MZZMG v Minister for Immigration
[2015] FCCA 607
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZMG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 607 |
| Catchwords: MIGRATION – Refugee Review Tribunal – protection visa – consideration of UNHCR Guidelines – weight given to corroborating evidence – standard of interpretation – Briginshaw test. |
| Legislation: Immigrants and Emigrants Act No 31 of 2006 (Sri Lanka) |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; (1938) 12 ALRJ 100; [1938] ALR 334; [1938] HCA 34 Durairajasingham v Minister for Immigration and Multicultural Affairs and Others (2000) 58 ALD 609; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 21(2) Leg Rep 2; [2000] HCA 1 M100 of 2004 v Minister for Immigration and Citizenship (2007) 213 FLR 63; [2007] FMCA 829 FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754; (2014) 64 AAR 15; (2014) 310 ALR 1; [2014] HCA 26 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 |
| Other materials: UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, United Nations High Commissioner for Refugees, HCR/EG/LKA/12/04, 21 December 2012 |
| Applicant: | MZZMG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 854 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 30 January 2015 |
| Date of last submission: | 13 February 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 19 March 2015 |
REPRESENTATION
| Advocate for the applicant: | Ian Cunliffe |
| Solicitors for the applicant: | Ian Cunliffe, solicitor |
| Advocate for the first respondent: | David Brown |
| Solicitors for the first respondent: | Australian Government Solicitor |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Australian Government Solicitor |
ORDERS
The application filed on 14 June 2013 and amended on 3 February 2015 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 854 of 2013
| MZZMG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.
The applicant’s claims
The applicant is a young Tamil male from the north-west of Sri Lanka. In a statutory declaration made on 20 September 2012, the applicant claimed that:
a)his father was a fisherman who went missing in about 2002 when the applicant was about nine years old;
b)the people in his village said that the applicant's father had been kidnapped by the Criminal Investigation Department (“CID”);
c)the applicant's father had not been seen since that time;
d)the CID had come to the applicant’s home and harassed his family;
e)the CID and the Sri Lankan Army (“SLA”) were concerned that the applicant would inform the United Nations about his father's kidnapping;
f)the applicant and his brother would hide elsewhere when the CID and SLA came to their house;
g)the CID and SLA threatened the applicant's mother that she and her sons would be killed if they ever filed a complaint;
h)Grease Devils came to the applicant's house, broke windows and doors and caused the family to be afraid for the safety of the applicant's younger sister;
i)since the applicant has left Sri Lanka, the CID and SLA have visited his house and asked his mother where he and his brother are;
j)as a failed asylum seeker, the applicant would be suspected of having told the Australian authorities of the atrocities committed by the CID and the SLA;
k)as a young Tamil male returning from a Western country the applicant would be tortured and killed; and
l)his uncle, aunt and cousins had gone to the United Kingdom and sought asylum there on the grounds that they were suspected of being LTTE members.
The applicant and his younger brother both gave evidence to the Tribunal with the assistance of an interpreter.
The Tribunal’s reasons
The Tribunal accepted that, in about 2002, the applicant's father was taken by the CID and never seen again. The Tribunal considered that that claim was consistent with general country information from that period.
However, the Tribunal did not accept that the authorities regularly came to the applicant's house to search for him and his brother.
The Tribunal found that claim to be implausible, given that the applicant was only nine years old at the time of his father's disappearance. The Tribunal also considered that the applicant’s evidence about the authorities coming to his house and looking for him was vague and lacked detail. The Tribunal also considered that, if the authorities had wanted to find the applicant, they could have found him at, or on the way to or from, his school or work. The Tribunal also found inconsistencies in the applicant's claim to have stayed at other houses to avoid detection.Consequently, the Tribunal did not accept that, since the applicant had departed Sri Lanka, the authorities had come to his house looking for him.
The Tribunal accepted that the applicant’s relatives had been granted asylum in the United Kingdom. However, as that had happened many years ago, when the applicant was very young, the Tribunal did not accept that it led to the applicant facing a real chance of persecution or significant harm on account of his membership of a social group consisting of his family or his imputed political opinion as an LTTE supporter.
