COP15 v Minister for Immigration
[2018] FCCA 1569
•15 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COP15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1569 |
| Catchwords: MIGRATION – Protection (class XA) visa – applicant claimed to fear harm by reason of his support for Sri Lankan United National Party – neither ground of review meaningful – no particulars – adverse credibility finding by tribunal – finding open to tribunal – tribunal’s findings logical and probative – application for judicial review dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa), 424A, 425, 425A Ministerial Direction No.56 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | COP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2661 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 8 June 2018 |
| Date of Last Submission: | 8 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 June 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Spark Helmore |
ORDERS
The proceeding commenced by the application filed on 2 December 2015 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2661 of 2015
| COP15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 2 December 2015 the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 9 December 2015 pursuant to which the tribunal affirmed a decision of the minister’s delegate made 17 January 2014 to refuse to grant to the applicant a protection visa for which the applicant applied on 4 April 2013.
In his application to this court, the applicant raised two unparticularised grounds of review. They were as follows –
1.The Administrative Appeals Tribunal did not afford me procedural fairness.
2.The Administrative Appeals Tribunal applied the wrong legal test.[1]
[1] Application filed 2 December 2015, 3
By orders made by a registrar of this court on 27 April 2016, this case was fixed for hearing before me. On 7 March 2018 a notice of listing was sent to both parties at the address given by each indicating that the proceeding was to be heard on 15 May 2018 at 2:15pm. On that day, the applicant did appear but his legal representative did not. As result, I re-fixed this application for hearing on 8 June 2018 and communicated with the applicant’s solicitor requiring an explanation for her failure to appear on 15 May 2018.
On 8 June 2018 the applicant’s former solicitor attended before me but did not appear to represent the applicant in this case. I asked why she did not appear on 15 May 2018 or instruct counsel. She said that on 20 April 2018 her former client instructed her that he wanted to appear himself. At some stage thereafter she travelled overseas. She conceded she did not contact the court or the solicitors for the minister in the lead up to 15 May 2018 informing anyone of her client’s intentions as communicated on 20 April 2018. She handed me a notice of intention to withdraw that she said had been sent by fax on 31 May 2018 to the court, well after the scheduled hearing on 15 May 2018. It should be emphasised that she was given notice of the hearing but she chose not to communicate with my associates to say that she would not attend.
I told her that her conduct was less than courteous and that it was at the margins of unsatisfactory professional conduct. She eventually apologised. During the hearing of the judicial review application she sat in the body of the court although not at the Bar table. Her former client through an interpreter presented his case.
On 10 August 2012 the applicant, a citizen of Sri Lanka of Sinhalese ethnicity and catholic religion, arrived in Australia as an irregular maritime arrival. On 4 April 2013 he applied for a protection visa. He asserted that by reason of his support for the United National Party of Sri Lanka (“UNP”) since 2002, Australia owed him protection obligations. The minister’s delegate refused to grant the visa, after which the applicant applied to the tribunal which in turn refused to grant the visa. He sought judicial review in this court.
Synopsis
For the reasons that follow, in my judgment this application for judicial review should be dismissed with costs.
Relevant factual setting
With his protection application the applicant provided a statutory declaration setting out his claims to fear harm. In summary, the applicant claimed –
a)his family supported the UNP;
b)having first become involved in 2002, he helped organise meetings and displayed banners;
c)the majority of persons in his town supported the ruling party leading to unfair treatment of them;
d)the applicant’s family faced physical harm from supporters of the ruling party;
e)the applicant’s brother was beaten by naval personnel in 2007 after which his family was warned that they would be reported to police and charged with holding illegal firearms if they complained;
f)in 2010 the applicant became more politically active;
g)in July 2012 his close friends attempted to lure him to a location where government people were waiting in order to beat him;
h)on 22 January 2013 unknown members of the navy attended at his home assaulting the applicant’s father and ransacking the house; and
i)the applicant provided a police report made by the applicant’s father stating that two men in a white van had come to the father’s house looking for the father’s sons threatening to kill them all if they continued to support the UNP.
The delegate found that the applicant was a low level supporter of the UNP and may have been verbally abused by political opponents. The delegate accepted that the applicant’s brother was assaulted in March 2009 and his family thereafter threatened. Other aspects of the applicant’s claims were rejected.
