribunal indicated that it had run out of time and invited written submissions on ‘anything ... we don’t cover’ therefore the applicant could not address directly the question of whether the applicant had in fact steered the people smuggling vessel and had the applicant known that this was in issue, he could, amongst other things, have highlighted his consistent statements, sought to persuade the Tribunal by giving additional testimony about the course and navigation, or subpoenaed the Department’s files for corroborative information concerning ‘A’.
Minister’s Submissions
The Minister submitted as follows:
a)it is accepted that the applicant’s claim to have been involved in steering the people smuggling vessel on which he travelled was not an issue before the Delegate, however, the applicant did not make any claim to fear harm on the basis that he had been involved in steering the vessel on which he had arrived in Australia, and he only made such a claim at the Tribunal hearing;
b)the decision of the High Court in SZBEL does not assist the applicant having regard to the facts of this case as unlike the appellant in SZBEL, who was unaware that the Tribunal was going to have regard to issues that were not issues before the Delegate, here it was the applicant who raised the issue of him assisting with steering the boat at the Tribunal hearing in response to a question from the Tribunal as to whether he feared that he would be questioned or charged with people smuggling, and he replied that he feared that this would occur;
c)this was a specific issue raised again by the applicant in the post hearing submissions provided by his migration agent, thus accordingly, unlike the appellant in SZBEL, it must follow that there was no denial of procedural fairness by the Tribunal on the basis that the applicant was not on notice that his involvement in steering the vessel was an issue in relation to the decision under review within the meaning of s.425(1) of the Migration Act as he had raised the issue himself at the Tribunal hearing, and had made specific submissions about the issue in the post hearing submission provided by his migration agent;
d)SZBEL was a decision that pre-dated the introduction of s.422B of the Migration Act and it must be understood in that context;
e)the issue in more broad terms was whether upon return to Sri Lanka the applicant would be questioned and charged by Sri Lankan authorities in relation to people smuggling under the I & E Act as opposed to being charged with a much lesser offence of leaving the country illegally and being fined. In support of that issue the applicant provided evidence to the Tribunal that he had been involved in steering the boat and this was the basis for his claim then to fear harm because he would be questioned and charged by the Sri Lankan authorities for a smuggling offence, however, that was not an issue before the Delegate because the applicant had not raised it as an issue or claim before the Delegate; and
f)the Tribunal was not obliged in these circumstances, where the applicant put forward new claims and new evidence to the Tribunal which was not before the Delegate, to accept that evidence or advise the applicant that it is not going to accept that evidence.
At hearing the Minister noted that if the Court was satisfied there was an error in respect of ground 1, then it further submitted the error was not jurisdictional or the Court should not exercise the discretion to grant relief as the outcome would have been no different. The Court ordered written submission on this issue and addresses it below.
Consideration
In SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ the High Court stated:
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.
The facts in SZBEL were that in the applicant’s statutory declaration accompanying his protection visa application it was stated the applicant “jumped ship” as he feared harm from his ship Captain on the basis of his religion. The delegate did not consider the credibility of this event and did not base the decision not to grant the visa on any aspect of this evidence, rather the delegate was not satisfied that the nature and extent of the applicant’s religious commitment was sufficient to satisfy the protection criteria. The applicant applied to the Tribunal for review, and the Tribunal affirmed the decision on the basis that it did not accept that the account of events in the applicant’s statutory declaration had occurred, and in particular rejected as “implausible” the applicant’s account of how the ship captain became aware of his religious affiliation and interest and the reaction of his captain in respect thereof.
In SZBEL, at no time during the hearing did the Tribunal discuss or indicate to the applicant that the plausibility of the events and his account of them in the statutory declaration was a “live issue”. Specifically at [3] in SZBEL per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ it was observed that:
At no stage did the Tribunal challenge what the appellant said, express any reaction to what he said, or invite him to amplify any of the three particular aspects of the account he had given in his statutory declaration, and repeated in his evidence, which the Tribunal later found to be “implausible”.
In light of the applicant in SZBEL not being placed on notice that the Tribunal doubted the plausibility of these accounts, the High Court found the applicant had been denied procedural fairness and that the Tribunal had failed to comply with s.425 of the Migration Act. Section 425(1) of the Migration Act reads:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
At the Tribunal hearing the following exchange occurred:
TM: And you arrived on a people smuggler boat?
AS: Yes.
TM: How much did you pay to travel to Australia on a people smuggler boat?
AS: One guy called A came to my house several times and offered me 2 lakhs which is 200,000 rupees to join them so that I could help at the wheel.
