MZXLE v Minister for Immigration
[2007] FMCA 768
•22 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXLE v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 768 |
| MIGRATION – Protection visa – whether breach of s.425 of Migration Act – whether failure to consider relevant considerations – whether failure to deal with claim of suffering serious personal injury – whether finding not open – whether apprehended bias – whether jurisdictional error – application dismissed. |
| Migration Act 1958, ss.91R, 425 |
| WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 Australian Capital Territory Revenue, Commissioner for v Alpha One Pty Ltd (1994) 49 FCR 576 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24) Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 Refugee Tribunal Re; Ex parte H (2001) 179 ALR 425 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 |
| Applicant: | MZXLE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 900 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 April 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 22 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Krohn |
| Counsel for the First Respondent: | Ms S Burchell |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 900 of 2006
| MZXLE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an Amended Application dated 16 March 2007.
Judicial review is sought of a decision of the Refugee Review Tribunal ("the Tribunal") dated 31 May 2006. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent not to grant a protection visa to the Applicant.
The Applicant is a citizen of Sri Lanka who arrived in Australia on 14 May 2005. On 14 June 2005 he lodged an application for a protection visa, which was refused by a delegate of the Minister on 9 September 2005. The Applicant then applied to the Tribunal for review of the delegate's decision. The Applicant was assisted by a registered migration agent in his application.
On 22 November 2005 the Applicant's agent provided a written submission to the Tribunal relating to the Applicant's claim and presenting further arguments and country information to support the claims (Court Book pp.42-49).
The Applicant attended a hearing of the Tribunal and gave evidence, assisted by his agent and an interpreter.
The agent also provided post hearing submissions and further documents on 1 February 2006 (Court Book pp.50-79).
The Applicant's claim
In its decision the Tribunal set out in considerable detail the Applicant's claims and evidence (Court Book pp.43-79) and also recited evidence given by the Applicant at the hearing (Court Book pp.86-100). The claims recited by the Tribunal appear to be accurately summarised in the First Respondent's contentions filed 27 October 2006 as follows:
“8.The applicant’s claims contained in the written submission can be summarised as:
8.1he has a well founded fear of being persecuted for reason of his imputed political opinion as a member of the United National Party (UNP);
8.2prior to joining the UNP he had been a member of the rival Janatha Vimukthi Peramuna (JVP) party and engaged in political activities for the JVP. After the leader of the JVP was killed the applicant had to go into hiding;
8.3when the UNP lost the elections and the People’s Alliance (PA) took power, the applicant attracted a high profile because of his support of the UNP. He was threatened and attempts were made to force him to join the PA;
8.4he sustained physical injuries in the course of attacks by PA supporters and on one occasion was hospitalised. He and his wife were threatened by anonymous telephone callers and on advice from the UNP, the applicant had to leave Sri Lanka;
8.5he was also subject to acts of violence, intimidation and systematic harassment by members of the United Peoples Freedom Alliance (UFPA); and
8.6the government could not supply protection against political harassment, acts of violence, torture and intimidation. There was an expectation that the police would support the government of the day. The applicant reported the instances of violence to the police but no action was taken.
9. At the hearing the applicant made the following claims:
9.1he confirmed that he had lived in Dabulla, central Sri Lanka, until 1974 when he and his family moved to Ukuwela, near Matele. He said that he lived in Ukuwela until he came to Austraila (CB 92);
9.2he had joined the JVP whilst still at school, when the JVP was an illegal organisation. At that time the JVP was supported by the army. When told that the JVP appeared to be an illegal organisation working against the army, the applicant said that the majority of the army supported it, then said that some of the army supported it (CB 93);
9.3when he was at school people came to arrest him for membership of the JVP. The principal hid him until the people went away. When asked why the principal would take such risks for a member of an illegal organisation, the applicant stated that the principal was his mother’s brother. He also stated that the principal was a member of the UNP. When asked why a UNP supporter would protect a JVP supporter the applicant reiterated the blood relationship (CB 94);
9.4the applicant was also asked why he was made a prefect when he was a member of an illegal organisation. He stated that he worked secretly and not openly. When asked why he was targeted for arrest when he had been working secretly he did not provide any further answer (CB 94);
9.5he joined the UNP at the suggestion of a member who advised him to do so to escape from his problems. He became an organiser for the Dabulla area (CB 94-95);
9.6he had been beaten before he came to Australia. He believe this had been by people opposed to the UNP. He had not reported this to the police because the police supported the government (CB 98);
9.7the opposition party was now in power and he could not return to Sri Lanka because they would want to stop him working for the JVP (CB 98).
