DQQ17 v Minister for Immigration
[2017] FCCA 3207
•19 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DQQ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3207 |
| Catchwords: MIGRATION – Judicial review – Immigration Assessment Authority decision – Sri Lankan citizen – Tamil ethnicity – whether further evidence admissible – further evidence of current position in Sri Lanka – whether claims particularised – whether bias – whether wrong issue addressed or wrong question asked – whether findings based on no evidence – whether jurisdictional error. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), Pt.7, Div.4, Pt.7AA, Div.3, ss.5H, 5J, 46A, 65, 473CB, 473DA(1), 473DB, 473DC, 473DD, 473GA, 473GB, 476 Migration Regulations 1994 (Cth), reg.4.43 |
| Cases cited: ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 5 BR 137 CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 CQG16 v Minister for Immigration & Anor [2017] FCCA 2936 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577 |
| Applicant: | DQQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 435 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 8 December 2017 |
| Date of Last Submission: | 8 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 19 December 2017 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms E Tattersall |
| Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 435 of 2017
| DQQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 11 August 2017 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Immigration Assessment Authority (“IAA Decision” and “IAA” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a Temporary Protection (Subclass 785) visa under s.65 of the Migration Act (“TP Visa”).
A copy of the IAA Decision dated 17 July 2017 is at Court Book (“CB”) 142-160.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Sri Lankan citizen, arrived in Australia as an unauthorised maritime arrival on 8 November 2012: CB 143 at [1];
b)pursuant to s.46A(2) of the Migration Act, on 23 December 2015 the Minister invited the applicant to apply for a TP Visa: CB 14-15;
c)on 26 July 2016 the applicant lodged his application for a TP Visa and made the following claims:
i)sometime prior to April 2012 officers of the Sri Lankan Navy (“SLN”) had taken away the applicant’s cousin (who lived near the applicant) and beat him badly;
ii)in April 2012 four naval officers of the SLN again came to the cousin’s house and wanted to take him away, but were prevented by the applicant’s father, uncles and aunties, and there was much commotion as a consequence, but the SLN officers backed off, but warned the family that they would face consequences for obstructing the SLN from taking the cousin away;
iii)the cousin was sent to India for treatment of an internal injury and because the family feared for his safety, and sometime later in the year, post-October 2012, the cousin died due to the internal injury suffered from the SLN beatings;
iv)sometime after April 2012 two SLN officers came looking for the applicant’s father at his shop, but the father ran out of another exit and ran home;
v)in June 2012 the applicant’s father went to Colombo to buy fishing nets, and was seen catching the bus, but was not heard from thereafter;
vi)the local police refused to take a missing persons’ report which the applicant attempted to lodge, and told the applicant to lodge the report in Colombo because that was where the father went missing;
vii)the following day the applicant went to the police headquarters in Colombo to lodge the missing persons’ report, and while the applicant was still in Colombo his mother called him and said that that an SLN officer had come to their house asking for him, and that when his mother had said he was in Colombo the SLN officer asked his mother to tell the applicant to see the SLN officer when he returned from Colombo. The applicant’s mother advised the applicant not to return to his home town;
viii)the applicant continued to stay in Colombo with relatives, but not for a long period, and in October 2012 the SLN went to his relatives house in Colombo looking for him, but he was already hiding in different places in Colombo because he knew he was in trouble;
ix)the applicant told his mother he was going to leave Sri Lanka to go to Canada, Australia or New Zealand to save his life; and
x)Sri Lankan forces torture Tamils to kill them because they always suspect that Tamils are supporting the Liberation Tigers of Tamil Eelam (“LTTE”);
CB 65;
d)the applicant attended an interview with the Delegate on 21 October 2016 and on 24 November 2016 the Delegate’s Decision was to refuse the applicant a TP Visa: CB 115;
e)on 29 November 2016 the applicant’s TP Visa application was referred to the IAA for review: CB 132;
f)on 17 July 2017 the IAA affirmed the Delegate’s Decision to refuse the applicant a TP Visa: CB 142; and
g)the applicant filed the Judicial Review Application on 11 August 2017.
IAA Decision
At the outset the IAA noted that, in accordance with s.473DC(1) of the Migration Act, it had had regard to new information, namely a Department of Foreign Affairs and Trade (“DFAT”) country report dated 24 January 2017, which was not material before the Delegate, but about which it was satisfied there existed exceptional circumstances to justify the consideration of this new material, those circumstances being that DFAT country information relied upon by the Delegate was dated 18 December 2015, and the purpose of the new information was for the specific purpose of protection status determination: CB 143 at [3].
