FGT17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 776
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FGT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 776
File number: MLG 2621 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 24 August 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant protection visa – whether Tribunal decision was affected by actual or apprehended bias – whether Tribunal afforded applicant procedural fairness – whether Tribunal had regard to whole of applicant’s evidence – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 91R, 476, 477, 499
Migration Regulations 1994 (Cth) Sch 2
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1305
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982; [2001] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 17 August 2023 Place: Perth Applicant: In person Counsel for the First Respondent: Mr J Mintz Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2621 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FGT17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
24 August 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister made a decision not to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 22 November 2017. The applicant now seeks judicial review of the Tribunal decision pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The application for judicial review raises five grounds which, in summary, allege that the Tribunal decision is affected by jurisdictional error on the basis of the Tribunal’s actual or apprehended bias, denial of procedural fairness and failure to consider evidence provided by the applicant.
For the reasons explained below, I have found that the Tribunal decision is not affected by jurisdictional error and the application to this Court is therefore dismissed.
VISA APPLICATION AND DECISIONS
On 12 April 2013 the applicant made an application for a protection visa and set out his claims for protection in a statement accompanying his protection visa application. The applicant claimed to fear harm:
(a)from people associated with his brother who threatened the applicant after he reported his brother’s involvement with using and selling drugs to the police; and
(b)from the United National Party, because his brother had damaged some posters put up by the United National Party and they mistook the applicant for his brother.
A delegate of the Minister made a decision on 6 November 2014 refusing to grant the applicant a protection visa.
On 3 December 2014 the applicant applied to the then-named Refugee Review Tribunal[1] for review of the delegate’s decision.
[1] The Refugee Review Tribunal subsequently amalgamated with the Administrative Appeals Tribunal.
By notice sent on 9 June 2016, the applicant was invited to attend a hearing before the Tribunal on 6 July 2016 to give evidence and present arguments in relation to his claims for protection. The applicant was accompanied by his representative and assisted by an interpreter at the hearing. The applicant was afforded an opportunity to provide additional information and submissions after the hearing and he provided further evidence and a written submission prepared by his representative.
On 22 November 2017 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
In relation to the applicant’s claims about his older brother and his associates, the Tribunal accepted that the applicant’s older brother:
(a)was a heroin user and dealer;
(b)threatened the applicant and his twin brother when they were adolescents and used sticks to beat his brothers, tied them down and threatened to cut their necks with a knife;
(c)attacked his parents; and
(d)had been arrested and imprisoned in 2012.
The Tribunal also accepted that the applicant’s parents informed the police about his older brother to protect the family and tried to use drug rehabilitation for their oldest son, and placed the applicant and his twin brother in a hostel to complete their secondary education.
However, there were also aspects of the applicant’s evidence regarding his older brother that the Tribunal did not accept. The Tribunal did not accept that the applicant’s brother had been imprisoned in 2008, in particular noting that the court documents from February 2013 (regarding his 2012 arrest) suggested that the applicant’s brother had never had any previous complaints or cases against him. The Tribunal found the applicant’s claim about a major incident of violence by the applicant’s older brother in 2012 where at least four people demanded money at his parent’s house, damaged his parent’s property and threatened his parents was embellished. The Tribunal also found that the applicant had embellished specific claims about death threats against him personally and found that the applicant did not receive death threats from his older brother in 2012 either directly or indirectly.
The Tribunal accepted that the applicant experienced distress from a young age arising from his older brother’s behaviour and addiction, that his brother had been imprisoned for serious offences relating to his drug addiction, and that the dynamic between the applicant and his older brother would persist into the reasonably foreseeable future. The Tribunal therefore accepted that the applicant had a genuine subjective fear of persecution arising from his brother’s behaviour. However, the Tribunal did not accept that the fear of persecution was well-founded because the Tribunal considered that there was internal protection available to the applicant. Further, the Tribunal did not accept that the applicant would face any persecution or discriminatory treatment for any of the grounds identified in the 1951 Convention Relating to the Status of Refugees. The Tribunal also considered that there was a real risk of the applicant being subjected to cruel and inhuman treatment and degrading treatment at the hands of his older brother, with such treatment meeting the definition of ‘significant harm’ in s 36(2A) of the Migration Act, but considered that the applicant would be able to obtain protection from the authorities in Sri Lanka such that there would not be a real risk of him suffering significant harm, applying s 36(2B)(b) of the Migration Act.