It is significant in the present case, for reasons that will become apparent, that after the hearing the Applicant submitted a number of documents supporting his claim of membership to the UNP and identifying where he had resided. Three letters were provided by the Applicant's wife, stating that she was still receiving threats despite the Applicant having left Sri Lanka. It is relevant to set out extracts from those three letters.
The first letter, dated 16 June 2005, states in part:
“I am writing this letter to you expecting to hear from you. I am not sure when I will be able to post this letter. It is only if some relative from far away visits me that I will give this letter to him or her to be posted from there as I am scared to post it from here since a group of people came in a vehicle at night a week after you had left, and threatened me. They threatened to find out your whereabouts. But I id not tell them because I was scared to do so. Just like on other occasions, I was only listening to them. They threatened me, to tell you to be careful because they will kill you if caught. When they come to know that you have gone overseas, they might come again and don’t know what they would do. Now you are safe, but I am scared about our son. However the fact that you are safe now, gives me some consolation.
Any way I will refrain from writing too much. Is it OK? You may be thinking about the son all the time. What’s to be done. It’s our bad luck. I feel very sorry when I think of our son. Nothing like you being with him. I am not sure when all three of us will be able to live together. Any way, this suffering I think will continue until our Government of ours come to power. Killing has become a fun now. For the slightest thing they kill. I am very scared that they will harm me and our child when they come to know that you are not there.” (sic)
(Court Book p.53)
It is to be observed from the letter that reference is made to an event which allegedly occurred "a week after" the Applicant had left. The letter otherwise provides details of the incident, and the letter itself is dated 16 June 2005.
The second letter, dated 20 August 2005, states in part the following:
“… I will tell you something, but don’t be worried. Those people came again. They cam in a car without a number plate and threatened me very badly. They have come to know that you are not in Sri Lanka now. They threatened that you should not be allowed to return to Sri Lanka and not even think of coming back. They kept on threatening me to inform you of their threat. It was no just a threat because they pointed a gun at me and questioned me as to what country you have fled. I told them that even I am not aware of where you are, and that I am also living here in fear and difficulty. They then threatened me saying that if you loved me and the son, you should be told not to come back to Sri Lanka. I am scared that even if you come back after a number of years overseas, their threat will not be over because it is their Government in power now. I am always worried that these people will harass me and my child in order to forced you to come back.” (sic)
(Court Book p.55)
The extract from that letter refers to an incident where people again attended the premises of the Applicant's wife and apparently, according to the letter, arrived in "a car without a numberplate". The identity of the car and the occupants is not made clear.
The third letter, dated 18 September 2005, includes the following general comment:
“Although it was expected that you leaving the country would end threats from those people, it has not been that way. All of a sudden they give a threatening telephone call and try to get information about your whereabouts. Now I feel that I should also go some where with the son…”
(Court Book p.57)
The Tribunal does not appear to have been provided with copies of correspondence from the Applicant to his wife, though the first letter, referred to earlier, does state that the writer was "expecting to hear" from the Applicant. It is not clear whether the Applicant provided a response between 16 June 2005 and 20 August 2005, being the date of the second letter from the Applicant's wife.
The Tribunal decision
In its findings and reasons the Tribunal recorded the chronology of events and made the following significant findings:
i)The Tribunal was not satisfied that the Applicant was ever a member of the JVP as claimed. It found the Applicant was never wanted by the authorities as a result of his alleged membership of the JVP and that he never went into hiding as claimed and that he never suffered any harm whatsoever because of his alleged JVP membership.
It made these significant findings after considering the Applicant's claim and compared that to available country information. Specifically it noted the Applicant claimed that when he joined the JVP it was strongly supported by the majority of army officers in Sri Lanka. The Tribunal stated that this "is in direct contradiction with available country information that indicates the JVP at this time was an outlawed communist revolutionary group sworn to the violent overthrow of the Sri Lankan government".