In the IAA Decision the IAA:
a)set out the applicant’s claims: CB 143 at [4] and CB 144 at [6]-[9] and [14];
b)accepted the applicant was Sri Lankan and an ethnic Tamil: CB 144 at [5];
c)based on the consistent evidence provided by the applicant and corroborating country information, accepted the applicant’s claims:
i)that he was never in the LTTE;
ii)concerning the incident relating to his cousin’s beating by the SLN; and
iii)that his father had disappeared on travel to Colombo: CB 145 at [12] and [15];
d)expressed concern over the truthfulness of other claims raised by the applicant: CB 145 at [13], and in that regard, said as follows at CB 145-146 at [14] (footnotes omitted):
14. The applicant claims that after the April 2012 incident the SLN took no action against anyone who was involved in that incident except for looking for his father at the toddy shop. I do not consider it plausible that, first, the SLN would single out his father and take no action against anyone else involved in the April incident including further attempts to search for or apprehend … [the cousin] or, secondly, that if the SLN wanted to take action against the applicant's father they would search for him once in a shop but not visit him at his home or while fishing, including at the times he was leaving or entering the shore. The applicant claims the SLN visited his home in June 2012 while he was in Colombo making his missing person's report and then later in October 2012 visited his relative's house in Colombo to search for him. When the applicant was asked why the SLN would look for him at his house and then later at his relative's place in Colombo even though he wasn't present at the April 2012 incident, he said it was because of the report he lodged about his missing father. The applicant maintained that the SLN would be concerned about what he would say when the matter got to court about the earlier incidents between his father and the SLN. I do not consider it plausible that the SLN would be concerned about the applicant filing a missing person's report about his father, particularly a report that makes no mention of the SLN. Country information also suggests that there was a culture of the security forces acting with a high degree of impunity under the Rajapaksa government. Given that country information, I do not find it credible that the SLN would be concerned that the matter might go to court or what might be said at court at a later date. Additionally, the applicant was not consistent about whether he was in contact with the people smuggler before or after the October 2012 visit. He said that he started making the arrangements to leave Sri Lanka two days before his departure (arrival interview); that he was already in hiding at places in Colombo when the SLN visited his relative's place, that after the October 2012 visit by the SLN he decided to leave Sri Lanka and told his mother, and that his relative introduced him to a people smuggler (written statement); or that the people smuggler took two to three months to organise the boat and he was in hiding in places organised by the people smuggler for three to four months before he left (TPV interview) . When I consider overall the not insignificant inconsistencies and implausibility in his evidence, I do not find the applicant to be a credible witness in relation to these claims and reject them as exaggerated, embellished and fabricated in order to boost his protection claims. I do not accept that the SLN searched for the applicant's father in a toddy shop after the April 2012 incident; that the SLN searched for the applicant at his home in June 2012; that the applicant was in hiding in Colombo; and that the SLN searched for the applicant at his relative's house in Colombo in October 2012.
e)was not satisfied, based on the lack of evidence before it, that the SLN was involved in the disappearance of the applicant’s father: CB 146 at [15];
f)found that if the applicant were to return to Sri Lanka, the Sri Lankan authorities would consider him to be a failed asylum seeker who had departed Sri Lanka illegally: CB 146 at [17];
g)referred to the definition of “refugee” in s.5H(1) of the Migration Act, and set out the components of what constitutes a well-founded fear of persecution under s.5J of the Migration Act: CB 146-147 at [18]-[19];
h)in relation to the applicant being a young Tamil male from the north of Sri Lanka who might be considered to have LTTE links and an imputed political opinion favourable to the LTTE, the IAA considered various sources of country information including a US Department of State April 2016 report on human rights practices in Sri Lanka, a May 2016 country information and guidance report on Tamil separatism in Sri Lanka from the United Kingdom Home Office, a DFAT January 2017 country information report on Sri Lanka, and the UNHCR’s December 2012 Eligibility Guidelines for assessing the international protection needs of asylum seekers from Sri Lanka: CB 147-149 at [20]-[30];
i)at CB 150 at [31] made the following findings concerning the applicant’s claims with respect to him being a young Tamil from the north of Sri Lanka with LTTE links or an imputed political opinion favourable to the LTTE:
31. The applicant does not claim, and I accept he and his family do not have, any actual links to the LTTE. He is Tamil and lived for most of his life in the … [name omitted] District which, for a time during the war, was controlled by the LTTE. However, as the UNHCR Guidelines and UKHO 2016 report note, residence in a former LTTE controlled area or being Tamil do not give rise to a need for protection. The applicant was never involved in any adverse incidents with the Sri Lankan authorities and does not claim he was ever questioned, detained, arrested or harmed by the Sri Lankan authorities. On my findings he was never sought by the SLN or his family questioned about his whereabouts. The Sri Lankan authorities, including the SLN, have not made any enquiries about his whereabouts since he left Sri Lanka in October 2012. Although I accept the SLN were interested in his cousin …, the Sri Lankan authorities have not made any active enquiries about … since the April 2012 incident and … passed away later in 2012. The applicant does not have a profile that country information suggests he is at risk of harm, now or in the foreseeable future, for any perceived LTTE links or for any imputed political views. I do not consider that the Sri Lankan authorities would have had any adverse interest in the applicant had he remained in Sri Lanka or that he would be of any adverse interest to the Sri Lankan authorities on return.
