CPZ16 v Minister for Immigration
[2018] FCCA 2251
•23 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPZ16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2251 |
| Catchwords: MIGRATION – Protection visa – judicial review of decision made by Administrative Appeals Tribunal – applicants members of a family unit – application dismissed for non-appearance at final hearing – application for reinstatement – discretionary power to reinstate – whether applicants had reasonable excuse – whether application for judicial review discloses an arguable case – grounds of review devoid of particulars – no reasonable chance of success – application for reinstatement dismissed. |
| Legislation: Australian Citizenship Act 2007 (Cth), s.12 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 Migration Act 1958 (Cth), ss.36, 65, 91R, 424A, 476 Migration Regulations 1994 (Cth), reg 2.08 |
| AAI15 v Minister for Immigration and Border Protection [2018] FCA 1110 BAL17 v Minister for Immigration and Border Protection [2018] FCA 792 BTR15 v Minister for Immigration and Citizenship [2016] FCA 892 CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 Chen v Monash University (2016) 244 FCR 424 Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR 499 Jackamarra v Krakouer (1998) 195 CLR 516 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs and McIllhaton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZAKQ v Minister for Immigration and Border Protection [2016] FCA 1392 MZARG v Minister for Immigration and Border Protection [2018] FCA 624 MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 MZYEZ v Minister for Immigration and Citizenship [2010] FCA 530 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 Singh v Minister for Immigration & Anor [2015] FCCA 3007 SZMWX v Minister for Immigration [2009] FMCA 115 SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| First Applicant: | CPZ16 |
| Second Applicant: | CQB16 |
| Third Applicant: | CQC16 |
| Fourth Applicant: | CQE16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1986 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 2 June 2017 |
| Date of Last Submission: | 2 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 August 2018 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Third Applicant: | No appearance |
| Fourth Applicant: | No appearance |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application for reinstatement of the proceeding filed on 17 March 2017 be dismissed.
The applicants pay the costs of the first respondent fixed at $7,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1986 of 2016
| CPZ16 |
First Applicant
And
| CQB16 |
Second Applicant
And
| CQC16 |
Third Applicant
And
| CQE16 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding, an application in a case has been filed seeking, in effect, orders pursuant to r 16.05 of the Federal Circuit Court Rules 2001, for the reinstatement of the applicants’ initiating application.
The first respondent (Minister) accepts that the application in a case should be treated as an application for reinstatement pursuant to r 16.05, and largely accepts that the first two limbs of the test for the exercise of the discretionary power to reinstate the proceeding are made out. However, reinstatement is opposed on the substantive basis that the applicants have not demonstrated that their ground of review has arguable prospects of success. I agree in that submission.
These are my reasons for refusing that application.
Background
The first and second applicants, who are wife and husband aged 30 and 31 years, are citizens of Sri Lanka who first arrived in Australia in June 2009 and March 2007 respectively. I note that an English translation of a certificate of marriage states that their marriage was solemnised on 30 July 2008 at the Divisional Secretary’s Office in Chilaw.[1] The third and fourth applicant who are twins aged five years, are their children and were born in Australia on 4 July 2013.[2]
[1]Moreover, each page of the translation is initialled with the date 19.08.2008.
[2]Apart from their protection visa applications, the children would be eligible for citizenship upon being ordinarily resident in Australia for ten years: see s 12(1)(b) Australian Citizenship Act 2007 (Cth).
On 13 August 2013, the first applicant lodged an application for a Protection (Class XA) visa. On the same date, her husband submitted his own application for protection. Applications were also made on behalf of their newly born children as members of the same family unit. The children are taken to have applied for a visa of the same class as that applied for by their parents and are subject, in substance, to the same criteria as apply at the time of application and the time of decision: see Regulation 2.08(1)-(2) Migration Regulations 1994 (Cth).
Although their visa applications were silent as to the bases upon which they claimed protection, each of the first and second applicant provided statements in support of their visa applications which were lodged on their behalf by their solicitors.