In relation to the applicant’s claim to face harm arising from an imputed political opinion, the Tribunal accepted that the applicant had been involved in an incident in the past where he had been apprehended but not harmed after being mistakenly identified as his brother, and based on his brother’s imputed political opinion against the United National Party. However, based on the applicant’s own evidence that he was not harmed or further threatened, the Tribunal found that he did not have a real chance of serious harm based on his political opinion, imputed or otherwise, or because he resembles his older brother, by any supporters or members of any political party in Sri Lanka.
The Tribunal acknowledged that the applicant had not claimed that he would face harm in relation to his ethnicity or religion and found that there was no real chance of him facing harm on this basis.
The Tribunal accepted that the applicant had left Sri Lanka illegally and considered the treatment he would face as a consequence of breaching the Immigrants and Emigrants Act (Sri Lanka). However, the Tribunal considered that any treatment the applicant would face as a result of his illegal departure from Sri Lanka or as a failed asylum seeker would not amount to serious or significant harm.
Accordingly, the Tribunal found that the applicant did not meet the criteria for a protection visa in ss 36(2)(a) or 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 1 December 2017, which is within 35 days of the day on which the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The applicant raises five grounds of application, numbered 4 to 8. Those grounds are (reproduced without alteration):
4.The Tribunal showed apprehended bias in applying s.36(2)(a) and s.36(2)(aa) of Migration Act 1958 and Schedule 2 to the Migration Regulations 1994 to my case.
5.The Tribunal showed apprehended bias in applying Ministerial Direction 56 to my case.
6.The Tribunal displayed bias towards me by refusing to hear me. The Tribunal it seems had made up its mind that I would not be successful. The Tribunal failed to accord procedural fairness to me by refusing to allow me to explain my position.
7.I provided evidence to suggest that I would be persecuted if returned back to my home country as a failed asylum seeker and the tribunal disregarded such evidence in giving its decision. Accordingly the tribunal erred as a matter of law.
8.I seek that my case be sent back to the AAT for a fresh fair hearing.
On 21 August 2018 a Registrar of this Court made orders to progress this matter to hearing. Amongst other things, the Registrar ordered that the applicant file and serve any amended application, any supplementary court book and written submissions 28 days before the final hearing. The applicant has not filed any documents in accordance with the orders made by the Registrar. The Minister filed written submissions as required by the Registrar’s order.
At the hearing I explained to the applicant that his grounds did not contain any meaningful details and I invited him to provide more detail to the Court to better explain the errors alleged by his grounds. I have taken into account the submissions advanced by the applicant at the hearing and, in assessing the grounds, I have also independently reviewed the evidence before the Court to ascertain whether that evidence supports the grounds advanced by the applicant.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
Before turning to the grounds, it is appropriate to make some observations about the role of the Court in judicial review proceedings.
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
For the applicant to be entitled to relief, he must establish that the Tribunal decision is affected by jurisdictional error.
Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, where their Honours said at [81] (footnotes omitted):
The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323; [2001] HCA 30 at [82]]:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
As I explained to the applicant at the hearing, the Court does not consider whether he meets the criteria for a protection visa and the Court cannot grant him a visa. The Court has no power to review the factual merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Matters raised in the applicant’s submissions at the hearing before the Court
The applicant’s submissions at the hearing can be summarised as follows:
(a)He told the Tribunal the evidence he wanted to present and told the Tribunal his story. Everything he said to the Tribunal was true.
(b)He made submissions to the Tribunal and told the Tribunal the reasons that he came from Sri Lanka to Australia and why he could not go back, but the Tribunal did not accept what he said. He does not know whether the Tribunal listened to his side of the story.
