CUU17 v Minister for Immigration
[2018] FCCA 69
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CUU17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 69 |
| Catchwords: MIGRATION – JUDICIAL REVIEW – Application for protection visa – alleged failure to consider relevant considerations – alleged denial of procedural fairness – applying wrong legal test – unreasonable/irrational/illogical – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 414 |
| Cases cited: SZTAL v Minister for Immigration and Border Protection [2016] 243 FCR 556 Htun v Minister of Immigration and Multicultural Affairs [2011] FCA 1802 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [45] |
| Applicant: | CUU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | LNG 59 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing date: | 7 July 2017 |
| Date of Last Submission: | 14 November 2017 |
| Delivered at: | Hobart |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Krohn |
| Solicitors for the Applicant: | Vrachnas & Co |
| Counsel for the Respondents: | Mr D Wilson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the amended application for Judicial Review be dismissed.
That the Applicant pay the First Respondent’s costs in the quantum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
LNG 59 of 2016
| CUU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEAL TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made 7 September 2016 affirming a determination of the Minister’s delegate (“the Delegate”) not to grant the applicant a protection (class XA) Visa (“the Visa”).
The application was first filed on 11 October 2016 by the applicant in person. An amended application was filed 13 June 2017. The applicant there claimed 12 grounds of complaint with numerous sub-paragraphs of particularised complaint. It eventuated that the applicant, now represented, abandoned grounds 1, 2, 3, 7 and 8 of the application. He does, however, add further grounds 10-13 although there is substantial overlap in both the particulars and arguments with earlier grounds. Ground 11 was subsequently also abandoned.
Ground 12 asserts that the Tribunal fell into error in that it misunderstood the law or applied the wrong test as to 'intention' in respect of the question of complementary protection. The application before this Court proceeded in Hobart on 7 July 2017 but was effectively adjourned part-heard pending a decision of the High Court from the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection [2016] 243 FCR 556[1]. Leave was given to Counsel for both parties to make further written submissions upon the handing down of their Honour’s decision. It eventuated that to the Appeal was dismissed effectively leaving settled the interpretation of 'intention' and this ground was eventually also abandoned by the applicant and confirmed by letter from the applicant’s solicitors of 15 November 2017 whereupon my judgment was reserved accordingly.
[1] [2016] 243 FCR 556
Both parties were represented by Counsel before this Court and provided helpful written and oral submissions.
Whilst the grounds of complaint remain numerous and added by particulars to many, I borrow from the first respondent’s written submissions at [2] as a summary of the applicant’s complaints being that the Tribunal fell into jurisdictional error by:
1. Failing to consider relevant considerations;
2. Denying the applicant procedural fairness;
3. Misunderstanding the law or applying the wrong legal test; and
4. Acting unreasonably.
Background
The applicant is a Tamil from Sri Lanka. He entered Australia as an unauthorised maritime arrival in 2012.
The applicant lodged an application for Visa on 19 November 2012.
On 10 December 2013 the delegate refused the grant of the Visa.
On 17 December 2013 the applicant made application for a review to the Refugee Review Tribunal (then the appropriate forum).
The hearing before the Tribunal was convened on 28 July 2016.
The applicant was represented there by a migration agent and supported by an interpreter and a volunteer support worker.
Following the hearing, the Tribunal permitted further documentary evidence and written submissions from the applicant such provided under cover of letter from the applicant’s migration agent on 8 August 2016.
On 7 September 2016 the Tribunal affirmed the delegate’s decision not to grant to the Visa.
The applicant claimed that his family had been supporters of the United National party (UNP) in Sri Lanka and that his father had been actively involved in Sri Lankan politics.
The applicant says that he is of a Tamil of Catholic religion and a national of Sri Lanka. He says that he has no right to re-enter or to reside in any other country.
The applicant says that he joined his father as active in Sri Lankan politics.
The applicant says that in about 2005, and at the time of an election, a group of the men came to his home and threatened to kill his father if he did not desist from political involvement.
In 2009 the applicant says that a group of men armed with machetes and swords came to the family house to attack the applicant and his father. The applicant says that he was injured to the head and body and suffered scarring to his head, face and body.
The applicant says that in about 2010 his father disappeared and he is not since been found.
