MZAJR v Minister for Immigration
[2016] FCCA 1787
•15 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAJR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1787 |
| Catchwords: POLITICAL OPINIONS – Imputations – whether finding of imputed political opinion maintainable. BEHAVIOUR MODIFICATION – Whether Tribunal made correct finding according to the proper test. DUTY TO INVESTIGATE – No “duty to inquire”. |
| Legislation: 1951 Convention Relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees Federal Circuit Court Rules 2001 (Cth), r.44.11(c) Migration Act 1958 (Cth), ss.36, 91R(1), 414, 476 Migration Regulations 1994 (Cth), subcl.866.221 of Sch.2 |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 Chava v Minister for Immigration and Border Protection [2014] FCA 313 Fox v Percy (2003) 214 CLR 118 Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Ethnic Affairs v GuoWei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Honourable Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’, speech delivered at Judicial College of Victoria, 4 March 2014 |
| Applicant: | MZAJR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1630 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 7 March 2016 |
| Date of Last Submission: | 7 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Nicholson |
| Solicitors for the Applicant: | Bardo & Erci Lawyers |
| Counsel for the Respondents: | Mr L. Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application filed 22 January 2016 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1630 of 2014
| MZAJR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed 22 January 2016, the applicant sought an order calling upon the Minister for Immigration and Border Protection (“the Minister”) to show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”) in relation to a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made 8 July 2014.[1]
[1] Court Book filed 27 January 2015 at pp.521-537.
The Tribunal affirmed the decision made on 2 December 2013[2] in which the Minister’s delegate (“the delegate”) stated that the delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36 of the Act and under subcl.866.221 of Sch.2 of the Migration Regulations 1994 (Cth)
(“the Regulations”). The Tribunal as second respondent filed a submitting appearance.
[2] Court Book filed 27 January 2015 at pp.423-437.
The applicant had sought the grant of the Protection (Class XA) visa (“the visa”).[3]
[3] Court Book filed 27 January 2015 at pp.1-84.
Grounds of review
The applicant sought judicial review of the Tribunal’s decision.
He relied on three grounds of review. It is as well to set them out verbatim –
Ground 1
The Tribunal constructively failed to exercise its jurisdiction in that it failed to consider the applicant’s claims.
Particulars
a. The Tribunal failed to consider the applicant’s claim that as a result of the applicant’s father’s and uncle’s political opinions, the applicant had a well-founded fear of persecution within the meaning of s.36(2)(a) of the Act or there was a real risk the applicant faced significant harm if removed to Sri Lanka within the meaning of s.36(2)(a)(a) (sic) of the Act by reason of imputed political opinion.
b. The Tribunal failed to consider whether the applicant’s father had modified his behaviour as a result of the threat of persecution and/or significant harm;
c. The Tribunal failed to consider whether the threat of threat of persecution and/or significant harm amounted to a well-founded fear of persecution and/or risk of significant harm.
Ground 2
The Tribunal failed to make an obvious inquiry about a critical fact the existence of which was easily ascertained and which had the ability to impact the outcome of the Decision.
Particulars
The Tribunal refused to make an inquiry with the Mayor of the applicant’s hometown after being requested to by the applicant. The outcome of any inquiry with the Mayor had the potential to allay the Tribunal’s credibility concerns about the applicant and corroborate the applicant’s claims.
Ground 3
The Tribunal made findings about the applicant’s credibility that were unreasonable or illogical.
Particulars
a. The Tribunal relied on a finding that the applicant was not a credible witness to give little weight to corroborative material in one aspect of the claim. However, the Tribunal found that the applicant was credible in other aspects of his claim. As a result, the Tribunal’s decision to give little weight to the corroborative material lacked an evident and intelligible justification.[4]
[4] Amended application filed 22 January 2016 at pp.2-3.
Synopsis
For the reasons that follow, in my judgment none of the grounds of review were made out with the consequence that this application is dismissed.
Relevant factual setting
The applicant was born in March 1992 in Colombo, Western Province, Sri Lanka. When he applied for the visa on 24 April 2013, lodged
29 April 2013, the applicant stated that the ethnic group to which he belonged was Tamil and that his religion was Hindu. He stated that he arrived in Australia on 25 October 2012 on a student visa that was valid until 22 December 2015. In answer to question 43 that asked why he left Sri Lanka, question 44 that asked whether he experienced harm in Sri Lanka, question 45 that asked what he feared may happen to him if he went back to that country, question 47 that asked what he thought will happen to him if he returned to Sri Lanka and question 48 that asked whether he thought the Sri Lankan authorities could and would protect him if he went back, he answered “please refer to the attached statement”.[5]
[5] Court Book filed 27 January 2015 at pp.7-10.
The applicant duly supplied information in support of his visa application on 19 June 2013. It was in video form. The written component of the additional information was set out in a document dated 24 April 2013.[6] In essence, the applicant stated that in
August 2012 he prepared a documentary exposing what he said were the corrupt activities of the Minister of Kelaniya and Public Affairs. The applicant stated that as a result of publicity generated by him and others by his documentary, he received unsolicited visits from local police requesting him to accompany them, which he refused, leading to the applicant’s father being assaulted. The applicant said that revenge activities orchestrated (so the applicant said) by the
Minister of Kelaniya and Public Affairs led to the suicide of one of the applicant’s friends, Pringly Rodrigo, and to the targeting of another of the applicant’s friends, Hasitha Madawala. The applicant stated that his enemies began harassing his family upon the applicant arriving in Australia in October 2012 by making what he said were indirect threats to his life and by making blackmailing phone calls. The applicant stated that his friend Mr Madawala was shot dead by unidentified gunmen. He stated that his family home in Sri Lanka had been the subject of visits from organisations unknown to the applicant, but who the applicant believed were arranged by the Minister of Kelaniya and Public Affairs.
[6] Court Book filed 27 January 2015 at pp.127-136.
The applicant stated in answer to why he left his country that he was being persecuted by the government “through the police, thugs, underworld gang and other possible means”[7] by reason of the documentary he created.
[7] Court Book filed 27 January 2015 at p.131.
In answer to the question whether he had experienced harm in
Sri Lanka, the applicant referred to the incident on 24 September 2012 when police officers arrived at his home, requesting him to accompany them, then assaulted his father for arguing with the police.
The applicant also mentioned visits to his family home on
5 March 2013 by organisations unknown to him but whose visits he suspected were arranged by the Minister of Kelaniya and
Public Affairs. The applicant stated he feared that if he returned to
Sri Lanka he would “be arrested, tortured and killed by the police or if not I will be kidnapped, tortured and killed by the thugs of the Minister”.[8]
[8] Court Book filed 27 January 2015 at p.131.
Thugs, underworld gangs or police, the applicant said, would harm him if he went back to Sri Lanka.
In answer to why he thought those events would happen to him if he went back to his country, the applicant said it was because two of the three people involved in the creation of the documentary had been killed.
The applicant stated that authorities in Sri Lanka were unable to protect him if he returned to Sri Lanka because the police were influenced by the Minister for Kelaniya and Public Affairs “who can break and make new rules as he wish (sic) due to his excessive political and underworld power”.[9] The applicant ended the document dated 24 April 2013 in the following terms –
The Minister himself states that he killed a journalist and the same punishment will be given to others who carry out similar activities. He made this statement publicly in front of Medias (sic) and that proves it all.[10]
[9] Court Book filed 27 January 2015 at p.132.
[10] Ibid.
By letter dated 9 October 2013, David Hume of the Department of Immigration and Citizenship (“the Department”) wrote to the applicant inviting the applicant to an interview to be held on 6 November 2013.[11] During that interview, Mr Hume expressed concerns that aspects of the applicant’s claims may have been fabricated. In response, the applicant told Mr Hume that he (the applicant) wanted to meet to which
Mr Hume agreed so long as the further information requested
by the Department was submitted by 22 November 2013. On
18 November 2013 the applicant wrote to Mr Hume asking for clarification about the claim or claims in respect of which Mr Hume had concerns.[12]
[11] Court Book filed 27 January 2015 at p.114.
[12] Court Book filed 27 January 2015 at p.123.
The delegate’s decision
On 2 December 2013 Mr Hume as the Minister’s delegate refused the applicant’s visa application. In rejecting the applicant’s claim,
the delegate expressed concerns that the applicant may not have been a qualified journalist. The delegate stated that the applicant submitted a copy of his journalism diploma and press identification card with his visa application. However, the Department had received information to the effect that those items were fraudulent, according to the delegate. The delegate stated that he placed no weight on the applicant’s supporting evidence concerning his journalism qualification.
The delegate rejected the applicant’s claim that the applicant was a qualified journalist and the delegate stated that he did not find it necessary to consider whether there was a real chance that the applicant may face any future harm for practising as a journalist in Sri Lanka.
So far as the applicant’s secondary claim was concerned that the applicant would not be admitted to university in Sri Lanka because he was an ethnic Tamil, the delegate stated that he was unable to locate any recent country information to support that claim. The delegate rejected the applicant’s claim of being disadvantaged in Sri Lanka’s education system by reason of his Tamil ethnicity.
The delegate stated that he was not satisfied that the applicant had a genuine, subjective fear of being harmed in Sri Lanka for reasons stated in his visa application. The delegate stated that he found no objective reason to consider that he may engage Australia’s protection obligations.
Relying on the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs[13] (“Chan Yee Kin”) the delegate stated that the applicant did not have a well-founded fear of being persecuted for the purposes of the convention.
[13] (1989) 169 CLR 379.
The delegate also addressed the applicant’s alternative claim under s.36(2)(aa) of the Act. After paraphrasing the provisions of s.36(2)(aa) as well as the definition “serious harm” in s.36(2A) of the Act,
the delegate stated that the applicant’s claims were not credible and no other evidence existed to the effect that the applicant may suffer harm in Sri Lanka amounting to significant harm for the purposes of s.36(2A) of the Act.
