MZABV v Minister for Immigration

[2016] FCCA 1785

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZABV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1785

Catchwords:
MIGRATION – Judicial review of a decision of the Refugee Review Tribunal – application for a Protection (Class XA) visa – allegation of bias – no evidence of bias – no failure to afford procedural fairness – no failure to consider relevant matters – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 46A(2), 424A(3), 425, 425(1)

Migration Regulations 1994 (Cth), Sch. 2: cl.866.221

Cases cited:
Isbester v Knox City Council (2015) 320 ALR 432
Minister for Immigration & Border Protection v SZTQS [2015] FCA 1069
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Applicant: MZABV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 448 of 2014

Judgment of: Judge Hartnett

Hearing date: 1 April 2016

Delivered at: Melbourne

Delivered on: 14 July 2016

REPRESENTATION

Counsel for the Applicant: Mr Hoel

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the First Respondent: Mr Brown

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 448 of 2014

MZABV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By amended application filed 7 March 2016 the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (as it then was) (‘the Tribunal’) dated 31 January 2014 wherein the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Protection (Class XA) visa (‘the visa’). The Applicant seeks an order that the decision of the Tribunal be quashed and a writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the Applicant’s application according to law. The Applicant seeks costs.

2. The grounds of application as set out in the Amended Application are as follows:-

   “1. The decision refers to the decision of the Administrative Appeals Tribunal (sic) was affected by jurisdictional error, because it was made in circumstances in which a fair-minded, reasonably well-informed observer might reasonably apprehend that the Tribunal may not have brought an impartial mind to the decision;

   2. The decision of the Administrative Appeals Tribunal was affected by jurisdictional error, in that the Tribunal failed to consider relevant considerations, and/or in the alternative relevant materials, namely:

   (a) matters relevant to his claim upon which the Administrative Appeals Tribunal based negatives (sic) findings on the applicant’s credibility; and

   (b) matters relevant to why the applicant sought immediate protection from harm, including country information and evidence given by the applicant in person.

   3. The decision of the Administrative Appeals Tribunal was affected by jurisdictional error, in that the Tribunal failed to afford procedural fairness to the applicant, namely by failing:

   (a) to assist the applicant to, or inform him of the nature and content of, the country information relevant to bail and bail sureties;

   (b) to inform him of the findings that the Tribunal may make regarding bail and bail sureties;

   (c) to afford the applicant the opportunity to make submissions or give evidence regarding this country information and regarding bail and bail sureties;

   (d) to inform the applicant of adverse findings regarding credibility that may be made against him, generally and/or as a result of particular aspects of evidence given by him; and

   (e) to afford the applicant the opportunity to make submissions or give evidence regarding adverse findings on credibility that may be made against him, generally and/or as a result of particular aspects of evidence given by him.”

3. The Applicant relied upon his amended Application together with an Affidavit of the Applicant sworn on 13 March 2014 and audio recordings of the Tribunal hearing of 2 May 2013. The Applicant further relied upon Submissions filed on 7 March 2016 and a List of Authorities filed 31 March 2016. 

4. The First Respondent relied upon a Response to Application filed on 21 March 2014, Outline of Submissions filed 24 March 2016 and List of Authorities filed 30 March 2016.  The First Respondent seeks dismissal of the application and costs.

5. The Court has also before it the evidence as contained in the Court Book filed 23 June 2014.

History

1. The Applicant was born on 1 March 1972 in Matugama in the Western Province of Sri Lanka. He is a citizen of Sri Lanka and a Tamil of Hindu faith. Prior to travelling to Australia, the Applicant lived all his life in Sri Lanka. He left Sri Lanka illegally on 12 May 2012.  

2. On 12 June 2012, the Applicant arrived as an undocumented irregular maritime arrival. On 24 July 2012, he was interviewed by an officer of the Department of Immigration and Citizenship (as it then was) (‘the Department’). On 9 September 2012 a delegate of the First Respondent gave the Applicant notice of the First Respondent’s decision to exercise his power under sub-s.46A(2) of the Migration Act 1958 (Cth) (‘the Act’), allowing the Applicant to apply for a protection visa. The Applicant was provided with representation by a migration agent from Vrachnas Lawyers pursuant to the Immigration Advice and Application Assistance Scheme.

3. On 11 October 2012, the Applicant lodged his application for the visa. On 21 December 2012, a delegate of the First Respondent (‘the delegate’) refused to grant the Applicant the visa as the Applicant did not satisfy the criterion found in s.36(2)(a) and s.36(2)(aa) of the Act and cl.866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) . On 14 January 2013, the Applicant applied to the Tribunal for merits review of the delegate’s decision.

