FPO17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1378
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FPO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1378
File number(s): SYG 3954 of 2017 Judgment of: JUDGE J YOUNG Date of judgment: 11 December 2024 Catchwords: MIGRATION – application for judicial review –Temporary Protection (Class XD) visa – where applicant’s original Protection (Class XA) visa application taken to be a valid application for a Temporary Protection visa following legislative amendments – where Administrative Appeals Tribunal set aside decision of the first respondent and substituted it with a refusal to grant the applicant the visa –– where submissions raised by applicant sought impermissible merits review – grounds unparticularised –whether interpreter failed to interpret at hearing before Tribunal – whether Tribunal erred by making a finding that was illogical or irrational – found the Tribunal’s reasoning was open to it – found no jurisdictional error on behalf of the Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 45AA, 474, 476
Migration Regulations 1994 reg 2.08F
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 20 November 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Saunders of Australian Government Solicitor Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3954 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FPO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed on 19 December 2017 be dismissed.
3.The Applicant pay the First Respondent’s costs in an amount to be fixed, if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 19 December 2017, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 22 November 2017. By that decision, the Tribunal set aside a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) visa and substituted it with a refusal to grant the applicant a Temporary Protection (Class XD) visa.
CONTEXT
The applicant is a citizen of Sri Lanka.
On 13 August 2012, the applicant arrived in Australia by boat as an unauthorised maritime arrival.
On 12 January 2013, an entry interview was conducted with the applicant by the Department of Immigration and Citizenship (Entry Interview).
On 16 April 2013, with the assistance of a migration agent, the applicant applied for a Protection (Class XA) (Subclass 866) visa (PV). The applicant’s claims were set out in a Statutory Declaration dated 8 April 2013 attached to his PV application (Statutory Declaration). Relevantly, the applicant’s claims for protection can be summarised as follows:
(1)the applicant is a Hindu Tamil from Udappu, Sri Lanka;
(2)in January 2012, while fishing in Mullaitivu, the applicant and his brother were physically assaulted by 12 Sinhalese fisherman who took their fishing nets and threatened them with further harm if they fished in the area again;
(3)on 17 March 2012, while digging their land in Mullaitivu to prepare a toilet facility, he and his family discovered three sacks of weapons. The Sir Lankan army (SLA) arrived within 15 minutes and confiscated the weapons and took the applicant and three of his uncles to their base for questioning. The applicant and his uncles were physically beaten by the SLA and accused of being in the Liberation Tigers of Tamil Eelam (LTTE). They were held for the day after which they were released;
(4)the SLA members also accused the applicant of being in the LTTE due to a scar on his ear sustained from shrapnel from a bomb blast and a scar on his arm which he sustained from an accident with a nail;
(5)the applicant was told to report to the police the day after his release by the SLA as the police would be investigating any allegations stemming from the weapons being unearthed. He did not attend and instead hid for a few months in fear that the police would persecute him. He fled for Australia on 27 July 2012;
(6)his uncles reported to the police station the next day and were made to regularly report to the police. His family feared that due to his young age and injuries he would be accused of being the person responsible for the weapons;
(7)since he left Sri Lanka, the authorities have attended his home nearly every three days enquiring about him. He believes that they now know he has fled to Australia which would further contribute to their suspicion of him being in the LTTE;
(8)if returned to Sri Lanka, he fears that he will be seriously harmed or killed by the Sri Lankan authorities due to a combination of being suspected of being in the LTTE, his Tamil race, the scars on his body and due to the weapons uncovered on his property. He also fears that if returned he will be subject to degrading and humiliating treatment by the SLA and the Sinhalese population as he has in the past been restricted from doing his job and has had to take low paid menial jobs due to his ethnicity; and
(9)he cannot relocate and state protection will not be afforded to him.
On 21 October 2013, the Department of Immigration and Border Protection (Department) invited the applicant to attend an interview on 8 November 2013 to discuss his PV application (PV Interview). The applicant further expanded upon his claims at the PV Interview.