The first applicant stated that her father was a prominent member of the United National Party (UNP) and that members of that party often attended her family home. She stated that by reason of his connections in UNP, her father had been rewarded for his party loyalty by gaining permission to set up a restaurant and beer shop in Mahawewa, near Chilaw. She declared that in 2002 her father had been beaten and stabbed at his restaurant and suspected members of an opposing political party, the People’s Alliance Party (PA) to be responsible. The first applicant stated that she had become interested in politics, attended various political meetings and at the age of 17 had campaigned for UNP. She stated also that when the PA won the 2005 elections she, and her family, had been subjected to a constant stream of abuse, threats and harassment from PA supporters and that this had continued until she left Sri Lanka. She set out in her statement a summary of country information upon which she relied and described her fear of returning to Sri Lanka as being grounded upon her political opinion as a supporter of UNP. She claimed that this fear would be made worse following the arrival of her twin children, as she would be unable to rely upon the police for support. The first applicant also claimed to fear persecution as a failed asylum-seeker.
The second applicant claimed that his father was a Tamil and his mother Sinhalese, and that he had been imputed with the political opinion of being in favour of the Liberation Tigers of Tamil Eelam (LTTE). He outlined the difficulties he faced by reason of being half Tamil, but stated that his life had been generally peaceful in the period 2001 – 2005. The second applicant detailed the escalating violence in Sri Lanka from 2005 to 2009 and described how he would often be a target for interrogation at check points. Such was the second applicant’s fear for his safety that he said he left Sri Lanka in March 2007. He said that he returned after the cessation of the war in May 2009 and was then married in Sri Lanka before returning to Australia. In particular, the second applicant stated:
That in May 2009, the civil war ended and peace was declared and I took that opportunity to return to Sri Lanka and get married and after getting married my wife and I came straight back to Australia where we have resided and I have not returned to Sri Lanka since that time. I say that even though the civil war ended in 2009, there is still persecution suffered by Tamils in Sri Lanka and I will be subject to this persecution and this is made worse by the fact that I will be a returning asylum seeker.
Substantial country information was supplied with the applications.
On 20 June 2014, a delegate of the Minister made a decision to refuse to grant the applicants a visa. The decision record issued by the delegate included findings that the first applicant had a low level involvement with UNP in the capacity of handing out pamphlets. The delegate also found that second applicant may have been stopped at checkpoints for production of his identity documents but found that he spoke, and regarded himself as being, Sinhalese, not Tamil. The claims that he was perceived as a Tamil or a pro-LTTE supporter were rejected. The delegate was not satisfied that the first or second applicants were owed protection obligations by Australia, and for that reason, also refused the applications of the children as members of their family unit.
On 15 July 2014, the applicants’ lawyers lodged with the then Refugee Review Tribunal an application for a review of the delegate’s decision.
On 19 April 2016, the applicants were invited by the Tribunal to attend a hearing on 19 May 2016 to give evidence and present submissions. They were requested to file submissions together with a statutory declaration by 12 May 2016.
The applicants accepted that invitation and on 19 May 2016 appeared before the Tribunal with the assistance of an interpreter and two other representatives, including Mr Gilbert of counsel. The hearing before the Tribunal lasted four hours.
By letter dated 3 August 2016, the Tribunal wrote to the applicants at some length, providing the applicants with five distinct particulars of information that the Tribunal said that it may consider would, subject to their comments or response, constitute the reason or a part of the reason for affirming the delegate’s decision. The information identified in the Tribunal’s letter dated 3 August 2016 concerned inconsistencies in the accounts that had been given by the applicants either in the statements which accompanied their protection visa applications or in statements that had been made to the delegate or to the Tribunal respectively, together with the introduction before the Tribunal of new matters not raised before the delegate. The letter was provided in apparent recognition of the obligations arising under s 424A(1) of the Migration Act 1958 (Cth) (Act), that the Tribunal must provide to the applicants particulars of information that the Tribunal considered would constitute the reason or a part of the reason for affirming the delegate’s decision.
On 17 August 2016, the applicants’ representative responded to the Tribunal’s invitation to address each of the particulars of information contained in its letter dated 3 August 2016. The applicants’ response contended, in substance, that the information identified by the Tribunal was either of no consequence or represented minor errors made in the stressful context of their visa applications. The letter stated that it had been prepared with the assistance of Mr Gilbert of counsel.
On 19 August 2016, the Tribunal affirmed the decision not to grant the applicants protection visas. The Tribunal provided a comprehensive statement of its reasons for this decision (Reasons).