j)was therefore satisfied that the applicant will not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, or for any imputed political opinion, or as a young Tamil male from the north of Sri Lanka, if he returned to Sri Lanka, now or in the reasonably foreseeable future: CB 150 at [32];
k)in relation to the applicant’s claims concerning his being a returning asylum seeker who had illegally departed from Sri Lanka, the IAA considered various country information including the DFAT January 2017 country information report on Sri Lanka, a December 2012 UK Home Office report on the treatment of returnees to Sri Lanka, a February 2013 Immigration and Refugee Board of Canada report concerning the treatment of Tamil returnees to Sri Lanka, and various NGO and press reports from 2012, 2015 and 2016 concerning Tamil returnees to Sri Lanka: CB 151-152 at [34]-[39];
l)found that on return to Sri Lanka the applicant may be detained and questioned at the airport for up to 24 hours, face a fine for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) (“I&E Act”) and, depending on the availability of a Magistrate at the time he is charged, or of a relative required to guarantee any bail surety, he may be held in prison for a short period, but despite the generally poor prison conditions the IAA (having cited Minister for Immigration & Border Protection v WZAPN & Anor [2015] HCA 22; (2015) 254 CLR 610; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480 (“WZAPN”) in which the High Court approved what was said by the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577 (“SZTEQ”)) did not consider that a few days in detention would constitute the necessary level of threat to his life or liberty, or to be significant physical harassment or ill treatment under s.5J(5) of the Migration Act or otherwise amount to serious harm for the applicant: CB 151-153 at [39]-[45];
m)considering the applicant's circumstances and profile as a whole, in the context of the country conditions in Sri Lanka, was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future: CB 153 at [48];
n)did not accept that there is a real risk the applicant would face being arbitrarily deprived of life or tortured for any reason as a returned Tamil failed asylum seeker, for any links to the LTTE, for any imputed political opinion as a young Tamil male from the north of Sri Lanka or any combination of these, nor is there a real risk he would be subjected to pain or suffering, severe pain or suffering or extreme humiliation intentionally inflicted, or caused: CB 154 at [55]; and
o)affirmed the Delegate’s Decision not to grant the applicant a TP Visa: CB 154.
Judicial Review Application
The applicant filed the Judicial Review Application, accompanied by a supporting affidavit (“Applicant’s First Affidavit”) on 11 August 2017. The grounds of the Judicial Review Application are as follows:
1. Jurisdictional Error
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials
3. Identifying wrong issues on a wrong question
The Applicant’s First Affidavit did no more than annex a copy of the IAA Decision.
The applicant was provided with an opportunity to lodge an amended application, any furthers affidavits and written submissions prior to the matter being heard by the Court on 8 December 2017. The only filing by the applicant was of a further affidavit on 9 November 2017 (“Applicant’s Second Affidavit”). The Applicant’s Second Affidavit took the form of submissions in which the applicant said:
2) I submit that there was a jurisdictional error by the Second Respondent by failing to exercise proper jurisdiction and also in this process made errors of law both in relation to the proper assessment of evidence and the provisions of the Migration Act 1958.
3) The Second Respondent came to conclusions without considering all available evidence.
4) The Second Respondent had in this process come to conclusions based on facts established by evidence but on conjectures.
5) My credibility as a witness is on such instance.
6) The then situation prevailing in Sri Lanka pertaining to young Tamils like me with perceived connections with the LTTE is another instance.
