CPP15 v Minister for Immigration and Border Protection
[2018] FCA 324
•14 March 2018
FEDERAL COURT OF AUSTRALIA
CPP15 v Minister for Immigration and Border Protection [2018] FCA 324
Appeal from: CPP15 v Minister for Immigration and Anor [2017] FCCA 2417 File number: VID 1174 of 2017 Judge: STEWARD J Date of judgment: 14 March 2018 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review – whether Tribunal failed to comply with s 424A of the Migration Act – whether Tribunal failed to consider claims cumulatively– no jurisdictional error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36, 424A Cases cited: CPP15 v Minister for Immigration and Anor [2017] FCCA 2417
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190
Date of hearing: 28 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr D Brown Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 1174 of 2017 BETWEEN: CPP15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
STEWARD J
DATE OF ORDER:
14 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the first respondent as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
STEWARD J:
This is an appeal from a decision of the Federal Circuit Court rejecting an application for judicial review of a decision of the then Refugee Review Tribunal (the “Tribunal”) which had affirmed a decision of a delegate of the first respondent (the “Minister”) to refuse to grant to the appellant a Protection (Class XA) visa (the “visa”).
The appellant is a Catholic Tamil national who arrived in Australia by boat at Cocos Island on, according to the Minister’s visa decision record, 29 June 2012. He applied for his visa on 5 November 2012 and the Minister refused to grant it on 10 December 2013. Before me, the appellant represented himself.
BACKGROUND AND PROCEEDINGS BEFORE THE TRIBUNAL
The appellant sought his visa pursuant to s 36(2)(a) or, alternatively, s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).
The decision of the Tribunal largely turned on a contested fact, namely, whether the appellant had been kidnapped whilst in Sri Lanka. According to the appellant, he had clashed with a politician arising from his association with a boy who had eloped with that politician’s daughter. The politician, he claims, sent bodyguards to get him. He gave evidence that he was caught by those guards, was hit and whacked with a pistol, but was ultimately rescued by the Sri Lankan police. The bodyguards were charged by the police, but according to the appellant, the case remains unresolved. He claims that the bodyguards have threatened to kill him if he does not drop his case. That is why he fled Sri Lanka. That is why is does not want to return there.
The Tribunal summarised the criteria under ss 36(2)(a) and 36(2)(aa) at pars [5]-[9] of its reasons for decision. The appellant does not dispute the accuracy of that summary. The Tribunal also examined all the evidence before it but ultimately did not accept that the appellant was abducted as claimed. It reached this conclusion on a number of different grounds. These included conflicts in the evidence, vague evidence, and the lack of any obvious direct relationship with the boy who was said to have eloped. These difficulties are described in detail by the Tribunal at pars [17]-[25] of its reasons for decision.
The Tribunal also considered the appellant’s more generalised claims about the fate of the Tamil people in Sri Lanka having regard to s 36(2)(a) as it was in 2013 and, having considered all the country information before it, decided at par [29] that Tamils did not currently face a real chance of suffering serious harm solely on account of their ethnicity. The Tribunal also considered the appellant’s religion, and noted that he accepted that he could practice his religion without persecution. The Tribunal also carefully addressed the risk of harm arising from the fact that it was likely that the appellant would be arrested upon his return to Sri Lanka having left the country illegally. The Tribunal found that the chance of the appellant facing a term of imprisonment now, or in the reasonably foreseeable future, was remote. The Tribunal also considered whether the appellant’s claims could cumulatively satisfy s 36(2)(a) and found that they did not.
The Tribunal also considered the appellant’s claims under s 36(2)(aa). Because the Tribunal had found that the alleged kidnapping had not taken place, and given the current conditions in Sri Lanka, it decided that there was no real risk that the appellant would be arbitrarily deprived of life, have the death penalty carried out on him, be subject to torture, or be subject to inhumane treatment, punishment or degrading treatment or punishment. At par [51] of its reasons for decision, the Tribunal concluded, having regard to the claims which it considered both individually and cumulatively, that the appellant did not satisfy the requirements of s 36(2)(aa).
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
The appellant sought judicial review in the Federal Circuit Court. In his written grounds for review, the appellant contended that the Tribunal fell into jurisdictional error when it failed to put certain findings to him for comment in accordance with s 424A of the Act. This was said to have occurred on three occasions. The first was a certain newspaper article referenced by the Tribunal; the second was a failure to bring the inconsistencies in his evidence to the appellant’s attention; and finally, it failed to draw to the appellant’s attention certain factors raised by the appellant’s advisor concerning his lack of trust of the authorities.