On 22 January 2014 the applicant applied to the tribunal (then known as the Refugee Review Tribunal) for a merits review of the delegate’s decision. On 28 August 2015 the tribunal invited the applicant to attend the hearing before it to give evidence and present arguments. On 28 October 2015 the applicant attended the tribunal and with the assistance of an interpreter gave evidence and presented arguments.
On 9 November 2015 the tribunal affirmed the decision of the delegate to refuse to grant the applicant the protection visa that he sought.
The tribunal’s decision was considered, spanning 82 numbered paragraphs. Relevantly paraphrased the following matters emerged from the tribunal’s reasons –
a)the tribunal found that the applicant, his father and brother were low level supporters of the UNP;
b)by reason of inconsistencies between the applicant’s evidence at the hearing and the material recorded in his statutory declaration, the tribunal did not accept that the applicant’s brother was assaulted, incarcerated or threatened by police or naval persons;
c)similarly, by reason of inconsistencies between the applicant’s evidence at the hearing and the material recorded in his statutory declaration, the tribunal did not accept that the applicant’s friends attempted to lure him to a place with a view to his beating by government supporters;
d)the tribunal said it did not accept the applicant’s statement that “police in Sri Lanka do such things on purpose”,[2] which led the tribunal to doubt other things claimed by the applicant as having occurred;
e)the tribunal said it was willing to accept that the applicant may have been harassed and was asked to abstain from putting up UNP posters but it said it did not accept that any such harassment amounted to serious or significant harm;
f)the tribunal found that the prospect of the applicant being harmed in relation to electoral based violence if returned was so low as to be considered remote or insubstantial;
g)the tribunal found that the applicant’s political party was the party that controlled the government with the consequence that the applicant would not be targeted for harm by reason of his political opinion;
h)the tribunal recorded that the applicant confirmed he did not fear harm based on his religion or ethnicity and the tribunal found he did not face a real chance or risk of harm on that basis;
i)the tribunal said the applicant would not face a real chance of persecution if he was to return to Sri Lanka as a failed asylum seeker and he did not face a real risk of significant harm on that basis;
j)the tribunal said the applicant may face short-term detention as result of being charged under the Immigrants and Emigrants Act (Sri Lanka) but his prospects of being subjected to torture was remote, the applicant had the financial capacity to pay a fine and while the conditions in prison were poor, the tribunal did not accept that the applicant would be singled out or intentionally harmed while waiting for bail; and
k)the applicant did not face a real chance of serious harm arising from his political activity, his political opinion, his ethnicity, his religion, his status as a failed asylum seeker, his status as a returnee from a western country or as a person who departed illegally and therefore the tribunal was not satisfied that the applicant faced a real risk of significant harm upon his being removed to Sri Lanka.
[2] Court book filed 2 December 2015, 161 [22]
The tribunal was not satisfied that the applicant met the criteria under s.36(2)(a) or under s.36(2)(aa) of the Migration Act (“Act”).
In this court
In addition to addressing each ground of review, the minister identified that the applicant did not provide particulars to make either ground of review meaningful and so the minister submitted that the application for judicial review could not succeed for that reason alone. The minister’s solicitor who appeared before me did not take me to any authority to make good that proposition. However, authority does exist in the form of the decision of Siopis J in WZATH v Minister for Immigration and Border Protection,[3] the decision of Logan J in BHK15 v Minister for Immigration and Border Protection,[4] another decision of Logan J in AQN15 v Minister for Immigration and Border Protection[5] and the decision of Gilmour J in WZAVW v Minister for Immigration and Border Protection.[6]
[3] [2014] FCA 969
[4] [2016] FCA 569
[5] [2016] FCA 571
[6] [2016] FCA 760
The applicant did not descend into any proposition fact or law by which it was possible to tell what the alleged procedural unfairness was. The minister submitted that the tribunal complied with the procedural fairness obligations set out in Part 7 Division 4 of the Act. The minister correctly submitted that the applicant was invited to attend the hearing which the applicant attended in the company of an interpreter. The minister correctly submitted that the applicant was on notice that his credibility was an important issue for the tribunal.
I agree with the minister’s contentions that no breach of s.425 or s.425A of the Act occurred.
Ground 1
I also agree with the minister’s submissions that no obligations under s.424A arose. All of the information on which the tribunal relied was either country information, information provided by the applicant to the tribunal, information contained in the delegate’s decision that was provided by the applicant to the tribunal or it was information provided in writing to the department, all of which fell within the exception to “information” in s.424A(3) of the Act.