It referred to the JVP's "own official web site" and the party's history. It further then referred to the exchange which occurred between the Tribunal and the Applicant at the hearing and relevantly stated that it had pointed out to the Applicant that, "it is difficult to accept in light of such information that alleged members of such an outlawed group would be protected by local officials, including school principals, even if they were blood relatives, because the consequences of providing such protection could be severe repercussions for these officials."
ii)The Tribunal was not satisfied that the scars of the Applicant on his head and face were caused by beatings from political opponents. It found the Applicant was not beaten by political opponents and the scars on his head and face were not caused by any beatings from political opponents.
iii)Although it accepted that in the context of Sri Lankan politics the participants in the political process would be subject to some low level threats and intimidation from political opponent "in the context of robust political debate," the Tribunal then found that the claimed threats by the Applicant were "idle threats made in the context of the passionate and inflamed nature of political participation and campaigning in Sri Lanka".
It further found that, "the makers of these threats did not have any intention to carry them out." Significantly, it found that, "these threats do not constitute the type of serious harm that would amount to persecution under the convention.
iv)The Tribunal found the Applicant was not a witness of truth in relation to where he had lived in Sri Lanka prior to coming to Australia. It found the Applicant had "never lived in Colombo as claimed". It found the Applicant did not flee Ukuwela "to escape harm from his political opponents ..."
It found that, "As the Applicant did not flee Ukuwela to escape harm from his political opponents that his mother and wife were not forced to live in fear from his political opponents after he allegedly fled Ukuwela and went into hiding, and that his mother and wife are not subject to threats, anonymous phone calls or acts of intimidation from his political opponents who allegedly wanted to know his whereabouts after he allegedly fled Ukuwela and went into hiding."
It, significantly, found the Applicant has "not suffered any serious harm in the past in Sri Lanka for any Convention related reason".
v)The Tribunal did not place any weight on the letters provided by the Applicant in support of his claims. This included the letters from his wife, set out earlier in this judgment. It specifically stated, "I have considered these letters, which contain little detail about when these threats have occurred and who actually made these threats."
It went on to say, "They are vague and appear to have been written by the Applicant's wife in order the enhance the Applicant's claims for refugee status." It then proceeds to indicate it had not placed any weight on the letters.
After making those significant adverse findings, the Tribunal, whilst accepting the Applicant may be subject to low level threats and intimidation from PA members and supporters, as noted earlier, went on to find that the threats were "idle threats made in the context of the passionate and inflamed nature of political participation and campaigning in Sri Lanka" and that "The makers of these threats did not have any intention to carry them out."
Grounds of application
In the Amended Application filed 16 March 2007 I accept that the grounds relied upon have been accurately summarised in the First Respondents contentions filed 29 March 2007 as follows:
1.A breach of s.425 of the Migration Act1958 (the Migration Act), in that there were two interpreting errors.
2.A breach of s.425 of the Migration Act, in that the Tribunal failed to give the Applicant an opportunity to give evidence and present arguments in relation to the cause of his scars and injuries and the reasons for going into hiding.
3.A failure to consider relevant considerations, in failing to deal with the claim of suffering serious personal injury in the context of threats and intimidation by the Applicant's political opponents.
4.The Tribunal made a finding that was not open to it on the material before it, dismissing the evidence of the Applicant's wife's letters as having no weight and being "vague".
5.The decision was affected by jurisdictional error, in that there was a reasonable apprehension of bias.
Ground 1 - A breach of s.425 of the Migration Act 1958, in that there were two interpreting errors
Applicant's submissions
The Applicant relied upon particulars where it is claimed that at the hearing on 16 January 2006 two interpreting errors occurred as follows:
“(i)The interpreter gave as the applicant's evidence that he said that there were Army officers who supported the JVP. The correct translation should have been that the applicant said there were some Army [members] who joined the JVP. The applicant did not mention officers of the Army or assert that officers supported the JVP…
(ii)The interpreter said that the Applicant's school principal had "looked after" the Applicant since ‘the fourth year’. The correct translation should have been that the Applicant's uncle had brought him up since he was 4 years old.”
The transcript of the proceedings before the Tribunal was tendered (Exhibit A2). An affidavit in support of the claimed errors affirmed 23 March 2007 by an accredited interpreter was relied upon by the Applicant. For present purposes it is not necessary to refer in further detail to the claimed errors, as submissions were made by both parties on the assumption that the errors actually occurred.
It was submitted by the Applicant that the consequence of the errors were that the Tribunal had wrongly thought that the Applicant's claim was that officers of the army supported the JVP in about 1992 and that the school principal had some lesser tie to the Applicant than being in effect in the position of a father to him.