Following legislative amendments made on 16 December 2014 and by operation of s 45AA of the Migration Act 1958 (Cth) (Act) and reg 2.08F of the Migration Regulations 1994 (Regulations), the application for the PV was taken to be, and to have always been, a valid application for a Temporary Protection (Class XD) (Subclass 785) visa (TPV) and to have never been a valid application for a PV.
On 23 November 2015, the Department sent the applicant’s migration agent a letter advising the applicant that an officer, other than the officer who conducted the PV Interview, would be deciding the applicant’s PV application. Additionally, the applicant was invited to make any further submission within 28 days of receipt of the letter.
On 15 February 2016, the applicant’s migration agent emailed the Department and provided a submission on behalf of the applicant which was undated (Department Submission). The Department Submission contained country information relevant to the applicant’s claims.
On 24 February 2016, the Delegate refused to grant the applicant the TPV (Delegate Decision).
On 9 March 2016, the applicant applied to the Tribunal for review of the Delegate Decision and appointed a registered migration agent to act as his representative.
On 17 July 2017, the Tribunal emailed the applicant’s migration agent inviting the applicant to attend an in-person hearing on 16 August 2017. The applicant’s migration agent was also invited to provide written submissions by 9 August 2017 which set out all claims made and maintained by the applicant.
On 8 August 2017, the Tribunal emailed the applicant’s migration agent inviting the applicant to attend a rescheduled in-person hearing on 12 September 2017 at 1.30pm (Hearing Invitation). The Hearing Invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 6 September 2017, the applicant’s migration agent emailed the Tribunal and provided a submission on behalf of the applicant (Tribunal Submission). The Tribunal Submission set out all the claims made by the applicant, including claims for protection on the grounds of the applicant’s Tamil race, his imputed political opinion and as a returnee from the West/failed asylum seeker.
On 11 September 2017, the Tribunal emailed the applicant’s migration agent a DFAT Country Information Report on Sri Lanka dated 24 January 2017 for the purpose of discussion at the hearing.
On 12 September 2017, the applicant appeared at the hearing before the Tribunal and gave evidence with the assistance of an interpreter in the Tamil and English languages. The applicant’s migration agent also attended the hearing by telephone. At the conclusion of the hearing, the applicant was invited to provide a post-hearing written submission to the Tribunal by 28 September 2017.
On 18 September 2017, the Tribunal emailed the applicant’s migration agent requesting the applicant provide information in the post-hearing submission as to why the applicant’s two older brothers in Sri Lanka suffered no difficulties or suspicion when the weapons were found on the family land in March 2012.
On 28 September 2017, the applicant’s migration agent emailed the Tribunal seeking the applicant be granted an extension of time until 2 October 2017 in which to provide the post-hearing submission.
On 2 October 2017, the applicant’s migration agent emailed the Tribunal a post-hearing written submission (Post-hearing Submission). The Post-hearing Submission confirmed that the applicant’s brothers did experience similar difficulties and suspicion following the weapons being found on the family land in March 2012, but that the applicant was treated with greater suspicion due to his marital status and the scarring on his body. The Post-hearing Submission further addressed issues relating to the applicant’s credibility.
On 22 November 2017, the Tribunal set aside the decision of the Delegate to refuse to grant the applicant a PV and substituted it with a refusal to grant the applicant a TPV. On 23 November 2017, the Tribunal sent a copy of its decision and reasons to the applicant’s migration agent.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 22 November 2017 (Tribunal Decision).
At paragraphs [12] – [16] of the Tribunal Decision, the Tribunal summarised the information provided by the applicant and set out the applicant’s claim for protection.
At paragraphs [17] – [22] of the Tribunal Decision, the Tribunal considered country information relevant to the applicant’s claims. At paragraphs [23] – [26], the Tribunal summarised the country information provided by the applicant in the Department Submission and the Tribunal Submission.
At paragraphs [30] – [32] of the Tribunal Decision, the Tribunal identified credibility concerns regarding the applicant’s claim that he was required to report to the police the day after weapons were found on his family’s land in March 2012, but that he fled to Udappu instead and that the authorities had been searching for him and coming to his home nearly every three days.