Relying on the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Citizenship v SZQRB,[14]
the delegate stated that the applicant’s claims were credible, there being no other evidence to suggest the applicant may suffer harm inSri Lanka amounting to significant harm. Therefore the delegate was satisfied that there were substantial grounds for believing that,
as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.
[14] [2013] FCAFC 33 at [247].
The delegate stated that he was not satisfied that Australia had protection obligations to the applicant, with the consequence that the applicant did not meet the criteria for the grant of a protection visa under s.36(2)(aa) of the Act and subcl.866.221(4) of Sch.2 to the Regulations.
The applicant sought a review of the delegate’s decision.[15]
[15] Court Book filed 27 January 2015 at pp.439-446.
In the Tribunal
By application filed on 20 December 2013, the applicant sought review of the delegate’s decision.[16] By letter dated 18 March 2014,
the Tribunal invited the applicant to appear before it, to give evidence and to present arguments relating to the applicant’s case, such appearance being arranged for 8 May 2014.[17] The applicant notified the Tribunal on 28 March 2014 that he intended to take part in the Tribunal hearing on 8 May 2014 and that the applicant intended to bring his cousin with him.[18]
[16] Ibid.
[17] Court Book filed 27 January 2015 at pp.456-457.
[18] Court Book filed 27 January 2015 at pp.463-466.
After the hearing, on 15 May 2014, the applicant submitted further documents for the Tribunal’s consideration.[19]
[19] Court Book filed 27 January 2015 at pp.510-518.
On 9 July 2014, the applicant was informed by letter of the Tribunal’s decision made on 8 July 2014 to affirm the decision of the delegate.[20]
[20] Court Book filed 27 January 2015 at p.519.
The Tribunal’s reasons for its decision were 18 pages in length expressed in 68 densely reasoned numbered paragraphs. It is necessary to examine those reasons before turning to the grounds of their review.
The Tribunal began by setting out the criteria for a protection visa.
The Tribunal referred to s.36 of the Act and to Sch.2 of the Regulations. The Tribunal stated that an applicant for a protection visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c) of the Act. The Tribunal stated that an applicant is either a person in respect of whom Australia has protection obligations under the “refugee” criterion or on other “complementary protection” grounds, or is a member of the same family unit as such person and that person holds a protection visa.
That analysis, while brief, was accurate.
The Tribunal addressed the refugee criterion. It stated that under s.36(2)(a) of the Act one criteria for a protection visa was that the applicant was a non-citizen in respect of whom the Minister was satisfied Australia had protection obligations under the
1951 Convention Relating To The Status of Refugees as amended by the 1967 Protocol Relating To The Status of Refugees
(“the Convention”). The Tribunal stated that Australia was at all relevant times and remains a party to the Convention and that, generally speaking, Australia has protection obligations in relation to persons who meet the definition of “refugee” in Article 1 of the Convention. The Tribunal recited, correctly in my view, Article 1A(2) of the Convention in respect of the definition of “refugee” being a person who –
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality or is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence,
is unable or, owing to such fear, is unwilling to return to it.[21]
[21] Court Book filed 27 January 2015 at p.521.
The Tribunal stated that four key elements exist to the application of the Convention. Relevantly paraphrased, those were –
a)first, an applicant must be outside his or her country;
b)second, an applicant must fear persecution in the manner canvassed in s.91R(1) of the Act, that is to say, the persecution must involve “serious harm” and systematic and discriminatory conduct;
c)third, the persecution feared by the applicant must be for one or more of the reasons enumerated in the Convention, that is to say, race, religion, nationality or membership of a particular social group or political opinion; and
d)fourth, the applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.[22]
[22] Court Book filed 27 January 2015, p.521 at [8]-[9] and p.522 at [11]-[12].
The Tribunal stated that a person has a ‘well-founded’ fear of persecution under the Convention if that person has a genuine fear founded on a ‘real chance’ of being persecuted for a
Convention-stipulated reason and, a person can have a well-founded fear of persecution even though the possibility of that persecution occurring is well below 50 percent.[23]
[23] Court Book filed 27 January 2015, p.522 at [12].
Last, the Tribunal stated that an applicant may be unable or unwilling, because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable or unwilling because of his or her fear, to return to his or her country of former habitual residence.[24]
[24] Court Book filed 27 January 2015, p.522 at [13].
The Tribunal outlined the way in which the complementary visa criterion worked. It stated that where an applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the applicant may nevertheless meet the criteria for the grant of a protection visa if the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.[25]
[25] Court Book filed 27 January 2015, p.522 at [15].
The Tribunal stated that for the purposes of the complementary protection criterion, the phrase “significant harm” is exhaustively defined in s.36(2A) of the Act. The Tribunal stated that a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life, or where the death penalty is carried out on him or her, or if he or she will be subjected to torture or to cruel or inhuman treatment or punishment, or if he or she will be subjected to degrading treatment or punishment. The Tribunal pointed out that the Act defined the phrases “cruel or inhuman treatment or punishment”, “degrading treatment or punishment” and “torture”.[26]
[26] Court Book filed 27 January 2015, p.523 at [16].
The Tribunal’s encapsulation of the applicant’s claims
The Tribunal then considered the applicant’s claims and the evidence in support of each claim. The Tribunal narrated the background facts over 39 separate bullet points in paragraph 19 of its reasons.[27] Among those paragraphs and in the paragraphs that followed on from paragraph 19 of the Tribunal’s decision, the Tribunal distilled the applicant’s claims to be those set out below.
[27] Court Book filed 27 January 2015 at pp.523-525.
The Tribunal stated that the applicant was a Tamil Hindu, who was educated in Sri Lanka, obtaining very good results but due to ethnic, religious and racial hatred towards Tamils in his home area,
the applicant was unable to gain entry to university.
Next, the Tribunal stated that the applicant’s home area was notorious for underworld gangs where criminals freely operated with the blessing of Mervyn Silva. The applicant’s father, according to the Tribunal, had been a strong supporter of the United National Party (“UNP”) whereas the applicant’s home area was under the control of the Sri Lankan Freedom Party (“SLFP”) and that the SLFP, while engaged in revenge killings, burnt the applicant’s uncle to death. By reason of the applicant’s father’s involvement in the UNP, the applicant’s family faced ongoing problems such as disconnection of their telephone and water, deprivation of concessions given to other citizens, random assaults on the applicant’s father and his being subjected to blackmail.
Next, the Tribunal stated that the applicant and his friend Mr Rodrigo made a documentary about Mr Silva and obtained assistance from the local council member Mr Madawala who was engaged in conflict with Mr Silva and those three later marketed the documentary.
Next, the Tribunal stated that in September 2012, police attacked the applicant’s father and in the same month thugs attacked the applicant’s sister. Threats were made to Mr Rodrigo and to the applicant and in January 2013, Mr Madawala was killed. The applicant’s family home was raided by the police on instructions of Mr Silva.
The Tribunal examined independent country research in relation to journalists, political violence and Tamils.
In assessing the applicant’s claims, the Tribunal addressed the applicant’s claim that he faced harm for journalistic activities in
Sri Lanka. The Tribunal stated it did not consider that the applicant was a credible witness. The Tribunal ascribed three reasons for that conclusion –
a)first, when the Tribunal put to the applicant that an article submitted in support of his claim had been tampered with, the Tribunal took the view that the applicant’s response was not believable;
b)second, in relation to another article submitted by the applicant in support of his claim, the Tribunal stated that the font to the article changed throughout the text. The applicant was challenged on that point and said that he had been unable to find the article from any source online. The Tribunal considered the article to have been concocted, designed to support the applicant’s case; and
c)third, the applicant stated he knew the diploma allegedly awarded in his favour for journalism was fake. When confronted with the false document, the Tribunal stated that the applicant apologised but that he was thereafter “being 100% truthful” to the Tribunal.[28] The Tribunal rejected his explanation as to why he submitted a document to the Australian government that he knew was not genuine.
[28] Court Book filed 27 January 2015, p.531 at [38].
The Tribunal also said the applicant had submitted a number of inauthentic documents.
The Tribunal did not accept that the applicant will suffer any adverse consequences because of the material he submitted in support of his claim. The Tribunal said it found it remote that those materials would lead to the applicant facing serious harm or systematic harm.
The Tribunal stated that it found that the materials the applicant submitted “were only collected for inventing a claim for protection here in Australia”.[29]
[29] Court Book filed 27 January 2015, p.531 at [39].
On other factual matters, the Tribunal –
a)
accepted Mr Madawala was murdered but the Tribunal did not accept that the applicant ever had any involvement with
Mr Madawala;
b)did not accept that police officers came to the applicant’s house and asked him to attend a police station with him nor that the officers attacked the applicant’s father;
c)did not accept that Mr Madawala was murdered by Mr Silva’s gang;
d)did not accept that the applicant heard a few weeks after his arrival in Australia there were problems at home and that his enemies had been harassing his parents;
e)did not accept that in March 2013 the authorities under the direction of Mr Silva or anyone else raided the applicant’s house in search for illegal drugs;
f)accepted that some member of the Peliyagoda Council was killed in May 2014 but that his death did not mean that the chance or risk that the applicant would be seriously harmed or significantly harmed was anything more than remote;
g)took into account various medical reports that the applicant submitted but stated that any such medical information did not outweigh the very serious concerns the Tribunal had about the applicant’s credibility; and
h)took into account information from the applicant’s medical practitioner, the applicant’s family, an Australian member of Parliament, a council member, the Mayor and one other allegedly supportive of the applicant’s claim, correspondence from the secretary of the Ministry of Defence and the applicant’s own oral evidence at the hearing.
At paragraph 54 of its reasons, the Tribunal accepted that in Sri Lanka certain journalists and media professionals had been targeted. However, the Tribunal stated that it did not accept that simply being a journalist or a Tamil journalist was itself sufficient to establish that the chance or risk of a person being seriously harmed or significantly harmed was anything more than remote.
In paragraph 56 of its reasons, the Tribunal addressed very specific issues about the applicant’s father’s political orientation as well as historical events dating back 10 to 12 years earlier than the Tribunal’s hearing in respect of the applicant’s uncle’s death in circumstances of political violence.