The Tribunal

1. The Applicant appeared before the Tribunal to give evidence and present arguments about the issues arising in his case. The Tribunal also received oral evidence from the Applicant’s friend, Mr Nicolas Tam. The Tribunal hearing was conducted, with the assistance of an interpreter in the Hindu and English languages, on 2 May 2013. The Applicant’s appointed representative was present. 

2. The Tribunal notified the Applicant of its decision by facsimile and by post to the authorised recipient of the Applicant on 14 February 2014. On 14 March 2014, the Applicant lodged his application for judicial review of the Tribunal’s decision.

The Applicant’s Claims

1. The Applicant’s submissions set out the factual matters relied upon by the Applicant in his application for the visa. They are:-

   a)The Applicant's Tamil ethnicity.

   b)The Applicant's Hindu religion.

   c)That the Applicant's brother in law lived in a Tamil area which supported the Liberation Tigers of Tamil Eelam (LTTE), LTTE being a Tamil movement. The brother in law had visited the Applicant twice in 2004. The security authorities had questioned the Applicant regarding these visits in 2004.

   d)That the brother in law had his house destroyed sometime after this and, himself, disappeared.

   e)That the Applicant travelled to this LTTE area in 2010 to try to find his brother in law and was later questioned by the security authorities regarding this travel.

   f)That the Applicant was involved in the United National Party (UNP), the major opposition party at the relevant time. The Applicant was an active and ongoing supporter of the UNP for many years. The Applicant adduced a number of documents to support this, including a letter from the UNP attesting to his membership of, and involvement in, the UNP and a UNP membership slip dated 2009.

   g)That the Applicant was the target of threats in relation to his imputed or actual political opinions, including stones being thrown at his house in 2010 and threats being made to him at his home in 2011 and 2012. The Applicant adduced an unofficial police report regarding a complaint made by him, in 2011, detailing some of these threats. He attempted to make another report with police in 2012 but the police refused to assist him. He was also subjected to what he described as torture (including being choked) and beatings.

   h)That in 2011, the Applicant's involvement in the UNP intensified. This coincided with him having grave fears for his safety. He moved in and lived with senior UNP members for his own safety.

2. The Applicant claimed to fear that he will, as set out in paragraph 5 of the Statement of Decision and Reasons of the Tribunal (‘the Decision Record’):-

   “ • be tortured and/or imprisoned and/or killed by the Sri Lankan authorities if he returns. The authorities, including CID and the police, have questioned him in the past about his brother-in-law’s origins from a past LTTE-controlled area. The application was questioned when the brother-in-law made visits to his home in Chillaw in 2004, and again after he travelled to Kilinochchi (in the north) to check the brother-in-law’s welfare in 2010 – when he found the brother-in-law’s house destroyed and he and his family missing. The applicant says this issue alone may not give rise to harm, but will increase the risks of harm to him due to his profile as an active UNP supporter and returnee/failed asylum seeker who left Sri Lanka unlawfully, and

   • be imprisoned and/or harmed by the authorities because he left Sri Lanka unlawfully by boat. The representative argues that the government imputes LTTE profiles and/or anti-government views to Tamils who depart unlawfully by boat and see asylum elsewhere, and there are penalties for departing as he did;

   • He otherwise fears harm by members or supporters of the ruling government representatives in his area, who do not tolerate the activities of those supporting the UNP opposition party. The applicant has been an active UNP supporter in his area (since 2007), has been threatened in 2010, 2011 and 2012, and fears the threats will be acted on if he returns.

   • As a Tamil in his area, he faces employment discrimination and hardship. He has been unable to get a government job and has been through long periods of unemployment since he left school.”

3. Additionally, as set out in paragraph 6 of the Decision Record:-

   “In an entry interview with Australian officials soon after his arrival, the applicant said he left Sri Lanka in fear for his life for two reasons. First, CID agents are suspicious of him because he searched his father-in-law’s land in Kilinochchi (in the North) and found his brother-in-law and nephew were missing and the house destroyed. Second, the applicant assisted and supported a UNP candidate contesting elections in Puttalam district, and was threatened with his life by ten pro-government supporters at his house.”

Consideration

1. The Applicant seeks review of the Tribunal’s decision on the grounds of apprehended bias; failure to take account of a relevant consideration/ignoring relevant information; failure to afford procedural fairness; and that the decision was affected by jurisdictional error.

Ground 1

1. The principles that apply to the question of whether a decision by the Tribunal is vitiated for a reasonable apprehension of bias are well established and summarised in the First Respondent’s submissions as follows:-

   a)The test remains whether “a fair-minded lay observer might reasonably apprehend that the [Tribunal] might not bring an impartial mind to the resolution of the question to be decided.”[1] In other words, in the circumstances, whether there was a reasonable apprehension that the Tribunal had prejudged the Applicant’s claim.[2]

   b)How this principle is applied depends upon the “nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker.”[3]

   [1] Re Refugee Review Tribunal; Ex Parte H (2001) 179 ALR 425, 435 [27].

