Dfe20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 35
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
DFE20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 35
File number(s): PEG 207 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 10 September 2021 Catchwords: MIGRATION - Judicial review – Administrative Appeals Tribunal decision – Subclass 866 Protection visa – citizen of Sri Lanka – claims of protection based on political activism concerning a sitting member of Sri Lankan parliament – whether complementary protection provisions otherwise applied – whether denial of procedural fairness – whether delay in decision constitutes jurisdictional error – whether typographical errors constitute an error in reasoning process – whether jurisdictional error Legislation: Migration Act 1958 (Cth) Div 4 Pt 7, ss 36, 424A, 424AA, 474, 476 Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR; (2016) 154 ALD 221
AZAEA v Minister for Immigration and Border Protection [2014] FCCA 1083
BIX15 v Minister for Immigration and Border Protection [2017] FCA 1116; (2017) 72 AAR 569
BRE15v Minister for Immigration and Border Protection [2019] FCCA 1680
BXT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2455
CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529; (2018) 355 ALR 216
DEM16 v Minister for Immigration and Border Protection [2017] FCCA 805
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EBE17 v Minister for Immigration and Border Protection [2018] FCCA 45
Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875
Islam v Minister for Immigration and Border Protection [2019] FCCA 1453
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
MZZZWv Minister for Immigration and Border Protection & Anor [2015] FCAFC 133; (2015) 234 FCR 154; (2015) 67 AAR 159; (2015) 328 ALR 433
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171; (2005) 88 ALD 257
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; 58 ALD 609
S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153
Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146; (2014) 142 ALD 211
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209; (2003) 79 ALD 42
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 17 August 2021 Applicant: In person (with the assistance of an interpreter) Counsel for the First Respondent: M Scott Solicitor for the Respondents: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 207 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: DFE20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The originating application filed on 7 July 2020 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is an application for judicial review filed by the applicant on 7 July 2020 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively”) made on 5 June 2020. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant the applicant a Protection (Class XA subclass 866) visa (“Protection Visa”).
BACKGROUND
By way of relevant background to the Tribunal Decision the Court notes that:
(a)
the applicant, a citizen of Sri Lanka, first arrived in Australia on 5 August 2012 as the holder of a Higher Education Sector Subclass 573 student visa (“Student Visa”):
CB 251;
(b)the applicant’s wife and eldest son arrived as dependants on the applicant’s Student Visa on 21 March 2013: CB 246-247;
(c)the Student Visa expired on 1 September 2014. The applicant has remained on bridging visas since that time: CB 245;
(d)the applicant and his wife had a second son in 2015: CB 157 and 248;
(e)
the applicant applied for the Protection Visa on 14 December 2015.
His family were also included in the Protection Visa application: CB 10-125;
(f)
the applicant’s claims to fear harm were set out in his Protection Visa application at
CB 39-41 and can be summarised as follows:
(i)the applicant was continuously being threatened in Sri Lanka;
(ii)the applicant was unable to work in Sri Lanka because of gang members;
(iii)gang members were waiting for him if he was to return to Sri Lanka and he felt the risk of inhuman treatment;
(iv)the applicant was physically abused, at his home, by gang members, for which he required medical treatment;
(v)
the reason why he had been abused was because he spoke out against a
Sri Lankan politician’s (“Politician”) antisocial activity including drug dealing, inhumane treatment, gambling, bribery, human trafficking, kidnapping and torture; and
(vi)when he visited the local police stations to complain about the abuse the police called gang members to the police station;
(g)the applicant provided various supporting documents to the Minister’s Department including translated character references, birth certificate, a lease, a medical report and various media articles: CB 142-201;
(h)
the applicant attended a hearing before the Delegate on
6 October 2016 with the assistance of an interpreter: CB 203-215;
(i)on 7 November 2016 the Delegate’s Decision was to refuse to grant the Protection Visa: CB 216-231;
(j)on 29 November 2016 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 232-238;
(k)on 15 January 2017 the applicant wrote to request the withdrawal of the application for review for his wife and two sons: CB 242;
(l)the applicant attended a hearing before the Tribunal on 1 May 2019 (“Tribunal Hearing”) with the assistance of a Sinhalese interpreter: CB 267-270;
