MZAJT v Minister for Immigration

[2015] FCCA 1471

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1471

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal – Tribunal reasons do not disclose engagement with information put before it by the applicant – whether failure to engage necessarily causes findings to be infected by jurisdictional error – whether information is relevant to an issue when Tribunal bases its findings on separate evidence – requirement to engage dependent upon importance of the evidence to the Tribunal’s process of consideration – remitted to Tribunal.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZRKT and Another [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 117
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

Applicant: MZAJT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1620 of 2014

Judgment of: Judge McGuire

Hearing date: 7 May 2015

Date of Last Submission: 7 May 2015

Delivered at: Melbourne

Delivered on: 26 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Albert

Solicitors for the Applicant: Wimal & Associates

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed 11 August 2014 be allowed.

2. The decision of the Migration Review Tribunal made 15 July 2014 be quashed.

3. A Writ of Mandamus issue directed to the Migration Review Tribunal or Minister to determine the applicant’s case according to law.

4. The first respondent pay the applicant’s costs as agreed or as determined by the Court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1620 of 2014

MZAJT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The application is for judicial review of a determination of the Refugee Review Tribunal (“the Tribunal”) made 15 July 2014 affirming the decision of the Minister’s Delegate not to grant a Protection (Class XA) visa (“the visa”).

2. The further amended application filed 16 February 2015 offers only one ground of complaint being:

   The Second Respondent miscarried in its statutory task, namely by failing to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Migration Act 1958 (Cth) (“the Act”) in respect of the Applicant’s claim that he was at real risk of serious or significant harm as a result of returning to Sri Lanka without a Sri Lankan passport as a failed asylum seeker from ‘the West’ and / or in its assessment of the accumulation of his claims including that claim.

3. The applicant argues that the Tribunal failed to deal with particular and relevant country information placed before it on behalf of the applicant and supportive of an integer of his claim. The information is contained in a report from the United Kingdom Home Office from December 2012 the relevant integer of the applicant’s claim is as of a Tamil returnee failed asylum seeker. The applicant says that the failure to engage this information caused the Tribunal to fall into error.

4. The application is opposed. The applicant is represented by Counsel. Both parties have filed helpful written submissions.

5. The applicant is from Sri Lanka. He is a Hindu from a Tamil family. He arrived in Australia on 22 July 2012 and lodged an application for a protection visa on 23 November 2012.

6. The Applicant’s application for protection was grounded on his alleged fear of serious or significant harm as a result of :

   i) His Tamil ethnicity;

   ii) His membership of a particular social group (PSG) being Young Tamil Males from North Sri Lanka;

   iii) His anticipated return to Sri Lanka as a member of a PSG namely Tamil failed asylum seekers without a passport ; and/or

   iv) His imputed political opinion as supporting the LTTE or being opposed to the Sri Lankan government because of any or all of the above.

7. The application for a protection visa was refused by the Minister’s Delegate on 16 August 2013. The merits review hearing before the Tribunal took place on 19 June 2014. The Tribunal’s decision affirming the Minister’s decision was made on 15 July 2014.

8. The Tribunal made a number of findings of credit against the applicant in respect of the integers of his claim set out above. Specifically, and relevant for the application before me, the Tribunal made a finding at [104-105] of its reasons as follows:

   [104] The Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future in Sri Lanka as a failed Tamil asylum seeker or Tamil returnee. The applicant does not have a well-founded fear of persecution for these reasons.

   [105] The Tribunal also finds that the applicant does not face a real risk of significant harm due to status as a failed Tamil asylum seeker or returnee to Sri Lanka

9. In its reasons at [100-103] the Tribunal states and makes findings thus:

   [100] the Tribunal noted that the applicant would likely come to the attention of the authorities due to any temporary documents he was provided with to return to Sri Lanka, and would be questioned as described above in relation to his circumstances. The Tribunal asked if the applicant had any criminal record or criminal charges, the applicant said he did not.

   [101] the Tribunal considers that the authorities will interview the applicant. The DIE will determine that the applicant left legally and on a valid passport, and that he has evidence of his citizenship, though (sic) his birth certificate, a copy of which was provided to the Tribunal. The Tribunal considers that given his background, being the son of a priest from Point Pedro, a location that was under the control of the Sri Lankan Authorities during the civil war, he will not be detained by the SIS. As he has no criminal record or criminal charges, and as determined above, is not of interest to the CID, the applicant would not be detained by the CID.

