CRT15 v Minister for Immigration
[2018] FCCA 1479
•18 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRT15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1479 |
| Catchwords: MIGRATION – Protection visa – applicant claimed to fear harm if he returned to Sri Lanka – tribunal found applicant provided inconsistent evidence – tribunal found applicant not a witness of truth – tribunal’s decision based on some dispositive issues discussed with the applicant at the tribunal hearing – applicant’s grounds of review unparticularised – applicant dissatisfied that tribunal did not accept his claims – applicant claimed that he was treated unfairly by the tribunal – claims not substantiated – application for judicial review dismissed. |
| Legislation: Migration Act 1958, ss.91R(1)(c), 424A, 425 Immigrants and Emigrants Act (Sri Lanka) |
| Cases cited: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 |
| Applicant: | CRT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2803 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 18 May 2018 |
| Date of Last Submission: | 18 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 18 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The proceeding is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $4,565.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2803 of 2015
| CRT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
By application filed 17 December 2015, the applicant applied for judicial review of a decision of the Administrative Appeals Tribunal made on 20 November 2015. In that decision the tribunal affirmed a decision of the delegate not to grant the applicant the protection visa that he sought.
The applicant has applied to this court raising two grounds of review. Neither was particularised, so it was not easy to understand the factual or legal basis upon which he asserted the existence of jurisdictional error. I will turn to that shortly. The grounds were as follows –
1.The Refugee Review Tribunal did not afford me procedural fairness.
2.The Refugee Review Tribunal applied the wrong legal test.
As mentioned earlier, no grounds were given to put those complaints in context. However, in argument today on the hearing of this application for judicial review, I invited the applicant to tell me in his own words what he said the tribunal did wrong in the conduct of the case. In essence, the applicant told me that he took the view that the decision of the tribunal was unfair. He said he felt pressured during the hearing. He said the tribunal should have accepted what he said.
For reasons that are mentioned below, the applicant was, in reality, inviting me to undertake a merits review in this case as opposed to a judicial review. A very long line of learning has established that it is not the function of judicial review to engage in a merits review. Cases at the highest level have made that point, including the Australian Broadcasting Tribunal v Bond,[1] Guo Wei Rong v Minister for Immigration & Ethnic Affairs,[2] Attorney-General (NSW) v Quin,[3] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [4] and Minister for Immigration & Ethnic Affairs v Wu Shan Liang.[5]
[1] (1990) 170 CLR 321
[2] (1996) 64 FCR 151
[3] (1990) 170 CLR 1
[4] (1989) 169 CLR 379
[5] (1996) 185 CLR 259
It therefore became necessary to address this application for judicial review in the context of whether the applicant demonstrated the existence of jurisdictional error. Most classically, although by no means exhaustively, jurisdictional error is demonstrated by establishing that an administrative tribunal has –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or
e)in some instances, made an erroneous finding or reached a mistaken conclusion.
Cases which have so held include the landmark decisions such as Craig v State of South Australia,[6] Minister for Immigration and Multicultural Affairs v Yusuf[7] and Kirk & Anor v Industrial Court of New South Wales & Anor.[8] Of course, those are illustrations only of the ambit of jurisdictional error as it is neither necessary nor possible to attempt to mark the meets and bounds of jurisdictional error as the reasoning in Craig does not provide a rigid taxonomy of the existence of jurisdictional error.
[6] (1995) 184 CLR 163
[7] (2001) 206 CLR 323
[8] (2010) 239 CLR 531
With those introductory remarks, let me turn to the facts of this case.
The applicant is a Sri Lankan citizen of Sinhalese ethnicity. He arrived in Australia as an unauthorised maritime arrival. He undertook an entry interview on 31 July 2012. He filed a protection visa application on 28 March 2013.[9] With his protection visa application he provided a statement made 26 March 2013 in which he set out the claims to protection that he maintained in this case.
[9] Court book filed on 8 February 2016 at 10
The protection that he asserted arose from his membership of the United National Party of Sri Lanka (“UNP”). He asserted that on a day prior to elections in Sri Lanka he was erecting posters when a man with a gun threatened him. He then asserted that he eventually fled Sri Lanka. In his interview before the delegate, after being invited to do so on 18 November 2013, he set out the details of his protection as claimed. A migration agent retained by him made submissions dated 9 December 2013 on his behalf to the delegate.[10]
[10] Court book filed on 8 February 2016 at 102-06
The applicant was specifically notified that aspects of the version of events that he gave were the subject of interest to the delegate, and he was notified that credibility issues in response to which a migration service retained by him made detailed submissions to the delegate on 9 December 2013. On 6 March 2014 the delegate requested more information, which the applicant supplied in a statement dated 23 April 2014.
In it he addressed information about the person with whom he said he fought while erecting posters at the election, mentioned in his protection claim. He informed the delegate that he had been told, while in transit to Australia, that he was not to speak to anyone about his political claims. Based on the information that had been provided by the applicant in his interview, his statutory declaration and by the applicant’s representatives in submissions, the delegate considered his visa application, ultimately refusing it on 28 May 2014.