Based on country information, the Tribunal did not accept that the applicant faced a real risk of significant or serious harm on the basis of his Tamil ethnicity. Based on inconsistencies in the applicant's account and based on inconsistencies with country information, the Tribunal did not accept that the applicant faced a real risk of serious or significant harm in relation to the Grease Devil claims.
Because of the “very high degree of problems” that the Tribunal had with the applicant's credibility, the Tribunal did not place any weight on his brother’s evidence.
The Tribunal considered at length the applicant’s claims as a failed asylum seeker who had departed Sri Lanka illegally. However, the Tribunal did not consider that the applicant faced a real risk of substantial or significant harm for those reasons.
Ground 1
The first ground of review in the application filed on 14 June 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness, or in the alternative is affected by errors of law amounting to jurisdictional error, in that it failed properly to consider the LTTE links of the Applicant and the implications of those links for the Applicant if he returns to Sri Lanka.
Particulars
The then operative UNHCR (2012) eligibility guidelines “the possible risks facing individuals with the profiles outlined below require particularly careful examination, ... (i) persons suspected of certain links with [LTTE]”.
(at paragraph 27 of the Decision Record and page 5 of the eligibility guidelines). The eligibility guidelines then elaborate on that category (i) to include “Persons with family links or who are dependents on or otherwise closely related to persons with the above profiles.” (at paragraph 28 of the Decision Record and pages 26-27 of the eligibility guidelines). The “persons with the above profiles” referred to there are in turn categorised above at those referenced pages of the eligibility guidelines. They focus in particular on persons who were LTTE cadres and the like.
The Tribunal’s Decision Record shows clearly that it accepted that the Applicant’s father was taken to the CID in approximately 2002 “and never seen again.”
The Tribunal’s acceptance that the Applicant’s father was taken to the CID in approximately 2002 “and never seen again” must be taken as acceptance also that the Applicant’s father was a Tamil who was suspected by Sri Lankan Government authorities.
To similar effect is the Tribunal’s apparent acceptance that the Father’s brother and his family fled Sri Lanka 9-10 years previously and were given asylum in the UK.
Under the heading “General Tamil claims” the Tribunal makes a finding accepting that incidents such as kidnapping of certain Tamils do still occur in Sri Lanka.
Despite these findings by the Tribunal and despite the guidance of the then operative UNHCR (2012) eligibility guidelines that the possible risks facing individuals with the profiles including persons suspected of certain links with LTTE “requiring particularly careful examination”, the Tribunal’s Decision Record is entirely silent as to the implications of this for the Applicant – except to pass the matter off by in effect saying that that was 9-10 years before the Applicant fled from Sri Lanka.
It was incumbent on the Tribunal to probe what those matters indicate about the possible risks facing the Applicant. And to give them “particularly careful examination” Rather the Tribunal treated the Applicant as just another Tamil.
This ground essentially and impermissibly invites the court to engage in merits review. The Tribunal was under no obligation to apply the UNHCR Guidelines. They were not a relevant consideration, such that their consideration was mandatory.[1] Nor were they rules that the Tribunal was bound to apply.
[1] M100 of 2004 v Minister for Immigration and Citizenship (2007) 213 FLR 63; [2007] FMCA 829 at [102] and [103].
In any event, the Tribunal set out certain parts of those Guidelines at paragraphs 27 and 28 of its reasons for decision. The Tribunal, for that reason, and in the absence of anything to the contrary, can be taken to have considered them.
The Tribunal also set out a good deal of country information and assessed the applicant’s claims against that country information. It was entirely proper for the Tribunal to do so, as explained by the Full Federal Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], where the court said:
… There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
The Tribunal gave detailed reasons for not accepting that the applicant and his brother were pursued by the authorities, even though the Tribunal apparently accepted that his father had been killed by them on suspicion of having assisted the LTTE. The rejection of the applicant’s core claim was open to the Tribunal, as the finder of fact, after taking into account all of the applicant’s claims and the country information.