   [102] Given that he left legally he will not face any criminal charges due to his manner of departure. The Tribunal considers that the applicant will not face any charges because he is a failed asylum seeker or a returnee, so does not face the prospect of being imprisoned. As he will not be imprisoned on return to Sri Lanka, he does not have any concern for being harmed while in custody, either by the authorities of because of the conditions found in the prisons of Sri Lanka.

   [103] The Tribunal does not accept that the applicant will be imputed with an actual or imputed link to the LTTE, or that he will be targeted because he is a Tamil. The Tribunal finds that the applicant is not wanted by the Sri Lankan authorities and will not be subject to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT.

10. The applicant’s argument can be summarised as follows:

    i) The applicant based his claim for protection inter alia on being a member of a PSG namely Tamil returnee failed asylum seeker;

    ii) That the Tribunal had before it (CB 188) country information, provided by the applicant, in the form of a report from the United Kingdom Home Office dated December 2012 and titled “Sri Lanka, Treatment of Returnees”;

    iii) That the Tribunal rejected the Applicant’s claim but did so on the basis of an earlier report from the United Kingdom Home Office and without referencing or engaging the later report of December 2012.

    iv) The information in the December 2012 Report is prima facie relevant and supportive of the Applicant’s claim and contradictory to material in the earlier United Kingdom Home Office Report of October 2012;

    v) That the Tribunal must have considered the United Kingdom Home Office to be a reliable source given its reference and reliance on the earlier October 2012 Report;

    vi) That failure to consider the more recent report is a failure to consider relevant material and which causes the Tribunal’s decision to be infected by Jurisdictional error.

11. The Tribunal’s reasons at [98] assume prime significance in the argument now before me as to the footnotes referenced in that paragraph. The reasons at [98] state:

    [98] Whilst there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka9 other sources contest these claims. In 2012, the UK Home Office noted that these allegations lack substance and detail and that:

    The Principle focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms.10

    9

    10

12. The footnotes 9 and 10 at CB 245 show:

    9. Freedom from Torture, Sri Lankan Tamils tortured on return from the UK, 13 September 2012; refused to give the fish to the Navy; Amnesty Internationals, Sri Lankan Asylum Seekers tortured after being forcibly returned from Australia, 3 September 2010.

    10. UK Home Office, 2012, Country Policy Bulletin – Sri Lanka, October.

13. Counsel for the applicant say that the above is corroboration that the Tribunal failed to consider the December 2012 information and most obvious in what Counsel calls the “perplexing” footnote 9.

14. Counsel for the applicant then tendered as an exhibit a separate decision of the Refugee Review Tribunal being case No 1302433 of 31 July 2013 being approximately one year prior to the decision now under review. There is clearly some factual similarity between the two matters. Counsel argues, and I accept, that large parts of both decisions are precisely word-for-word including the above mentioned paragraph [98] of the decision now before me which repeats exactly paragraph [46] of the earlier 2013 reasons.

15. Significantly, the previous two paragraphs [96-97] continue under the heading “Failed Asylum Seeker”. [97]  recites country information from DFAT where in the last sub-paragraph appears:

    We have received no substantial cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistence with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if he had been it could hardly be considered to be torture.8

    8

16. The footnote 8 references:

    CX299951: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012.

17. Consequently, the applicant argues that the report from the UK Home Office of December 2012 has been neglected by the Tribunal in its reasoning because the Tribunal has “cut and pasted” material from a separate RT decision from July 2013. In doing so, the Tribunal has referenced material prior to December 2012 including separate material from the same source being the UK Home Office. The applicant says that the later material is relevant and contradictory in part to the earlier material relied upon by the Tribunal in respect of the relevant integer of the applicant’s claim being returnee failed asylum seeker. The applicant says, therefore, that the Tribunal has miscarried its statutory task as a decision maker under s.65 of the Act. Counsel refers the Court to a decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS1where their Honours at [50] establish:

    We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

    1 [2013] FCAFC 114

18. The applicant’s argument also draws support from the often cited passage in Minister for Immigration and Multicultural Affairs v Yusuf2 where the High Court (McHugh, Gummow and Hayne JJ) said at [82]:

    It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision‑maker making such an error.  As was said in Craig v South Australia (1995) 184 CLR at 179, if an administrative tribunal (like the Tribunal)

    “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."”