…
TM: Oh ok, all right. So I just want you to confirm this. You’re saying that they paid you 200,000 rupees to steer the boat from Sri Lanka to Cocos Island. Is that what you’re saying?
AS: Yes that’s true and I did it as a support to him till we got to Cocos Island.
TM: And did he pay you 200,000 rupees?
…
TM: …I want to know is this the first time you steered a boat or travelled on a boat that was associated with people smuggling towards Australia?
AS: No. I don’t have any connection with (indistinct) in Australia.
RMA: So the answer is yes. The answer to your question is yes.
TM: That’s what I’m understanding – yes…
(Tribunal Transcript, pp.5-6)
Later in the hearing another exchange occurred:
TM: You departed Sri Lanka by people smuggler boat and you say that you steered the boat. You know that it is an offence under the Sri Lankan law to leave Sri Lanka by way of people smuggling. Are you aware what will happen to you as a result of that upon your return to Sri Lanka if you return?
AS: They will question, the government will question us and the CID might do something to us.
TM: But do you know that it was against the law or is against the law in terms of departing from Sri Lanka by people smuggling boat?
AS: I wasn’t aware it was illegal.
TM: So you’ve worked a very significant part of your life as a fisherman on boats, departing, working around the coast of Sri Lanka and you say that you didn’t know that to leave Sri Lanka by people smuggler boat was illegal.
AS: As a fisherman I knew you can’t go to other people’s countries but I didn’t know they would detain us.
(Tribunal Transcript, pp.20-21)
In the Tribunal Transcript at pp.23-25, the applicant’s migration agent asked the applicant a number of questions as follows:
RMA: How much did A promise to pay for steering the boat?
AS: He promised 700,000 but he gave me only 200,000.
…
RMA: Do you fear any harm from A if you returned to Sri Lanka when A is in Sri Lanka?
AS: [A] has lots of thugs with him, so I would be in danger.
TM: Why?
AS: Because he’s the one who smuggled people, he might want to get rid of me.
TM: He’s the one who organised the trip?
AS: Yes.
…
RMA: Member, did I get it correctly, he did mention at the entry interview that A is the one who organise
TM: Yes.
RMA: He did mention specifically that A did organise the trip.
TM: Well he mention that … he refers to A, W and L who the other guys driving the boat…
…
RMA: How long did you steer the boat?
AS: 2 hours. We had 2 hours.
TM: Okay. So you would do 2 hours every 6 hours, is that how it worked?
AS: There were 5 people to take turns.
RMA: When you’re returned to Sri Lanka, do you fear that you’ll be questioned or charged for people smuggling?
AS: Yes.
Based on the above exchanges the Court can identify only one occasion where the Tribunal expressed doubt as to the applicant’s evidence: that he was a fisherman and was not aware it was illegal to leave Sri Lanka by people smuggling boat.
It follows that the Tribunal did not specifically put to the applicant that it disbelieved the claims that he was making concerning having been paid to steer the boat, and there is nothing in the Tribunal’s questioning of the applicant, or in the general course of the evidence before the Tribunal which would suggest that the Tribunal might not be prepared to accept that claim. There was no “challenge” to the applicant on this issue: cf SZBEL at [3] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, and the applicant was afforded no opportunity to meet whatever concerns the Tribunal had about his account of being paid to steer the boat. In the circumstances the Court is satisfied that the applicant was denied procedural fairness. It follows that ground 1 is made out, and the Tribunal Decision is affected by jurisdictional error.
Ground 2
Ground 2 is as follows:
The Tribunal’s decision was vitiated by jurisdictional error by a denial of procedural fairness in concluding that the Applicant upon return to Sri Lanka ‘will not be regarded by the authorities there as a person who has facilitated or organised a people smuggling venture’ (the Smuggling Non-Prosecution Conclusion) when the Applicant was not on notice that the Tribunal would base the Smuggling Non-Prosecution Conclusion on information that:
2.1 The Applicant had not ‘been charged with people smuggling by the Australian authorities’, and;
2.2 The Sri Lankan authorities have no means to learn of the Applicant’s role or claimed role in people smuggling, and;
2.3 The Applicant will not himself disclose to the Sri Lankan authorities his role or claimed role in people smuggling.
(Emphasis in original)
Applicant’s Submissions
The applicant’s submissions on ground 2 were that the Tribunal was required to put this information, or the propositions at [2.1]-[2.3] of the ground to the applicant and that these propositions were not the ‘thought processes’ of the Tribunal, rather they purport to be positive integers of fact the clear particulars of which ought to have been put to the applicant.