In reaching its decision, the Tribunal: (a) set out the relevant law: Reasons, [5]-[20]; (b) summarised the applicants’ claims and reproduced their statements: Reasons, [21]-[29]; (c) considered and rejected the first applicant’s claim that she faced a real chance of serious harm or a real risk of significant harm by reason of her past activities or profile and expressed serious doubts about the credibility of some claims and found others to be implausible : Reasons, [30]-[56]; (d) considered the second applicant’s claims concluding that he identified as being Sinhalese and did not face a real chance of serious harm or a real risk of significant harm by reason of his ethnicity or perceived political opinions, noting inconsistencies in his evidence and claims: Reasons, [56]-[75]; (e) considered country information, including that which had been provided by the applicants and found that it did not support a claim that all Tamils would face a real chance of serious harm by reason of their ethnicity: Reasons, [76]-[78]; (f) invited and rejected further claims made by the applicants as to why they thought that they faced a real risk of harm: Reasons, [79]; (g) considered the applicants’ respective claims to fear of harm due to being perceived as failed asylum seekers and concluded that they did not fall within the category of persons who may be of interest to authorities upon their return to Sri Lanka, particularly in circumstances where they had left their country legally, and otherwise had no outstanding criminal record: Reasons, [80]; (h) concluded that the applicants did not face a real chance or a real risk of serious harm on their return to Sri Lanka: Reasons, [81]-[82].
Procedural History
On 15 September 2016, the applicants lodged an application seeking an order that the respondents show cause why remedies should not be granted in exercise of the Court’s jurisdiction under s 476 of the Act in respect of the decision of the Tribunal made on 19 August 2016 affirming the delegate’s decision.
The single ground of the application was that the Tribunal decision was affected by jurisdictional error. The second applicant filed an affidavit in support of the application which repeated the contention that the Tribunal’s decision was affected by jurisdictional error, identified the two particulars upon which that ground was being put and exhibited a copy of the Tribunal’s decision together with a copy of the first and second applicants’ Bridging visa E (Subclass 050) respectively.
By a Response filed on 29 September 2016, the Minister opposed the application seeking orders that it be dismissed with costs.
The application was set down for hearing on 15 March 2017. As there was no appearance on that date by or on behalf of the applicants, the application was dismissed with costs.
Shortly afterwards, on 20 March 2017, the applicants filed an application in a case seeking orders as follows:
Reopen the case and reschedule a date/time for the directional hearing
The application for reinstatement was supported by an affidavit of the first applicant made on 17 March 2017 which deposed simply that:
The reson (sic) why I couldn’t make to the hearing is I mixed up the paperwork and miss (sic) read the date and time.
The stated explanation for non-attendance was also contained in a letter addressed to the Minister at that time.
Orders were made on 5 April 2017, regulating the preparation of the application in a case for hearing, including that the applicants file and serve any submissions in support of their application. The applicants did not take the opportunity to file submissions.
The application in a case was listed for hearing on 28 April 2017. On that date, the first and second applicants appeared before me and, without notice, sought an adjournment. They did so on the stated basis that an application had been made for Legal Aid to assist in the provision of advice and/or representation. Although I was not convinced as to when the applicants had in fact sought the assistance of Legal Aid, or whether they had delayed in that application, I acceded to the request for an adjournment and relisted the matter on 2 June 2017.
Again, I directed that the applicants file and serve any submission in advance of that hearing and again, no such submissions were filed. In those circumstances, the submissions filed on behalf of the Minister could only be responsive to the application for review, the Reasons and the matters comprising the Court Book.
Reinstatement
Where an applicant does not appear at a hearing, the Court may dismiss the application: r 13.03C(1)(c), Federal Circuit Court Rules 2001.
The Court may set aside an order made in the absence of a party: r 16.05(2)(a). The principles which are applicable to the discretionary power to reinstate a proceeding are well settled. Where a power conferred by rules of court is cast in discretionary terms, the exercise of such power is not automatic but calls for the exercise of that discretion: cf Gallo v Dawson (1990) 93 ALR 479, 480 (McHugh J). Inherent in the conferral of a discretionary power is an assumption that some applications may be refused: Jackamarra v Krakouer (1998) 195 CLR 516, 540 (Kirby J), see also at 519-521 (Brennan CJ and McHugh J). The waste of scarce Court resources is not an irrelevant consideration: MZAKQ v Minister for Immigration and Border Protection.[3]
[3] [2016] FCA 1392, [11] (Logan J).