    2 (2001) 206 CLR 323

19. Counsel for the respondent argues that the applicant has misunderstood, misstated or overstated the relevance of the UK Home Office Report of December 2012. He says that the December 2012 report is nothing more than a compilation or series of extracts from other and earlier sources and earlier than the October 2012 material relied upon by the Tribunal

20. Secondly, the respondent argues that there is no inconsistency between the December and the October information and hence the Tribunal did not need to evaluate the later material as there was no conflict.

21. Thirdly, the respondent argues that the evidence/ information in the December 2012 report is actually probative of a different claim than the one advanced by the applicant and therefore not relevant to the Tribunal’s determination given that the Tribunal made findings in respect of this issue on completely independent material. Specifically, the respondent says that the material in the December 2012 report relates to the risk of harm to asylum seeker returnees with an LTTE profile.

22. Counsel for the respondent argues that the above mentioned citation from Yusuf should not be given universal and unconditional application. Counsel takes the Court to the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT and Another3  where his Honour was dealing with an appeal from a Federal Magistrate’s decision where his Honour expressly disagreed with the Federal Magistrate in that it should always amount to jurisdictional error to ignore “relevant material” [122]. His Honour considered a number of authorities including at [112] where the Full Court in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCAFC 117 opined that whether a Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. His Honour in SZRKI then said at [112]:

    In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

    3 [2013] FCA 317

23. And previously at [111] his Honour says:

    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs ... The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

24. Consequently, the respondent argues that the question for this Court is whether the information not referred to by the Tribunal was essential to the claims before the Tribunal and therefore it should have been expressly engaged and referenced.

25. Specifically, Counsel for the respondent argues that the report of December 2012 is itself a “cut and paste” compilation and of non-contemporarily independent significance. The material set out at CB 188 does indeed reference material from Human Rights Watch (HRW) from September 2012 which predates the October 2012 United Kingdom Home Office report apparently relied upon by the Tribunal and seems to be a compilation from various sources.

26. Secondly, that same paragraph, and the report elsewhere, deals with “ethnic Tamils with real or imputed links to the Liberation Tigers of Tamil Eelam (LTTE)…” whereas the claim before this Tribunal was of returnee failed asylum seekers. Counsel emphasises that the Tribunal here had otherwise found that the applicant did not have a profile of imputed connection with LTTE.

27. Similarly the December 2012 report references a FFT (Freedom From Torture) news release of 14 September 2012 also predating the UK Home Office Report of October 2012 and referring to returnees “arriving back to Sri Lanka they were targeted for detention and torture due to a real and perceived association with the Liberation Tigers of Tamil Eelam (LTTE)…” That this information is a compilation or series of historical extracts is evidenced by the gap in the footnoting between 3 and 6 at CB 189.

28. Counsel for the respondent then takes the Court to the Tribunal’s reasons where it considers at [20] and following the applicant’s “claims and evidence”. Thereafter from [31] the Tribunal sets out its findings. Specifically at [72] and following the Tribunal deals with the applicant’s claim under the heading “Tamils in Sri Lanka”. At [77] the Tribunal sets out a “List of Risk Profiles” which it takes from a summary in an English decision in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). That list is:

    a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka;

    b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government;

    c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses; or

    d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.

1. Similarly at [76] the Tribunal cites a UNHR report of 2012 which also sets out a list individuals facing risk of persecution.

2. At [78-79] the Tribunal concludes that there are “certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka”. However, at [79] the Tribunal finds:

   The Tribunal does not accept that the applicant, a Tamil (sic) the Northern Province of Sri Lanka, with no involvement presently or historically with LTTE, faces a real chance of serious harm because he is of Tamil ethnicity. The Tribunal considers that the applicant is not a person, who simply because of his ethnicity, will be targeted by the authorities for harm. The Tribunal finds that the applicant does not have a real chance of serious harm, now or in the reasonably foreseeable future, arising from the Convention reason of ethnicity. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.

3. Therefore, in summary, the respondent argues that the material in the December 2012 report relates to Tamils with LTTE profiles or connections whereas the Tribunal rejected any profile of connection between the applicant and LTTE on the basis of other evidence. Counsel says, in fact, the Tribunal deals with the material subsequent to December 2012 in this respect and that it is for the Tribunal to deal with material as it considers probative and to attribute weight. Counsel for the respondent say that there was material available to the Tribunal which could ground its findings and hence the December 2012 report was not crucial to its findings and therefore its lack of reference in the Tribunal’s reasons does not result in jurisdictional error.

Discussion and Consideration.