It was submitted that, "Had the Tribunal had the correctly interpreted evidence of the applicant on these points it may not have rejected his claim to have been in the JVP." Accordingly, it was submitted it "may thus not have made the first finding which rejected the applicant's credit and which affected the Tribunal's attitude to his credit generally".
Both parties relied upon the authority of WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 (WACO) at [64] where the Full Court states:
“16The Tribunal concluded that several aspects of the appellant's claims were implausible and that he was not a credible witness `in respect of key aspects of his claims for protection.' The Tribunal said:
‘He was not an impressive witness in giving consistent and cohesive testimony about matters which he professed to have some close familiarity. He conveniently varied his evidence, including very subtly on occasions, to answer the Tribunal's concerns with certain key aspects of his claims. He clearly had difficulty providing convincing explanations on issues on which the Tribunal expected straightforward, informed responses. He was also generally unsatisfactory in testifying about the circumstances that he claims led to him departing Iran as a fugitive and in respect of how he managed his exit from Iran. He was also hesitant, unconvincing and shifted ground too readily in answering concerns about his actions and objectives in seeking to attack the clerical leadership.’”
It will be noted that in the Full Court decision the court accepted the relevance and applicability of the decision of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 (Perera), even though that matter was decided before s.425(1) of the Migration Act was amended.
First Respondent's submissions
The First Respondent, after referring to the WACO and Perera decisions, submitted that in order for the Applicant to succeed on this ground he must show:
a)the standard of interpretation at the RRT hearing was so inadequate that the Applicant was effectively prevented from giving evidence at the RRT; or
b)errors made by the interpreter at the RRT were material to the conclusions of the RRT adverse to the Applicant.
The First Respondent submitted that there is no error with the interpreting which would bring the matter within the circumstances referred to by the Court in Perera and that only two "minor errors" had been referred to by the Applicant. It was argued that the interpretation of the two passages do not indicate departures from the requisite standard. It is noted that there is no submission presented on behalf of the Applicant that the interpreting was of such a poor standard that it would have prevented the Applicant from presenting his case or giving evidence.
It was argued that the present application is distinguishable from the facts which confronted the Court in WACO, as in that case there was no equivalent term for "house arrest" in the Farsi language. The concept of house arrest in that case was significant both to the Tribunal decision and the claim of the appellant. In the present case it was submitted the terms are not technical. It is not claimed by the Applicant that they are not translatable. The issues are on their face very simple and involve the use of the word "officers" instead of "members", "support" instead of "join" and "my fourth year" rather than "four years old".
It was argued that the Tribunal found it difficult to believe that persons in the army would be sympathetic to and/or involved with the JVP, which at that time was at war with the army. The Tribunal identified an inconsistency between the Applicant's initial claim that the army (as a whole) was supporting the JVP and subsequent claims that some of the army were supporting the JVP. It was submitted that it is immaterial whether the description of the army personnel was "officer" or "member", given the Tribunal's concerns about the state of the evidence in relation to the level of support given by the army to the JVP.
The First Respondent conceded the Tribunal did not refer to "officers", though the explanation for that may be that the word was used by the interpreter. It was argued that it is not a critical finding that the persons giving support were officers. If the correct translation of "members" had been used, then the critical finding that it is inconceivable that the majority of military members would be supporters or sympathisers of the JVP would still have been made.
The reference to "my fourth year" rather than "four years old" was not a key component of the decision, according to the First Respondent's submissions. The Tribunal's finding was that it was difficult to accept the claim, even if the principal was a blood relative. The Tribunal was aware that the principal was an uncle, and it is noted the transcript records the phrase "from my fourth year". Whilst that may be read as either from the age of four or from the fourth year at school, it therefore may not have been an accurate translation of the intent of the answer.
However, it was submitted on behalf of the First Respondent that a proper reading of the transcript reveals that the Applicant was asked why the principal helped, and responded that it was because of the blood relationship. The Applicant did not explicitly, or even implicitly, state that the relationship was a "father‑son" type relationship. In any event, it was submitted, the Tribunal decision was not predicated on the closeness of the relationship.
The Tribunal on the evidence was not satisfied that the principal, even if a blood relative, would take the risks. Accordingly, it was submitted, any interpreting error as to the length of the relationship was not material to the Tribunal finding that it was implausible that the uncle would have risked his life in the circumstances.