The learned primary judge considered the scope of s 424A of the Act and rejected each claim. The first was rejected on the ground that the exception in s 424A(3)(b) applied because the appellant himself had given the newspaper article to the Tribunal. The second was rejected on the ground that the Tribunal was not required to put to the appellant its doubts or concerns about the inconsistencies in his evidence. In that respect, the learned primary Judge referred to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190. The final ground of review was rejected on the basis that the exception in s 424A(3)(b) was also engaged.
In addition, at the hearing below, the appellant challenged the Tribunal’s decision on the basis that three other victims of the same kidnapping had been in the same detention centre as he was, and two had been granted a Protection visa when he was not. The primary judge rejected that submission as there was nothing before the court to demonstrate the nature of the circumstances of the two individuals who had been granted visas. Accordingly, the Federal Circuit Court dismissed the appellant’s application for judicial review.
APPEAL GROUNDS
By Notice of Appeal dated 30 October 2017, the appellant appealed the decision of the Federal Circuit Court to this Court. There were two grounds of appeal. The first raised the same alleged s 424A error concerning the newspaper article. The second ground was that the appellant’s claim had not been assessed cumulatively – he being a young Tamil of Catholic faith from the west of Sri Lanka with, it was claimed, perceived political opinion against the state.
CONSIDERATION
A. Ground One
Section 424A of the Act provides as follows:
(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.
(2) The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(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.
(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).
The purpose and function of s 424A, and the requirement to invite an applicant to comment or respond to relevant information before the Tribunal, was explained by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [50]:
The obligation on the Tribunal to give the invitation and to invite comment on the information is expressed in broad and general terms. The obligation does not apply to information that the applicant gives, regardless of when that information is given (see s 424A(3)(b)). It applies to information received by the Tribunal from sources other than the applicant. It also does not apply to all information that the Tribunal receives. It only applies to information that the Tribunal considers “would form part of its reason for refusing the application for review” [Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 at 40 [39] per Merkel J, Ryan and Conti JJ agreeing]. Nevertheless, the object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the Tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment upon it.
The Tribunal referenced an article from the Sunday Thinakhurl dated 2 August 2009 at par [23] of its reasons for decision. The Tribunal relied upon this article in rejecting the appellant’s contention that he had been abducted, because the article contained details which were not consistent with the evidence he gave at hearing. The ostensible complaint is that the article should have been brought to the attention of the appellant but, I suspect, the real complaint is that the inconsistencies it contains should have been raised with the appellant so he could have the chance to respond. It is not disputed that it was the appellant who supplied the article to the Tribunal, and in those circumstances the plain and ordinary meaning of the language of s 424A(3)(b) is engaged. Being so engaged there was no obligation on the part of the Tribunal to draw the article to the attention of the appellant, for it was he who supplied it. As for the inconsistencies in it, the primary judge did not err in concluding that the Tribunal was not required to disclose its concerns about the inconsistencies with the appellant. At par [18] of SZBYR, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:
Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471] that the word “information”
does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself. (footnotes omitted)
In my view, the learned primary judge correctly applied that passage to the contentions raised here.
B. Ground Two
The second alleged error is that the Tribunal failed to consider the appellant’s claim cumulatively. This was not a ground before the court below, but counsel for the first respondent was content for me to consider it. I reject this contention. At par [42] of its reasons for decision, the Tribunal expressly recorded that it had considered the appellant’s claims both individually and cumulatively in relation to his claim under s 36(2)(a). Paragraph [42] provides:
Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the army, the CID, any other authorities or anyone else because of his Tamil ethnicity, an imputed political opinion of supporting the LTTE and opposition to the government of Sri Lanka based on his Tamil ethnicity, or his membership of the particular social groups of “failed asylum seekers returning to Sri Lanka or failed Tamil asylum seekers” or “young Tamil males”. Nor does the Tribunal accept that the applicant faces a real chance of persecution because of his illegal departure from Sri Lanka. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.
The Tribunal also expressly considered the appellant’s claims cumulatively for the purposes of s 36(2)(aa) at par [51]. Paragraph [51] states:
Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).
It follows that this ground is not made out.
Before me, the appellant repeated the assertion that two of his “brothers’ had been granted visas because they had also been parties to the alleged kidnapping. Like the learned primary judge, I am in no position to comment on this contention. There was nothing before me to substantiate this claim.
CONCLUSION
The appeal is dismissed with costs as agreed or assessed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. Associate:
Dated: 14 March 2018
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