(c)The Tribunal asked him whether he could go back to Sri Lanka and settle in a different area, but he told the Tribunal that he could not go back to any area and that he had mental issues because of what he had been through.
(d)He believes he did not receive a proper hearing before the Tribunal because he told his story as a human being, but the Tribunal did not properly consider his story and did not properly understand his plight or his situation. The Tribunal did not understand what he was facing, what he had been through and the reasons he had to leave Sri Lanka.
In many ways, the applicant’s oral submissions express disagreement with the Tribunal decision and challenge the merits of the Tribunal decision. As indicated above, the Court has no power to engage in merits review. Further, disagreement with the Tribunal decision, even emphatic disagreement, does not of itself establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
To the extent that the applicant’s oral submissions may be seen as relating to the grounds raised in his application, they are discussed further below.
Grounds 4 and 5: Is the Tribunal decision affected by apprehended bias?
Grounds 4 and 5 assert that the Tribunal showed apprehended bias in applying s 36(2)(a) and (aa) of the Migration Act, Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) and Ministerial Direction No 56 to the applicant’s case. The applicant has offered no explanation in relation to how the Tribunal decision is affected by apprehended bias.
Principles relating to apprehended bias
The relevant principles relating to apprehended bias are helpfully set out in the Minister’s written submissions and I respectfully adopt that summary of the principles, with some minor modifications.
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question they are required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17) at [17] (Kiefel CJ and Gageler J), [56] (Nettle and Gordon JJ), [132] (Edelman J).
The application of this test requires two steps:
(a)identification of what it is said that might lead a decision-maker to decide a case other than on its legal and factual merits; and
(b)articulating a logical connection between that matter and the feared departure from the decision-maker deciding the case on the merits: Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); CNY17 at [21] (Kiefel CJ and Gageler J), [57] (Nettle and Gordon JJ).
An allegation of apprehended bias must be ‘distinctly made and clearly proved’: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [69]. Further, an allegation of apprehended bias must be assessed within the legal, statutory and factual context in which the decision is made: Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [20].
Application of those principles in the present case
The Minister submitted, and I accept, that the fair-minded lay observer in the present case would understand that the Tribunal was performing an inquisitorial function which may require the Tribunal member to vigorously test the applicant’s evidence: Re Refugee Review Tribunal; ex parte H (2001) 75 ALJR 982; [2001] HCA 28 at [29]-[31].
To the extent that the applicant’s submissions address this ground, the basis upon which the applicant appears to assert that the Tribunal decision is affected by apprehended bias is simply that the Tribunal did not accept his claims and did not grant him a protection visa. This is not enough to establish apprehended bias. As the Tribunal itself identified at [54] of its reasons, the Tribunal was not required to uncritically accept any and all of the allegations made by the applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; DCD17 v Minister for Immigration and Border Protection [2018] FCA 1262 at [26].
I accept the Minister’s submission that the applicant has not identified anything that might conceivably lead a fair-minded lay observer to reasonably apprehend that the Tribunal might have decided the case other than on its legal and factual merits. I have also reviewed the Tribunal decision and the evidence before the Court independently and do not identify anything that might cause a fair-minded lay observer to reasonably apprehend that the Tribunal might not have brought an impartial mind to its review of the applicant’s case.
The applicant in his grounds expressly asserted that the apprehended bias arose in the context of the Tribunal’s application of s 36(2)(a) and (aa) of the Migration Act, Schedule 2 to the Regulations and Ministerial Direction No 56 to his case.
At [7]-[20] of its reasons, the Tribunal accurately identified and summarised the relevant law relating to the refugee criterion in s 36(2)(a) of the Migration Act and the complementary protection criterion in s 36(2)(aa) of the Migration Act, as those provisions applied at the date of the applicant’s application for a protection visa. I do not identify anything in the summary of the relevant law or in the application of that law that gives rise to apprehended bias.