Being dissatisfied with that outcome, the applicant applied to the tribunal on 5 June 2014. By letter dated 28 September 2015, he was invited to appear before the tribunal at an interview, the date of which was nominated as 5 November 2015. But that date was subsequently moved to the following day, namely, 6 November 2015, and the applicant attended the interview where he gave information to the tribunal with the assistance of an interpreter.
He provided post-interview information by email on 16 November 2015. In that information he raised a criminal matter where he provided material to the tribunal indicating that he had been charged with certain driving offences. On 20 November 2015, the tribunal affirmed the delegate’s decision, the upshot of which was that the applicant’s application for a protection visa was refused.
It is necessary to go to the considerations in which the tribunal engaged in reaching its decision. Those were compendiously synthesised in the submissions of the minister. They may be briefly stated. The tribunal did not accept that the applicant’s claims regarding the incident occurred because the applicant provided inconsistent evidence regarding the circumstances of the incident. The tribunal found that the applicant’s evidence regarding the circumstances of the incident were inconsistent and therefore that the version of the events as given by the applicant was not credible.
In consequence the tribunal rejected the applicant’s claims that flowed from the events as alleged. The tribunal found that the applicant was not a witness of truth and it did not accept that the applicant faced a real chance of serious harm now or in the reasonably foreseeable future if he returned to Sri Lanka from a man named Saman, or people associated with him, or anyone else because of the alleged fight that the applicant had with Saman.
The tribunal did not accept that the applicant was an active supporter of the UNP and it found that the applicant’s evidence regarding his support of UNP was vague and wanting in detail. The tribunal took into account the fact that the applicant’s claims had changed over a period of time and over the various stages of the migration process. The tribunal found that the applicant’s explanations for his changing his evidence was unconvincing, particularly when considered in the context that his alleged association with the UNP was raised essentially only after his early claims had been proven to be unsuccessful.
The tribunal expressed its serious concerns about the applicant’s credibility generally and about the credibility of his claims for protection identifying, in particular, the question of his delay in raising claims regarding the UNP. The tribunal indicated that it put those concerns to the applicant at the hearing. The tribunal considered the letters submitted by the applicant from a man called Joseph Michael Perera and Dr Jaya Waddens. However, the tribunal found the contents of those documents were not consistent with the applicant’s evidence.
The tribunal did not accept that the applicant was a supporter of the UNP, nor that his father was a member of it. The tribunal therefore did not accept that there was a real risk of serious harm from thugs of the ruling party, from the ruling party itself or Saman, the political man or his supporters by reason of the applicant’s alleged political opinion. The tribunal did not accept that the applicant’s claims regarding the economic difficulties his family allegedly experienced were credible.
The tribunal expressed its willingness to accept the applicant’s evidence that he was involved in a motorbike accident in which he injured a person, but the tribunal did not accept that the victim’s son or sons wanted to kill the applicant or that the matter was ongoing. When asked by the tribunal whether the applicant feared harm because of his illegal departure from Sri Lanka, the applicant claimed he would go to jail because he had given his identification documents to border protection authorities in Sri Lanka.
The tribunal found that if the applicant had any interaction with the authorities in Sri Lanka on his departure from the country in the manner he asserted and had concerns that that may occasion him problems on his return, then he would have alluded to it at some stage prior to the hearing. The tribunal found that the applicant’s claims concerning the handing over of his identification documentation to the authorities were not credible.
The tribunal found that the offences under the Immigrants and Emigrants Act (Sri Lanka) were not applied selectively or discriminatively. The tribunal therefore found that what the applicant said he would face on return to Sri Lanka would be the result of non-selective enforcement of the law of general application, and therefore would not amount to persecution under s.91R(1)(c) of the Migration Act (“Act”).
So far as country information was concerned, the tribunal found that the country information indicated that most returnees to Sri Lanka would be granted bail based on a personal reconnaissance incorporating a requirement for a family member to act as guarantor. The tribunal stated that the applicant’s parents could act as guarantors for him. The tribunal found that the applicant would be in a position to pay a fine which may be imposed on him, given that his family members could financially assist him.
When it came to the tribunal’s consideration of whether the applicant would face harm on the basis of his membership of a particular social group of failed asylum seekers, the tribunal found that while the applicant may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka, there was nothing to suggest that the applicant would fall within the profiles of those in whom the authorities would have an adverse interest.
Ultimately, the tribunal found that the applicant did not face a real risk of significant harm as a result of his claim regarding Saman, as a result of the motorbike incident, as a result of his illegal departure from Sri Lanka or as a failed asylum seeker.
Against that background, the applicant applied to this court for judicial review of the tribunal’s decision.