Minister’s Submissions
In response to ground 2, the Minister submits:
a)in reality, this ground of review attacks the merits of the Tribunal’s Decision which is not permitted;
b)the Tribunal was obliged by s.424A of the Migration Act to provide “information” to an applicant in particular circumstances and the matters set out at [2.1]-[2.3] of ground 2 are not “information” required to be disclosed to the applicant under s.424A of the Migration Act;
c)at [73] of the Tribunal Decision the Tribunal concluded that having regard to all of the circumstances, it was satisfied that upon return to Sri Lanka the applicant would not be targeted by the authorities as a person who had facilitated or organised a people smuggling venture, in part because there was “no evidence before it that the applicant has been charged with people smuggling by the Australian authorities”, and it is established that an evidential gap does not constitute “information”; and
d)the matters that the applicant refers to are not “information” within the meaning of s 424A of the Migration Act, but rather are gaps in the evidence and the Tribunal’s reasoning processes in response to the applicant’s claim that if he was to return to Sri Lanka the government would consider that he had been involved in people smuggling.
Consideration
Section 424A of the Migration Act states:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
Particulars [2.1]-[2.3] are not “information”, rather they were findings, or at best thought processes, reasoning and determinations made by the Tribunal in respect of the applicant’s claim to suffer harm returning as an alleged people smuggler: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549; (2004) 206 ALR 471 at [24] per Finn and Stone JJ. Therefore, they did not need to be put to the applicant by the Tribunal. The Court also notes that [73] of the Tribunal Decision cannot be divorced from [72] of the Tribunal Decision (or the Tribunal Decision as a whole), and in that respect the Tribunal had made the finding that the applicant “had fabricated his claim to have been steering the boat”. Nonetheless, the Court will specifically address why each particular is not “information” for the purpose of s.424A of the Migration Act.
In respect of particular [2.1], the Court is of the view that as the Tribunal is not required to put to the applicant any absence of evidence that may lead it to form a conclusion on the basis of that omission. In WAGP v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 266; (2002) 124 FCR 276 at [26] per Marshall, Weinberg and Jacobson JJ:
In our opinion, the word “information” in s 424A(1) does not encompass a failure to mention a matter to the RRT. As the Full Court observed in Win at 218 [20] “information” is used in the same sense in ss 424(1) and 424A(1). Section 424(1) provides that the RRT “may get any information that it considers relevant”. It is inappropriate to speak of the RRT “getting information” where the substance of that information is merely an observation that the appellant did not refer to a particular matter in his evidence. The fact that the appellant failed to refer to a particular matter constitutes nothing more than an aspect of the RRT's reasoning concerning a deficiency in his evidence. That observation cannot meaningfully be described as “information”. Moreover, the appellant’s submission cannot be accepted as a matter of sound policy. To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow a protracted and almost never ending process of review, a result plainly not intended by the legislature.
At no time did the applicant allude to being charged with people smuggling or that he was involved in people smuggling, he maintained he “drove the boat” at the request of A, and that he was unaware that his departing was illegal. Further, it is for the applicant to advance the evidence and argument on which they intend to rely in order to establish their claims: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1 at [187] per Gummow and Hayne JJ.
In respect of particular [2.2], the Tribunal found that the Sri Lankan authorities have no means to learn of the applicant’s role or claimed role in people smuggling. That finding, like the finding referred to in particular [2.3], was based on the facts as they were found by or before the Tribunal as a result of matters raised by the applicant or already put to the applicant by the Tribunal, and as such were not caught by s.424A of the Migration Act.
In the circumstances ground 2 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 is as follows:
3. The Tribunal’s decision was vitiated by jurisdictional error in rejecting the Applicant’s claim to complementary protection by reasoning as described at Ground 2 (above), which reasoning lacked an evident or intelligible justification, or was illogical.
Applicant’s Submissions
The applicant’s submissions in support of ground 3 were as follows:
a)this ground is the corollary of ground 2, hence if the propositions described at ground 2 are not ‘information’ capable of clear particularisation, then that is suggestive of lacunae in the Tribunal’s reasoning process;
b)the proposition that the authorities in Sri Lanka would not regard the applicant as a person who has facilitated people smuggling because of an absence of any evidence that the Australian authorities would advise them of such lacks a rational connection, thus while a prosecution and conviction of the applicant might have made it more likely that the Sri Lankan authorities, the absence of a prosecution does not make it less likely because the reference point is that the applicant has not been prosecuted; and
c)the proposition that the Sri Lankan authorities do not have the means to learn of the applicant’s claimed role has no basis, and ignores the possibility that one may seek to ameliorate any sentence by providing information to the authorities of the applicant’s role while the proposition that the Sri Lankan authorities would only learn of the applicant’s role if the applicant himself confessed, and that the Tribunal did not ‘believe’ that the applicant would do so, proceeds from an absence of any country information on the Sri Lankan law and overlooks that it is not uncommon for accused persons to make confessions when confronted with allegations (including potentially false allegations) in an attempt to ameliorate a sentence.