7) Folios 15,18,21,23, 24, 25, 26, 27, 28, 32, 37, 39, 42, 43, 46 and 54 of the Second Respondent's decision point to these errors
It will be convenient in due course to treat paragraphs 2 to 7 of the Applicant’s Second Affidavit as further grounds, and for that purpose they will be designated as Further Grounds 2 to 7 respectively.
The Minister did not object to the statements affirmed in the Applicant’s Second Affidavit being tendered to the Court, and regarded them as the “written submissions” of the applicant. The two articles annexed to the Applicant’s Second Affidavit were objected to by the Minister.
The two articles annexed to the Applicant’s Second Affidavit are:
a)an article titled “Unstopped: State Torture & Sexual Violence in 2016/2017” dated 14 July 2017 (“14 July 2017 Article”); and
b)a further article titled “Looking at Systemic Torture in Sri Lanka” dated 21 July 2017 (“21 July 2017 Article”),
(together “the Articles”).
The Court will not have regard to the Articles as:
a)the Articles both post-dated the Delegates Decision and were not part of the information referred to the IAA in accordance with s.473CB of the Migration Act;
b)there is no obligation on the IAA to obtain or accept new information except in “exceptional circumstances” pursuant to s.473DD of the Migration Act;
c)the applicant did not, in any event, seek to submit the Articles to the IAA either pre or post the IAA Decision;
d)the content of the Articles invites impermissible merits review by the Court contrary to the principles in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”) and Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 93 ALR 1; (1990) 33 IR 263 at 35-36 per Brennan J (“Quin”); and
e)it is not open to the Court on a judicial review application to consider material which was not put before, or sought to be put before, the IAA by the applicant, or which, as with the 21 July 2017 Article, post-dates the IAA Decision: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J.
Consideration
Jurisdictional error required
The IAA Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the IAA, will only constitute jurisdictional error if the IAA:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the IAA’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given to it under the relevant statute: Minister for Immigration & 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 (“Yusuf”). In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
Particularisation of grounds required
The Court notes that none of grounds 1, 2 or 3 or the Further Grounds 2 to 7 were properly particularised. Alone, this provides a basis for each of the grounds and Further Grounds of the Judicial Review Application to be dismissed: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited), and the Court finds that they ought to be so dismissed. Nevertheless, the Court has considered, as best it can, each of the grounds and Further Grounds.
Ground 1
The applicant has not identified the nature of the jurisdictional error that he relies on in ground 1. To the extent that the applicant is asserting some other, unidentified, jurisdictional error, no jurisdictional error is evident in the IAA Decision. The IAA Decision sets out the relevant law in detail: CB 147 at [19], 153 at [51] 156-160. The IAA applied that law and considered the applicant’s TP Visa claims in detail: CB 146-154 at [18]-[56]. There is nothing to suggest any breach of the IAA’s procedural fairness obligations: Migration Act, Pt.7AA, Div.3, ss.473DA(1), 473GA and 473GB. The IAA’s consideration of the applicant’s claims was comprehensive and it made findings and reached conclusions that were open to the IAA on the evidence. There is nothing illogical or irrational in the IAA’s reasoning, and there is an evident and intelligible justification for the conclusions in the IAA Decision: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [76] per Hayne, Kiefel and Bell JJ (“Li”).
Ground 1 does not establish any jurisdictional error in the IAA Decision.
Ground 2
In relation to ground 2, the applicant has made no attempt to comply with the requirement that bias, a serious allegation, be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at 531 per Gleeson CJ and Gummow J (“Jia Legeng”).
An allegation of bias is a serious matter which must be made distinctly and clearly proven: Jia Legeng [69] per Gleeson CJ and Gummow J and [127] per Kirby J. The applicant has not distinctly or clearly proven that the IAA was either consciously or unconsciously biased because it ignored relevant material. The applicant was given the opportunity to provide any supporting documents to the Delegate, who was required to place the materials before the IAA when the Delegate’s Decision was referred: Migration Act s.473CB. The IAA was bound by s.473DB of the Migration Act to proceed on the papers before it, subject to the exception in s.473DD of the Migration Act.
Alleging the IAA was biased in the material it referred to in the IAA Decision is unfounded where the material relied on by the IAA was only that that it was permitted to consider. Further, had the IAA used other materials which did not warrant inclusion pursuant to s.473DD of the Migration Act, the IAA would have committed jurisdictional error by exceeding the authority given to it under the Migration Act: Yusuf at [82] per McHugh, Gummow and Hayne JJ.