So far as the applicant’s family’s involvement in the UNP was concerned, in paragraph 58 of its reasons the Tribunal stated that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm on those bases.
So far as the applicant’s ethnicity claims were concerned, the Tribunal stated in paragraph 61 of its reasons that the applicant did not face a real chance of persecution in his home area or throughout Sri Lanka on account of his Tamil race, membership of a particular social group or his imputed political opinion or any combination of the above, presently or in the reasonably foreseeable future from the authorities paramilitary groups or anyone else.
The Tribunal stated that based on his individual circumstances and the overall weight of the country information, the Tribunal found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm on those bases.
The Tribunal went on to conclude in paragraph 65 of its reasons that it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under the Convention with the consequence that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Act.
In paragraph 66 of its reasons the Tribunal concluded that the applicant did not meet the refugee criterion, that the Tribunal had considered the alternative criterion in s.36(2)(aa) of the Act and that the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Act.
The Tribunal affirmed the decision of the delegate to refuse to grant the applicant the protection visa he sought.
Review in this Court
By application filed 11 August 2014, the applicant sought orders for the review of the Tribunal’s decision. The applicant filed an amended application on 22 January 2016.
The precise terms of the grounds advanced by the applicant have been set out above. It is necessary to turn to the submissions in relation to each.
First ground of review
The applicant cast ground one in three parts, although each of the three parts were subsets of the one broader concept advanced by the applicant, namely, that the Tribunal constructively failed to exercise its jurisdiction in that the Tribunal failed to consider the applicant’s claims.
The applicant’s submissions on ground 1(a)
The applicant’s written submission in relation to ground 1(a) was encapsulated in the following –
The question for the Tribunal was whether by virtue of the political activities of his father or uncle the applicant had a
well founded (sic) fear of persecution by reason of the political opinion of his father or uncle being imputed to him
(citation omitted).[30][30] Outline of Applicant’s Submissions filed 22 January 2016, p.4 at [6.1.3].
In submissions before me, Ms Nicholson of counsel who appeared for the applicant, relied on paragraph 57 of the Tribunal’s reasons, especially the phrase “… I find that given that (the applicant) is not an actual member or supporter of the UNP, the chance of him being perceived as a supporter and targeted is remote”.[31] Ms Nicholson submitted that when an applicant makes a claim founded on imputed political opinion, the very essence of the claim, so Ms Nicholson contended, was that the applicant was not a supporter or member of the party the opinion of which the applicant held. Ms Nicholson submitted that the correct question was whether, by virtue of the political activities of the applicant’s father or uncle, the applicant had a
well-founded fear of persecution.
[31] Court Book filed 27 January 2015 at p.535.
In support of ground 1(a), Ms Nicholson relied on the decision of the Honourable Justice Bromberg in MZABA v Minister for Immigration and Border Protection[32] (“MZABA”). The applicant cited the discussion between paragraphs [46] and [56] of his Honour’s analysis.
[32] [2015] FCA 711.
The Minister’s submissions on ground 1(a)
In written submissions,[33] Mr Brown of counsel, who appeared for the Minister, addressed the applicant’s propositions on ground 1(a).
He submitted that the applicant sought to impugn the Tribunal’s decision on the basis that the Tribunal did not consider whether the applicant was at risk of persecution due to his father’s and uncle’s political activities. Mr Brown submitted that the Tribunal stated
that a claim in those terms was not made by the applicant. Citing
NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2)[34] (“NABE”) in the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ), Mr Brown submitted that the Tribunal was required to deal with claims, not only those expressly made, but also those clearly arising from the materials. Mr Brown submitted that the Tribunal was required to correctly identify, construe and consider each claim (including each element or integer of each claim) made by an applicant and must give proper and genuine consideration to the evidence before it and each claim made by an applicant that is “a substantial, clearly articulated argument relying upon established facts”.[35] For the phrase in quotations Mr Brown cited the High Court decision in Minister for Immigration and Citizenship v SZJSS[36] (“SZJSS”) and in Dranichnikov v Minister for Immigration and Multicultural Affairs[37] (“Dranichnikov”).
[33] First Respondent’s Outline of Submissions filed 23 February 2016.
[34] (2004) 144 FCR 1.
[35] First Respondent’s Outline of Submissions filed 23 February 2016, p.6 at [22].
[36] (2010) 243 CLR 164.
[37] (2003) 77 ALJR 1088.
In his submissions before me, Mr Brown also focused on paragraph 57 of the Tribunal’s reasons and submitted that the applicant’s contention in ground 1(a) was either not made or, to the extent that it was made, the claim was dealt with by the findings of the Tribunal. When pressed for an elaboration on the proposition that if the claim was made it was dealt with by other findings, Mr Brown submitted that the applicant’s proposition was disposed of by the Tribunal’s finding that the father had suffered no harm since 2012 so therefore any claim in the past about an association with the applicant’s father and the applicant’s father’s activities are not now maintainable in view of the finding that the applicant’s father had suffered no harm since 2012.
In the section below headed “Consideration” I have addressed my determination in relation to all grounds of review. To better understand the flow of each party’s submissions, let me now turn to the next contention advanced before setting out my consideration of each contention.
The applicant’s submissions on ground 1(b)
In the applicant’s written submissions,[38] the applicant contended that the Tribunal failed to consider whether the applicant’s father had modified his behaviour as a result of the threat of persecution and/or other significant harm. By way of amplification of that proposition,
the applicant contended that the Tribunal accepted the father had been subjected to the persecution alleged by the applicant and that the applicant’s uncle had been murdered on account of his political activity. The applicant contended that the Tribunal relied on the fact that the father had not been persecuted since ceasing his involvement with the UNP in 2012 when determining that the applicant did not have a well-founded fear of persecution and that there was no real risk of significant harm if the applicant was returned to Sri Lanka.
[38] Outline of Applicant’s Submissions filed 22 January 2016.
[39] (2003) 216 CLR 473 at 493 and 503
The applicant contended that the Tribunal was required to consider whether the applicant’s father ceased his involvement with the UNP on account of the persecutory conduct or by reason of fear of its continuation. The applicant submitted that the Tribunal was required to have considered whether, had the applicant’s father continued his involvement with the UNP, the applicant would have had a
well-founded fear of persecution or faced a real risk of significant harm if removed to Sri Lanka based on imputed political opinion.
The applicant relied on the High Court decision in
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[39](“Appellant S395/2002”) in advancing ground 1(b).
In her submissions before me, Ms Nicholson submitted that the
High Court’s decision in Appellant S395/2002[40] remained the current lead authority for the proposition that the Tribunal must consider whether someone had altered his or her behaviour as a result of persecution or the threat of persecution. Ms Nicholson submitted that the Tribunal accepted that the applicant’s father modified his behaviour by ceasing his involvement with the UNP, after which the persecution of the father came to a halt, yet the Tribunal erroneously found that no well-founded fear of persecution existed because the persecution stopped in 2012. Ms Nicholson submitted that the persecution only stopped by reason of the behaviour modification by the applicant’s father. She argued that the threat of persecution continued and such threat can, and in this case did, amount to a well-founded fear with the consequence that the Tribunal’s finding to the contrary was not valid.
[40] (2003) 216 CLR 473.
When pressed about the temporal connection between the father ceasing his political activity in 2012 and the applicant’s claim to a well-founded fear when he applied for a protection visa in April 2013, Ms Nicholson submitted that the father’s persecution stopped because his political activity stopped and there was no indication that the persecution would be any different if the father resumed his political activities.
The Minister’s submissions on ground 1(b)
In his written submissions, Mr Brown urged me to reject the contentions advanced by the applicant. He relied on three propositions in that regard. In the first place he submitted that it was erroneous for the applicant to contend that the Tribunal “accepted” that the applicant’s father had suffered persecution. He said the Tribunal came to no such acceptance and any argument premised on a finding by the Tribunal that the applicant’s father had suffered persecution in the past was not maintainable.
In the second place, Mr Brown submitted that the Tribunal was obliged to deal with claims the applicant made out and not otherwise.
He submitted that the applicant did not claim that his father ceased his involvement with the UNP due to a fear of persecution and nothing was before the Tribunal to suggest that was the case.
In the third place, Mr Brown submitted that the Tribunal was required to deal with the applicant’s claims and not those of the applicant’s father. Mr Brown submitted that the question was whether the applicant himself was at risk of harm as a result of his father’s political activities – not whether his father had ceased his political activities for any particular reason.
In his submissions before me, Mr Brown submitted that the applicant made claims about himself because he was the person apprehending the harm and that it was erroneously put by the applicant that the Tribunal should have addressed the father’s circumstances.
Mr Brown relied on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZSWB[41] (“SZSWB”) as well as the High Court’s decision in Appellant S395/2002.[42]
[41] [2014] FCAFC 106 at [5] and [42].
[42] (2003) 216 CLR 473 at 479.
The applicant’s submissions on ground 1(c)
In developing this ground, the applicant focused on the Tribunal’s finding that the chance of the applicant being persecuted or suffering significant harm was remote by reason of the fact that the applicant had not been subjected to actual persecution or harm on account of his imputed political opinion.
In written submissions, the applicant contended that the Tribunal was required to determine whether the applicant chose not to support any particular political party because of the threat of harm in supporting a political group. The applicant made that submission in view of the history of the father’s persecution that the applicant had seen and which had come to a halt once the father’s political activities ceased.
Citing Appellant S395/2002,[43] the applicant contended that the Tribunal was also required to determine whether the applicant would refrain from engaging in political activities if removed to Sri Lanka (irrespective of any association with a political group) because of the threat of persecution or the risk of significant harm by reason of political opinion (imputed or actual) and whether such threat amounted to a well-founded fear and or risk of significant harm.
[43] (2003) 216 CLR 473.
Ms Nicholson did not travel beyond the applicant’s written submissions in her submissions before me in relation to ground 1(c).