Minister’s Submissions
The Minister submitted that:
a)this ground of review is another impermissible attack on the merits of the Tribunal Decision;
b)while it is the case that people known by the Sri Lankan authorities to have been involved in organising people smuggling may be charged with an offence under s.45C of the I & E Act, there is nothing illogical or irrational in the Tribunal reasoning at [73] of the Tribunal Decision that it was satisfied that that upon return to Sri Lanka the applicant would not be regarded by the Sri Lankan authorities as a person who had been involved in organising or assisting people smuggling when one considers the authorities on this type of error; and
c)the Tribunal’s reasoning and its conclusion on this issue does not lack an evident or intelligible justification.
Consideration
This ground simply takes issue with the findings made by the Tribunal in a manner which seeks to have this Court engage in impermissible merits review: 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. Further, the conclusion reached by the Tribunal had an evident and intelligible justification based on the applicant acting in his own self-interest upon return to Sri Lanka.
In the circumstances ground 3 is not made out and does not establish jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 is as follows:
The Tribunal’s decision was vitiated by jurisdictional error by making a finding of fact for which there was no evidence, which was a link in its chain of reasoning that the Applicant lacked credibility and that therefore his claims were to be disbelieved generally.
Particulars
4A. The Tribunal found that the Applicant had been in receipt of income of $1300 per fortnight after tax by way of workers’ compensation consequent upon an injury sustained in September 2014.
4B. The Tribunal reasoned that the combination of that fact, and the Applicant’s evidence that he had been paid Rs200,000 to steer the people smuggling vessel, compelled the Tribunal to reject the Applicant’s contention that he would be unable to pay a fine of Rs 50,000 were he to be repatriated to Sri Lanka and fined for unlawfully leaving Sri Lanka.
4C. This consequential finding was a link in the Tribunal’s chain of reasoning toward rejecting the Applicant’s claim generally, because the Tribunal reasoned that the Applicant lacked credibility and therefore his claims were fabricated. This included an implicit finding that the objective evidence supporting the Applicant’s claims of political activism in the form of a letter of support purportedly from the Divisional secretariat [sic] Councilor [sic] of the Sri Lanka United National Party, a Mr [name deleted], was also a fabrication.
4D. In fact, the only evidence was the Applicant’s that when working he was paid $1300 per fortnight after tax, that ‘at the moment I haven’t got anything and that he ‘ha[s]n’t got any income for the last 7 months and I’ve been fed by other fellows in the house.
(Emphasis in original)
Applicant’s Submissions
The applicant’s submissions echoed the particulars of ground 4.
Minister’s Submissions
The Minister submitted as follows:
a)the Tribunal did not in fact reject the applicant’s claim that he could not afford to pay a fine of Rs 50,000 by reason of being charged with having left Sri Lanka illegally:
b)even if the Tribunal could be said to have rejected the applicant’s claim that he could not afford to pay a fine of Rs 50,000, such a finding played no part in the Tribunal’s conclusion at [73] of the Tribunal Decision that the applicant was an unreliable witness who appears to have fabricated evidence to bolster his application for a protection visa; and
c)any finding by the Tribunal rejecting the applicant’s claim that he could not afford to pay a fine of Rs 50,000 was not “a link in its chain of reasoning” as to the applicant’s credibility and its conclusion that the applicant had fabricated his claim of fearing harm in Sri Lanka for reasons of his political opinion.
Consideration
Contrary to particulars 4A and 4B of ground 4, the Tribunal did not make a finding rejecting the applicant’s claim that he would not be able to pay the fine of Rs 50,000. Rather, the Tribunal found that if the applicant was required to pay the fine of Rs 50,000, then he could do so by instalments and he would be able to find employment so as to pay the amount off: see [75] of the Tribunal Decision, as the country information indicated the applicant could do, and as the Tribunal found he would be able to do, as well asto obtain employment that would generate sufficient income to maintain himself and pay off any fine. In any event, the Tribunal found that the imposition of the fine did not amount to serious harm and when read with the finding that the I & E Act was a law of general application applied in a non-discriminatory manner ground 4 cannot be maintained. Further, reading [75] of the Tribunal Decision as a whole, it is clear that the Tribunal had regard to the applicant’s evidence, in particular that he had been injured in an accident and may be unable to work as a fisherman as he did previously, though there was no evidence he was incapable or incapacitated from finding any work “whatsoever”. It cannot be said there was “no evidence” for the conclusion the Tribunal made, noting that the Tribunal did not make any finding on the applicant’s claim he could not pay the fine, but rather considered it was doubtful, but still proceeded to determine if he would suffer serious harm by it being enforced. The Tribunal proceeding the way that it did indicates that the “only evidence” referred to in particular 4D was accepted, or if not accepted, the Tribunal at least proceeded to address the imposition of a fine in the circumstances where the applicant might not have sufficient funds to pay the fine forthwith.