Before going to the points that the minister endeavoured to divine from the unparticularised grounds of application, let me say something about the fate of applications where the details of the grounds are as broad and imprecise as are those in this case. A substantial body of learning in the Federal Court of Australia has held to the effect that grounds expressed with such generality as to be meaningless, because they do not advance propositions of fact or law from which one can distil the claim to jurisdictional error, render themselves amenable for dismissal.
Several cases have made that point. They include WZATH v Minister for Immigration & Border Protection,[11] a decision of Siopis J. They include a decision of Logan J in BHK15 v Minister for Immigration & Border Protection [12] and another decision of Logan J in AQN15 v Minister for Immigration & Border Protection.[13] They also included a decision of Gilmour J in WZAVW v Minister for Immigration & Border Protection.[14] Unparticularised assertions of jurisdictional error are vague when they do not specify the nature of the jurisdictional error allegedly committed, and a failure to particularise a ground for review is a sufficient basis for the proceeding to be dismissed, at least according to those authorities, especially the decision of Gilmour J in WZAVW.
[11] [2014] FCA 969
[12] [2016] FCA 569
[13] [2016] FCA 571
[14] [2016] FCA 760
This case raised two grounds of review, no details of which were provided. Doing the best the minister could, the minister endeavoured to put a construction on the grounds alleged by the applicant in a way most beneficial to the applicant. In written submissions, the minister identified in paragraph 27 what he thought the applicant was seeking to convey in ground 1 of the grounds of review. It will be recalled that ground 1 contained the assertion that the Refugee Review Tribunal did not afford the applicant procedural fairness. That was the extent of the alleged error.
The minister identified that the allegation was broad, unparticularised and could not be sustained. I agree with that proposition. However, the minister endeavoured to cast the ground in a manner that gave rise to obligations under the Act. In making those submissions, the minister identified that the tribunal did, in fact, comply with its statutory obligations and thereby did provide the applicant with procedural fairness, contrary to the assertions of the applicant.
The minister correctly identified that the tribunal invited the applicant to appear, as required by s.425, to discuss the issues in the matter. The minister correctly identified that s.425 of the Act only required the tribunal to identify for an applicant the dispositive issues in the review where those issues differed from the issues that the delegate considered dispositive, citing the decision of the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs.[15]
[15] (2006) 228 CLR 152
The minister contended that the tribunal’s decision was based on the same dispositive issues as was the delegate’s decision. However, the minister contended that the tribunal’s decision record made clear that the dispositive issues were discussed with the applicant at the hearing. I agree. Additionally, in respect of ground 1, the minister said that there was no information that enlivened s.424A obligations. The minister pointed out that although the tribunal relied on the applicant’s evidence during different stages of the visa process, including the entry interview and the enhanced screening process, those matters were set out in the delegate’s decision record, and that was provided by the applicant to the tribunal.
Those matters therefore fell within the exception of s.424A(3)(b) of the Act. It seemed to me that the tribunal afforded the applicant such procedural fairness to which he was entitled under the legislation. I did not detect any infringement of procedural fairness in the manner contended by the applicant. Ground 1 had no merit.
In ground 2, the applicant asserted that the tribunal applied the wrong legal test. For reasons mentioned above, no particulars were given of that assertion, so it was impossible for me to divine which particular proposition of jurisdictional error on which the applicant relied. I did not detect any error of legal reasoning or the application of the facts to the wrong legal test. It seemed to me that the correct law was recorded by the tribunal in paragraphs 4 to 8 of its decision. It seemed to me that the tribunal correctly applied the facts to the law.
So far as credibility was concerned, the applicant before me today expressed his disquiet with the fact that the tribunal did not accept what he said. It must be remembered that the applicant’s version of events in this case shifted in a manner that enabled the tribunal to express its state of uncertainty or lack of satisfaction with the veracity of the information given by the applicant. Ultimately, however, the applicant was complaining that the tribunal did not find in his favour. That, to my mind, does not indicate the existence of jurisdictional error. It simply indicated that he was not happy with the result.
I detected no error in the tribunal’s reasoning or in the conduct of this application.
Finally, it should be recorded that the applicant complained about the activities of departmental officers while he was at Christmas Island. It need only be pointed out that on the hearing of a judicial review application the activities of the tribunal are the important matters for my concern. Lest authority be needed on that point, the decision of the Full Court in Zubair v Minister for Immigration & Multicultural & Indigenous Affairs[16] stands as an illustration. It follows that whatever complaint was made about the activities of departmental officers on Christmas Island were irrelevant.
[16] [2004] FCAFC 248
Similarly, the applicant complained that he took the view that he was treated unfairly in this process. I do not accept that submission. Even if the applicant developed it, which he did not, he gave no indication that the conduct of the tribunal hearing was anything but fair, proper and regular. To my mind the applicant was complaining, in reality, that he was unhappy with the result. That is not jurisdictional error and it does not warrant intervention by this court.
I dismiss this application for judicial review and order the applicant to pay the minister’s costs fixed in the amount of $7,328.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 7 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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Natural Justice
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Procedural Fairness
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Jurisdiction
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