Aside from acknowledging at [7] of its reasons that the criteria for a protection visa are set out in s 36 of the Migration Act and Schedule 2 to the Regulations, the Tribunal did not otherwise refer to the Regulations in its decision. This does not give rise to apprehended bias. The basis of the Tribunal decision was that the applicant did not meet the criteria in s 36 of the Migration Act and therefore was not eligible for the grant of a protection visa. It was unnecessary for the Tribunal to further refer to the criteria in Schedule 2 to the Regulations in these circumstances.
As the Tribunal acknowledged at [21] of its reasons, Ministerial Direction No 56 was made under s 499 of the Migration Act and required the Tribunal to take into account the relevant policy guidelines prepared by the Department and relevant country information prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for the purpose of protection status determinations. The Tribunal throughout its reasons at various places referred to information prepared by DFAT and the relevant policy guidelines prepared by the Department: see, for example, [49], [50], [81], [84], [85] and [92] of the Tribunal reasons. There is nothing in the Tribunal’s use of country information prepared by DFAT or the relevant policy guidelines that could conceivably give rise to apprehended bias in this matter.
Grounds 4 and 5 are not established.
Ground 6: Is the Tribunal decision affected by actual bias or denial of procedural fairness?
Ground 6 asserts two related but separate types of jurisdictional error. First, the applicant asserts that the Tribunal displayed bias towards him by refusing to hear him. This appears to be an assertion of actual bias in the form of prejudgement. The second assertion of jurisdictional error is that the Tribunal denied the applicant procedural fairness by refusing to allow him to explain his position. The same facts are relevant to both assertions of jurisdictional error.
Steps taken by the Tribunal to give the applicant an opportunity to be heard
The evidence before the Court discloses that the Tribunal gave the applicant several opportunities to provide evidence or present arguments to it. These include the following:
(a)In the invitation to attend a hearing sent to the applicant on 9 June 2016, the applicant was invited to provide any written submission and witness statement by 29 June 2016. The applicant did not provide any documents in accordance with this invitation.
(b)The record of the hearing conducted on 6 July 2016 indicates that the applicant attended the hearing with his representative and that he was assisted by an interpreter. The record shows that the hearing commenced at 10:55am and ended at 3:05pm, suggesting that the hearing might have run for approximately four hours.[2] The Tribunal reasons record that the applicant gave evidence at this hearing.
(c)The hearing record also indicates that the applicant was given an opportunity to provide further information or comments in writing by 20 July 2016. The applicant provided a copy of his Sri Lankan passport and a court document on 11 August 2016, a translation of the court document on 19 August 2016 and a written submission on 15 September 2016. The Tribunal had regard to all of these documents notwithstanding that they were provided outside of the relevant time frame.
[2] The hearing record does not indicate whether any breaks were taken throughout the hearing or the length of any breaks.
I also observe that in his oral submissions to this Court, the applicant repeated on a number of occasions that he had given his evidence and told his story to the Tribunal. This submission appears to be at odds with the assertion in ground 6 that the Tribunal did not allow him to explain his position.
Is the Tribunal decision affected by actual bias?
To establish that the Tribunal was biased due to prejudgement, the applicant will need to show that the Tribunal approached its task with a closed mind and was incapable of being swayed by any evidence or arguments placed before it: Jia Legeng at [72]. As noted by the Minister in his submissions, the Tribunal did not need to have an empty mind prior to the hearing but rather needed to approach the hearing with a mind open to persuasion: Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1305 at [47].
There is nothing in the materials before the Court to suggest that the Tribunal did not approach its task with a mind open to persuasion. Again, the only matter identified by the applicant that might be seen as relevant to his assertion of bias is that the Tribunal ultimately did not accept his claims. The final decision reached by the Tribunal does not of itself show that the Tribunal prejudged the matter.
I accept the Minister’s submission that the Tribunal’s reasons reflect a careful and balanced consideration of the applicant’s evidence and, as can be seen from the summary above, the Tribunal in fact accepted many aspects of the applicant’s claims, particularly insofar as the claims related to the applicant’s brother.