Reasoning
In my view, the First Respondent's submissions in relation to this ground are correct.
Applying the relevant authorities, and in particular the principles set out by Kenny J in Perera, I am not satisfied that there is sufficient evidence in the present application to justify a finding that in this instance the Applicant has been prevented from giving evidence or unable to present his case before the Tribunal. There is no general criticism of the standard of interpretation and the two instances which are relied upon in support of this ground, in my view, cannot be regarded as errors of a material kind which would be sufficient to constitute jurisdictional error.
The first error referred to does no more than identify perhaps one group from the army but does not of itself detract from the general adverse conclusion the Tribunal made concerning the alleged support by the army of the JVP. It is that general finding, which is significant and, in my view, is not weakened or undermined at all by the alleged interpreting error.
Likewise, in my view, the reference to the duration of the relationship between the Applicant and his uncle, who was the principal, does not detract from the ultimate conclusion by the Tribunal that it was implausible that the blood relative, namely the uncle, would have risked his life in the circumstances, as alleged. That finding was a finding reasonably open to the Tribunal free of jurisdictional error.
The interpreting error is, in my view, a technical error, and I otherwise accept the submissions made for and on behalf of the First Respondent that that error, as with the first error, is not of sufficient significance to provide a basis upon which the court is able to uphold this ground.
Accordingly, this ground should fail.
Ground 2 - A breach of s.425 of the Migration Act, in that the Tribunal failed to give the Applicant an opportunity to give evidence and present arguments in relation to the cause of his scars and injuries and the reasons for going into hiding
Applicant's submissions
It was submitted by the Applicant that in making its findings concerning the cause of the scars the Tribunal referred to the Applicant giving "vague and limited evidence" (Court Book p.103). It was submitted the Tribunal was concerned that the Applicant had failed to report the attack to the police, despite the Applicant's explanation that police supported the party in power.
It was argued the Tribunal did not provide the Applicant with an opportunity to know that an issue on the review was whether the cause of his scars and injuries was politically motivated attacks. Reference was made to the delegate's decision, who had found it difficult to accept that the Applicant would have been targeted, but ultimately did accept the Applicant may have "been harassed, threatened and possibly attacked during the period of election campaigns in Sri Lanka" (Court Book p.32). It was argued that the delegate's reasons and the Tribunal's conduct did not give the Applicant any basis to understand that the cause of his injuries or the motivation of his attackers was in issue.
The Applicant relied upon the High Court decision is SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 (SZBEL) and in particular the following paragraphs:
“32. In Alphaone the Full Court rightly said[19]:
"It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material." (emphasis added)
33.The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review"[20]. The reference to "the issues arising in relation to the decision under review" is important.
34.Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise[21] all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
35.The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
36.It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.”
Particular reliance was placed upon that judgment to the extent that it referred to the Tribunal taking no step to identify some issue, other than those that the delegate considered dispositive, and not telling the Applicant what the other issue may have been. Reliance was also placed upon the last sentence in paragraph 36 of the court's judgment where, in the absence of the Tribunal telling the Applicant something different, he would be entitled to assume that reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The Applicant submitted that the Tribunal hearing did not make plain to the Applicant that the issue of where he lived was a foundation for issues of whether the Applicant had been in fear of persecution and had gone into hiding at all. It was argued the Tribunal failed to give the Applicant an opportunity to address the issue and specifically the issue of whether his living arrangements were relevant to whether or not he had gone into hiding because of fear.
First Respondent's submissions
The First Respondent referred to the decision in SZBEL and noted in that case the Applicant had made a number of claims in a statutory declaration and a delegate had rejected the application on the basis of one of those claims but did not deal with the other claims. The Tribunal at the hearing in that case did not accept the other claims in the statutory declaration but did not raise the issue of implausibility of those claims with the Applicant. The High Court then found the Tribunal had fallen into error, because the Applicant, in the absence of any other indication, would have been entitled to assume that the other aspects of the declaration not rejected by the delegate were not issues arising in the application.
It was submitted that the High Court in SZBEL "highlighted the dichotomy between the obligation to advise an Applicant of adverse conclusions arrived at, which would not obviously be opened on the known material and a lack of obligation to advise it of its thought process and provisional views" (see Commissioner for Australian Capital Territory Revenue v Alpha One Pty Ltd (1994) 49 FCR 576).