The applicant believes that his father is dead and fears the same fate or being further attacked if he returns to Sri Lanka.
The applicant says that the Sri Lankan authorities will not protect his safety.
The applicant says that he is in danger of harm as a returnee Tamil asylum seeker. He says that he is at risk by reason of his profile as a UNP supporter and also as a Tamil being imputed with involvement in the LTTE.
The Tribunal’s Reasons
The Tribunal accepted the applicant to be a Tamil Sri Lankan National from mixed Tamil-Sinhalese background.
The Tribunal found that the applicant suffers from post-traumatic stress disorder and depression and anxiety or the symptoms thereof.
It was accepted that the applicant's family have been supporters of UNP.
The Tribunal accepted that prior to the 2005 election, a number of men came to the applicant’s father's home and threatened to kill him if he did not desist from political activity in association with UNP.
The Tribunal accepted that from 2005 the applicant accompanied his father at UNP activities, but limited to a protection role for his father.
The Tribunal accepted that in about 2009 men armed with swords and machetes attacked the applicant at his father's home and that the applicant suffered injuries and residual scarring. The Tribunal did not, however, accept that the attack was politically motivated.
The Tribunal found that the threats to the applicant’s father in 2005 were the last relevant political threats and that the future chance of serious harm or risk of significant harm to the applicant following the 2009 attack to be remote.
The Tribunal was satisfied that the applicant would be able to access mental health treatment and facilities in Sri Lanka.
The Tribunal found that there is no real risk of significant harm to the applicant by reason of any perceived LTT associations resulting from him being a Tamil with visible scarring.
The Tribunal found that as a returned failed asylum seeker, the applicant would be likely to be fined with the risk of imprisonment being remote and that the applicant would reasonably be able to meet any fine.
The Tribunal concluded that the applicant does not face a real chance of serious harm by reason of any convention ground be it political opinion, race or membership of any particular social group. The Tribunal did not accept the applicant’s claims of fear of persecution to be well-founded or that he will face significant harm as a consequence of removal from Australia. The Tribunal found that this applicant did not satisfy the criteria of the Migration Act (1958) in respect of s.36(2)(a) or s.36(2)(aa).
A reading of the Tribunal’s reasons shows concerns in the Tribunal as to the applicant’s credibility, but relevantly found at [29]:
While the Tribunal has taken into account the likely effect of the applicant's mental health on his memory, for reasons described in detail throughout the decision, the Tribunal does not accept that its concerns about the applicant’s evidence are attributable to his mental health and/or memory loss.
Grounds of Review
Ground 4
The Tribunal fell into error in ignoring submissions regarding the adverse effects of trauma and PTSD on memory which contributed to its finding that the applicant was not a credible witness
I do not accept this argument. The Tribunal’s reasons under the heading 'credibility and mental health' deal with this issue at [24]-[29]. The Tribunal took relevant evidence and submissions at the hearing. The Tribunal permitted post-hearing medical evidence including from a clinical psychologist [26]. The Tribunal accepted certain aspects of the evidence including that “the Tribunal is willing to accept based on various reports provided that the applicant has reported suicidal ideation [27] and that the applicant suffered PTSD, depression and anxiety (or symptoms thereof” [28]). Further, at [28] the Tribunal accepted “that there is a high likelihood that the applicant’s depression would affect his memory”. Nevertheless, after consideration of this evidence, the Tribunal at [29] did not accept that its concerns as to the applicant’s credibility were attributable to his mental health and/or memory loss.
It is for the Tribunal to make findings of fact. In doing so, the Tribunal must consider the integers of the applicant’s claims. The reasons at [25]- [29] make it abundantly clear that these considerations were conducted by the Tribunal and, as such, I consider this ground of complaint to be a quibble with the findings of fact and therefore an impermissible merits review.
Ground 5
The Tribunal was lead into error in not using evidence available, leading to making and often repeated finding of fact upon which the final decision was based
The applicant particularises this ground complaining that the Tribunal’s finding that, whilst there was an attack on the applicant and his father in 2009, such attack was not politically motivated.
In written submissions annexed to the applicant’s affidavit of 10 October 2016 he concedes at [5.3]:
It is evident that election related violence occurred in the pre-election period. While this does not prove a political motivation, it shows that it is more likely than not, that violence directed at two people visibly connected with and organising for UNP, during a period of election campaigning, would be politically motivated.