The Tribunal identified the following credibility concerns:
(1)the information in the applicant’s PV application regarding his employment and place of residence was inconsistent with his claim to have fled to Udappu in March 2012 (at paragraphs [33] – [35]);
(2)the applicant failed to mention at the Entry Interview that he fled to Udappu in March 2012 or that the authorities were looking for him in Udappu or Mullaitivu following his detainment. The Tribunal noted the applicant’s explanation being that he was instructed to keep his claims brief at the Entry Interview, but did not accept that he would omit such a significant claim in terms of risk of harm in circumstances where he was specifically asked in the Entry Interview whether anything else happened to him (paragraphs [36] – [43]);
(3)the applicant failed to mention in his Statutory Declaration that the authorities continued to look for him while he was in Sri Lanka which caused him to go into hiding. Again, the Tribunal considered it unlikely that the applicant would have omitted such significant information (at paragraphs [44] – [48]);
(4)the applicant gave inconsistent details as to where he was living in Udappu from March 2017 (at paragraphs [49] – [52]);
(5)the failure by any of the applicant’s brothers to face any adverse action following the authorities discovering weapons on family land undermined the claim that the applicant would have been suspected of involvement with the weapons or having links to the LTTE as a result. Further, the Tribunal found that the applicant’s evidence that his younger brother fled to Qatar in 2015 as a result of the weapons incident was not credible (at paragraphs [53] – [59]); and
(6)the Tribunal considered it implausible that the applicant would flee and not attend the police station following the weapons incident on 17 March 2012 given that the applicant’s family had never had any significant links to the LTTE, the land had only been occupied by the family recently and extended family did not face difficulties from the authorities following the incident. Noting relevant country information, the Tribunal found it illogical that the applicant would flee in such circumstances (at paragraphs [60] – [63]).
At paragraphs [65] – [68] of the Tribunal Decision, the Tribunal found the applicant to be a broadly credible witness but noted that the Delegate was not overly rigorous and inconsistencies were not identified with the applicant. The Tribunal found that the Post-hearing Submission as to the applicant’s credibility did not overcome the cumulative impact of the Tribunal’s credibility concerns and as such the Tribunal concluded that overall, the applicant was not a credible witness.
At paragraphs [73] – [114], the Tribunal considered the applicant’s claims for future serious or significant harm and whether the applicant has a well-founded fear of persecution. Having regard to relevant country information, the Tribunal found that the applicant would not be harmed on the basis of any imputed pro-LTTE political opinion, his Tamil ethnicity or as a result of either the altercation with the Sinhalese fishermen or the earlier detainment by authorities, of which the Tribunal considered there to be no residual concern. The Tribunal also found that the applicant would not face a real chance of serious or significant harm due to his membership of a particular social group as a returnee from the West.
Accordingly, the Tribunal found that the applicant did not satisfy the refugee criteria under s 36(2)(a) of the Act or the complementary protection criterion under s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 22 November 2017.
The application contains one ground for judicial review (without amendment):
Jurisdictional error and error of law
I will provide the details in respect of these grounds and particulars and additional grounds/particulars when I file my Amended Application and/or make a submission to the court when required after I have listened to the AAT’s hearing CDs and obtained a Barrister’s opinion.
The applicant also filed an affidavit on 19 December 2017 which annexed a copy of the Tribunal Decision.
The applicant filed written submissions on 6 November 2024.
The Minister filed a Response on 10 January 2018. The Response contained the ground that the Tribunal Decision is not affected by jurisdictional error.
The Minister also filed written submissions on 15 November 2024.
The Hearing
The hearing took place on 20 November 2024.
