COP17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 467
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
COP17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 467
File number: MLG 1237 of 2017 Judgment of: JUDGE CHAMPION Date of judgment: 7 June 2023 Catchwords: MIGRATION LAW – Second application for protection visa – Protection (Class XA) (Subclass 866) Visa – Correct approach to consider the application solely on the basis of the criterion which did not form part of the previous unsuccessful application – No particularised challenge to the Tribunal’s adverse credibility assessment – No error established – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 36, 48A Cases cited: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94
DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1
Minister for Immigration and Citizenship v SZGUR(2011) 241 CLR 594
Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71
SZSHV v Minister for Immigration and Border Protection [2014] FCA 253
WZAVW v. Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submissions: 30 May 2023 Date of hearing: 30 May 2023 Place: Melbourne Applicant: Appearing in person Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 1237 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: COP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE CHAMPION
DATE OF ORDER:
7 june 2023
THE COURT ORDERS THAT:
1.The application is dismissed
2.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
Before me is an application for judicial review made on 13 June 2017 of a decision of the Administrative Appeals Tribunal. The Tribunal’s decision of 25 May 2017 affirmed a decision of the delegate of the Minister (Delegate) to not grant the applicant a Protection (Class XA) (Subclass 866) Visa.
BACKGROUND
The Applicant is a citizen of Sri Lanka who is now 48 years old (Applicant).
In his originating application, the Applicant claimed that the Sri Lankan authorities suspected him of supporting the Liberation Tigers of Tamil Eelam (LTTE) (CB86-89). He says he was arrested and abducted by the authorities and fears harm if he was to return to Sri Lanka (CB86).
On 26 November 2009, the Applicant arrived in Australia on a Tourist (Subclass 676) visa (CB 22).
On 11 December 2009, the Applicant applied for his first Protection (Class XA) visa (first protection visa). On 11 March 2010 a delegate of the Minister for Immigration and Citizenship refused this application (CB11-20). On 7 July 2010 the Refugee Review Tribunal affirmed the decision (CB21).
On 3 July 2013, in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 a Federal Court Full Court held that the proper effect of s. 48A(1) of the Migration Act 1958 (Cth) was that it did not prevent a person from making a further application for a protection visa based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa: SZGIZ, [32]–[33], [47].
On 29 August 2013, following the decision in SGZIZ, the Department of Immigration and Citizenship wrote to the Applicant (CB57):
Due to a recent decision by the Federal Court of Australia, you may not be prevented under section 48A of the Act from applying for a further Protection visa in certain circumstances.
On 11 February 2014, the Applicant made an application for the Visa (second protection visa application) (CB58-85) which claimed that because of “numerous misunderstandings, confusions and misinterpretations” the first protection visa application resulted in a “failed application” (CB88).
On 1 October 2015, the Delegate refused to grant the Visa to the Applicant on his second protection visa application (CB91).
On 8 October 2015, the Applicant applied to the Tribunal to review the Delegate’s decision (CB111).
On 26 May 2017, the Tribunal affirmed the Delegate’s decision as to the second protection Visa application to refuse to grant the Applicant the Visa (CB131).
THE DELEGATE’S DECISION
Despite the Applicant’s assertion that “numerous misunderstandings, confusions and misinterpretations” had resulted in a failed first application, the Applicant acknowledged that the protection claims he advanced on his second protection visa application were “materially the same” as those claims he had advanced in his first protection visa application (CB 86).
The Delegate’s finding that the Applicant was not entitled to the Visa included the following observations (CB104-5):
While I accept that pro-government paramilitary groups are still active, I am not satisfied that the applicant has established a link between his fear of harm and a claimed imputed political opinion of LTTE support. Given the significant credibility concerns with his claims that I have outlined above, and his ability to travel regularly and freely to and from Sri Lanka during a period of civil war, I also find that the applicant does not have a well-founded fear of persecution for any other Convention reason.
[…] I do not accept that the applicant has been arrested in 1999, 2007 and 2009 and has been accused of having connections with the LTTE, supporting the LTTE or helping the LTTE with money because he associated with Tamil friends. I do not accept that the applicant was ever arrested, abducted, detained, questioned or tortured as he claims. I do not accept that there is a real chance, if the applicant returns to Sri Lanka, he will be arrested, detained, tortured or killed for reasons of a political opinion imputed to him (supporting the LTTE) on the basis of his associations with Tamils. This contributes individually and cumulatively to my concerns regarding the credibility of the applicant’s claims generally. I therefore do not accept the applicant has any profile of interest to the Sri Lankan police or paramilitaries due to his personal or professional dealings with Tamils.