(m)
at the Tribunal Hearing, the applicant handed up two letters from members of
Sri Lankan Parliament dated 14 and 29 June 2018 respectively (“Members’ Letters”): CB 271-274;
(n)the applicant’s wife and two sons’ withdrawal of their application for review to the Tribunal was processed on 3 May 2019: CB 276-277; and
(o)on 5 June 2020 the Tribunal affirmed the Delegate’s Decision not to grant the Protection Visa: CB 285-312.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)summarised the applicant’s migration history: CB 289 at [27];
(b)identified the material before it including the Delegate’s Decision, the documents that had been provided to the Delegate, the Members’ Letters, and the country information: CB 289-290 at [29]-[35];
(c)set out the background to the matter and the applicant’s claims for protection as stated in his Protection Visa application and in the interview with the Delegate: CB 290-293 at [36]-[48], and said that the applicant had confirmed that this was a fair and accurate summary of his claims: CB 293 at [49];
(d)provided a detailed summary of the applicant’s evidence given during the Tribunal Hearing: CB 293-296 at [52]-[72]. This included recording the applicant’s responses to some questions asked by the Tribunal. The Tribunal noted that it had discussed the Delegate’s Decision and findings with the applicant: CB 296 at [72]-[75];
(e)in relation to the supporting documents provided by the applicant:
(i)
accepted that the “Legal Medical Examination” document dated 21 May 2012 was evidence of a Sri Lankan hospital visit by the applicant on that date,
but given the limited details of the hospital visit and examination report contained in the document, the Tribunal gave little weight to the document: CB 296-297 at [76];
(ii)
placed limited weight on a letter from an individual associated with a Buddhist temple that the applicant claimed to the Delegate (but not to the Tribunal)
he had assisted with an anti-drug program and as evidence that the applicant suffered harm in Sri Lanka as a result of involvement with an anti-drug/anti- alcohol program. Limited weight was given to this document because it did not refer to any threats or harm, and because the target of any attacks would be someone in a leadership role, which the applicant was not: CB 297 at [77]-[78];
(iii)
accepted that the Members’ Letters were evidence supporting the applicant’s claim to have supported political candidates from two political parties.
The Tribunal had a number of concerns with these letters including that the references to the threats received as a result of these activities appeared to be based on reports from the applicant or his wife rather than the direct knowledge of the members, that the level of involvement described was inconsistent with the applicant’s claims, and that the letters were general in nature. As such,
the letters were given limited weight as evidence that the applicant has suffered harm or would suffer harm in the future: CB 297-298 at [79]-[82];
(iv)
placed limited weight on a letter from the applicant’s mother-in-law as evidence that the applicant had been threatened with harm or would suffer harm in the future from the Politician or his supporters as the letter was vague in nature,
no family members had been threatened, and the applicant’s wife had returned to Sri Lanka despite these threats being made: CB 298-299 at [83]; and
(v)noted that it was not clear what reliance the applicant sought to place on the lease he had provided to the Tribunal but accepted that the lease was evidence that the applicant’s wife had leased a property in a Sri Lankan town during the period from January 2011 to January 2012: CB 299 at [84];
(f)provided a detailed summary of the country information which it had discussed with the applicant: CB 299-301 at [85]-[90];
(g)found that:
(i)
the applicant had supported anti-drug campaigns from 2007 to 2010 and that the Politician remains active in politics, but the Tribunal did not accept that the applicant faced a risk of harm from the Politician or his supporters due to his political activities, support for an anti-drugs campaign, or any other reason:
CB 301 at [91]-[92];
(ii)there were significant concerns about the credibility of the applicant’s claims, including that the applicant had made inconsistent statements about aspects of his claims (such as events and threats of harm in Sri Lanka) and had struggled to provide details, context or evidence, and that these concerns could not be explained by the passage of time or any personal circumstances: CB 301 at [93]-[94];
(iii)
there were particular concerns about the applicant’s claims he was abducted by
the Politician’s supporters in 2010. This included that the applicant had not provided consistent evidence and that his evidence did not appear credible:
CB 302 at [95];
(iv)the applicant’s inconsistent evidence on key events relating to his claims could not be explained by the passage of time, poor recollection or translation issues. On this basis the Tribunal found aspects of the applicant’s evidence were not credible: CB 302 at [96]-[97]; and
(v)
the applicant’s explanation for his family’s return to Sri Lanka was not credible.