   [2] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, (2001) 205 CLR 507 [71]-[72].

   [3] Isbester v Knox (2015) 320 ALR 432, 437 [21], [23] (Kiefel, Bell, Keane and Nettle JJ).

2. The onus of establishing apprehended basis falls to the Applicant.[4]  That onus has not been met. The Applicant puts before the Court no transcript of the Tribunal hearing. There is no substance to this ground.

   [4] VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 [42]-[45].

3. The Applicant submitted that the Tribunal had a closed mind as could be observed in the Decision Record itself and on listening to the audio recordings; that the Tribunal engaged in suspicion and conjecture; that the Tribunal made ‘non-findings’; that the Tribunal’s questioning was somehow inappropriate; and that the Tribunal failed to clearly articulate the steps taken to reach its conclusion. The Tribunal did none of these things. It was not for the Tribunal to make the Applicant’s case for him. Nor to make enquiries. The Tribunal approached its task in a careful, considered and thorough manner. The reasons provided by the Tribunal for the making of its decision were reasonable, logical and coherent. The Tribunal, in the course of the hearing, did that which it was required to do, which was to test the evidence before it. The Tribunal did so including by relevant puttage to the Applicant of matters of concern to the Tribunal in the account provided by the Applicant. The audio recordings reveal the Tribunal processes and hearing to have been undertaken by the Tribunal with courtesy and appropriateness, with a clear aim of attempting to test and weigh the evidence to determine the matter before it. No criticism can be made of the conduct of the hearing.

Ground 2

1. The Applicant submitted the Tribunal failed to consider relevant material. In essence this ground is a complaint about the merits of the Tribunal decision. This is not a matter for judicial review.

2. The Tribunal said in paragraphs 31, 32 and 33 of the Decision Record the following:-

   “31. I find it implausible, and do not accept, that the applicant had stones thrown at his house or was threatened by pro-government officials or supporters after the 2010 election, particularly in circumstances where the UNP lost the election. Further, I find the applicant’s account that he was physically attacked, threatened and warned in August 2011 (well after the 2010 election due to his campaign activities in 2010) implausible. I question why pro-government actors would be motivated to threaten and warn him or attempt to abduct him in August 2011, when the government won the election in 2010. At the hearing, I noted concern to the applicant that he did not mention the claimed 2011 attack to the Department – however, I accept there is some ambiguity in the evidence and I do not attach any adverse finding to the timing of the claim.

   32. Further, I find the overall account of the context of the stated 2011 attack, the subsequent interest in the applicant, and the 2012 attack – implausible. The applicant said his UNP involvement intensified in 2011 – coinciding with his need to seek safety within UNP ranks due to police suspicions about his LTTE profile. As I said to the applicant at the hearing, I find it difficult to grasp the logic and plausibility of his argument that he sought safety (from CID suspicion about his potential LTTE profile) by staying at the house of senior UNP members – when his core argument is that UNP advocates are at risk of harm in Sri Lanka. I find the applicant could be reasonably expected to indicate to the Department that he hid with senior UNP members at their houses to avoid harm – I do not accept that he “forgot”, given this is very material to his otherwise detailed claims. Further, as I observed, it is hard to reconcile why people with bigger roles and profiles in the UNP would be safe from harm but he – with a lesser profile – would be of such personal interest to pro-government actors. I found he offered no plausible explanation for this. I do not accept this overall account.

   33. I asked the applicant why he thought helpers of government ministers were so concerned as to attack and threaten and warn him for his UNP activities, but would not harm higher profile members he stayed with. I am not persuaded that his being Tamil was the trigger for the claimed attention of his assailants. I told the applicant at the hearing that I may not accept his ethnicity was a plausible explanation for him being targeted, given his account that the UNP supported Tamil rights and culture and had Tamil supporters. I do not accept the applicant’s overall account of his UNP role, his relationship with senior UNP members or that he hid and was protected by them.”

3. The Tribunal also said in paragraph 26 of the Decision Record, as to the Applicant’s claimed imputed LTTE related political opinion, the following:-

   “26. Given the above matters and findings, I do not accept the Sri Lankan authorities have ever genuinely suspected the applicant of LTTE connections or consequently imputed anti-government political opinions. It is argued the applicant’s profile as a Tamil who has unlawfully departed Sri Lanka and sought asylum in Australia will lead the authorities to impute LTTE connections to the applicant on return. For reasons elsewhere below, I find the chances remote that harm will flow to the applicant for these reasons (taken separately or together), if he returns to Sri Lanka now or in the reasonably foreseeable future.”