It was submitted that the court must consider whether there were any adverse conclusions "made by the RRT which were not obviously open on the known material". In determining whether a factor is a "critical issue" arising in relation to the decision by the Tribunal, it was submitted that some assistance is obtained from the decision of Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 ALR 411 where reference was made to whether the information was "credible, relevant and significant". It was argued that it must be ascertained whether "the RRT identified the critical issue and told the Applicant of it such that the RRT challenges what the Applicant has said" (see SZBEL at [35] ).
It was submitted that it is not necessary for the Tribunal to comment on each item of evidence advanced by the Applicant and that the delegate in this instance had found the totality of the Applicant's claims were at issue.
Accordingly, it was submitted that the reasoning in the present case in respect of the Applicant's claims concerning the scars should have "been obvious to the Applicant". It was argued, "the Applicant was on notice that the veracity of his entire account was at issue because the delegate found that he had serious doubts about the Applicant's claims given the vague nature of the claims and lack of evidentiary support of those claims."
In the present case it is submitted that the delegate did not accept the cause given for the scars, and they were clearly an issue before the delegate. The delegate only accepted that there was a possibility that the Applicant had been attacked, and this does not rise to the level of a finding concerning the cause of the scars.
Accordingly, it was submitted the scars were before the delegate for consideration and not finally dealt with and accordingly, the Applicant could have been under "no illusion that the claim would not be part of the issues before the RRT". Further it was argued that the Applicant gave oral evidence during the hearing concerning the scars and the circumstances in which he allegedly received them (Exhibit A2, page 19).
The First Respondent submitted that an examination of the Tribunal’s decision does not demonstrate any finding or even consideration of addresses or whether the Applicant was in hiding because of persecution. That issue was raised squarely before the Tribunal as part of the issue on review. Hence, it could not be argued that the Applicant would form the belief that credibility and as a result claims of being in hiding were not a matter for the Tribunal to consider.
Reasoning
In my view, the issue of the causation of the scars was clearly raised before the delegate and not finally determined in favour of the Applicant. The only finding made by the delegate, referred to by both parties, raised a possibility that the Applicant had been attacked. It did not make a positive finding in favour of the Applicant concerning the scars.
In my view, the Applicant in those circumstances has clearly been made aware that the issue concerning the scarring was a contentious issue and that his version of the causation of the scars, as with other issues, was a matter which had not been finally determined in his favour. Where the delegate simply makes a general finding, perhaps giving the benefit of the doubt to the Applicant, that cannot be then converted into a positive finding in favour of the Applicant which would alleviate the Applicant from regarding the issue as a "live issue" to be decided by a Tribunal at a subsequent hearing.
In the present case, applying the authorities to which the parties referred, I am not satisfied that there has been any omission on the part of the Tribunal by its alleged failure to tell the Applicant something different from what the Applicant had known arising out of the delegate's decision.
To explore further a claim of causation of scarring does not constitute telling the Applicant something different from what he may have been told by the delegate and nor does it give rise to the Applicant having an entitlement to make an assumption that the issue that arose before the delegate was no longer an issue before the Tribunal.
On the material before me the delegate clearly considered the issue but did not make a final decision as to the causation of the scarring. Instead, the delegate merely found the claims "difficult to accept" and, as noted earlier in this judgment, only accepted the Applicant "may have been harassed, threatened and possibly attacked in the period of election campaigns in Sri Lanka" (emphasis added). That, in my view, is not sufficient to enable the Applicant to succeed in relation to this ground.
Likewise, I am not satisfied that the Tribunal has erred in the matter in which it considered the claim made regarding the Applicant's reasons for going into hiding. It dealt with that matter in a manner free of jurisdictional error. It had concerns about the Applicant's credibility, which were matters entirely open to the Tribunal, and consequently, having raised significant credibility findings, it did not need to explore in further detail the claims made by the Applicant of being in hiding.
Ground 3 - A failure to consider relevant considerations, in failing to deal with the claim of suffering serious personal injury in the context of threats and intimidation by the Applicant's political opponents
Applicant's submission
It was argued the Tribunal was obliged to have regard to relevant material and considerations (see Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24). The Tribunal, it was submitted, was obliged "to consider and determine substantive issues arising on the evidence and material before it" (see Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28).
It was submitted the Tribunal had treated threats made to the Applicant as separate and distinct from his claim that he had suffered physical injury. In doing this, the Tribunal, it was argued, "incorrectly refers to the applicant's claims as having experienced 'idle threats' never put into practice whereas his claim was that he suffered threats, and within that context serious physical injury".