The applicant explained his family returned because they believed the situation had improved, but discovered on return it had not: CB 302 at [98]. The Tribunal noted that, other than two claimed threatening phone calls, no further action had been taken against his family since their return to Sri Lanka: CB 302 at [99];
(h)was not satisfied that the applicant held a genuine fear of persecution by the Politician, his supporters or the authorities: CB 302 at [100];
(i)
given the significant inconsistencies in the applicant’s account of claimed harm in
Sri Lanka, did not accept the applicant’s claims to have been physically harmed in the past by the Politician or his supporters. Further, the Tribunal did not accept that the applicant would be targeted more than eight years after he ceased participating in an anti-drug campaign in Sri Lanka, and if he remained involved it would be as a part-time volunteer or supporter. Accordingly, there was no real chance he would face serious harm now or in the reasonably foreseeable future: CB 303 at [101];
(j)relying on country information and the applicant’s circumstances (including that the applicant’s family appeared to have returned without issue to Sri Lanka, that there was nothing irregular about the applicant’s departure, and that the applicant was not a person of interest), was not satisfied that the applicant would be harmed if he returned as a failed asylum seeker from a Western country now or in the reasonably foreseeable future: CB 304-305 at [103]-[108];
(k)
noted the delay in the applicant applying for the Protection Visa and the explanation and evidence the applicant had provided in relation to the delay. Ultimately,
the Tribunal found that the applicant’s delay in applying for the Protection Visa (in the context of his attempt to extend his stay in Australia on the Student Visa) indicated he was not fearful of serious harm when he arrived in Australia and did not fear harm on return: CB 306 at [109]-[117];
(l)
found that the applicant’s claims lacked credibility and, when considered individually and cumulatively, the Tribunal was not satisfied the applicant met the criteria in
s 36(2)(a) of the Migration Act as there was nothing to suggest he would face persecution for his political activities from the Politician or his supporters: CB 306-307 at [118]-[123];
(m)for the same reasons given in relation to the refugee criterion, the Tribunal found that the applicant did not face a real risk of significant harm: CB 307 at [129]. Noting that the applicant had family support and professional qualifications, the Tribunal found that there were no substantial grounds for believing that the applicant would face a real risk of significant harm. The applicant was found not to meet the criteria in s 36(2)(aa) of the Migration Act: CB 307 at [125]-[131]; and
(n)affirmed the Delegate’s Decision to refuse the Protection Visa: CB 308 at [132]-[135].
JUDICIAL REVIEW APPLICATION
Background
The applicant filed his Judicial Review Application on 7 July 2020: CB 1-6, and an affidavit (Applicant’s Affidavit”) the same day: CB 7-9. Neither the Judicial Review Application nor the Applicant’s Affidavit set out any grounds of review, and apart from a single paragraph containing an affirmation that its contents are true and correct, the Applicant’s Affidavit has no other paragraphs or annexures.
On 6 August 2020 a Registrar of this Court made orders (“Registrar’s Orders”) providing the applicant with an opportunity to file an amended Judicial Review Application (including supporting particulars) and any supporting affidavits. No amended Judicial Review Application or affidavit evidence was filed. The Registrar’s Orders also provided that the applicant was to file written submissions. No written submissions were filed by the applicant. Despite the applicant failing to provide any grounds of review, and also failing to comply with the Registrar’s Orders requiring written submissions to be filed, the Court gave the applicant an opportunity at hearing to orally explain what he considered the Tribunal had done wrong: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J.