The Minister’s submissions on ground 1(c)
In his written submissions, Mr Brown argued that ground 1(c) had no substance. He contended that the Tribunal was required to deal with claims actually made by the applicant. He submitted that the applicant did not claim that he had not engaged in political activities in the past as a result of a fear of serious or significant harm nor did the applicant claim that he would refrain from such activities in the future for similar reasons. Mr Brown argued that the Tribunal did not err for failing to consider this issue.
In his submissions before me Mr Brown argued that the Tribunal was only required to deal with claims made and the propositions by the applicant in relation to ground 1(c) were not made before the Tribunal.
Second ground of review
The applicant’s submissions on ground two
The applicant contended that the Tribunal failed to make an obvious enquiry about a critical fact the existence of which was easily ascertained and which had the ability to impact the outcome of the Tribunal’s decision. The applicant relied on three points.
The applicant first argued that the Tribunal refused to make an enquiry with the Mayor of the applicant’s home town after being requested to do so by the applicant. The applicant contended that the outcome of any such enquiry had the potential to corroborate the applicant’s claim as well as having the potential of allaying the Tribunal’s concerns about the applicant’s credibility.
Next, it was said by the applicant that the Tribunal had received a letter from the Mayor of the applicant’s home town corroborating part of the applicant’s claim yet the Tribunal did not contact the Mayor.
Next, it was said that the applicant requested the Tribunal to contact the Mayor to verify the applicant’s claims that he was a journalist who faced harm due to the circumstances alleged but that the Tribunal refused to make any such contact because of the Tribunal’s concerns about the applicant’s credibility.
The applicant argued that the failure to make the obvious enquiry by contacting the Mayor caused the Tribunal to fall into jurisdictional error. He said that even if the Tribunal had serious concerns about the applicant’s credibility, the Tribunal was not excused from making the enquiry. The applicant relied on the decision of the Honourable Justice Bromberg in that regard in MZABA[44] as well as the decision of the
High Court of Australia in Minister for Immigration and Citizenship v SZIAI[45] (“SZIAI”).
[44] [2015] FCA 711 at [61].
[45] (2009) 83 ALJR 1123.
In her submissions before me, Ms Nicholson focused on paragraph 53 of the Tribunal’s reasons and especially the two following sentences of that paragraph –
He (the applicant) said that I (the Tribunal) could call the Mayor and ask about this. I have considered his request but due to the fundamental issues I have with his credibility set out above,
I have decided not to do this.[46]
[46] Court Book filed 27 January 2015 at p.534.
Ms Nicholson argued that the Tribunal should have contacted the Mayor who could have provided corroboration that Mr Silva,
the Minister for Kelaniya and Public Affairs, was against the applicant. Ms Nicholson argued that had the Tribunal made that contact,
the Tribunal’s concerns about the applicant’s credibility would have changed with the consequence that the Tribunal may have then found that the applicant’s claim to be fearful of persecution actually existed. Ms Nicholson called in aid paragraph 19 of the decision in SZIAI.[47]
She also relied on the decision of the High Court in ApplicantVEAL of 2000 v the Minister for Immigration and Multicultural and Indigenous Affairs[48] where the court held that the Tribunal was bound to make its own enquiries and form its own views upon the claim which the applicant advanced.
[47] (2009) 83 ALJR 1123.
[48] (2005) 225 CLR 88 at [26].
Ms Nicholson argued that the whole of the Tribunal’s decision was impugned by its failure to make the one enquiry of the Mayor.
The Minister’s submissions on ground two
In his written submissions on this ground, Mr Brown submitted that the Tribunal was under no such obligation as the one for which the applicant contended and that the Tribunal therefore made no jurisdictional error. Citing SZIAI,[49] Mr Brown argued that the Tribunal was under no general obligation to investigate the applicant’s claim.
He submitted that the Tribunal’s duty was limited to reviewing the delegate’s decision and he contended that the decision of the Honourable Justice Mortimer in Chava v Minister for Immigration and Border Protection[50] (“Chava”) was on point. He submitted that the circumstances in which a duty to make enquiries arises, and jurisdictional error results from the failure to discharge that duty, are likely to be “rare and exceptional”, citing the decision of Justice Kenny in Minister for Immigration and Citizenship v Le[51] (“Le”). He submitted that before that stage is reached, it would be necessary at least that the fact causing the enquiry to be “critical”, the enquiry “obvious” and the evidence “easily ascertained” would have to be identified. In support of that last proposition Mr Brown relied on the decision of Justice Katzmann in Minister for Immigration and Border Protection v SZRTF[52] (“SZRTF”).
[49] (2009) 83 ALJR 1123.
[50] [2014] FCA 313 at [76]–[78].
[51] (2007) 164 FCR 151 at [60].
[52] [2013] FCA 1377 at [31].
Mr Brown argued that the applicant did not identify what enquiry or investigation the Tribunal ought to have conducted. Mr Brown further submitted that there was nothing to indicate what information the Mayor could have given that would have advanced the Tribunal’s enquiry one way or the other.
In submissions before me, Mr Brown contended the paragraphs 25 and 26 of SZIAI[53] were pivotal. Mr Brown argued there was nothing to indicate what the Mayor might have said had he been telephoned.
Mr Brown agreed with the suggestion that had the Mayor been telephoned, the Mayor may have agreed with whatever was put to him, the Mayor may have disagreed with whatever was put to him or the Mayor may have said nothing. Mr Brown submitted that the
High Court’s decision in SZIAI spoke of “a critical fact, the existence of which is easily ascertained”[54] and that by calling the Mayor,
no particular fact was thereby derived, any such information not being dispositive of the situation.
Third ground of review
[53] (2009) 83 ALJR 1123.
[54] (2009) 83 ALJR 1123 at [25].
The applicant’s submissions on ground three
In his written submissions the applicant contended that the Tribunal’s decision to place little weight on documents that supported the applicant’s journalist claim was unreasonable and illogical.
The applicant contended that having found that he was not a credible witness in relation to his claims concerning his journalistic activities, the Tribunal relied on that finding to give little weight to all of the applicant’s other witnesses and supporting documents.
The applicant submitted that the Tribunal did not explain how its findings about the applicant’s credibility enabled it to give little weight to evidence and documents from other sources. The applicant relied on the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[55] (“Applicant S20/2002”) to support the proposition that the Tribunal is entitled to determine that the applicant lacks credibility and any such determination cannot be repaired by corroborative evidence. However, the applicant contended that the Tribunal “did not in fact consider the applicant’s credibility to be incapable of repair by corroboration”[56] because the Tribunal accepted the applicant’s claims in relation to his father and uncle being persecuted on account of their involvement with the UNP and the Tribunal accepted that factual position (so the applicant contended) based on the applicant’s own evidence. The applicant said that if the Tribunal considered the applicant’s credibility incapable of repair, it could not accept those claims as true.
[55] (2003) 73 ALD 1.
[56] Outline of Applicant’s Submissions filed 22 January 2016, p.6 at [8.2].
The applicant argued that such a process of reasoning was unreasonable, illogical and lacked any evident and intelligible justification. In support of that proposition, the applicant relied on the decision of the High Court in Minister for Immigration and Citizenshipv SZMDS[57] (“SZMDS”) and the decision of the Federal Court in Minister for Immigration and Border Protection v Singh[58] (“Singh”).
[57] (2010) 240 CLR 611, 640 at [135].
[58] (2014) 231 FCR 437.
In submissions before me, Ms Nicholson put the proposition in the following stark yet illuminating terms –
So it’s not just a matter of it can’t be illogical just if two minds could reasonably differ. It’s whether the tribunal has made a finding – it’s also whether it includes a situation where a tribunal has made a finding that lacks an evident and intelligible justification. And if a tribunal says, “I don’t believe you on that, but I’m willing to believe you on these other serious things,” then it doesn’t make sense that it would then go and give little weight … to other documents.[59]
[59] Transcript of Proceedings, 7 March 2016, p.19 at lines 1-6.
The Minister’s submissions on ground three
In his written submissions, Mr Brown’s key proposition in relation to ground three was that the Tribunal’s finding that the applicant’s claim based on his journalism was open to it once it concluded that key documents had been concocted for the purpose of inventing a claim for protection. He submitted that no error was demonstrated in the rejection of the applicant’s evidence for that reason simply because the Tribunal accepted other claims that were made by the applicant.
For that proposition, Mr Brown relied on the High Court’s decision in Applicant S20/2002.[60]
[60] (2003) 73 ALD 1.
[61] (1990) 170 CLR 321, 341.
Mr Brown’s written submissions contained the contention that a court exercising the power of judicial review must proceed cautiously
where an applicant seeks to impugn facts found by an administrative decision-maker. He cited the High Court’s decision in
Australian Broadcasting Tribunal v Bond[61](“Bond”) as authority for that proposition. Relying on the observations of the High Court in Osland v Secretary to the Department of Justice(No 2),[62] Mr Brown argued in his written submissions[63] that unless the court exercising the power of judicial review abided the warning given in Bond,[64] then
“a question of law would open the door to an appeal by way of rehearing”and the court would stray into reviewing the merits of the decision, a course forbidden by such authorities as Minister for Immigration and Ethnic Affairs v Wu Shan Liang[65] (“Wu Shan Liang”) and by NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[66] (“NAHI”).
[62] (2010) 241 CLR 320, 333.
[63] First Respondent’s Outline of Submissions filed 23 February 2016, p.9 at [32].
[64] (1990) 170 CLR 321.
[65] (1996) 185 CLR 259.
[66] [2004] FCAFC 10 at [10].
Mr Brown submitted that there can be no error of law amenable to judicial review so long as the Tribunal’s findings were open to it on the evidence. In support of that proposition he relied on the 1998 decision of the Full Court of the Federal Court of Australia in Kopalapillai
v Minister for Immigration and Multicultural Affairs[67] (“Kopalapillai”).[67] (1998) 86 FCR 547.