The Delegate refused to grant the Visa.
THE TRIBUNAL’S DECISION
On 8 October 2015, the Applicant applied for a review of the Delegate’s decision before the Tribunal (CB111-12).
On 16 February 2017, the Tribunal invited the Applicant to attend a hearing before the Tribunal (CB123) and to provide any written submission and any witness statements in advance of the hearing (CB121). The Applicant did not provide any submissions or witness statements to the Tribunal.
On 4 April 2017, the Applicant appeared before the Tribunal at the hearing (CB125-6).
Following the decision of the Federal Court in SZGIZ, the Tribunal only considered the Applicant’s claims by reference to the complementary protection regime. It described its approach to its task as follows (CB132, [5]):
The Federal Court in AMA15 v MIBP [2015] FCA 1424 (AMA15) upheld the Tribunal’s approach of considering only claims in relation to the complementary protection criterion in s.36(2)(aa), where the applicant had previously been refused a visa on the basis of the refugee criterion in s.36(2)(a). In light of these authorities, the tribunal has considered the applicant’s claims only in relation to s.36(2)(aa).
The Tribunal summarised the Applicant’s claims (CB134, [21]):
In summary, the applicant claims that he was suspected by Sri Lankan authorities of LTTE support, including transferring money from overseas for the LTTE, because of his association with Tamil friends whom he worked with at Hatton National Bank (HNB) from 1996 until approximately 2000. He claims that he was arrested in 1999 and 2007 and abducted in 2009 as a result of those suspicions. He further fears that he will be targeted upon return by the people who abducted him in 2009 in order to prevent him from telling anyone that they demanded money from him in exchange for his release.
[Emphasis added]
The Tribunal recorded that (CB 135, [23]):
[T]he tribunal holds significant concerns about the credibility of his account due to the implausibility of key aspects of his claims and the discrepancies between his evidence and country information.
The Tribunal considered each of the Applicant’s claims (emphasised in the summary above) in turn.
Tamil Friends
As to the Applicant’s claim that he was at risk because of his association with Tamil friends at the Hatton National Bank (HNB), the Tribunal found that the Applicant’s evidence did not indicate that his Tamil Colleagues at the HNB were actually involved in the LTTE. (CB136, [29]). The Tribunal therefore reasoned that the Applicant’s association with those friends did not place him at risk of significant harm.
1999 Arrest
As to his claim that he was arrested in 1999 because the Sri Lankan authorities suspected him of supporting the LTTE, the Tribunal found (CB136, [33]):
[T]he tribunal is of the view that the applicant has significantly exaggerated his evidence. While, given the context of the civil war and his colleagues’ arrest, it is plausible that the applicant may have been questioned by police for information about his Tamil colleagues, the tribunal does not accept that he was arrested in 1999 as he claimed, beaten or abused, or that his mother and her political connections were required to secure his release.
2007 Arrest
The Tribunal found overall that the Applicant’s claim that he had been arrested by authorities in 2007 when he returned to Sri Lanka from a trip to Bangkok (Thailand) lacked credibility for several reasons (CB 136 [46]). First, although the Tribunal accepted that the Applicant had travelled to Jaffna in 2002, it did not accept “that the applicant would be questioned or that suspicions would be raised about his trip to Jaffna five years after it occurred” (CB 137, [39]). Second, the Tribunal found that if Sri Lankan authorities were genuinely suspicious of the Applicant’s frequent overseas travel, they had “ample opportunity” to question the Applicant about his regular travel before 2007 (CB 137, [40]). Third, the Tribunal found that there were inconsistencies between the Applicant’s accounts of whether or not he was physically harmed during the 2007 arrest, as his oral testimony at the hearing conflicted with an earlier statement to the Department (CB 138, [41] – [42]). Fourth, the Tribunal did not accept as credible that he avoided similar treatment when he travelled to India a few months later because “he travelled there with a very powerful businessman” (CB 138, [43]) Fifth, the Applicant’s claim that he faced no adverse treatment by authorities between 2007 and 2009 was inconsistent with how he said had been treated by authorities during the events of 2007 and that if the applicant “were of such adverse and long-term interest to the authorities he would have been subjected to further questioning, detention and arrest” (CB 138, [44]). Sixth, the Tribunal found that if the Applicant was under suspicion of transferring and receiving money overseas for the LTTE, it would be reasonable to assume that inquiries would be made at the HNB where he worked; on the Applicant’s own account these inquiries never happened (CB 138, [45]).