As to the IAA findings both generally and as to the credibility of the applicant there is no evidence:
a)that the IAA had a pre-existing state of mind which disabled them from undertaking, or rendered them unwilling to undertake, any proper assessment of the materials before it which were relevant to the decision to be made: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)upon which a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the IAA, might reasonably apprehend that the IAA may not have impartially assessed the material and the resolution of the question to be decided: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The IAA has considered each of the applicant’s claims comprehensively, and has referred to the materials provided by the applicant to the Delegate, and a variety of country information sources in its reasons for Decision. No identifiable bias is apparent.
Ground 2 does not establish any jurisdictional error in the IAA Decision.
Ground 3
The issue for the IAA to determine was whether the TP Visa application should be remitted back to the Delegate with a permissive direction under the Migration Regulations 1994 (Cth) reg.4.43 (“Migration Regulations”). In BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169 at [87] per Charlesworth J (“BMB16”):
The Authority's obligation to “review the decision” is, in that sense, an obligation to review the particular findings upon which the refusal decision was based: namely, whether the referred applicant satisfies the particular criteria which the Minister considered to be determinative…Accordingly, the Authority cannot perform a “full merits review” of the s 65 decision.
The applicant has further failed to particularise what "available evidence" the IAA failed to consider and it is apparent from the IAA's reasons that it considered the applicant's claims: CB 143 at [4] and CB 144 at [6]-[9], the applicant's supporting documents: CB 145 at [10] and country information: CB 147-150 at [20]- [30] and CB 151 at [34]-[38].
The IAA correctly identified the relevant law: CB 146-147 at [18]-[19] and CB 153 at [50]-[51] and proceeded to consider the applicant's claims in full and made findings that were reasonably open to it on the available evidence before it, for the reasons it gave.
The IAA correctly set out the relevant law and TP Visa criteria: CB 147 at [19], 153 at [51] 156-160. There is nothing in the IAA Decision to indicate that the IAA identified any wrong issue, or asked any wrong question. The IAA acknowledged and addressed each claim of the applicant comprehensively, and the IAA specifically focussed on determining if the referred applicant should be taken to have fulfilled or not fulfilled an essential criterion which was a determinative factor in the Delegate’s Decision to refuse: BMB16 at [94] per Charlesworth J.
There is nothing in the IAA Decision to indicate that the IAA identified any wrong issue, or asked any wrong question; or, as it is put in ground 3, “a wrong issue on a wrong question”, and no jurisdictional error in the IAA Decision is established by ground 3.
Further Grounds 2, 3 and 4
To the extent that Further Grounds 2, 3 and 4 may be seen to seek to raise a "no evidence" ground, to succeed on a "no evidence" ground the applicant must show that there was no evidence at all upon which the IAA’s Decision could have been based. The standard of proof required to sustain a finding of no evidence is high: where the evidence in support of a finding is "slight", that is sufficient to defeat a challenge to the finding: VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ. It has been further stated that a “no evidence” challenge will fail if “even a skerrick of evidence appears” to substantiate the relevant finding: MZZUG v Minister for Immigration & Border Protection [2015] FCA 1151 at [59] per Murphy J; CQG16 v Minister for Immigration & Anor [2017] FCCA 2936 at [28] per Judge Hartnett. As the High Court stated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 5 BR 137, CLR at 356 per Mason CJ:
So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In migration judicial review proceedings it is well established that the consideration of, and weight to be attributed to, country information is at the discretion of the administrative decision-maker, and is not a matter with which this Court will generally interfere: NAHI v Minister for Immigration & Ethnic Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (“NAHI”); Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J; Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181; (2001) 64 ALD 1at [32] per Sundberg, Emmett and Conti JJ. In this case the IAA methodically referred to relevant material when making a finding. The IAA made findings specifically concerning young male Tamil Sri Lankans with imputed LTTE links: CB 148-152 at [20]-[32]. The IAA referred to 13 different country information sources when considering the applicant’s fear of harm for this reason, and the Court notes the date of the country information referred to all appears to have been produced in the previous five years, and one such report from DFAT was as recent as 24 January 2017. The IAA has made a determination the applicant would not suffer significant harm as a young male Tamil Sri Lankan with imputed LTTE links, and that determination was based on findings that are based upon probative material and logical grounds, and have an evident and intelligible justification: Li at [76] per Hayne, Kiefel and Bell JJ; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248, at [37]-[42] per Gummow A-CJ and Kiefel J.