I also accept the Minister’s submission that it appears from the Tribunal decision that the Tribunal put matters to the applicant for comment, including in relation to country information and inconsistencies in the applicant’s evidence. This does not demonstrate prejudgement but rather reflects the Tribunal giving the applicant an opportunity to comment on parts of the evidence that may appear to be adverse to him.
The applicant has not established any actual bias on the part of the Tribunal.
Did the Tribunal deny the applicant procedural fairness?
Likewise, the applicant has not established that the Tribunal denied him procedural fairness. It is clear from the opportunities provided to the applicant to provide written evidence and submissions before and after the hearing, and the apparently lengthy opportunity to give evidence and present arguments at the hearing, that the applicant was afforded multiple opportunities to be heard. The applicant acknowledged in his oral submissions to this Court that he had the opportunity to tell the Tribunal his story. As indicated above, he also had the opportunity to comment on parts of the evidence that were causing the Tribunal some concern.
There is nothing before the Court that suggests in any way that the applicant was not given an opportunity to explain his position to the Tribunal.
Ground 6 is not established.
Ground 7: Did the Tribunal fail to consider evidence provided by the applicant?
By ground 7, the applicant asserts that the Tribunal disregarded evidence that he provided that suggested he would be persecuted if he is returned to Sri Lanka as a failed asylum seeker.
What evidence did the applicant provide in relation to his claim to face persecution as a failed asylum seeker?
The applicant did not, in his application or his oral submissions to the Court, identify what evidence he provided to the Department or the Tribunal that, in his view, the Tribunal overlooked.
In circumstances where the applicant has not identified what evidence he provided to the Department or the Tribunal in relation to his claim that he would be persecuted as a failed asylum seeker if returned to Sri Lanka, I have independently reviewed the court book to try to better understand the applicant’s ground. Based on this review, it appears to me that there are only two possible sources of evidence provided by or on behalf of the applicant in relation to his claim that he would face persecution as a failed asylum seeker if he is returned to Sri Lanka.
The first is his oral evidence and submissions at the Tribunal hearing. The Tribunal noted at [83] of its reasons that during the hearing the applicant and his representative claimed that:
(a)the applicant would be targeted by the police and by criminal associates of his older brother because he would be perceived as wealthy due to the lengthy period of time he has spent in Australia;
(b)there would be regular reporting requirements placed on him as a failed asylum seeker or as an illegal departee; and
(c)he would be interrogated as a failed asylum seeker or an illegal departee.
There is no transcript or other evidence of the Tribunal hearing before the Court, so the only record of what the applicant said at the hearing is that contained in the Tribunal’s reasons.
The second possible source of information about the applicant’s claim to fear harm as a failed asylum seeker is the submission dated 12 August 2016 that the applicant’s representative provided to the Tribunal. The submission refers to country information as well as a decision by the Tribunal in relation to a different applicant.
It appears from the Minister’s submissions that the Minister’s legal representatives also reviewed the evidence before the Court to identify evidence in relation to the applicant’s claim to face harm as a failed asylum seeker and, like the Court, identified that the only information provided about this claim was that provided orally at the hearing and that provided in the post-hearing submission.
Did the Tribunal overlook the evidence provided by the applicant in relation to his claim to face persecution as a failed asylum seeker?
The Tribunal addressed the applicant’s claim to face harm from being a failed asylum seeker and for having departed Sri Lanka illegally at [83]-[95] of its reasons.
To the extent that this claim was discussed at the hearing, as indicated above, the only evidence before the Court of what the applicant may have said at the hearing before the Tribunal is the references to his oral evidence and submissions in the Tribunal reasons. I am satisfied that the Tribunal considered the evidence and submissions that it expressly referred to in its reasons. In the absence of any transcript or other evidence of what was said at the Tribunal hearing, there is no basis on which I can find that the applicant gave any oral evidence or made any oral submission that was not considered by the Tribunal.