Mr Brown contended that credibility findings were findings of fact, appropriate “par excellence” for the Tribunal and in support he relied on the oft-quoted decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[68] (“Durairajasingham”). He also relied on Xiaoping Chen v Minister for Immigration and Citizenship[69] (a decision of Bennett, Nicholas and Yates JJ) together with an array of judgments of single judges of the Federal Court including SZKQQ v Minister for Immigration and Citizenship[70] (Middleton J) and SZEOQ v Minister for Immigration and Citizenship[71] (Lander J).
[68] (2000) 168 ALR 407 at [67].
[69] [2011] FCAFC 56.
[70] [2008] FCA 242 at [21].
[71] [2008] FCA 257 at [27].
Mr Brown contended in his written submissions that judicial review will only be available if the Tribunal’s finding is one that “no rational or logical decision-maker could have arrived at on the same evidence”.[72] In support of that proposition he relied on the
High Court’s decision in Minister for Immigration and Multicultural Affairs v Eshetu[73] (“Eshetu”) and also on SZMDS[74] (Crennan and Bell JJ). Mr Brown contended that the correct approach was to ask whether it was open to the Tribunal to engage in the process of reasoning in which the Tribunal did engage and to make the findings that it did make on the material before. He relied on SZMDS[75] in support of that submission.
[72] First Respondent’s Outline of Submissions filed 23 February 2016, p.9 at [35].
[73] (1999) 197 CLR 611.
[74] (2010) 240 CLR 611 at [131].
[75] (2010) 240 CLR 611.
Before me, when addressing the detail in support of his submissions concerning ground three, Mr Brown went to the Tribunal’s consideration of the applicant’s claims that appeared at paragraphs 38 and 39 of the Tribunal’s reasons. He argued that those paragraphs appeared under the heading “Assessment of claims” under which a secondary heading appeared “Journalism claims”. Mr Brown pointed to the material in the three bullet points in paragraph 38 and to the conclusions in paragraph 39. He said that the Tribunal’s conclusions expressed in paragraph 39 of its reasons were findings of fact and that “findings of fact are very hard to disturb, not impossible, but hard to disturb”.[76] In response to my raising with Mr Brown the applicability of the ratio in Fox v Percy[77] (“Fox”), he submitted that a decision would be amenable to judicial review if a finding of fact was perverse, illogical or irrational on the material but, he said, an adverse credibility finding was not in that category.
[76] Transcript of Proceedings, 7 March 2016, p.38 at lines 29-30.
[77] (2003) 214 CLR 118.
Mr Brown submitted that the claim that the applicant was at risk of harm because he had produced a documentary critical of a Minister of the Sri Lankan government was rejected.
Finally, Mr Brown said r.44.11(c) of the Federal Circuit Court Rules 2001 (Cth) confined the applicant to the relief sought and grounds mentioned in the applicant’s amended application.
With that regrettably lengthy narration of the grounds advanced by the applicant and the submissions of both parties all grounds (written and verbal) let me now turn to my consideration of the applicant’s case in this case.
Consideration
Ground one – constructive failure to exercise jurisdiction – overview
At the heart of the applicant’s case in respect of ground one was his contention that he was entitled to the issue of constitutional writs on the basis that the Tribunal had constructively failed to exercise its jurisdiction in the manner contemplated by the Act. The jurisprudential basis of that contention can be traced to authorities such as R v Toohey; Ex parte Northern Land Council,[78] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[79] and Dranichnikov.[80] As Kirby J held in Dranichnikov,[81] in a case where there has been a fundamental mistake at the threshold in expressing and therefore considering the legal claim propounded by the applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
[78] (1981) 151 CLR 170, 267–268.
[79] (2001) 206 CLR 57, 82 at [81].
[80] (2003) 77 ALJR 1088.
[81] Ibid.
A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether,
by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002,[82] proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).[83]
[82] (2003) 216 CLR 473 at [1].
[83] Ibid.
In the context of a protection visa, Gleeson CJ said the arguments and evidence of the applicant and the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.[84]
[84] (2003) 216 CLR 473 at [39].
The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov,[85] and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in NABE.[86] Other authorities at single judge and Full Court level in the Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s ‘claim’. By way of illustration in Htun v Minister for Immigration and Border Protection[87] (“Htun”) Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414 of the Act that the Tribunal considers ‘the claims’ of the applicant stating “[t]he claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration”.[88]
[85] (2003) 77 ALJR 1088 at [24].
[86] (2004) 144 FCR 1, 22 at [61] and [68].
[87] (2001) 194 ALR 244.
[88] (2001) 194 ALR 244 at [42].
The Tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs[89] (“Paramananthan”) as well as by the Full Court of the Federal Court of Australia (Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs[90] (“Sellamuthu”).
[89] (1998) 94 FCR 28, 63.
[90] (1999) 90 FCR 287, 293-294.
But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the Tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs[91] (“SDAQ”).
As the Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.[92] Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[91] (2003) 129 FCR 137 at [19].
[92] (2004) 144 FCR 1 at [58].
It is true that the Tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs,[93] Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.[94]
[93] (2003) 199 ALR 364.
[94] (2003) 199 ALR 364 at [17].
The settled position nowadays is that stated in NABE.[95] The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation,
the Tribunal is not required to consider criteria for an application never made.
[95] (2004) 144 FCR 1 at [61].
To my way of thinking, it would place an impossible burden on the Tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[96] (French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.[97] Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the Tribunal.
[96] [2003] FCAFC 184 at [46].
[97] Speech delivered at Judicial College of Victoria, 4 March 2014.
Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –
a)a substantial clearly articulated argument relying upon established facts;[98]
b)a claim or claims and its or their component integers;[99]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[100]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[101] and
e)not an application or claim never made.[102]
[98] See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.
[99] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244.
[100] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
[101] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[102] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
As Robertson J held in Minister for Immigration and Citizenship v SZRKT,[103] “[a]lthough ultimately it is the claim which the
Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.[104][103] (2013) 212 FCR 99.
[104] (2013) 212 FCR 99 at [98].
Once the ‘claim’ that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in SZJSS.[105]
[105] (2010) 243 CLR 164 at [7].
In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well-founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[106] and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS.[107]
[106] (1999) 197 CLR 510 at [187].
[107] (2013) 230 FCR 431, 444 at [38].
More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in SZSWB held that “[m]oreover, the claim must emerge clearly from the materials”.[108]
[108] [2014] FCAFC 106 at [33].
With that lamentably extensive preface, let me now turn to a consideration of the first ground of review advanced by the applicant.
Consideration of ground 1(a)
The precise terms of this ground have been recorded above.
It will be recalled that the Minister contended that the claim expressed in ground 1(a) was either not made or, if made, the claim was dealt with by other findings of the Tribunal.
For the reasons that follow, in my judgment this ground of review failed.
To better understand this ground of review, it is necessary to examine paragraph 57 of the Tribunal’s reasons, some of which have been recorded above. But paragraph 57 commenced with the Tribunal’s acceptance of the occurrence of the events described in paragraph 56 of the Tribunal’s reasons. Those events were that –
a)
the applicant’s uncle was involved in the UNP and was killed
10 to 12 years earlier in political violence leading to the applicant’s father supporting the UNP;
b)the applicant’s father helped organise meetings and rallies and food yet the father had not undertaken any activities within the party since 2012;
c)vulgar graffiti had been written on their house in about 2010 directed at the applicant’s father;
d)an incident occurred in 2009/2010 in which stones were thrown at the applicant’s family home by opponents;
e)the father received threatening phone calls and letters;
f)around 2010-2011, the applicant’s father was physically assaulted and that he was physically assaulted again after complaining to police;
g)on occasions, the family home had its utilities cut by opponents; and
h)when the applicant was young, his family was not given a card to collect rations.[109]
[109] Court Book filed 27 January 2015 at p.535.
In paragraph 57 of its reasons, the Tribunal stated that it accepted the occurrence of the events described in paragraph 56, as enumerated immediately above. The Tribunal then reasoned in paragraph 57 that all the events described in paragraph 56 happened prior to 2012, that the applicant’s father had ceased his involvement with the UNP by that date and that the applicant did not assert the existence of targeting or harm to his father since cessation of his involvement with the UNP.
In paragraph 57, the Tribunal further reasoned that the applicant’s uncle’s death was a long time in the past. The Tribunal went on to state that the applicant himself was not a UNP member and did not support any particular political party. The Tribunal referred to Department of Foreign Affairs and Trade (“DFAT”) country information to the effect that there was no widespread or systematic attacks against opposition political activities and members of political activities were largely free to operate as they wished.
In paragraph 57 of its reasons, the Tribunal addressed the applicant’s assertion that the applicant’s opponents would think the applicant was involved with the UNP. It then recorded that the applicant made no claim in this case that he was individually targeted by the Minister,
by SLFP supporters, by the state or by anyone else on account of the father’s association with the UNP. Then, the Tribunal found that
“given that he(the applicant) is not an actual member or supporter of the UNP, the chance of him being perceived as a supporter and targeted is remote”.[110]
[110] Court Book filed 27 January 2015, p.535 at [57].
In respect of that quoted passage of the Tribunal’s reasons,
the applicant contended that jurisdictional error was made.
The applicant argued that the correct question was not whether the applicant was a member or supporter of the UNP. The applicant argued that the correct question was whether he had a well-founded fear of persecution by reason of his father’s and the uncle’s political opinions being imputed to him.
In an endeavour to divine a factual parallel with the circumstances of this case, the applicant relied on one authority only to support his contentions under this ground, that being the decision of
Justice Bromberg in MZABA.[111] The specific passages said to support the applicant were between paragraphs [46] and [56] of his Honour’s reasons, according to Ms Nicholson. Justice Bromberg held that on the facts of that case, the prominence of the applicant’s grandfather in the Ahmadi community in the Punjab region, a fact that the Tribunal accepted, was supportive of the proposition that the applicant would be “imputed”[112] to be an Ahmadi. Justice Bromberg went on to hold that even if the applicant did not explicitly claim past harm on account of his grandfather’s prominence as an Ahmadi, the applicant impliedly did so and the applicant claimed to fear future harm on that account,
a concept with which the Tribunal should have but failed to grapple.