At [60]-[62] of the Tribunal Decision the Tribunal made express findings as to the credibility of the applicant, specifically with respect to the claims concerning his political activism and why it rejected such claims. At no time does the Tribunal mention that the applicant’s evidence on being unable to pay the fine was a factor going to undermine his credibility generally, nor a “a link in the Tribunal’s chain of reasoning toward rejecting the Applicant’s claim generally”. The Tribunal clearly rejected the applicant’s political claims on the basis of inconsistencies in his evidence specific to that claim.
Finally, in respect of the reference to the letter provided by the Divisional Secretariat of the UNP in Sri Lanka, it is well accepted that the weight the Tribunal affords to an applicant’s evidence is a matter for the Tribunal: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J. Furthermore, the reasons the Tribunal gave for rejecting, or placing little weight, on that letter were set out at [64] of the Tribunal Decision as follows:
The Tribunal also considered a copy of a handwritten letter which is written on a plain piece of paper and rubber stamped “Divisional secretariat Councillor, Nimal Rathnayaka, Gammana 4, Rajangana Road, Thambuttagama”, in which the writer states that the applicant and his family supported the UNP for a long time and faced many political problems and was threatened and left for Australia because he could not get protection. Having regard to the negative assessment it has made of the applicant’s credibility, and to its assessment of the applicant’s lack of political activities, and to the form of the letter, the Tribunal decided to place little weight on that letter.
It was not simply the general credibility finding that was the reason for the Tribunal placing little weight on the letter, it was also the finding it had already made, based on the other evidence the applicant had provided, that the applicant had not engaged or partaken in political activities to the extent alleged and also that the form of the letter was also questionable. The Tribunal at [13] of the Tribunal Decision noted that :
The delegate placed little weight on a letter submitted by the applicant from [name deleted], Divisional Secretariat Councillor which states the applicant and his family supported the UNP for a long time as it contradicts the applicant’s evidence and also because it was not provided on UNP stationery.
What can be observed is that the Delegate had rejected the letter, therefore the applicant was taken to be on notice that there was an issue in relation to this evidence. The applicant did not seek to explain to or submit to the Tribunal why the Delegate was incorrect in placing little weight on the letter. In those circumstances, the Court does not accept that it was a result of credibility findings that the Tribunal rejected the alleged corroborative evidence of the letter as a fabrication. It was clear that the authenticity of the letter was in doubt, as was the applicant’s claims of political activities. The Court is not satisfied there was any error in affording the letter little weight, or that the Tribunal doing so was a result of link in the chain of impugned reasoning stemming from the credibility findings made against the applicant.
Ground 4 is not made out and fails to identify any jurisdictional error in the Tribunal Decision.
Discretionary relief
As noted above, the Minister submitted that if the Court were satisfied there was an error in ground 1, it should further consider if that error was jurisdictional or it was material in the sense it deprived the applicant of a successful outcome. If the Court accepted the Minister’s submissions, then it was said that it should not exercise the discretion to grant the prerogative relief sought by the applicant.
The grant of prerogative relief is discretionary. In the circumstances of this case, where ground 1 has been made out, the Court is not prepared to speculate upon what might have happened had the Tribunal afforded the applicant procedural fairness. In particular, the Court is not prepared to make speculate upon what difference it might have to other findings made by the Tribunal had the Tribunal afforded the applicant procedural fairness. In the circumstances the Minister’s contention that the Court ought not to grant prerogative relief even though ground 1 has been made out is rejected.
Conclusion and orders
The Court has concluded that:
a)ground 1 of the Further Amended Judicial Review Application have been made out and establishes jurisdictional error in the Tribunal Decision;
b)otherwise, the grounds of the Further Amended Judicial Review Application have not been made out; and
c)the Minister’s contention that the Court ought not exercise its discretion to grant prerogative relief is to be rejected.
It follows from the Court’s conclusion that appropriate prerogative relief ought to be granted to the applicant.
There will also be an order that the name of the Minister be changed to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 9 October 2019
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