4. The Tribunal considered the evidence before it and made findings open to it on that evidence. There is no evidence central to the Applicant’s claims which was not canvassed. There was a thorough, reasonable and well-reasoned exploration by the Tribunal of all relevant matters.

Ground 3

1. The Applicant claims that the Tribunal failed to afford him procedural fairness, in breach of s.425(1) of the Act, in relation to the matter of imprisonment. The Tribunal found that there was no real risk of imprisonment in relation to ss.36(2)(a) and (aa) criteria.

2. The Applicant submits that the Applicant was not afforded the opportunity of ascertaining, or being informed of, the nature and content of the country information regarding bail and bail sureties. Further the Applicant was not afforded the opportunity to make submissions or give evidence as to the findings the Tribunal may make in this regard.  

3. The Tribunal’s decision was based on two cumulative findings: firstly, that any imprisonment that the Applicant faces was a result of the operation of the Immigrants and Emigrants Act, a law of general application, and secondly, that any imprisonment was likely to be brief and therefore the possibility of any other harm was remote.

4. The Tribunal said in paragraphs 49, 50 and 51 of the Decision Record the following:-

   “49. The applicant says he will be harmed due to his illegal departure. As I observed to the applicant at the hearing, I accept he will be charged under Sri Lankan legal provisions due to his unapproved departure from Sri Lanka (without a passport). However, I find these laws apply generally to those who breach the provisions, with the legitimate purpose of national border integrity. Nothing before me soundly supports the view that they are applied apparent discrimination or selectivity (sic). The representative argued at the hearing that it was open that the law was applied discriminatorily to Tamils with imputed LTTE profiles, but provided nothing to support this view. I do not accept the law will be applied in this way to the applicant, given his accepted circumstances. Accordingly, I do not find this law’s application itself amounts to persecution. Further, as I observed at the hearing, I find credible country information (cited below) is suggestive that those who breach the law by departing illegally are generally held briefly (for hours or at most days) on remand then bailed pending hearing.

   50. Having regard to the applicant’s non-adverse profile and his uncontroversial background and his stable residence in Chillaw up to 2012, his ability to readily establish his identity (as he has done in the course of the protection visa application) and the presence of his immediate family in Sri Lanka, and noting the I&EA bail provisions encompass bail on personal recognisance and without requirement of financial surety, I find the chances remote that the applicant will spend more than a very short period remanded in custody awaiting bail, after his return to Sri Lanka.

   51. Having regard to his accepted circumstances, I find the chances remote the applicant will be targeted and seriously harmed for any reason in the context of a very brief stay in remand pending bail. I accept there are credible reports of Tamils being harmed in detention, but find such reports are relatively isolated and contextual, and are about Tamils with adverse profiles such as LTTE profiles or vocal public government critics. On the accepted evidence, the applicant has no such profile.”

1. The issue of the Applicant’s possible detention and possible release on bail was raised on the material before the Tribunal and clearly considered by the Tribunal.  That consideration included submissions made by the Applicant as to whether he might or might not be granted bail, the Applicant claiming that he would not get bail. Given the Tribunal’s finding as described above that, under the Immigrants and Emigrants Act, bail did not encompass the need for financial surety, the Applicant’s reliance on the decision in Minister for Immigration & Border Protection v SZTQS [2015] FCA 1069 is not helpful to the Applicant. This is because the Tribunal considered the submissions of the Applicant as to the availability of bail; looked at the totality of the material before it; and came to a different conclusion to that reached by the Applicant. The Tribunal did so without reference to whether or not the Applicant had a family member who could act as a guarantor as surety. It made no finding as to surety, financial or otherwise, but noted there was no requirement of a financial surety. There was no “crucial plank in the Tribunal’s reasons”[5] that a member of the Applicant’s family would be able to provide a surety. It was not the reason that the Tribunal found there no risk of harm.

   [5] Minister for Immigration & Border Protection v SZTQS [2015] FCA at 45.

2. There was no obligation on the Tribunal to give the Applicant any country information. That is expressly excluded by the operation of s.424A(3) of the Act. The Tribunal was required to, and did, make clear to the Applicant what issues arose in the review hearing in accordance with s.425 of the Act. Included in those issues was the Applicant’s credibility. The delegate’s decision which was before the Tribunal and addressed by the Applicant made findings of fact which went to the credibility of the Applicant. The audio recordings also make it clear in the Tribunal’s questioning of the Applicant that certain matters put by the Applicant before the Tribunal were matters the Tribunal had difficulty in accepting, and that difficulty was conveyed to the Applicant.

3. There is no basis for this ground of review.

4. No jurisdictional error attends the decision of the Tribunal on any grounds as raised by the Applicant. The application shall be dismissed and costs shall follow.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 14 July 2016