In the written submission provided to the Tribunal after the hearing, the applicant’s representative:
(a)referred to an article in The Guardian on 7 May 2016 regarding the treatment of asylum seekers who are returned to Sri Lanka and who are typically held in police custody or prison and face a fine for leaving the country illegally;
(b)cited country information, including from the United Kingdom Home Office, about the mistreatment, including arbitrary arrest, persecution, police brutality and torture of Tamil Sri Lankans been forcefully returned to their home country as failed asylum seekers;
(c)referred to a recent Tribunal decision referring to the risks faced by Sri Lankans who exited the country illegally and who would be required to return to their home area for reporting purposes, noting that relocation is not possible for such persons;
(d)referred to country information from DFAT stating that returnees would face questioning at the airport upon being returned to Sri Lanka, and would then be charged with leaving Sri Lanka illegally and taken to court to either plead guilty and receive a fine, or plead not guilty and receive bail under a personal surety to return at a later date;
(e)referred to information from the United Nations High Commissioner for Refugees (UNHCR) regarding the further contact that returnees may receive from the authorities after arriving in the village of destination; and
(f)referred to country information about the poor conditions of Sri Lankan prisons.
The Tribunal expressly referred to most of the information addressed in the applicant’s submission. For example, the Tribunal considered the DFAT country information that returnees face questioning and are charged upon return to Sri Lanka at [84] of its reasons, and the DFAT information regarding the treatment of failed asylum seekers at [85] of its reasons. The Tribunal found at [86] that whatever treatment the applicant would face as a failed asylum seeker would be the result of the non-selective enforcement of the law of general application which does not amount to persecution under s 91R(1)(c) of the Migration Act.
Further, the Tribunal expressly referred to the information from UNHCR cited in the applicant’s submissions at [88] of its reasons. At [89], the Tribunal accepted that the applicant would be required to return to his home village and would be required to report to the local police station or military camp on a regular basis as a person who left Sri Lanka illegally, remained overseas for a considerable period and would be assumed to have sought asylum. However, the Tribunal proceeded to find that this would not lead to the applicant facing the requisite risk of harm to engage Australia’s protection obligations.
The Tribunal also carefully considered the other Tribunal case provided by the applicant and at [90] of its reasons distinguished the applicant’s circumstances from those of the applicant in the other case.
The Tribunal considered information that suggests that prison conditions in Sri Lanka are poor at [92] of its reasons but did not accept that there was the necessary intention on the part of the Sri Lankan authorities to inflict pain or suffering or extreme humiliation and did not accept that the applicant would be singled out for mistreatment during any period he is held in remand. The Tribunal did not accept that the applicant would face a term of imprisonment as a result of breaching the Immigrants and Emigrants Act.
The Tribunal acknowledged information from the UK Home Office report at [87] of its reasons and also referred to similar information from Canada.
I acknowledge that the Tribunal did not expressly refer to the article in The Guardian, but I am not persuaded that the Tribunal overlooked or failed to consider that information because the information was very similar (albeit not as detailed) to the information from DFAT that the Tribunal considered and accepted. The Tribunal was not required to expressly refer to each individual item of evidence: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46]. In circumstances where the Tribunal expressly referred to a more detailed and potentially more authoritative source of the same information, there is no basis for finding that overlooked the article from The Guardian.
The Tribunal plainly considered and engaged with the submission of the applicant as a whole.
In these circumstances, I accept the Minister’s submission that the Tribunal considered the applicant’s evidence relating to his claim to face harm as a failed asylum seeker, but found that he did not face a real chance of serious harm or a real risk of significant harm on this basis. Ground 7 is not established.
Ground 8: Should the matter be sent back to the Tribunal?
Ground 8 simply comprises a request that the matter be sent back to the Tribunal for a new hearing. It does not assert any jurisdictional error in the Tribunal decision and does not of itself comprise a meaningful ground.
It is only appropriate to remit the matter back to the Tribunal for a fresh hearing of the review application if the Tribunal decision is affected by jurisdictional error. For the reasons already given, the applicant has not established that the Tribunal decision is affected by jurisdictional error. There is therefore no basis to remit his matter to the Tribunal for a fresh hearing.
CONCLUSION
The applicant has not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 24 August 2023
0
19
0