[111] [2015] FCA 711.
[112] [2015] FCA 711 at [51].
His Honour did not elaborate on the basis for the imposition found, namely that the applicant would be imputed to be an Ahmadi on account of his grandfather’s prominence as an Ahmadi.
In any event, the utility of Justice Bromberg’s holdings in MZABA[113] may be tenuous in the circumstances in this case. That is for the simple reason that, at a factual level, in this case the applicant was not a member of the UNP, he professed association with no political party and country information revealed that supporters of political parties were largely free to operate as they wished.
[113] [2015] FCA 711.
Further, in support of the contention that the political views of the applicant’s father and the applicant’s uncle would be “imputed” to the applicant, Ms Nicholson submitted -
This is where the applicant submits the error lies, your Honour. When making a claim on imputed political opinion, the very essence of the claim is that (the applicant is) not a member or supporter of the political opinion.[114]
[114] Transcript of Proceedings, 7 March 2016, p.3 at lines 44-46.
No doubt Ms Nicholson founded that submission on the logic that the father’s and the uncle’s political opinion was “imputed” to the applicant in circumstances where the applicant held no political opinion because, if the father actually held a political opinion aligned with the father’s and the uncle’s, no need to “impute” an opinion would arise because the applicant’s opinion, actually held, was express.
A number of decisions at single judge and Full Court level in the Federal Court of Australia have addressed the phrase “imputed political opinion”. In NACR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[115] (Beaumont, Lee and Kiefel JJ) the Court referred to the concept yet it gave no consideration to the phrase. In WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs,[116] a differently constituted Full Court (Wilcox,
RD Nicholson and Downes JJ) held on the facts of that case that the Tribunal made no error in failing to consider the issue of imputed political opinion, stating “naivety and unfairness do not establish imputation of a political opinion”.[117] In VDAE v Minister for Immigration and Multicultural Affairs,[118] the Full Court (French,
von Doussa and Marshall JJ) considered a claim to imputed political opinion in the context of possession of sensitive political information. The Full Court refused to disturb the conclusions reached by the Tribunal as well as by the first-instance judge to whom the applicant appealed, holding that there was no objective basis for a well-founded fear of persecution because the information possessed by the appellant was information that had been in the public domain from a long time and lacked current importance.[119]
[115] [2002] FCAFC 318 at [33].
[116] [2002] FCAFC 409.
[117] [2002] FCAFC 409 at [29].
[118] [2003] FCAFC 123.
[119] [2003] FCAFC 123 at [25].
The more recent decision of the Full Court in Minister for Immigration and Border Protection v SZSCA[120] (Flick, Robertson and Griffiths JJ) contains instructive observations on the issue of the imputation of political opinions. In that case, a self-employed driver in Afghanistan had come to the attention of the Taliban and certain political opinions had been imputed to him by reason of the fact that he transported construction materials and the owners of those construction materials held certain political views. The Refugee Review Tribunal accepted that if the appellant was again intercepted on the roads of Afghanistan by the Taliban, particularly if he was carrying construction materials, he would face a real chance of serious harm and even death by reason of an imputed political opinion.
[120] [2013] FCAFC 155.
In that case, Flick J pointed out that there was no finding that the manner in which the appellant sought to express or manifest his political opinions was by driving a truck.[121] Flick J further held that there was no finding that the appellant actually held the political views imputed to him. Flick J further held that the appellant did not express any political opinion, be it one that was actually held or one imputed to him, by driving his truck.[122] Flick J held that the political opinions imputed to the appellant arose because the Taliban, as part of their disruptive activities, generally targeted and discouraged drivers carrying construction materials. His Honour held that it was the very conduct which was the reason for the political opinion being imputed to the appellant which was the conduct that the Tribunal reasoned could be avoided and the threat of persecution thereby avoided.[123] Flick J held that as no finding was made that the appellant feared persecution simply by reason of driving his truck, the appeal should be allowed.[124]
[121] Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 at [7].
[122] Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 at [10].
[123] Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 at [12].
[124] Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 at [16].
The plurality (Robertson and Griffiths JJ) dismissed the appeal thereby upholding the decision of the delegate, the Tribunal and a judge of this Court. Their Honours distilled the appellant’s imputed political belief, namely, as a truck driver he transported goods for foreign agencies and that his imputed and actual political opinion was therefore that he was a supporter of those foreign agencies. Their Honours referred to the appellant’s claim that he was stopped by the Taliban and warned not to use his truck to carry building materials or he would be killed.
Their Honours continued that he claimed he continued transporting the building and construction materials as he needed work to support his family. Their Honours stated that after the Taliban learned that the appellant continued to carry building materials, he claimed the Taliban threatened to kill him, that he would be unable to drive a truck and that the Afghani authorities would be unable or unwilling to protect him.
Justices Robertson and Griffiths held that the appellant’s claim of both actual and imputed political opinion related to his claimed membership of a group of truck drivers who transported goods for foreign agencies. The plurality held that “[i]n the present case the threat had been made and the Taliban was proceeding on the basis that the respondent had the political opinion of being a supporter of foreign agencies”.[125]
[125] Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 at [64].
In a later passage the plurality stated that on the facts of the case,
if the appellant chose not to venture out of Kabul that
“would be because of the Taliban’s threat to kill him or have others kill him by reason of what the Taliban saw as the respondent’s political opinion”.[126] As is apparent from that brief factual recital, the facts of that case were very different to the facts of this case.
[126] Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 at [86].
Returning to the facts of this case, some basis in fact must exist as the foundation for the imputation of a political opinion. None was given by the applicant.
To my mind, the facts of this case do not support the contention that any political opinion supportive of the UNP can, could, would or should have been imputed to the applicant. The temporal setting of this claim of imputation is important. It must not be overlooked that the father ceased his political support of the UNP in 2012, the applicant had no alignment to the UNP or to any party, the uncle was killed many years earlier and in Sri Lanka, political supporters do as they wish, according to country information. The mere fact that the applicant was a blood relative of the father who was once politically active in the UNP and of the uncle who was once likewise politically active, in and of itself forms no basis for the imputation of the father’s and uncle’s political views to the applicant, especially in a country where political supporters are largely free to operate as they wish.
It is true that no claim was expressly made by the applicant about the imputation of the political beliefs of the father and of the uncle to the applicant. To that extent, I agree with the Minister’s submissions, especially Mr Brown’s reliance upon NABE.[127]
[127] (2004) 144 FCR 1.
In so far as the claim to imputation of political opinion may have been raised on the material, albeit not expressly, it seems to me the claim was in fact addressed. The Tribunal found in paragraph 57 of its reasons, correctly in my view, that any such claim was remote. It was also factually correct for the Tribunal to have found in paragraph 57 that no real chance existed that the applicant would face persecution at the hands of the Minister, SLFP supporters, the state or others on account of an actual or imputed political opinion. In my judgment that conclusion was correct.
No jurisdictional error was disclosed in relation to ground 1(a).
To express the criteria in terms propounded by authorities such as Craig v State of South Australia,[128] Minister for Immigration and Multicultural Affairs v Yusuf[129]and Kirk v Industrial Relations Commission (NSW),[130] the Tribunal did not identify a wrong issue, nor ask itself a wrong question, nor did it ignore relevant material or rely on irrelevant material nor make an erroneous finding or reach a mistaken conclusion.
[128] (1995) 184 CLR 163.
[129] (2001) 206 CLR 323.
[130] (2010) 239 CLR 531.
I reject the challenge to the Tribunal’s finding as articulated in
ground 1(a).
Consideration of ground 1(b)
Under this ground, the applicant’s focus was on the modification of the father’s behaviour. The applicant said the father modified his behaviour on account of threats of persecution or actual persecution.
In the course of developing this ground, Ms Nicholson submitted that the Tribunal was required to consider whether, had the applicant’s father continued his involvement with the UNP, the applicant would have a well-founded fear of persecution. As has been recorded above, the Minister pressed, forcefully, that the Tribunal was required to deal with the applicant’s claims rather than those of the father. The Minister said the only person relevant to the question of risk of harm was the applicant. The Minister said the proper question was whether the applicant was at risk of harm as a result of the father’s activities.
The Minister said the question was not whether the applicant had ceased his political activities.
I have considered the applicant’s submissions guided by the lead authority, as Ms Nicholson submitted, being the decision of the
High Court in Appellant S395/2002.[131]
[131] (2003) 216 CLR 473.
That decision makes it plain that the person relevant to the modification of behaviour was the applicant. The applicant in this case put the assertion differently, however. Ms Nicholson asserted that the applicant would have a well-founded fear of persecution or that he faced a real risk of significant harm if the applicant’s father continued his (the father’s) involvement with the UNP. In my judgment,
that placed the focus on the wrong person. The reasons of McHugh and Kirby JJ in Appellant S395/2002[132] place the issue beyond doubt.
Their Honours there held that “…the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm”.[133] Taking steps to hide political opinions and activities is no answer to a claim for refugee status where the applicant claims he or she will be persecuted for those opinions or activities, as McHugh and Kirby JJ held. If the point needed emphasis, it was provided where McHugh and Kirby JJ held that “[t]he central question is always whether this individual applicant has a “well-founded fear of being persecuted for reasons of … membership of a particular social group”.[134] The applicant in this case suggested that the father’s involvement with the UNP gave rise to the applicant’s fear of persecution. To my mind that submission erroneously proceeded on the footing that the well-founded fear was held by the applicant yet the behaviour modification was exhibited by someone else, here, the father.
[132] Ibid.
[133] (2003) 216 CLR 473 at [43].
[134] (2003) 216 CLR 473 at [58].
To my mind, the modification of behaviour must be evidenced by the visa applicant, influenced by the threat of harm that the visa applicant faced. That was the approach endorsed by the Full Court of the Federal Court of Australia (Gordon, Robertson and Griffiths JJ) in SZSWB.[135]
[135] [2014] FCAFC 106 at [43].