Reference was made to the Tribunal's finding that the Applicant had made quite “vague and general claims that he suffered harm from political opponents ... that he was regularly harassed and threatened by political opponents and their hired thugs ..." Specifically it was noted that in referring to those threats the Tribunal stated:
“In the case of the applicant he has not reported suffering any specific harm as a result of these threats and intimidation and has not indicated that any of his political opponents carried out, or attempted to carry out, these threats ... I find that these threats were idle threats ...”
(Court Book p.104)
That statement of the Applicant's case by the Tribunal, it was argued, is quite completely inaccurate and misleading as "he claimed to have suffered injury in the course of his claims to have suffered threats and intimidation by his political opponents". Accordingly, it was submitted that in relation to the claims of being threatened the Tribunal did not have regard to and did not deal with the Applicant's claim before it, it therefore did not deal with the integer of the claim.
First Respondent's submissions
It was argued that this ground effectively is an invitation to the Court to impermissibly engage in merits review. The Tribunal had accepted the Applicant had injuries, though, as indicated earlier, was not satisfied as to the causation, that is a finding of fact by the Tribunal. Although it accepted the Applicant experienced threats, it was submitted that "there was no evidence to link the injuries and the threats".
The Tribunal then proceeded to make the finding open to it that the Applicant did not have a well founded fear of persecution and was not at risk of persecution, as defined in s.91R of the Migration Act. The Tribunal was entitled to conclude that the "idle threats" from the Applicant's political opponents, in the context of "passionate and inflamed political participation and campaigning", was a finding open to the Tribunal, leading it to make a significant finding that the threats received by the Applicant did not amount to "serious harm" for the purposes of s.91R of the Migration Act.
The question of whether the conduct as alleged by the Applicant constitutes "serious harm", it was submitted, is a factual issue for the Tribunal (see Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at 268).
Reference was also made to the High Court decision in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 60 where it was held that a declaration of intent in itself is insufficient. It was submitted there must be a risk of danger that it would be carried out in the future.
It was submitted the Tribunal in the present case found that, taking into the account the Applicant's evidence, there was no likelihood of the threat being carried out in the future. The evidence supported that conclusion, and it was argued that the Applicant now seeks to revisit the facts.
Reasoning
In my view, this ground does impermissibly seek to encourage the Court to undertake a merits review. The Tribunal did consider the claim of threats, but as indicated earlier in this judgment, it analysed and rejected the evidence concerning the injury to the Applicant, and in particular the scarring. It was not satisfied that the scarring was connected with and/or caused by the political activities of the Applicant.
Having made that finding as to the physical injuries as claimed, the Tribunal was then entitled to consider the threats and to do so in a manner which may appear to be in isolation but rather was conducted in a manner consistent with its earlier adverse finding. It would be somewhat artificial for the Tribunal, having rejected the causative link between the scarring and political activity, to then link that physical injury with its consideration of the threats.
In my view, the Tribunal was entitled as part of its fact finding mission to undertake an analysis of whether or not the claimed conduct amounted to "serious harm" and specifically was entitled to make findings reasonably open to it that the Applicant had not suffered serious harm for the purpose of s.91R of the Migration Act.
Accordingly, this ground fails.
Ground 4 - The Tribunal made a finding that was not open to it on the material before it, dismissing the evidence of the Applicant's wife's letters as having no weight and being "vague"
Applicant's Submissions
The Applicant submitted that the finding by the Tribunal that the wife's letters were of "no weight" and that they were "vague" was not open. Reference was made to the letters, set out earlier in this judgment.
During the course of submissions it was noted that the letters refer to a time, at least in terms of an event occurring "a week after" the Applicant had left, and further reference to detail concerning the conduct of others, including attending the premises of the wife in a car "without a number plate".
It was submitted therefore that the Tribunal in its decision made a finding not reasonably open to it, namely that the letters, "contain little detail about when these threats have occurred and who actually made these threats". Further, the Tribunal goes on to state they are "vague and appear to have been written by the Applicant's wife in order to enhance the applicant's claims for refugee status". It was argued those findings were not reasonably open to the Tribunal and that it was not entitled to then decide not to place "any weight on these letters when making" its decision.