Ground 2
Under the second ground, the applicant contended that the tribunal applied the wrong legal test. He did not say in what respect the tribunal erred. Far from the tribunal applying the wrong legal test, it seemed to me that the tribunal correctly set out the relevant criteria and then applied the facts to the law. The minister submitted that the conclusions of fact reached by the tribunal were open on the material before it. I agree.
When I asked the applicant to tell me in his own words what he said the tribunal did wrong in this case, the applicant said the tribunal did nothing wrong.[7]
[7] Transcript of proceedings, COP15 v Minister for Immigration and Border Protection & Anor (Federal Circuit Court of Australia, MLG 2661 of 2015, his Honour Judge Wilson, 8 June 2018), 13 at ll.32-46; 14 at ll.1-3
That was a curious submission because it was inconsistent with the information recorded between paragraphs 14 and 28 of written submissions advanced by the applicant in which he descended into considerable detail asserting the existence of error by the tribunal.
In paragraph 14 of his written submissions the applicant asserted that the tribunal erred in respect of paragraph 8 of its decisions in relying too heavily on Ministerial Direction No.56. I reject the submission. Ministerial Direction No.56 required the tribunal to take into account any country information prepared by the Department of Foreign Affairs and Trade. The tribunal did that. I do not agree that the tribunal thereby gave too much or excessive weight to that ministerial direction. The tribunal did what it was required to do.
In paragraph 15 of his written submissions the applicant asserted that the tribunal erred in respect of paragraph 20 of its decision by reaching conclusions about credibility that he said were not supported by the evidence. I reject that. Credibility assessments fall within the ambit of the proper exercise of the tribunal’s powers. Whilst a finding in relation to credibility may found a conclusion of jurisdictional error as held in Minister for Immigration and Citizenship v SZRKT[8] and ARG15 v Minister for Immigration and Border Protection[9] the fact that those conclusions were contrary to the applicant’s interests was neither here nor there because even emphatic disagreement would not be sufficient to make out illogicality as held in CQG15 v Minister for Immigration and Border Protection.[10]
[8] [2013] FCA 317
[9] (2016) 250 FCR 109
[10] [2016] FCAFC 146
In paragraph 16 of his written submissions the applicant contended that the tribunal erred in relation to paragraph 21 of the tribunals’ decision in not believing that the applicant’s friend attempted to lure the applicant into being assaulted for his political beliefs. I disagree. That conclusion was likewise open on the material.
In paragraph 17 of his written submissions the applicant asserted that the tribunal erred in respect of paragraph 22 of its decision in not believing the applicant that the applicant’s father was assaulted. Again, it was open to the tribunal to reach that conclusion and the fact that the conclusion was adverse to the applicant did not tell of jurisdictional error. To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, ‘extreme’ illogicality must be demonstrated measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions as held in SZRKT and also in DAO16 v Minister for Immigration and Border Protection.[11]
[11] [2018] FCAFC 2
In paragraph 18 of his submissions, the applicant contended that there was ample evidence of the persecution of the applicant. I disagree. It seemed to me that the tribunal’s conclusions were correct.
In paragraph 19 of his written submissions the applicant asserted that the tribunal erred in respect of paragraphs 20 to 22 of its decision in focusing too heavily on the dates of events. True, an applicant is to be accorded a certain degree of latitude in respect of the precision of his recollection of dates, especially having regard to the traumatic circumstances in which many applicants arrived in Australia seeking protection. However, when aggregated with other issues in respect of which the tribunal expressed its concern about credibility, it struck me that the tribunal was entitled to express its concern about the inadequacy of the applicant’s recollection in respect of dates and events. As was held in ARG15 and SZRKT the question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry and is not assessed by reference to fixed categories or formulae. I detected no error in paragraphs 20, 21 and 22 of the tribunal’s reasons.