Nowhere in the material on which the applicant relied was information that indicated that the applicant modified his behaviour in any way.
The applicant did not put this case on that basis. The applicant put his case on the basis that the father modified his (the father’s) conduct by his cessation of involvement in UNP matters. To my mind, that misses the point. Ms Nicholson did not refer to any decided case having a factual parallel to this case in relation to this ground. To my mind it is significant in this case that the so-called well-founded fear was allegedly held by the applicant and yet the alleged persecution
to be suffered (in the future) was by someone else, the father.
None of the decided cases put to me bore any factual similarity.
In Appellant S395/2002[136] the applicants feared persecution on account of their being practising male homosexuals. Here, the applicant held the fear of persecution. In most protection visa cases the Tribunal is required to determine how the applicant is likely to live upon returning to his or her country of origin and then to assess the chance of persecution to the applicant.
[136] (2003) 216 CLR 473.
[137] (2003) 216 CLR 473 at [43].
In cases involving conduct modification, the High Court in
Appellant S395/2002[137]held that to determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
Paragraph 45 of the reasons of McHugh and Kirby JJ make it abundantly plain that the real chance, in that case of being penalised for same-sex practice, involved a real risk to the applicant and not to someone connected to the applicant.
In my judgment the Tribunal made no error in its consideration of the matters canvassed in relation to ground 1(b). To my mind this ground of review failed.
Consideration of ground 1(c)
From the passages above in which the submissions of the parties were set out, the contentions of the applicant under this ground were that the Tribunal was required to determine whether the applicant chose not to support any particular political group on account of a fear of harm in supporting that political group. Further, he argued that the Tribunal was required to determine whether he would refrain from engaging in political activities if removed to Sri Lanka.
Paragraph 57 of the Tribunal’s reasons bear upon this ground. In that paragraph the Tribunal, relevantly, stated as follows –
The applicant gave evidence at the hearing that he (the applicant) was not a member of the UNP and though he did not support the government he did not support any particular political party.[138]
[138] Court Book filed 27 January 2015 at p.535.
There was nothing in the material advanced by the applicant to suggest that the applicant commenced to support any political party or that he stopped supporting any political party. There was nothing in the material to suggest the applicant intimated, howsoever slightly or forcefully, that he did not have any political affiliation on account of an active choice made for any reason at all. In short, there was a lacuna in the material about the applicant’s membership of or support for any political concern. Still less was there any information about why that state of affairs inured.
In those circumstances, there is real force in Mr Brown’s submission that no claim was made about this issue before the Tribunal.
I do not agree that the claim asserted under this ground was in fact made. The Tribunal was not required to determine the matter.
It follows that the Tribunal made no jurisdictional error by not determining the issue. No such claim was made.
This ground failed.
Ground two – failure to make an obvious enquiry
The starting point in any analysis of jurisdictional error on the ground of the Tribunal’s failure to make an obvious enquiry is an examination of the content of the Tribunal’s obligation. Strictly speaking, no “duty to inquire” is imposed on the Tribunal. Referring to the Tribunal’s obligation as a ‘duty to inquire’ directs attention away from the central issue, namely, whether the decision under review is vitiated by jurisdictional error, according to the plurality (French CJ, Gummow, Hayne, Crennan, Kiefell and Bell JJ) in SZIAI.[139] The Court held that the duty imposed upon the Tribunal under the Act is a duty to review.
A failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained can, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so,
the Court held that such failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. That proposition has stood for over 20 years consequent upon the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh.[140]
[139] (2009) 83 ALJR 1123 at [25].
[140] (1995) 183 CLR 273, 290.
The High Court did not state in SZIAI[141] that a failure to make the “obvious enquiry” to which it referred will in all cases constitute a failure to review. The making of such an enquiry could, in some instances, supply a sufficient link to the outcome to constitute a failure to review.
[141] (2009) 83 ALJR 1123.
The “obvious enquiry” must be of a “critical fact, the existence of which is easily ascertained”.[142]
[142] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25].
In Chava[143] Justice Mortimer postulated an applicant’s vulnerability, incapacity or infirmity of the visa applicant or in his or her circumstances as giving rise to the Tribunal being proactive.
Her Honour repeated that the observations of the plurality in SZIAI,[144] erroneously described as the so-called ‘duty to enquire’ is no more than the possibility of the existence of a constructive failure to exercise jurisdiction.
[143] [2014] FCA 313 at [80].
[144] (2009) 83 ALJR 1123.
In the High Court’s decision in Minister for Immigration and Citizenship v SZGUR[145] (“SZGUR”) the Court emphasised that a proceeding in the Tribunal was inquisitorial. However, the Court affirmed its statement of principle in SZIAI[146] that the Tribunal’s duty is a duty to review. The Court declined to agitate that statement of principle. Accordingly, for the purposes of these reasons, I have proceeded on the basis that the pronouncement in SZIAI[147] as affirmed in SZGUR[148] is the authoritative statement of principle in relation to the Tribunal’s duty to review.
[145] (2011) 241 CLR 594.
[146] (2009) 83 ALJR 1123.
[147] (2009) 83 ALJR 1123 at [18].
[148] (2011) 241 CLR 594 at [23].
In examining this ground, I have proceeded adopting the observations of Kenny J in Le[149] to the effect that the Tribunal has no general obligation to initiate enquiries or to make out the applicant’s case for him. Further, if the case advanced (which this one did not) that the Tribunal’s failure to enquire renders the Tribunal’s decision manifestly unreasonable, then that case will be rare and exceptional.
[149] (2007) 164 FCR 151 at [60].
The applicant was unable to identify the “critical fact” to which SZIAI[150] directed attention. Nor was the applicant able to show that any such so-called critical fact was easily ascertained. The proposition that the Mayor could have been telephoned so that the applicant’s claims could have been corroborated was anything but a “critical fact, the existence of which is easily ascertained”.[151] Had such a call been made, according to Ms Nicholson, the Tribunal’s concerns about the applicant’s credibility would have changed. To my mind,
that presupposes an outcome that may or may not have come to pass, namely that the Tribunal’s views about the applicant’s credibility would have changed. Those views may not have changed even if the Tribunal had made the call about which the applicant complained. In any event, nowhere did the applicant identify the precise fact that he suggested the Tribunal should have but failed to ascertain by calling the Mayor.
[150] (2009) 83 ALJR 1123 at [25].
[151] Ibid.
In my view, the decision of Katzmann J in SZRTF[152] provides useful guidance.
[152] [2013] FCA 1377.
It seems to me ground two failed. Not only was there no obligation on the Tribunal to make contact with the Mayor as submitted, but even if contact had been made with the Mayor the “critical fact” to be established by that call was not identified.[153] Further, there was no certainty or likelihood that the applicant’s credibility would have been corroborated by such a call if made. The applicant’s credibility, if that was the critical fact to be established by calling the Mayor, was not “easily ascertained” by any such call.[154] One wonders which particular proposition may have been put to the Mayor. Even asking whether the applicant was credible was so nebulous to have been meaningless. Further, even if the Mayor’s response was entirely positive and highly corroborative of the applicant that would not necessarily have caused the Tribunal to alter its views about the applicant’s credibility in the overall.
[153] Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [25].
[154] Ibid.
In my judgment, the applicant failed to make out ground two.
Ground three – unreasonable or illogical credibility findings
This ground attacked the reasonableness and logic of the Tribunal’s decision to attach little weight to documents that supported the applicant’s journalism claim.
In order to fully comprehend this ground of review, it is necessary to unravel its component parts. In essence, the applicant submitted –
a)the Tribunal found that the applicant was not a credible witness in relation to his claims concerning his journalism activities;
b)proceeding upon the acceptance of the veracity of the applicant’s evidence on a different substratum of facts, the Tribunal accepted the applicant’s version of events when he told of the persecution of the father and the uncle on account of their involvement with the UNP;
c)having accepted the applicant’s evidence in relation of the father’s and the uncle’s involvement with the UNP, no basis existed for attaching little weight to the applicant’s other witnesses and supporting documents;
d)such inconsistency in approach towards the applicant’s evidence revealed illogicality and unreasonableness; and
e)no explanation was given the by the Tribunal for attaching little weight to the applicant’s other witnesses and supporting documents.
[155] (2003) 73 ALD 1.
Both counsel took me to the High Court’s decision in
Applicant S20/2002[155]although unsurprisingly, different passages of those reasons were relied on by each counsel. The Minister’s lengthy submissions on ground three have been set out above. No purpose is served in repeating here.
In my judgment, this ground of review must be refused for the following four reasons –
a)
credit findings, credibility findings, and findings about witness veracity are “par excellence” within the domain of the
fact-finding body, here the Tribunal;
b)there is no necessary inconsistency in reasoning for a fact-finding body such as the Tribunal to accept a witness’s version of events on one issue yet reject the same witness’s version of events on a different issue;
c)engaging in the review that the applicant urged amounted to this Court undertaking a merits review, a course forbidden on the jurisprudence of judicial review for jurisdictional error; and
d)findings of credit do not amount to ‘Wednesbury unreasonableness’[156] or illogicality.
[156] Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.
They need to be separately addressed.
In Durairajasingham[157], McHugh J held that a finding on credit is the function of the primary decision maker par excellence.[158]
The reasoning underpinning that statement is drawn from principles of the High Court and of the House of Lords over the better part of a century as McHugh J observed in Fox.[159] In the common law jurisdiction, the assessment of a witness’s demeanour as it bore on the witness’s overall veracity was the province of the trial judge and appellant courts have traditionally been wary of setting aside findings of the trial judge where demeanour may have played a part in the making of those findings, a matter traceable to the decision in Dearman v Dearman,[160] a decision pronounced when the High Court was in its infancy. That is not to say that all or any fact-finding is not amenable to review. The High Court pointed that out in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd
(in liquidation)[161] as did the Court of Appeal of the Supreme Court of Victoria in Husain v O & S Holdings (Vic) Pty Ltd.[162][157] (2000) 168 ALR 407.