2009 Abduction
The Tribunal did not accept that the Applicant and his friend had been abducted by unknown men on 2 October 2009 and taken to the Sri Lankan police’s Criminal Investigation Department. The Tribunal did not accept that he was interrogated about his connection to the LTTE and it followed that it did not accept that he was transferred to another location where he was “beaten, abused, molested or raped by the same two men who questioned him” (CB140, [51]). Because the Tribunal did not accept his underlying account of events, the Tribunal did not accept that the Applicant faced future significant harm from the men he claimed abducted him (CB 141, [54]).
The Tribunal concluded that it did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that the Applicant would face significant harm (CB143, [65]).
The Tribunal affirmed the decision of the Delegate on 25 May 2017 (CB131).
THE APPLICATION FOR JUDICIAL REVIEW
On 13 June 2017, the Applicant commenced this application for judicial review. The grounds of the application are identified in the originating application as follows:
The decision made by the Second Respondent:
a.is affected by an error of jurisdiction because the Second Respondent applied Section 116(1)(6) of the Migration Act in error as there was no factual or legal basis for the Second Respondent to conclude that the Applicant could not meet the criteria set out in s. 36(2)(a), (aa), (b) or (c)
a. is so unreasonable that no reasonable decision maker could have made it;
b.is based on a finding for which there was no evidence or other material;
c.takes into account irrelevant considerations
d.fails to take into account relevant considerations
e.was an improper exercise of power conferred by the Migration Act 1958
f.was otherwise contrary to law
g.was made in bad faith as the Second Responded was biased about the issue of family violence perpetrated against men
[As written]
Procedural Issues
On 7 February 2018 the Court made orders by consent including an order requiring the Applicant to file and serve any amended application, supplementary court book and any written submissions at least 28 days before hearing. The Applicant has not filed any further material.
CONSIDERATION
At the outset of the hearing, the Applicant made an oral application for an adjournment. He said that the matter had been previously postponed and he presumed that the matter would be postponed again and for that reason he had not obtained legal representation. I refused the adjournment and said that I would incorporate my reasons in my written reasons for judgment. Although case management principles must always yield to the justice of the case, I am required to facilitate the just resolution of disputes according to law and as “quickly, inexpensively and efficiently as possible.” In terms of the justice of the case, this matter has been in the court lists for more than four years. The Applicant has had ample opportunity to prepare for the hearing. He has not amended his application or filed written submissions despite opportunities to do so. An adjournment is not warranted by reference to the needs of other litigants awaiting the hearing of their matter whose cases would be delayed by an adjournment. Additionally, there is no absolute right to legal representation in migration proceedings and a lack of legal advice is in itself not a sufficient excuse for granting an adjournment.
Despite invitation, the Applicant made no oral submissions as to the grounds of review. I have therefore dealt with his application on the basis of the written material in his originating application. I have dealt sequentially with the grounds of judicial review.
Ground 1 – Was there any factual or legal basis to find that the Applicant was not owed protection under the complementary protection regime?
Although Ground 1 refers to s. 116(1)(6) of the Act, there is no s. 116(1)(6) of the Act. Section 116 deals with the cancellation of a visa, an issue which was not relevant in this case.
The First Respondent read Ground 1 as a claim of jurisdictional error on the basis that the Tribunal had constructively failed to exercise its jurisdiction on the basis that it did not reconsider the Applicant’s protection claim pursuant to s. 36(2)(a) “because the person is a refugee.”
The Tribunal’s decision concerned the Applicant’s second application for a protection visa following the decision in SZGIZ. SZGIZ is an authority for the proposition that s. 48A(1) of the Act does not prevent a person from making a further application for a protection visa based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa. In Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366 the Federal Court Full Court (Kenny, Siopis and Besanko JJ) at [44] held it was appropriate for a decision-maker to consider a second application solely by reference to a criterion which did not form the basis of a previous unsuccessful application. The Tribunal adopted the correct approach in confining its consideration of the second protection visa application to considerations which arose under s. 36(2)(aa) (and ensuing provisions) as to whether the Applicant was owed protection under the complementary protection regime.
Further, Ground 1 may allege that there was no “factual or legal basis” for the Tribunal to reach any conclusion other than that the Applicant was owed protection under the complementary protection regime set out in s. 36(2)(aa) (and ensuing provisions) of the Act.