First Respondent's submissions
It was submitted on behalf of the First Respondent that the Applicant has not challenged that the letters do not detail precisely who made the threats, that is, people are not identified.
Reference was made to the decision of Allsop J in VGAO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 68 (VGAO) where the court in that case held that a question of weight to be given to material does not give rise to jurisdictional error.
The finding made by the Tribunal in this instance was open to the Tribunal and the issue of weight a matter for the Tribunal.
Reasoning
I accept the submissions by the First Respondent that the weight given to the evidence is a matter for the Tribunal and that this will not give rise to a claim of jurisdictional error (see VGAO).
It is understandable, however, that the Applicant is concerned with the Tribunal's findings, and particularly the conclusion by the Tribunal that the letters "contain little detail about when these threats have occurred and who actually made these threats".
Whilst there may be very little detail about when the threats occurred, it is clear from at least one extract, from the first letter dated 16 June 2005, that a temporal reference is arrived at simply by reference to the fact that the vehicle came "at night at week after you had left," according to the author. Clearly, however, it is open to the Tribunal to conclude that that temporal reference is insufficient and to otherwise place little weight on the letters due to the failure to identify the would‑be assailants.
The Tribunal felt that the letters contained "little detail". That is not the same as saying that the letters provided no detail at all, and, in any event, I am satisfied that the Tribunal, having analysed the letters, was entitled to make an assessment of that evidence and to then decide whether it would or would not place weight upon the letters.
Whilst the Tribunal's rejection of the letters and/or their reliability has no doubt caused some concern to the Applicant, I am satisfied that the Tribunal's findings in relation to the letters was reasonably open to it and that no jurisdictional error has been disclosed.
Accordingly, this ground fails.
Ground 5 - The decision was affected by jurisdictional error, in that there was a reasonable apprehension of bias
Applicant's Submissions
It was submitted in this instance that the Applicant only relies upon apprehended bias. It was conceded that the test of apprehended bias is a high threshold and is well settled.
The Applicant did not appear to dispute that the relevant test has been set out in a number of cases, including the decision of Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCA 872 where Her Honour states:
“25The test for apprehended bias in relation to curial proceedings is well-settled. The test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided: see Ex parte H, at 434 per Gleeson CJ, Gaudron and Gummow JJ. As their Honours observed, this rule may be expressed differently when applied to administrative proceedings, in order to take account of the nature of the decision-maker and its proceedings. "[R]egard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject matter with which the decision is concerned": see Ex part H, at 427. Further, their Honours posited, at 434-5, that:
‘Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.’”
Her Honour's reference to "Ex parte H" appears earlier in the judgment and refers to Refugee Tribunal Re; Ex parte H (2001) 179 ALR 425.
It was submitted by the Applicant that the critical findings, set out earlier in this judgment, taken cumulatively, should lead the Court to conclude that there is in this instance a reasonable apprehension of bias.
First Respondent's Submissions
It was submitted on behalf of the First Respondent that, simply because the Tribunal made adverse factual and credibility findings, that does not lead to a conclusion that the Tribunal was biased.
It should not be concluded that, by making adverse findings against the Applicant in relation to his credit, the Tribunal therefore did not treat the Applicant's claims with an open mind (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 per von Doussa J at [38] ).
In the present case it was submitted that “there was no evidence before the Court that a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker's view”. The Applicant's allegations, it was submitted, "fail to satisfy the test of apprehended bias".
Reasoning
In my view, applying the relevant authorities to the present claim, I am not prepared to accept that there is sufficient evidence to justify a finding of apprehended bias.
The Tribunal has made significant adverse credibility findings and has rejected substantial claims made by the Applicant. It has done so in a manner free of jurisdictional error. In my view, where a Tribunal makes what might be described as significant or even strong adverse findings against an Applicant, including adverse credibility findings, that does not of itself provide any or any proper basis upon which the court can conclude that there should be an apprehension of bias.
In the present case I can see no evidence which would justify a finding of apprehension of bias and I am not satisfied that a fair‑minded or informed person might reasonably apprehend that the Tribunal might not bring or might not have brought an impartial mind to bear on its decision in this application. Rather, the Tribunal has simply rejected a number of substantial claims made by the Applicant, and, in doing so, has made a significant adverse credibility finding. That is not, in my view, sufficient to constitute apprehended bias.
Accordingly, this ground should fail.
Conclusion
It follows therefore that the application should be dismissed, with costs.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 22 May 2007
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