The applicant appeared on his own behalf. The Minister was represented by Ms Saunders of the Australian Government Solicitors office. The Applicant was assisted by an interpreter in the Tamil and English languages at the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
The Applicant’s written submissions
In support of the application for judicial review the applicant filed written submissions on 6 November 2024 in which he states that he is “writing to formally request the reconsideration of my application for a Protection visa (subclass 866) under the Migration Act 1958.” The submissions, in summary, provide as follows:
·as a Tamil and Hindu the applicant has faced persistent systemic ethnic and political persecution from the Sri Lankan authorities which has led to fear for his well-being and safety if he is required to return to his home country;
·as a result of traumatic and abusive experiences in Sri Lanka combined with the uncertainty of the applicant’s immigration status and constant fear, the applicant now suffers from significant anxiety and post-traumatic stress disorder;
·the applicant fears persecution due to his ethnicity and political opinion and as such unequivocally meets the criteria for refugee status;
·evidence illustrating the applicant’s history of detention, abuse and persistent threats from Sri Lankan authorities fulfils the requirements for a valid application under s 36 of the Act as it establishes a genuine fear of harm; and
·the applicant has sought justice and has not been afforded a fair resolution.
The submissions do not identify any asserted jurisdictional error by the Tribunal. Properly understood, by these submissions the applicant seeks impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ (Liang). As the Court endeavoured to explain to the applicant, the task of the Court on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The Court cannot reconsider the applicant’s application nor can it grant him a visa. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
Ground 1
By Ground 1, the applicant submits that the Tribunal Decision was affected by jurisdictional error and error of law. This ground is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (BDE16).
At the hearing the applicant was invited to expand upon this ground. The applicant’s submissions at hearing were confused and somewhat difficult to understand. In oral submissions the applicant said that he could not identify any error made by the Tribunal but took issue with the Tribunal’s findings. As set out above, and as was again sought to be explained to the applicant, merits review is beyond the jurisdiction of this Court: Liang at [272].
In oral submissions the applicant also submitted that the interpretation provided at the hearing was not accurate. In this context, the applicant submitted that the following evidence he gave was inaccurately translated:
(a)his relocation to Udappu and where he stayed whilst there; and
(b)the location of the weapons found on his family’s property.
Those submissions must be rejected for the following reasons.
Firstly, the transcript of the hearing is not before the Court. Accordingly, the best evidence of what occurred at the hearing is the Tribunal’s Decision. As to the issue of relocation by the applicant to Udappu, that is addressed at paragraphs [49] – [52] of the Tribunal’s Decision. That demonstrates that the applicant’s evidence as to this matter was inconsistent. At paragraph [52] the Tribunal says:
The Tribunal finds this evidence unsatisfactory and inconsistent. The applicant was initially categorical in the Tribunal hearing that he did not live at home. The Tribunal considers that he subsequently changed this evidence in the hearing as a result of prior inconsistent evidence being put to him.
There is nothing to indicate that the applicant’s evidence as to this matter was incorrectly interpreted or misunderstood by the Tribunal.
As to the location of the weapons found on the applicant’s family’s property, the Tribunal does not at any point in its decision identify the precise location of the weapons. Further, at paragraph [69] of its decision the Tribunal accepts that the applicant and his uncles found weapons on the family property, that the army were aware of this and that the army interrogated the applicant and his uncles and required them to report to the police for questioning. The precise location of the weapons, even had it been identified inaccurately, is not material. There is no realistic possibility that the decision could have been different even if the precise location of the weapons had been identified: LPDT v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] HCA 12 (LPDT) at [7], [10], [14] (LPDT).
Secondly, the hearing record does not indicate that there were any difficulties with the interpreter at the hearing or that the applicant raised any issues of concern at the hearing in relation to the interpretation provided. Thirdly, the applicant was represented at the hearing before the Tribunal and the representative made the Post-hearing Submission, primarily in relation to credibility issues raised by the Tribunal at the hearing due to the applicant’s inconsistent evidence throughout the immigration process. Those submissions do not identify any concern with the interpretation of the applicant’s evidence at the hearing.