Insofar as Further Grounds 2, 3 and 4 seek to establish a “no evidence” ground they must fail for the reasons set out above. Otherwise, Further Grounds 2, 3 and 4 fail because:
a)there is no identifiable failure to properly exercise jurisdiction, no identifiable errors or law, and no failure to properly assess the evidence in the IAA Decision (Further Ground 2);
b)there is no evidence that the IAA failed to consider all of the available evidence (Further Ground 3), but even if there was a failure to take into account a particular piece of evidence that does not give rise to jurisdictional error: Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed); WZAND v Minister for Immigration & Anor [2009] FMCA 26 at [57] per Lucev FM; and
c)the IAA Decision was not based on conjecture, but was, for reasons set out above: see [15] above, based upon a proper consideration of the applicant’s claims, and the findings and conclusions reached were open to the IAA on the evidence, and had an evident, intelligible and logical justification.
Further Grounds 2, 3 and 4 therefore establish no jurisdictional error in the IAA Decision.
Further Ground 5
Findings on credibility whether adverse or favourable are a necessary and inherent part of the IAA’s role in deciding whether Australia has non-refoulement obligations to the applicant: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J. This does not mean that credibility findings are not susceptible to judicial review: an adverse credibility finding must still be reasonably open: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) 70 AAR 413 at [37]-[38] per McKerracher, Griffiths and Rangiah JJ; ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 at [83] per Griffiths, Perry and Bromwich JJ. The IAA was not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ. Nor was the IAA required to accept the applicant’s claims wholesale and uncritically: Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J. The conclusions reached on the applicant’s credibility as a witness on specific claims are not without a logical or probative basis, as can be seen from CB 145-146 at [14] (extracted at [5(d)] above) where the IAA sets out, at length, its concerns about the applicant’s credibility and the truthfulness of his claims. Having regard to the content and nature of those findings, and the fact that there is nothing illogical or irrational about those findings, for the Court to review those findings and seek to substitute its own findings would be an exercise in impermissible merits review: Wu Shan Liang; Quin.
It follows from the above that no jurisdictional error in the IAA Decision is established by Further Ground 5.
Further Ground 6
Further Ground 6 simply invites the Court to substitute its own view for that of the IAA in relation to the situation in Sri Lanka in relation to Tamils with perceived links with the LTTE. This would be an exercise in impermissible merits review: Wu Shan Liang; Quin.
Further Ground 6 therefore establishes no jurisdictional error in the IAA Decision.
Further Ground 7
The applicant’s claim that certain paragraphs (the Court has assumed that this is what the applicant means when he refers to “Folios”) point to errors of the kind described in Further Grounds 2 to 6, and therefore to jurisdictional error in the IAA Decision, cannot be sustained when one looks at the paragraphs concerned:
a)CB 146 at [15] and CB 150 at [32] are both findings of fact based upon the IAA’s consideration of the evidence, and therefore not open to merits review by this Court: Wu Shan Liang; Quin;
b)CB 146 at [18] simply refers to and sets out the effect of a section of the Migration Act, and does so accurately, and therefore cannot found any jurisdictional error by the IAA;
c)CB 147 at [21], CB 148-150 at [23]-[28] and CB 151 at [37] all set out country information from various sources, and of themselves are simply a recitation of factual information from those sources, and do not form any basis for a finding of jurisdictional error;
d)CB 151-152 at [39], CB 152 at [42], CB 153 at [46] and CB 154 at [54] are all findings of fact made by reference to the country information cited by the IAA, and as such are not reviewable by this Court, and to do so would constitute impermissible merits review of country information: Wu Shan Liang; Quin; NAHI, and therefore cannot form the basis for any jurisdictional error by the IAA; and
e)CB 152 at [43] simply sets out conclusions of law reached by the High Court in WZAPN, referring to the Full Federal Court judgment in SZTEQ, and an accurate setting out of the law cannot constitute jurisdictional error in the IAA Decision.
Having regard to the matters set out in the immediately preceding paragraph Further Ground 7 does not give rise to any jurisdictional error in the IAA Decision.
Conclusion and Orders
The Court has concluded that:
a)grounds 1, 2 and 3 of the Judicial Review Application establish no jurisdictional error in the IAA Decision; and
b)the grounds designated by the Court as Further Grounds 2 to 7 also establish no jurisdictional error in the IAA Decision.
It follows from the conclusions in the preceding paragraph that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 19 December 2017
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