The Tribunal considered this issue at [51-53] of its reasons. At [51] the Tribunal notes:
Firstly, prior to this, the last incident of politically-motivated threats or violence against the applicant’s father was in 2005, some four years prior to the 2009 attack. The Tribunal notes that the applicant has made vague references to his father facing many threats and problems but his evidence at hearing is that no other incidents occurred between 2005 and 2010 except the two 2005 incidents previously described and the 2009 machete attack (and his father's disappearance, discussed below). The applicant did not indicate that he faced any problems while accompanying his father on election campaigns in either 2006 or 2008. At the hearing, it was put to him that this was surprising given information indicating that most political violence happens during election time. The applicant did not indicate that the 2009 attack took place during election time or that he and his father were involved in election campaigning at the time. The applicant’s evidence has not indicated that any particular political event or dispute with SLFP supporters precipitated such a violent attack.
And at [53) the Tribunal concludes:
While the applicant has not put forth any other explanation for the attacks, the Tribunal is of the view that there may be a number of other non-political reasons that may have led to such an attack, which the applicant has chosen not to disclose.
It is clear that the Tribunal was aware of the possibility of a nexus between political violence and an election. The Tribunal considered the credibility of the applicant’s evidence, including that the applicant himself did not consistently or unambiguously indicate that the 2009 attack took place during the election or that he and his father were involved in campaigning. It is for the Tribunal to make findings of fact including whether the attack of 2009 was politically motivated or connected. The Tribunal considered the evidence at [51]-[53] and made a finding of fact open to it. The Tribunal was not required to go further on the evidence or to initiate enquiries so to effectively make a case for the applicant where one is not claimed. Such, this ground again constitutes an impermissible merits review of the findings of fact and must fail.
Ground 6
The Tribunal was led into error in incorrectly using a source leading to a statement which supported the final decision.
The applicant claims that the Tribunal incorrectly used evidence from the Centre for Monitoring Electoral Violence in determining that there was little violence in the 2015 Sri Lankan General election in the applicant's home area.
At [77] the Tribunal states:
As noted earlier, it was put to the applicant that in the general election of August 2015, the UNP won 106/225 Parliamentary seats, that the current Prime Minister is from the UNP and that the UNP and SLFP signed an MOW to govern together. It was put to the applicant that 67% of voters in the applicant’s district voted for the UNP. It was also noted that, while political violence mostly occurred during elections, even that violence appears to be fairly limited and the last elections were described as relatively peaceful, with only a few major incidents reported in the applicant's home area, none of which were against UNP supporters. As put to the applicant, the information before the Tribunal does not indicate that UNP members and/or supporters face a real chance of serious harm.
I accept here the submission of Counsel for the first respondent that it is not the role of this Court to evaluate the evidence before the Tribunal to decide whether or not it agrees with the Tribunal's findings. In this sense, the complaint of the applicant is a quibble with a finding of fact and therefore an impermissible merits review.
Ground 10
The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material fact, or information before the Tribunal.
This complaint is argued at seven separate particulars.
In Htun v Minister of Immigration and Multicultural Affairs[2] Allsop J stated:
The requirement to review the decision under s.414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without considering all the claims as to failed to complete the exercise of jurisdiction embarked upon. The claim or claims and its or their component integers are considerations made mandatory relevant by the Act for consideration… It is to be distinguished from errant fact-finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act… make it clear that the Tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.
[2] [2011] FCA 1802
In NABE v Minister for Immigration and Multicultural and Indigenous Affairs[3] the Full Court said simply:
Where the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts, that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.
[3] [2004] FCAFC 263 at [55]
The Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[4] noted:
The critical question which ordinarily will have to be addressed in applying this criteria is whether the applicant has a well-founded fear of persecution from one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, will justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty imposed by s414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for the decision.
[4] [2003]FCAFC 184 at [45]
The obligation of the Tribunal is to consider claims being those that are[5]:
i. Expressly raised;
ii. Squarely raided by the material before it; and
iii. Those that are evident from the Tribunal’s own findings and conclusions.