[158] (2000) 168 ALR 407 at [67].
[159] (2003) 214 CLR 118 at [67].
[160] (1908) 7 CLR 549.
[161] (1999) 73 ALJR 306.
[162] [2005] VSCA 269 at [4] and [14].
Aside from common law courts, in the federal arena the question of whether the approach taken by the Tribunal to the assessment of credibility has been considered by various Full Courts of the Federal Court of Australia. An early exposition of the point under the Act was given in Kopalapillai,[163] a decision of O’Connor, Branson and Marshall JJ. That decision was pronounced prior to the High Court’s decision in Eshetu[164] and applied the decision of Foster J as a member of the Full Court in Guo Wei Rong v Minister for Immigration and Ethnic Affairs,[165] the decision that led to the High Court determining Minister for Immigration and Ethnic Affairs v Guo Wei Rong[166] (“Guo”), reversing the Full Court’s decision. The present value of Kopalapillai[167] may be on the margins. The subsequent decision of the Full Court in NAHI[168] issued a cautionary statement of principle to the effect that engaging in fact-finding about the merits of the
applicant’s case is no part of the function of the court. The reference to “of the court” was a reference to the court reviewing the work of the Tribunal, me in this case.
[163] (1998) 86 FCR 547.
[164] (1999) 197 CLR 611.
[165] (1996) 64 FCR 151, 194.
[166] (1997) 191 CLR 559.
[167] (1998) 86 FCR 547.
[168] [2004] FCAFC 10 at [10].
[169] (2003) 73 ALD 1.
The refusal of the court that undertakes judicial review to enter upon the arena of factual findings has been emphatic, one illustration of which is to be found in the reasoning of Kirby J in
Applicant S20/2002.[169]Judicial review is limited to reviewing the legality of administrative action and ordinarily, such review does not enter upon a consideration of the factual merits. Below I have considered those concepts in the context of the second basis for rejecting ground three.
More apposite to the first basis for rejecting ground three are the observations of Gleeson CJ.[170] There, the Chief Justice postulated a scenario similar to the one in this case where the Tribunal allegedly did not have regard to the whole of the evidence prior to deciding whether the Tribunal member believed the visa applicant and did not (allegedly) properly assess the significance of the evidence of corroborating witnesses and then considered but rejected the corroboration because of the rejection of the evidence of the visa applicant. The Chief Justice said the following –
In my view, all that the member was saying was that, for reasons already given at length, she found the applicant/appellant's story implausible, and in some important respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons that she had already given for rejecting the claim she was considering. The member could have expressed herself more clearly. It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.[171]
[170] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [12]-[13].
[171] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 73 ALD 1 at [12].
To my mind that passage was sufficient to dispose of ground three. However, equally compelling other (additional) reasons exist for rejecting ground three.
[178] (2003) 73 ALD 1.
[179] (1987) 163 CLR 54, 77
Judicial review is ordinarily not used as a basis for a re-evaluation of findings of fact. The two leading decisions of the High Court that made that point are Bond[172] and Guo.[173] The merits of the case should not be reconsidered as part of the process of judicial review, as has been repeatedly pointed out by single judges of the Federal Court,
[172] (1990) 170 CLR 321, 355–356.
[173] (1997) 191 CLR 559, 597–598.
Full Courts of the Federal Court and by the High Court itself in such cases as Attorney-General (NSW) v Quin,[174] Chan Yee Kin,[175] Wu Shan Liang[176] and Guo.[177] Kirby J catalogued some of those authorities in
[174] (1990) 170 CLR 1.
[175] (1989) 169 CLR 379, 391.
[176] (1996) 185 CLR 259, 271–272, 291.
[177] (1997) 191 CLR 559, 577.
Applicant S20/2002.[178]It must be remembered that even a
wrong finding of fact by an administrative official does not provide
a sufficient ground for the court’s intervention. Almost 30 years ago
that observation fell from Sir Gerard Brennan in
Waterford v Commonwealth[179](“Waterford”).
While I accept that in the context of fact-finding the line is not always easily drawn when distinguishing between jurisdictional error on the illogicality and unreasonableness ground and a wrong finding of fact that will not necessarily enliven the Court’s intervention. That said,
in my view the findings made by the Tribunal about which the applicant has complained in ground three are –
a)
precisely within the reasoning of Gleeson J in
Applicant S20/2002;[180]
b)within the reasoning of Brennan J in Waterford,[181] such that the court is not warranted in intervention even if those Tribunal factual findings were in fact wrong; and
c)not otherwise open to challenge on the basis that to do so involves a merits review.
[180] (2003) 73 ALD 1 at [12].
[181] (1987) 163 CLR 54, 77
That has disposed of the second reason for rejecting ground three.
The third reason for rejecting ground three is fixed in a consideration of the reasoning in SZMDS.[182] The reason is that findings of credit do not equate to illogicality or unreasonableness. In the reasons of Crennan and Bell JJ, their Honours rejected the concept that a decision is to be taken to be illogical or unreasonable where probative evidence can give rise to different processes of reasoning and where probative evidence might cause logical, rational or reasonable minds to differ in respect of the conclusions to be drawn from that evidence.[183]
[182] (2010) 240 CLR 611.
[183] Minister for Immigration and Citizenshipv SZMDS (2010) 240 CLR 611 at [131].
On the facts of this case, the applicant contended in effect that the applicant’s evidence had to be accepted and therefore he had to be believed in the overall on the journalist claim by reason of the fact that corroboration for it existed. He contended that the result of jurisdictional error followed, on the ground of unreasonableness and illogicality, for the simple reason that the Tribunal did not accept the applicant’s evidence in the journalism claim against a backdrop of the so-called corroborative evidence.
I do not agree.
The reasons of Gleeson CJ in Applicant S20/2002[184] give support to my conclusion in that regard. Put slightly differently, if I were to favourably consider the applicant’s submissions on ground three,
I would be doing precisely what the High Court in Bond[185] said should not happen in that I would be engaging in the subtleties of the
fact-finding undertaken by the Tribunal. The process would involve me minutely scrutinising the material of the applicant on the journalism claim, both viva voce and documentary including the false diploma, clinically and forensically examining the believability of the information adduced by the applicant, assessing whether the Tribunal was correct or incorrect in concluding as it did on that material, then identifying, clinically and forensically examining the probative nature of and value in the so-called corroborating material (viva voce and documentary), distilling precisely what it all amounted to, examining whether in fact it was in whole or in part corroborative of the applicant’s version of events, if it was the significance of the corroborative portions, if it was not whether the surviving corroborative portions mattered in the overall, why and to what ultimate end. That is to do exactly what judicial review should not do. It is no function of the court undertaking judicial review for jurisdictional error to embark upon such an exercise. This judgment is long enough without that task being done.
[184] (2003) 73 ALD 1.
[185] (1990) 170 CLR 321.
In my view ground three is failed.
In concluding that ground three failed, I have considered the observations of the Full Court of the Federal Court in Singh[186]
(Allsop CJ, Robertson and Mortimer JJ) especially the Court’s discussion of the principles underlying legal unreasonableness.[187]
In addition, I have taken into account the observations of the Full Court in SZTAP v Minister for Immigration and Border Protection[188]
(Logan, Robinson and Kerr JJ) in which the Court referred to the decision in SZMDS[189] and again stated that reasons must delineate the way the decision of the Tribunal was illogical or irrational, but only when read as a whole and not narrowly with an eye attuned for error. The Court also accepted the explanation given by French J in Minister for Immigration and Citizenship v Li and Anor[190] where the Chief Justice held that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative decision with which a court disagrees even though that judgment is rationally open to the decision-maker.
[186] (2014) 231 FCR 437.
[187] (2014) 231 FCR 437 at [44]-[52].
[188] [2015] FCAFC 175.
[189] (2010) 240 CLR 611.
[190] (2013) 249 CLR 332 at [30].
On 9 March 2016 in Minister for Immigration and Border Protection v Eden,[191] the Full Court of the Federal Court of Australia addressed legal unreasonableness holding, relevantly at paragraph 57 and following, that seven separate concepts are involved in the concept of legal unreasonableness, those being –
a)legal reasonableness is an essential element in the lawfulness of decision-making;
b)the court’s task in determining whether a decision is vitiated by legal unreasonableness is strictly supervisory;
c)legal unreasonableness may be employed in one of two circumstances, one after the identification of a recognised species of jurisdictional error and the other being outcome-focused without the identification of any specific jurisdictional error;
d)within the boundaries of power, decisional freedom exists within which the decision-maker has a genuinely free discretion;
e)the relevant statute must first be construed in order to ascertain the metes and bounds of that decisional freedom;
f)where reasons exist, they are likely to provide the focus for an evaluation of whether the decision is legally unreasonable; and
g)it is erroneous to evaluate legal unreasonableness in the context of any particular case by starting with the application of particular definitions, fixed formulae, categorisations or verbal descriptions.
[191] [2016] FCA FC 28.
I have kept those seven factors steadily in mind when considering the circumstances of this case.
Conclusion
In my judgment, the applicant’s review in this Court must be dismissed with costs.
Parting note
From the foregoing it will be apparent that this case was complex,
both factually and legally. Ms Nicholson on behalf of the applicant advanced arguments that ultimately did not succeed but which were nevertheless challenging and thought-provoking. I was greatly assisted by her very considerable assistance in this case for which I thank her especially during the hearing. Equally Mr Brown’s distillation of the Minister’s response to Ms Nicholson’s challenging contentions were equally well considered. While the Minister had the full resources of the Commonwealth at his disposal in this case, something
Ms Nicholson obviously did not have, Mr Brown synthesised a large volume of documentation and a huge body of case law into bite-size, sensible and appropriate submissions, consistent with the Minister’s obligations and as a model litigant. I thank both counsel for their contribution to the determination of this complicated case.
I certify that the preceding one hundred and eighty-six (186) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 15 July 2016
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