Submissions made at hearing
At hearing the applicant submitted: Transcript at 3 and 5, that:
(a)at the Tribunal Hearing he did not have the opportunity to present all of his evidence or give a clear explanation of the evidence that he had to give;
(b)when he gave dates and times to the Delegate when giving his evidence at the Protection Visa interview, there was some evidence that was recorded incorrectly by the Delegate;
(c)his wife needed to provide some documents from Sri Lanka but he could not get them in time because of the COVID-19 pandemic situation in Sri Lanka;
(d)the length of time between the Protection Visa interview with the Delegate and the Tribunal Hearing was the reason that, at the Tribunal Hearing, he could not give a detailed description of the incidents that took place; and
(e)the Tribunal gave him two weeks’ time to present any other documents or evidence, but he could not obtain the documents or present the evidence during the two week period or before it expired, and he was under the impression that after the two weeks’ period he was not allowed to present those documents or evidence.
The Minister’s written submissions, prepared against the backdrop of no grounds in the Judicial Review Application and no written submissions having been filed by the applicant:
(a)asserted that:
(i)the applicant was not denied procedural fairness: Migration Act, Div 4, Pt 7;
(ii)the Tribunal’s credibility findings in relation to the applicant were open to be made on the evidence before the Tribunal;
(iii)the Tribunal addressed and engaged with each of the applicant’s claims; and
(iv)the Tribunal came to conclusions on the refugee and complementary protection criteria which were logical and rational on the evidence before the Tribunal; and
(b)raised two other issues, but which the Minister argued did not establish jurisdictional error, namely:
(i)the delay in delivery of the Tribunal Decision; and
(ii)certain typographical errors in the Tribunal Decision.
At hearing the Minister further submitted: Transcript at 4-5, that:
(a)the applicant was invited to the Tribunal Hearing where an interpreter was present to assist him, and was provided with a clear and fair opportunity to present all of his claims and evidence;
(b)the Tribunal Hearing occurred over two and a half hours, and the applicant was given a further two weeks by the Tribunal to provide any supporting documents that he wished to provide;
(c)
the Tribunal understood that the applicant could not recall precise dates and events,
but this did not explain other inconsistencies and vague and contradictory evidence that the applicant had otherwise provided, and the Tribunal was not satisfied the passage of time could adequately explain all of the inconsistencies in the applicant’s evidence, and that it was open to the Tribunal to come to that conclusion;
(d)inconsistencies in dates alone was not the only reason that the Tribunal found the applicant’s evidence not credible, and referred to the Minister’s written submissions at [29.4]; and
(e)there is no evidence that the applicant requested further time to provide documents
(beyond the two weeks provided), and noted that the Tribunal Decision was made more than one year after the Tribunal Hearing, and that the applicant could have provided those documents at any time prior to the Tribunal Decision.The requirement for jurisdictional error
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, any authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”), as may legal unreasonableness: see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
To constitute jurisdictional error, the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon the applicant to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision,
or determine the applicant’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
(“Wu Shan Liang”).
Grounds
It has been observed that an application for judicial review which contains no grounds of review is “hopeless”, arguably “incompetent” and that this “itself is sufficient…to warrant dismissal”: BXT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 2455 at [26] per Kendall J; EBE17 v Minister For Immigration and Border Protection [2018] FCCA 45 at [19] per Judge Lucev; DEM16 v Minister for Immigration and Border Protection [2017] FCCA 805 at [9] per Jarrett J. Whilst the Judicial Review Application contained no grounds of review and therefore, without more, fell into this category of hopeless or incompetent applications for judicial review sufficient to warrant dismissal, the applicant made oral submissions at hearing as set out at [6] above.
Taken at their highest the applicant’s submissions seemingly asserted a denial of procedural fairness by the Tribunal at or in the process of the Tribunal Hearing. The Court notes that no transcript of the Tribunal Hearing was sought to be tendered by the applicant to support the oral submissions set out at [6] above.