[5] MZWDG v Minister for Multicultural and Indigenous Affairs [2006] FCA 427 at [39]
The Tribunal must do more than simply state, set out, or acknowledge the applicants’ claims. It must consciously consider and engage with that claim[6].
[6] MIABP v MZYTS [2013] FCAFC 114
At particular (a) the applicant claims:
The Tribunal accepted the claims that the applicant and his father had been active in support for the UNP, and that they were attacked in or about 2009 by a group of men with machetes, that the applicant was seriously injured by machetes and left with permanent scarring, that his father escaped. It further accepted that there was violence around election times, but in rejecting the claim that this attack was politically motivated, it failed to have regard to the question whether the attack in 2009 was in the period of preparation for the Presidential and Parliamentary elections in January 10 and April 10, and to the evidence that this was so.
The Tribunal’s reasons at [51] disclose:
Firstly, prior to this, the last incident of politically-motivated threats or violence against the applicant’s father was in 2005, some four years prior to the 2009 attack. The Tribunal notes that the applicant has made vague references to his father facing many threats and problems but his evidence at hearing is that no other incidents occurred between 2005 and 2010 except the two 2005 incidents previously described in the 2009 machete attack (and his father's disappearance, discussed below). The applicant did not indicate that he faced any problems while accompanying his father on election campaigns in either 2006 or 2008. At the hearing, it was put to him that this was surprising given information indicating that most political violence happens during election time. The applicant did not indicate that the 2009 attack took place during election time or that he and his father were involved in election campaigning at that time. The applicant's evidence has not indicated any particular political event or dispute with SLFP supporters precipitated such a violent attack.
I am satisfied that the Tribunal did raise the relevant issue with the applicant. The applicant himself did not specifically claim a nexus between the 2009 attack and election time or election campaigning by himself or his family. As such, this was not an integer of a claim requiring further attention. Although the notion of onus of proof is not strictly applicable to administrative enquiries, the applicant must supply the relevant facts in sufficient detail or particularity to enable the Tribunal to establish the veracity of the claim. The Tribunal is not required to make the applicant's case for him. I find no merit in this particular.
At particular (b) the applicant argues:
In rejecting the claim that the applicant’s father disappeared, the Tribunal failed to have regard to the question whether the attack in 2009 was in the period of preparation for the Presidential and Parliamentary elections in January 2010 and April 2010, and the evidence that this was so.
[51] and [56] of the Tribunal’s reasons specifically address this issue. [51] is set out above and I repeat my observations. At [56] the Tribunal notes the inconsistencies in the applicant’s evidence as to the time of his father's disappearance. Within context of findings of fact and credit, the Tribunal clearly addresses the issue. Consequently, I find no merit in this particular.
At particular (c) the applicant references the particulars and further particulars to ground five of the application.
Here the applicant says the Tribunal ignored evidence that the attack on the applicant and his father took place during a pre-election period of campaigning and during which there was much politically motivated violence.
The Tribunal deals with this complaint in its reasons at [51-53]. The reasons at [51] are set out in detail above. The Tribunal here exposes its role as a determiner of fact and credit. At [53] the Tribunal finds:
Accordingly, for the reasons set out above, while the Tribunal accepts that the applicant and his father were victims of an attack in 2009, it does not accept the applicant’s claims regarding the identity of the attack or the political motivations for this attack. While the applicant has not put forth any explanation for the attacks, the Tribunal is of the view that there may be a number of other non- political reasons that may have led to such an attack, which the applicant has chosen not to disclose.
I am satisfied, therefore, that the Tribunal has identified, acknowledged, considered and evaluated this claim by the applicant. This particular of ground 10 must therefore fail.
At particular (d) the applicant claims:
The Tribunal considered whether in the period around the 2015 elections there was violence in the applicant's home area, and cited a particular report, but in doing so failed to consider the information in that report which showed there were such attacks in his home area against the party which the Tribunal accepted he had supported.
At [77] and [78] the Tribunal deals with the contents of the report by the Centre for Monitoring Election Violence. Specifically at [77] appears the following:
… With only a few major incidents reported in the applicant's home area, none of which were against UNP supporters. As put to the applicant, the information before the Tribunal does not indicate that the UNP members and/or supporters face a real chance of serious harm.
I am satisfied there that the Tribunal did consider the information in the relevant report and hence there is no merit to this particular of the complaint.