In relation to the power to reinstate a proceeding, in CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344 (CAL15) at [4], Mortimer J restated the test in these terms:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
See also the discussion in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs (MZKAJ);[4] MZYEZ v Minister for Immigration and Citizenship (MZYEZ);[5] BTR15 v Minister for Immigration and Citizenship;[6] AAI15 v Minister for Immigration and Border Protection.[7]
[4] [2005] FCA 1066 at [18] (North J).
[5] [2010] FCA 530 at [7] (Ryan J).
[6] [2016] FCA 892 at [7] (Edelman J).
I apply these principles in the present application.
Reasonable excuse
The Minister correctly submitted that the hearing date was endorsed on the Notice of Filing and Hearing as generated by the electronic filing system of the Court. I also accept that, as the application for judicial review had been filed in September 2016 and set down for hearing in March 2017, the applicants had ample time to ensure they properly understood when their application had been listed for hearing. This was not a case in which the second applicant was confronted with a language barrier. The second applicant was demonstrably fluent in the English language and disclosed that fact in his application also.
Accordingly, the applicants were in receipt of information in writing that confirmed the date on which their application was returnable. There is good reason to conclude that their explanation for their non-attendance is less than satisfactory. It is for an applicant to ensure that he or she is aware of the date on which his or her application is listed for hearing: see, e.g., SZMWX v Minister for Immigration [2009] FMCA 115, [4] (Raphael FM); Singh v Minister for Immigration & Anor [2015] FCCA 3007, [4] (Harland J). That said, it should be recognised that applications for reinstatement will also be made by parties who are legally represented and whose applications were dismissed as a result of the oversight of their legal practitioner.
Although I entertain doubt as to whether the Court should accept the applicants’ explanation for their absence on the first hearing date, having regard to the circumstances in which this application was opposed, it is sufficient to record that the Minister was prepared to concede in favour of the applicants that some explanation had been given for their failure to attend the hearing of the application.
Prejudice
It was not submitted by the Minister that any prejudice might flow to the Minister from the reinstatement and I will assume in favour of the applicant that this factor is also made out.
Arguable case
The burden of the Minister’s submissions was that the application for judicial review did not disclose an arguable case for concluding that the Tribunal’s decision was affected by jurisdictional error.
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476 of the Act. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2); Plaintiff S157/2002 v Commonwealth.[8]
[8] (2003) 211 CLR 476.
Certain criteria for protection visas are those set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB;[9] Minister for Immigration and Citizenship v SZMDS.[10] If the criteria for the grant of a protection visa are satisfied, the Tribunal must grant the application. If not so satisfied, the visa application must be refused.
[9](2004) 78 ALJR 992, [37]-[38].
[10](2010) 240 CLR 611, [40], [102].
By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied.[11]
[11]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
In CAL15, Mortimer J also held that the consideration of the merits of the substantive application was important to the determination of an application for reinstatement by reason of the need to consider the interests of the administration of justice. Her Honour stated at [4]:
. . . [it is] important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful. (emphasis added)
See also MZYEZ;[12] MZKAJ;[13] compare Chen v Monash University.[14]
[12] [2010] FCA 530 (Ryan J).
[13] [2005] FCA 1066, [18] (North J)
[14](2016) 244 FCR 424, [48] (Barker, Davies and Markovic JJ) citing Christodoulou v Disney Enterprises Inc (2006) 156 FCR 369 as to reinstatement of an appeal.
Earlier, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [18], McHugh J stated that, while the threshold for obtaining an order nisi was a low one, nevertheless Courts should not be burdened with cases where it is clear that they do not enjoy any prospect of success. His Honour dismissed that application on the basis that the applicant had no arguable claim for relief: see at [19].
Applicable threshold
The exercise of discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review: CAL15 at [5]. Rather, on an application for reinstatement, the threshold which is applicable to a consideration of the merits of the application is whether the grounds for judicial review were shown to be ‘arguable’: CAL15, [5] citing MZABP v Minister for Immigration and Border Protection.[15] There, Mortimer J stated at [6]:
The threshold is whether a ground of review is “arguable”. That means it is not fanciful, illogical, impermissible or devoid of merit, but has a level of rationality and a basis in the material before the Court sufficient for the Court to be satisfied it is appropriate to hear full argument, with the parties having a fair opportunity to prepare for such argument. Thus, at the level of assessing whether a ground is “arguable”, the Court should not expect a ground of judicial review to be fully developed, especially by an unrepresented asylum seeker whose first language is not English. (emphasis added)
[15] [2015] FCA 1391, [62]
More recently, in Savrimootoo v Minister for Immigration and Border Protection [2018] FCA 1167 at [47], Mortimer J referred to CAL15 and described the discretion to reinstate a proceeding as a broad one.