In the Court’s view the Tribunal complied with the procedural fairness obligations in Div 4 of Pt 7 of the Migration Act, and in particular:
(a)the Tribunal invited the applicant to the Tribunal Hearing and, based on:
(i)the Tribunal’s detailed summary of the Tribunal Hearing (including the evidence given by the applicant): CB 289 at [30], 290 at [33], 293-295 at [49] and [53]-[65], 295-296 at [67]-[72] and 299 at [85]; and
(ii)the Tribunal Hearing record which shows that the Tribunal Hearing went for over two and half hours, and that the applicant had the assistance of a Sinhalese interpreter: CB 267-269 (see also CB 286 at [4]),
it can be inferred that the applicant actively participated in the Tribunal Hearing;
(b)the applicant was on notice from the Delegate’s Decision of the issues in the review: CB 261-262 and 293-296 at [52]-[74], and it was therefore unnecessary for the Tribunal to put any further information to the applicant: Migration Act, ss 424A and 424AA;
(c)the Tribunal gave the applicant additional time to provide further information if he wished to do so: CB 267-270; and the only information the applicant provided was a copy of his passport: CB 286 at [5] and [8].
The Tribunal otherwise:
(a)accurately summarised the applicant’s claims for protection, and the applicant agreed the summary was accurate: CB 291-293 at [47]-[49];
(b)identified the evidence that the applicant had provided in support of his claims: CB 289-290 at [31]-[32]; and
(c)addressed and considered all of the applicant’s claims: CB 301-303 at [91]-[101] and 305-306 at [109]-[117].
In the Court’s view:
(a)a determinative issue in the review was the credibility of the applicant’s claims. Findings as to credibility are generally a matter for the Tribunal: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J, but may give rise to jurisdictional error where the credibility findings were formed in circumstances where an applicant was denied procedural fairness, or where the credibility findings were based upon no logical or probative basis or were unreasonable: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 (“CQG15”) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR; (2016) 154 ALD 221 (“ARG15”) at [83] per Griffiths, Perry and Bromwich JJ;
(b)the Tribunal’s assessment of the applicant’s credibility was made based upon a number of factors including:
(i)inconsistencies (of which there were many): CB 301 at [93] and 302 at [99] and [101];
(ii)inadequate explanations: CB 302 at [96]-[97];
(iii)
vague and contradictory evidence (internally and with the applicant’s wife):
CB 301 at [94]-[95];
(iv)a lack of plausibility, credibility and corroboration in the evidence: CB 301-302 at [94]-[98] and [101]; and
(v)a delay in seeking protection: CB 305-306 [109]-[117],
which provided a rational and logical foundation for the Tribunal’s credibility findings, and in turn, overall conclusion that the applicant did not have a genuine fear of harm in Sri Lanka, and the consideration of the above factors was not unreasonable in the sense summarised in Pandey: CQG15 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ; ARG15 at [83] per Griffiths, Perry and Bromwich JJ;
(c)the Tribunal’s appraisal of the applicant’s evidence was open to it for the reasons that it gave. For example, the Tribunal placed minimal weight on evidence where the content of documents was vague or general, or where the content appeared to have been based upon information the applicant had provided to the authors of those documents as opposed to first-hand information from the authors themselves: CB 296-299 at [76]-[84] and above at [3(e)]. The Tribunal properly engaged with the evidence and came to rational and logical conclusions that were open to it on the evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [135] per Crennan and Bell JJ;
(d)the Tribunal’s finding that the applicant did not face a real chance or risk of harm from the Politician or his associates was based on the Tribunal dismissing the credibility of this claim generally, which was logical and rational based on the evidence;
(e)the Tribunal’s finding that the applicant did not face harm as a returning failed asylum seeker was based on country information and the applicant’s evidence and circumstances and there was a logical and rational basis for the Tribunal to so find based on the evidence; and
(f)the Tribunal is not obliged to afford every opportunity to an applicant for review to present their best possible case and to improve upon their evidence. Procedural fairness requires only that a party be given a reasonable opportunity to present a case, not that the Tribunal ensure that a party takes the best advantage of the opportunity to which the party is entitled: Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383 at 403 per Deane J; Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J; Islam v Minister for Immigration & Anor [2019] FCCA 1453 at [58] per Judge Lucev. It was for the applicant to put forward his case before the Tribunal. If, as appears to be asserted here, the applicant failed to do so, and whether advertently or inadvertently, that does not give rise to jurisdictional error in the Tribunal Decision. The Tribunal cannot deal with matters that are not raised with it, and cannot grant indulgences (such as an extension of time to file documents) which are not sought.