At particular (e), the applicant refers to the particulars of ground six of the application as follows:
The Tribunal incorrectly used evidence from the Centre for Monitoring Electoral Violence (in Sri Lanka) to claim that there was little violence in the 2015 general election in the applicant's home area. A more correct reading of the source shows that this is not true and may even show the opposite. This affects their perception of whether the applicant would face harm if he returned and directly addresses one of the claims for protection.
I repeat that paragraphs [51] – [53] of the Tribunal’s reasons deal with this evidence. The applicant makes no further particular submissions over and above those referenced and dealt with in ground six above. Consequently, I find no merit in this particular.
At particular (f) the applicant claims that the Tribunal, in rejecting the claim that the 2009 attack was politically motivated, failed to have regard to the question of motive for the attack on the applicant with machetes and swords.
The Tribunal dealt with this particular at [51] – [53] of its reasons. The applicant claimed that the attack was politically motivated. The Tribunal was not satisfied that the attack was politically motivated. Quite simply, there exists no obligation for the Tribunal then to make a positive finding as to any other motivation for the attack. It follows, that I find no merit in this particular.
At particular (g) the applicant complains that the Tribunal failed to consider whether the applicant’s scars in combination with his being subjected to fresh scrutiny on his return to Sri Lanka may cause him to be at risk of persecution or significant harm.
The issue of imputed LTTE membership was raised in post-hearing submissions. The Tribunal had considered the applicant’s scars and imputed LTT membership at [89] – [94] where at [94] it made a finding of fact available to it as follows:
Given the applicant’s evidence that he has not had any problems as a Tamil in the past, has no fears of future harm on this basis, has never indicated any LTTE involvement or support, the Tribunal's findings regarding his scarring and relying on the above discussed country information, the Tribunal does not accept that he faces a real chance of serious harm due to his Tamil ethnicity, is actual/imputed political opinion including suspected LTTE supporter/member and as a 'Tamil perceived to be against the government' and/or as a member of the particular social group of 'young Tamil men who have been active or suspected to be active in the LTTE'. The Tribunal further does not accept a real risk of significant harm arises due to the applicant’s Tamil ethnicity (including a combination with his age or gender) or any perceived pro- LTTE/anti-government political reviews.
I am satisfied, therefore, that the Tribunal considered the applicant’s claims individually and cumulatively [112] – [113].
Ground 13
The applicant here argues at two particulars that the Tribunal 'fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted'.
The High Court in Minister for Immigration v SZMDS[7] (Crennan & Bell JJ) observed at [131], [133] and [135] in respect of reasonableness, illogicality and/or irrationality of decision-making as follows:
[131] … must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[133] … The correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning with which it can engage in to make the findings it did make on the material before it.
[135] … Whilst there may be varieties of illogicality and irrationality, it is that a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and that the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence in the inferences or conclusions drawn.
[7] (2010) 240 CLR 611
At particular (a) the applicant asserts that the Tribunal acted unreasonably in not accepting that the applicant’s father had disappeared because of inconsistencies in the applicant’s evidence and in the face of accepting that the applicant and his father had been active supporters of UNP and that they were attacked by a group of men in 2009 and that the applicant was injured in the attack and left with residual scarring.
The Tribunal considered the father's disappearance under a specific heading 'father's disappearance' at [56] – [63]. The Tribunal properly noted inconsistencies in the evidence [56] and [58] and the limitations of the evidence [57]. These are the bases of the Tribunal's findings. It is for the Tribunal to assess the probity of the evidence. The Tribunal sets out its reasons for rejecting the assertion. It is not for this Court to substitute its own finding of fact. The logic and rationality of the Tribunal’s evaluation process is clear from its reasons and this is not therefore, a situation where the Tribunal fell into error by making a finding unsupported by any probative evidence. This complaint therefore fails at this particular.
At particular (b) the applicant simply repeats the numerous particulars under Ground 10 of this application which allege particulars of failure to consider relevant material. It follows that this particular is disposed of by my reasons above in respect of the particulars of Ground 10.
Conclusion
There being no positive findings in respect of any of the grounds or particulars of the application, that application will be dismissed with an order for costs in favour of the first respondent.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 25 January 2018
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