In paragraph 20 of his written submissions the applicant asserted that the tribunal erred in respect of paragraph 26 of the tribunal’s reasons. In that paragraph, the tribunal stated that it did not accept that the applicant or his family had experienced harm for reasons associated with their political involvement in the past. In developing its reasons, the tribunal indicated that it was willing to give the applicant the benefit of the doubt that he had some low level involvement with the UNP. I do not accept as the applicant contended in paragraph 20 of his written submissions that the tribunal thereby substituted its own view. Whether or not the applicant genuinely and subjectively believed in a particular state of affairs was neither here nor there. The applicant was required to provide his evidence in sufficient detail as to enable the decision maker to establish the relevant facts and it was not up to the minister to make out the applicant’s case for him nor was it for the tribunal to make out the applicant’s case for him. The applicant bore the onus. Authority beyond question has so held including Abebe v Commonwealth of Australia,[12] VAAD v Minister for Immigration and Multicultural and Indigenous Affairs[13] and Minister for Immigration and Citizenship v SZGUR.[14]
[12] (1999) 197 CLR 510
[13] [2005] FCAFC 117
[14] (2011) 241 CLR 594
In paragraph 21 of his written submissions the applicant asserted that the tribunal erred in respect of paragraphs 26 to 29 of its reasons. He contended that the tribunal erred in concluding that by reason of his status as a low level supporter of the UNP that the applicant’s activities would not have led him to be seen as a significant concern to opposing political supporters or government authorities. The applicant said that any person of any level of political support may suffer persecution. It seemed to me that the applicant’s grievance in respect of paragraphs 26 to 29 of the tribunal’s reasoning was unduly generic to be of any particular utility in this case. The authorities are well-established about the circumstances in which a person can invoke protection or complementary protection obligations by reason of an applicant’s political activities as giving rise to a well-founded fear of persecution. The applicant did not cast his case in such a manner. Instead, he asserted that his level of support for his party (now the government), howsoever lowly, enabled him to contend that he properly invoked s.36(2)(a) and s.36(2)(aa) of the Act. I do not agree. In my view the tribunals reasoning in those paragraphs was accurate.
In paragraph 22 of his written submissions the applicant asserted that the tribunal erred in respect of paragraph 31 of its reasons by placing too much emphasis on generic country reports. According to the decision of the Full Court of the Federal Court of Australia in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[15] the tribunal can accord country information such weight as the tribunal thinks fit. Further, the choice and interpretation of country information is a factual matter for the tribunal alone, as was held and NBKT v Minister for Immigration and Multicultural Affairs.[16]
[15] [2004] FCAFC 10
[16] (2006) 156 FCR 419
In paragraph 23 of his written submissions the applicant asserted that the tribunal erred in respect of paragraphs 36 to 39 of its reasons by finding that the applicant could not return to Sri Lanka because the applicant’s party was now in power and those who had previously attacked him would not be a threat. He did not develop the argument. He did not say in what respect he relied on the High Court’s decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[17] I did not detect any defect of reasoning in paragraphs 36 to 39 of the tribunal’s reasons.
[17] (2003) 216 CLR 473
In paragraph 24 of his written submissions the applicant asserted that the tribunal erred in relation to paragraph 42 of its reasons. Specifically, the applicant complained that the tribunal failed to give proper weight to his contentions about being persecuted as a failed asylum seeker if returned to Sri Lanka. It seemed to me that the applicant was expressing his unhappiness with the tribunal’s conclusions. Between paragraphs 42 and 59 of its reasons the tribunal gave detailed consideration to the applicant’s circumstances as a failed asylum seeker. I reject the challenge that he made at paragraph 24 of his written submissions.
In paragraph 25 of his written submissions the applicant asserted that the tribunal erred in relation to paragraph 63 of its reasons by concluding that the applicant could face arbitrary detention for illegally leaving Sri Lanka upon his return. It seemed to me that the alleged defect of reasoning identified in that paragraph was not accurately stated. The applicant failed to correctly record that the tribunal found that on the applicant’s return he would face a short-term detention prior to applying for and obtaining bail and that he was able to pay any fine associated with a conviction under the Immigrant and Emigrants Act (Sri Lanka). I detected no error in paragraph 63 of the tribunal’s reasons
In paragraph 26 of his written submissions the applicant made an ill directed assertion that it was not for the tribunal to substitute its own personal opinion. I did not detect any expression by the tribunal of its own personal opinion. To the contrary, in my view the tribunal correctly applied the facts to the prevailing legislative regime.
In paragraph 27 of his written submissions the applicant said he was a legitimate and lawful asylum seeker. The tribunal found otherwise. The issue for me on this application for judicial review was whether the tribunal fell into jurisdictional error. I did not detect that it did.
In my view neither ground nor any of the items in the applicant’s written submissions were made out.
Conclusion
I dismiss this proceeding and order the applicant to pay the minister’s costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 15 June 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Standing
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