The assessment upon an application for reinstatement, which requires the Court to consider whether a ground of review is arguable, is evaluative. As Ryan J observed in MZYEZ, it follows from the principles considered above that the “decision whether or not to reinstate a proceeding is essentially discretionary, and so attracts the application of the principles” stated by Dixon, Evatt and McTiernan JJ in House v The King[16]: cf BAL17 v Minister for Immigration and Border Protection.[17]
[16] (1936) 55 CLR 499 at 504 to 505
[17] [2018] FCA 792, [10] (Bromwich J).
Consideration
I agree with the Minister’s submission that the grounds of review are expressed at a level of generality that makes it difficult for the Court or the respondent to understand exactly what aspects of the Tribunal’s decision are impugned by the applicants. This criticism is reinforced when regard is had to the circumstance that the applicants have failed to avail themselves of the opportunity afforded by the orders, made on 5 April and again on 28 April 2017 respectively, to provide submissions which would explain the grounds of their application.
As the applicants have not filed any submissions, both the Minister and in turn the Court, are left to discern the existence of jurisdictional error from a ground which is devoid of particulars. In WZAVW v Minister for Immigration and Border Protection[18] Gilmour J said:
. . . an 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. (Citations omitted)
See also MZARG v Minister for Immigration and Border Protection.[19]
[18] [2016] FCA 760 at [35].
[19] [2018] FCA 624 at [25], (McKerracher J).
Although the application was open to dismissal on the basis that the ground of review was devoid of particulars, as the applicants were self-represented, I have examined the Tribunal’s reasons and the extensive materials comprising the Court Book.
The application contained a single ground of review – that the decision was affected by jurisdictional error. The two particulars relied upon to support a conclusion that the Tribunal’s decision was affected by error may be conveniently addressed as separate grounds of review.
Ground 1 – integers of claim
Ground 1 reads:
[T]he tribunal has failed to consider each integer of the applicant husband’s claim and/or failed to take into account the whole of the evidence in determining whether the fear of persecution claimed amounted to persecution and serious harm as per section 91R of the Migration Act. (emphasis added)
The applicants’ contention that the Tribunal failed to address each integer of the second applicant’s claim is undermined by an analysis of the Tribunal’s reasons. The second applicant claimed to fear persecution by reason of his Tamil ethnicity, imputed pro-LTTE opinion, and/or his membership of a particular social group, being failed asylum seekers/returnees from a Western country.
The Reasons at [70] confirm that consideration was given by the Tribunal to the second applicant’s claim as to how, before his departure from Sri Lanka in March 2007, he had been stopped at checkpoints, his identification checked and he was questioned. The Tribunal noted the second applicant’s evidence was that everyone was stopped at checkpoints at this time and that, because his surname would identify him as being of Tamil ethnicity, he would be taken aside and questioned. The second applicant’s evidence was that he would be questioned and then let go. The Tribunal found that there was nothing in his evidence to suggest that the second applicant was submitted to anything other than questioning when stopped at checkpoints. In those circumstances, the Tribunal did not accept the second applicant’s claims that those occasions at checkpoints were always filled with harsh treatment by the security forces such as being physically assaulted, verbally abused or threatened.
In analysing this issue, the Tribunal concluded at [70]:
While the Tribunal accepts that during the conflict the applicant husband may have been stopped at checkpoints and his identification checked and that he may have been questioned, the Tribunal does not accept such treatment amounts to serious harm within the meaning of S.79R(1). Nor does the Tribunal accept that such treatment amounts to significant harm within SS36(2A) and 5(1) of the Act. The Tribunal also does not accept, given the changes that have occurred in the country since the war ended in 2009, that the applicant husband would be subjected to such similar treatment on his return to Sri Lanka now or in the reasonably foreseeable future.