1. Firstly, it is well established that a Tribunal can fall into error if it identifies a wrong issue, asks itself a wrong question, relies on irrelevant material or ignores relevant material. Secondly, I accept that the failure by a Tribunal not to reference all information will not necessarily result in it falling into jurisdictional error. Thirdly, it is the Tribunal who is the trier of fact and who attributes weight to the evidence before it and that makes findings of disputed fact and credit. It is not for a Court such as this to wander onto that domain of the Tribunal.

2. Counsel for the respondent argue that the focus put on the December 2012 report is misguided or misplaced. He says that the report relates to Tamils with LTTE profile and is therefore irrelevant as information in support of the particular integer to this applicant’s claims. I reject that argument. The material is set out in full at CB 188. There are indeed paragraphs which specifically link torture or mistreatment to those with LTTE profiles. Nevertheless, a close reading also shows information not limited to or exclusively referencing returnees with LTTE links or profiles. For example the second paragraph of the report cited at CB 188 says:

   Investigations by Human Rights Watch have found that some rejected Tamil asylum seekers from the United Kingdom and other countries have been subjected to arbitrary arrest and torture or other ill-treatment upon their arrival in Sri Lanka. Human Rights Watch today issued a document it sent on August 1 [2012] to the UK immigration minister detailing 13 cases of alleged torture of failed Tamil Asylum seekers on return to Sri Lanka. All of these cases are supported by medical documentation [Human Rights Watch document detailing 13 cases of alleged torture of failed Tamil asylum seekers].

3. Further, the fourth paragraph in the extract states:

   In one case, a 32-year-old Tami man from Jaffna was among 24 Tamils deported to Sri Lanka by the UK Border Agency on June 16, 2011, after this asylum claim was rejected. On return, he was questioned at the airport outside Colombo and subsequently pick up at the Omanthai checkpoint in northern Sri Lanka. The security forces then took him to police headquarters in Colombo, where he was interrogated about his activities in London and severely tortured. He told Human Rights Watch he was whipped with electric wires and suspended upside down and beaten with sand-filled plastic pipes and forced to sign a confession in Sinhala, a language he did not understand.

4. Counsel for the respondent down plays the relevance or significance of the December 2012 report as being simply a compilation of other sources and earlier in time than the UK Home Office report of October 2012. The fact that it is a compilation is in my view irrelevant. What is important is that as of December 2012 the UK Home Office released a report being the material then available to it. Such report provides information from various sources and absolute contemporaneity is not likely. What is relevant is that this was the information available to the UK Home Office as at December 2012 and it may well be that its relative contemporaneity to the report of October 2012, in fact, demands its attention by the Tribunal by reason of that very contemporaneity. That is, there are prima facie two reports in respect of the same country and from the same source being a source apparently accepted as reliable by the Tribunal and being only a matter of two or so months apart in time.

5. The respondent says that there is a plausible reason for the Tribunal not referring to the December 2012 report. He says that the material was not contradictory to that otherwise before the Tribunal. However it is clear from the Tribunal’s reasons at [98] that it did rely on the October report from the UK Home Office in making findings contrary to the applicant’s claim and in respect of returnee Tamil failed asylum seekers. The material from the report of December 2012 prima facie is relevant to, supportive of the applicant’s case and potentially therefore contrary to the Tribunal’s findings. However, more fundamentally, the respondent’s argument falls back on the proposition that is for the Tribunal to deal with the evidence/ information and attribute weight and it is plausible that the Tribunal did not see the December 2012 report as being of such significance or relevance so as to attract its engagement. This, however, is mere speculation on the part of Counsel for the respondent. This is not material that is so far removed by proximity in time or factual nexus to be obviously irrelevant to the Tribunal’s reasoning. It is material that is directed at the applicant’s claim. It is prima facie contradictory of the Tribunal’s conclusions and findings. The material is not addressed in the Tribunal’s reasons. This is, in my view a situation anticipated by the Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs4 where their Honours at [47] say:

   The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

   4 [2003] FCAFC 184

6. In this matter I am satisfied that the Tribunal has not referenced or engaged the material being the December 2012. I am satisfied that this material was prima facie relevant and important to the Tribunal’s consideration. I am satisfied that the material was relevant to a claim or an integer of a claim made by the applicant. I am satisfied that the material argues contrary to the Tribunal’s findings in respect of the particular issue.

Conclusion

1. Taking all of these matters into account I am of the view that the Tribunal fell into error in failing to demonstrate any engagement with this material and that the applicant should be granted the orders sought and that the application be remitted to the Tribunal.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 26 June 2015