Whether Australia’s express and implied non-refoulement obligations were engaged under s. 36(2)(aa) required the Tribunal to assess the Applicant’s narrative including his credibility. The Tribunal had to decide whether “as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. This decision involved looking at the “individual circumstances of the non-citizen and the basis on which the non-citizen claims that those circumstances give rise to the requisite degree of risk as a necessary and foreseeable consequence of removal to a receiving country”: DQU16 v Minister for Home Affairs [2021] HCA 10; (2021) 273 CLR 1 (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) at [19]. The Tribunal engaged in the required assessment of the Applicant’s “individual circumstances” and considered each aspect of his narrative. It found (as it was entitled to do) that the Applicant’s claims lacked credibility such that the Applicant was not entitled to a protection visa under s. 36(2)(aa).
Ground 1 has not been made out.
Ground 2 – Was the decision so unreasonable that no reasonable decision-maker could made it?
The Tribunal considered the Applicant’s history in detail. The Tribunal did not accept the Applicant’s claims as credible. Adverse credibility findings are not immune from judicial review: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94, [32]. Such findings, like all findings, must be rationally made and based upon facts having logical and probative weight: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Caution needs to be exercised before too readily acceding to a proposition that adverse credit findings expose jurisdictional error as the Court is not engaged in merits review. The Tribunal made a series of adverse findings as to the Applicant’s credit. None of those adverse findings attract any particular reason to question the findings the Tribunal made or to challenge the basis on which the Tribunal proceeded. The Tribunal sequentially moved through each aspect of the Applicant’s claims.
It cannot be said that the Tribunal dealt with the credit issues in a way which was irrational, illogical or unreasonable.
One matter the Tribunal relied upon in the adverse assessment of the Applicant’s credibility were the inconsistencies between the Applicant’s written statement in support of his first application for a protection visa made on 10 December 2009 (Exhibit R1) and his evidence to the Tribunal in 2016. In his original 2009 statement the Applicant had said that he was “beaten" (page 6) during his 1999 arrest. In his evidence to the Tribunal, he said that the police shouted very loudly during the 1999 arrest but he was not harmed during this incident (CB136, [30]). In his original 2009 statement, the Applicant claimed that police officers "beat me up” (page 7) when he was arrested on his return from Bangkok in 2007. Inconsistently, his evidence to the Tribunal was that the only time that he was harmed was in 2009 (CB138, [41]). There was nothing illogical or irrational such as to give rise to jurisdictional error in the Tribunal taking into account inconsistencies as to significant matters between the Applicant’s original statement in 2009 and his evidence to the Tribunal in 2016 in any assessment of the credibility of the Applicant’s account.
The Applicant bears the onus to establish jurisdictional error. It is for the moving party to make out his or her case: Minister for Immigration & Citizenship v SZGUR(2011) 241 CLR 594 at 616 [67]; [2011] HCA 1. The Applicant has not proved that the Tribunal’s decision was so unreasonable that no reasonable decision-maker could make it. Ground 2 has not been made out.
Grounds 3 to 5 – Was the Tribunal’s decision based on findings for which there was no evidence or other material; did the Tribunal take into account an irrelevant consideration or fail to take into account a relevant consideration?
It is convenient to deal with Grounds 3 – 5 together.
I acknowledge the challenges that confront a self-represented litigant. Nonetheless, as Gilmore J held in WZAVW v. Minister for Immigration and Border Protection [2016] FCA 760 at [35]:
[A]n unparticularised assertion of jurisdictional error […] is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed.
The Applicant has not particularised these grounds of alleged error. It is not possible to respond meaningfully to the allegations in the absence of particulars. The Tribunal gave its reasons for rejecting the credibility of the applicant’s narrative (Ground 3). The Applicant has not made any meaningful challenge to the Tribunal’s approach. The Applicant has not identified the irrelevant consideration he alleges the Tribunal took into account (Ground 4). The Applicant has not identified the relevant consideration he alleges the Tribunal failed to take into account (Ground 5).
None of Grounds 3, 4 or 5 has been made out.
Grounds 6 and 7 – Was the Tribunal’s decision an improper exercise of power conferred by the Migration Act 1958 or otherwise contrary to law?
It is convenient to deal with Grounds 6 and 7 together. The observations in WZAVW are equally applicable to Grounds 6 and 7. Generic assertions of an improper exercise of power and a decision being “otherwise contrary to law” are, without particulars, meaningless. The Applicant as the moving party has not made out any jurisdictional error as to Grounds 6 and 7.
Ground 8 – Was the Tribunal’s decision made in bad faith as it was biased about the issue of family violence perpetrated against men?
No aspect of the Applicant’s claims for protection under the complementary protection regime concerned allegations of family violence perpetrated against men. Ground 8 has no merit.
CONCLUSION
The application will be dismissed with costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 7 June 2023
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