As the Minister submitted, the Reasons confirm that the Tribunal considered comprehensively those claims and the integers of those claims (as articulated in the second applicant’s statement), his evidence at the hearing before the Tribunal and the responses that were provided on 17 August 2016 to the Tribunal’s s 424A invitation.
Although Ground 1 was focussed upon an alleged failure to consider each integer of the applicant husband’s claim, it went on to contend that the Tribunal failed to take into account the whole of the evidence in determining whether the feared persecution amounted to persecution and serious harm. I have also considered Ground 1 as though it advanced a complaint by each of the first and second applicants.
It is clear from a consideration of the Tribunal’s reasons that the Tribunal did identify the relevant legal principles and criterion for a protection visa and that it addressed each of the four key elements in its consideration whether to affirm or set aside the delegate’s decision.
The Tribunal further considered the criteria applicable for complementary protection and the principles which applied to the two children of the first and second applicant. The Tribunal also recognised the requirement that it should take into account, to the extent relevant, policy guidelines prepared by the Department of Immigration (PAM3 refugee and humanitarian – complementary protection guidelines and PAM3 refugee and humanitarian – refugee law guidelines) and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.
The Tribunal proceeded to identify and set out in full the whole of the statements made by each of the first and second applicants respectively. Having set out that evidence, the Tribunal recognised correctly that the primary issue in the review was whether there was a real chance that, if the applicants returned to Sri Lanka, they would be persecuted for one or more of the reasons set out in the Refugees Convention for the purpose of s 36(2)(a) of the Act and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Sri Lanka, there was a real risk that they would suffer significant harm for the purpose of s 36(2)(aa) of the Act. In concluding that the Tribunal should affirm the delegate’s decision, at [28] it recognised the importance of adopting a reasonable approach in making findings of credibility, citing Minister for Immigration and Ethnic Affairs and McIllhaton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, which included the cautionary note sounded by Foster J at 482 as a member of the Full Court that:
. . . care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal further cited the statement of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [39] as to the correct approach to determining findings on credibility:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a Court conducting a trial than to the proper performance of the functions of an administrator even if the delegates of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
The Tribunal undertook a detailed assessment of the applicants’ claims. It analysed the circumstances of each of the first and second applicant. I consider that the Reasons were comprehensive in this regard.
The Tribunal noted inconsistencies in the evidence of each of the first and second applicants, a lack of detail in, or the implausibility of, some of their evidence and made some adverse findings on issues of credit.
Thereafter the Tribunal analysed other considerations which would be relevant to each of the first and second applicant respectively. The Tribunal did not accept that the applicants faced a real chance of serious harm or a real risk of significant harm on their return to Sri Lanka as failed asylum seekers or as returnees from a Western country. Each of those conclusions was reasonably open on the evidence.
Taking a broader approach to Ground 1, in my opinion, no basis can be discerned from the Reasons to support a conclusion that the Tribunal had failed to consider each integer of their claims. Nor is there any support to be found in the detailed Reasons for the contention that the Tribunal failed to take into account the whole of the evidence in determining whether the feared persecution claimed by the applicants amounted to persecution and serious harm.
I reject the first ground upon which the application was made. I do not consider that Ground 1 has a reasonable chance of success.
Ground 2 – complementary protection criterion
Ground 2 reads:
[T]he tribunal has not properly considered the alternative criterion in S36(2)(aa), that is, whether there are substantial ground (sic) for believing that [as] a foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, especially the investigation upon return to Sri Lanka.
The Tribunal correctly identified at [16]-[19], the applicable legal principles relevant to this ground of review. It assessed the claims of the first and second applicant respectively by reference to the complementary protection criteria: see at [56], [78]-[79]. It also addressed the question of complementary protection by reference to the claims to fear of harm as a failed asylum seeker: [80].
In circumstances where detailed consideration has been given to the question whether a person is entitled to protection as a refugee under the Convention, it is no valid criticism to say that the consideration of complementary protection criteria was brief: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125, [25], [32] (Robertson, Griffiths and Perry JJ) (special leave to appeal refused [2014] HCASL 116).
In my opinion, there is no substance to Ground 2 and it cannot be concluded that this ground would have a reasonable chance of success.
Conclusion
It follows that the application for reinstatement should be dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Kelly
Date: 23 August 2018
[7] [2018] FCA 1110, [29] (Tracey J).
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