OTHER MATTERS RAISED BY THE MINISTER’S SUBMISSIONS
The Minister, quite properly and in conformity with a model litigant’s obligations, drew to the attention of the Court two matters for consideration as possible jurisdictional errors, namely:
(a)the delay in delivery of the Tribunal Decision; and
(b)certain typographical errors in the Tribunal Decision,
whilst arguing that those matters were not jurisdictional errors.
Delay in Delivery of Tribunal Decision
There was a delay of just over one year between the Tribunal Hearing and the Tribunal Decision. No reason for the delay was proffered in the Tribunal Decision.
In NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171, (2005) 88 ALD 257 (“NAIS”) at [5] per Gleeson CJ it was said that while delay in decision-making is to be deplored,
delay of itself will rarely vitiate proceedings, and it is necessary to examine the consequences of the delay rather than the delay itself, including whether the delay has given rise to oppression or an error in the decision made, such as to make that decision unsafe. In NAIS (where the delay between observation of demeanour at hearing and decision by the then Refugee Review Tribunal was four and a half years: NAIS at [7] per Gleeson CJ) it was also observed that significant or inordinate delay might undermine the acceptability of credibility assessments:
at [82], [85]-[88] and [102] per Kirby J.
In this case the Tribunal made determinations on the applicant’s credibility, but none of the credibility findings turned on the applicant’s demeanour or the way that the applicant presented his evidence. Rather, the Tribunal’s credibility assessment was made on an appraisal of the applicant’s evidence which could not have been impacted by the delay. Given the detailed reasons for the credibility assessment: see [17(b)] above, the delay appears to have had no effect in terms of the credibility assessment: BIX15 v Minister for Immigration and Border Protection [2017] FCA 1116; (2017) 72 AAR 569 at [47] per Markovic J. Otherwise, there is nothing obviously “unsafe” in the reasoning in the Tribunal Decision as a result of the delay. The Tribunal Decision, 28 pages in length and comprising 135 paragraphs, deals with the facts and issues comprehensively. Albeit there are some minor typographical errors (discussed at [23]-[30] below) there is no reason to conclude that the delay has resulted in a lack of clarity in the Tribunal Decision, or caused the Tribunal to take “the path of easy resolution”: NAIS at [87] per Kirby J, when determining issues, or that the typographical errors were material to the outcome.
In the circumstances the Court considers that the delay has had no effect upon the reasoning in the Tribunal Decision, and does not establish jurisdictional error in the Tribunal Decision.
Typographical Errors
The Minister drew attention to two types of typographical error in the Tribunal Decision, namely:
(a)one in relation to the date of the Members’ Letters referred to at [2(m)] above; and
(b)the other in relation to the country of reference,
each of which is dealt with below.
Typographical errors in Tribunal decisions are not exceptional. In S14/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1153 at [34] per Moore J the Federal Court said:
The second is that the decision of the Tribunal had not been proof read, with the result that all transcription or typographical errors were not corrected. Experience would indicate that reasons for decision or judgment of members of administrative tribunals as well as judges, are not always models of perfection when first published. Typing and other errors can be overlooked in the proof reading process. It is commonplace for corrigenda to issue. In my opinion, it is probable that the word “not” was omitted. That conclusion is reinforced by the approach the Tribunal ultimately took to the applicant’s claims, namely that the applicant could live in Jakarta without facing a “real chance” of persecution.
In Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 at [48] per Marshall J the Federal Court, when referring to typographical errors, observed that:
The existence of a typographical error is best acknowledged rather than attempted to be exploited…
and cited CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682, a case where a ground of the appeal fastened on the omission of the word “not” prior to the word “satisfied”, and where at [29] per Marshall J the Federal Court said there is:
… no reason to defy commonsense by not observing that a typographical error was made. I would read in the word “not” prior to the word “satisfied”…
In AZAEA v Minister for Immigration and Border Protection [2014] FCCA 1083 (“AZAEA”) this Court was dealing with a case of a single typographical error, where the Tribunal decision there being considered in relation to complementary protection made reference to Pakistan rather than Afghanistan in one of the paragraphs: AZAEA at [15] per Judge Raphael. In AZAEA the Court observed at [15]-[16] per Judge Raphael as follows:
… In his helpful written submissions he discusses at some length the decision in SZIFI v Minister for Immigration and Citizenship [2007] FCA 63, where Greenwood J was faced with a decision that made several of these geographical errors which led his Honour to take the view that the Tribunal “may have had in mind facts, circumstances and considerations referable to other cases” at [33].
The Court does not believe that this is such a case. The Court is of the view that the Tribunal made a typographical error only in inserting the word “Pakistan” instead of the word “Afghanistan” and is at fault only in not re-reading its decision record with a scrupulousness that one hopes for but rarely obtains.
In the Tribunal Decision the Tribunal incorrectly states that the Members’ Letters were both dated 14 June 2018. One letter was however dated 29 June 2018: see [2(m)] above.
The Tribunal’s assessment of the Members’ Letters related to their content and no10 SEPTEMBER 2021t their date: see [3(e)(iii)] above. This is a typographical error of no material effect in relation to the Tribunal’s reasoning or its assessment of the credibility of the applicant. This error by the Tribunal does not establish jurisdictional error in the Tribunal Decision.
At CB 293 at [50] and [51] of the Tribunal Decision, the Tribunal refers to whether the applicant has a well-founded fear of persecution and significant harm in “Malaysia”.
The relevant paragraphs where this error occurs are general “template” paragraphs: WAFK v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1293; (2003) 133 FCR 209; (2003) 79 ALD 42 at [52] per French J. These references are not conclusions. The incorrect references to Malaysia are typographical errors which, when reading the Tribunal Decision as a whole, “is plain beyond peradventure…was not an error in the reasoning process”: CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALJR 529; (2018) 355 ALR 216 at [56]-[57] per Kiefel CJ, Gageler and Nettle JJ, and do not give rise to jurisdictional error in the Tribunal Decision.
The Court has considered whether, if the typographical errors are considered in aggregate,
they might be demonstrative of the Tribunal failing to discharge its statutory task (including possibly because of delay in the delivery of the Tribunal Decision), and therefore establish jurisdictional error in the Tribunal Decision. The errors are not, even when taken in aggregate, such as to signify a failure in the discharge of the Tribunal’s statutory task. They do not indicate an abdication of that task in the same way as does the wholesale copying over of earlier Tribunal reasons for decision or multiple failures to refer to the correct country of origin in relation to a protection visa application in the manner set out in SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81; (2014) 314 ALR 146; (2014) 142 ALD 211 at [21] per Siopis, Perram and Davies JJ, MZZZWv Minister for Immigration and Border Protection [2015] FCAFC 133; (2015) 234 FCR 154; (2015) 67 AAR 159; (2015) 328 ALR 433 at [1] and [7]-[17] per Tracey, Murphy and Mortimer JJ, and BRE15v Minister for Immigration and Border Protection [2019] FCCA 1680 at [10(d)-(h)], [88] and [90] per Judge Lucev. Rather, it is evident that the Tribunal has in this case otherwise applied itself diligently to a consideration of the relevant facts and criterion and the evidence it had before it. Sight ought not be lost of the fact that the Tribunal did ultimately, by reference to the correct criterion and to the evidence described above, conclude that none of the applicant’s claims could result in him holding a well-founded fear of persecution nor facing a real risk of significant harm in
Sri Lanka, and that he did not meet the criteria in either s 36(2)(a) or (aa) of the Migration Act: CB 306-307 at [121]-[123] and 307 at [130]-[131].
It follows from the above observations that the Court is satisfied that the typographical errors in the Tribunal Decision do not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDER
For the reasons set out at [9]-[30] above, the Court has concluded that the Judicial Review Application does not establish jurisdictional error in the Tribunal Decision. It follows that there will be an order dismissing the Judicial Review Application.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 10 September 2021
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