In addition, at the hearing before this Court, as I understand it, the applicant submitted that the Tribunal’s finding in relation to the applicant’s brother fleeing Sri Lanka for Qatar was irrational or illogical. The characterisation, as irrational or illogical, of a finding made as part of the reasoning process underpinning a conclusion on a jurisdictional fact, is not easily made. The applicant must do more than merely disagree with the reasoning or resulting finding: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [124] per Crennan and Bell JJ. Engaging in a process of reasoning that is illogical or irrational is taken to refer to “extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].
The Tribunal addressed the applicant’s evidence regarding the applicant’s brother fleeing to Qatar at paragraph [59] saying:
The Tribunal has more significant credibility concerns with evidence given by the applicant in the hearing concerning later difficulties faced by his younger brother. The applicant gave vague evidence about the prospect of authorities questioning his younger brother because they were looking for the applicant. The applicant indicated that this caused his mother to advise his younger brother to flee for Qatar in 2015 to avoid the potential for harm associated with authorities looking for the applicant. As indicated to the applicant in the hearing, the Tribunal did not consider it credible that the applicant's younger brother would suddenly become at risk, simply on the basis of being asked about the whereabouts of the applicant, three years after the weapons incident occurred. This evidence had an air of unreality to the Tribunal. The Tribunal was concerned that this was a manufactured claim.
I consider those findings were open to the Tribunal on the evidence before it, for the reasons that it gave. No illogicality or irrationality is disclosed.
Accordingly, none of the grounds advanced by the applicant disclose any jurisdictional error on behalf of the Tribunal.
Other matters
For completeness, although not raised by the applicant, as set out at the commencement of this judgement, the decision of the Tribunal was to set aside the decision of the Delegate to refuse to grant the applicant a PV and substituted it with a refusal to grant the applicant a TPV.
As also set out in paragraph [7] above, following legislative amendments made on 16 December 2014 and by operation of s 45AA of the Act and reg 2.08F of the Regulations, the application for the PV was taken to be, and to have always been, a valid application for a TPV and to have never been a valid application for a PV. Specifically:
(1)by operation of s 45AA of the Act and reg 2.08F, the applicant’s PV application was taken to be a valid application for a TPV;
(2)the applicant made a “pre-conversion application” in the form of a valid application for a PV on 16 April 2013 before the commencement of reg 2.08F on 16 December 2014 and where the PV had not been granted to the applicant (reg 2.08F(1));
(3)the applicant was a “prescribed applicant” as an unauthorised maritime arrival (reg 2.08F(2)(c));
(4)the Minister had not yet made a decision on the applicant when reg 2.08F commenced. Accordingly, it took effect on 16 December 2014 when the Regulation commenced (reg 2.08F(3)(a)). The effect of this was that the applicant’s PV application was taken to be an application for a TPV prior to the date of the Delegate Decision; and
(5)accordingly, the Delegate refused to grant the applicant a TPV.
As such, the Tribunal was not required to set aside the Delegate Decision. However, I do not consider any jurisdictional error arises as a result of the Tribunal’s mistaken understanding as to this. Firstly, it is apparent from paragraph [3] of the Tribunal Decision that it understood the effect and operation of s 45AA of the Act and reg 2.08F of the Regulations. Secondly, at paragraphs [6] – [10] of its decision the Tribunal correctly sets out the applicable provisions of the Act and the criteria to be applied in determining whether the applicant is a person to whom Australia owes protection obligations under the “refugee” criteria contained in s 36(2)(a) of the Act or on other “complementary protection grounds” contained in s 36(2)(aa) of the Act. Thirdly, I discern no jurisdictional error in the Tribunal’s application and consideration of those criteria. Accordingly, the exercise of the Tribunal’s power to substitute a decision to refuse to grant the applicant a TPV achieved the same outcome had the Tribunal affirmed the Delegate Decision to refuse to grant the applicant a TPV. Any error by the Tribunal in this regard was therefore not material: LPDT at [7], [10], [14].
DISPOSITION
It follows from the above that the application must be dismissed.
The Minister seeks that the applicant pay its costs. Accordingly, I shall order that costs by paid by the applicant in an amount to be fixed, if not agreed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 11 December 2024
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