It was also open to the Tribunal to consider that the fact that the applicant’s relatives had fled to the United Kingdom was so long ago that it had no bearing upon the applicant’s circumstances. That was an assessment of fact that was quintessentially a matter for the Tribunal.
The Tribunal also found some of the claims of the applicant to be implausible. It was open to the Tribunal to do so, as McHugh J explained in Durairajasingham v Minister for Immigration and Multicultural Affairs and Others (2000) 58 ALD 609; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 21(2) Leg Rep 2; [2000] HCA 1 at [67]:
In addition, the prosecutor alleges that the Tribunal breached
s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision - maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.
This ground is not made out.
Ground 2
The second ground of review in the application filed on 14 June 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness; or in the alternative is affected by errors of law amounting to jurisdictional error in that the Tribunal’s conclusion that certain aspects of the Applicant’s evidence was implausible failed to have regard to the LTTE links of the Applicant and the implications of those links for the Applicant if he returns to Sri Lanka, as set out in Ground 1 above.
As explained in Durairajasingham, a finding that the claims of the applicant are implausible is a matter for the Tribunal. The Tribunal was clearly aware of the position of the applicant’s father and the applicant’s uncle. However, for reasons that it gave, the Tribunal did not accept that the applicant, in the reasonably foreseeable future, faced serious or significant harm. This ground again impermissibly seeks merits review. This ground is not made out.
Ground 3
The third ground of review in the application filed on 14 June 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness; or in the alternative is affected by errors of law amounting to jurisdictional error in that the Tribunal’s conclusion that certain aspects of the Applicant’s evidence was implausible was drawn on the basis only that the Sri Lankan CID was concerned that the Applicant (and his brother) might report the father’s disappearance to the UN. It was incumbent on the Tribunal to consider whether there were other bases upon which the CID might have an adverse interest in the Applicant.
The Tribunal failed to consider that key question.
The Tribunal focussed on the risk to the applicant based upon the CID being concerned that the applicant might report his father’s disappearance to the UN because that is what the applicant claimed. However, the Tribunal also considered whether the applicant was at risk because of his family connections more broadly and his Tamil ethnicity. The Tribunal is only obliged to consider the matters that are put by the applicant or that clearly arise from the materials.
The applicant before this court has not identified any matters that the Tribunal was obliged to consider but did not consider. This ground is not made out.
Ground 4
The fourth ground of review in the application filed on 14 June 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness, or in the alternative is affected by errors of law amounting to jurisdictional error, in that the Tribunal did not give evidence given by the Applicant’s brother any weight in assessing the Applicant’s claims.
It was open to the Tribunal to give such weight to the evidence or particular aspects of it as it saw fit. Particularly where the Tribunal has concluded, as here, that the applicant’s claims have a “very high degree of problems”, it is open to the Tribunal to give no weight to potentially corroborating evidence. In any event, the brother’s evidence had the same problems with it that the Tribunal had identified with the applicant’s evidence. If anything, the problems with the brother’s evidence were greater, as the brother was even younger when the claimed events occurred. This ground is not made out.
Ground 5
The fifth ground of review in the application filed on 14 June 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by jurisdictional error in that it did not afford the Applicant procedural fairness; or in the alternative is affected by errors of law amounting to jurisdictional error in that the person engaged by the Second Respondent to translate the Tribunal’s questions to the Applicant and his responses was an Indian Tamil rather than a Sri Lankan Tamil with the result that the Applicant had great difficulty in understanding the interpreter and communicating with him.
Particulars
Further, the Second Respondent committed an error of law amounting to jurisdictional error in that it failed to take into account the effects on apparent credibility of the Applicant caused by the consequent difficulties of interpretation.
In support of this ground, the applicant affirmed an affidavit on
30 January 2015. That affidavit was filed without objection and was not challenged. I accept the evidence contained in it. Paragraph 3 of that affidavit said:
The person who interpreted when I appeared before the Refugee Review Tribunal appeared to be an Indian Tamil speaker. I had great difficulty in understanding him and communicating with him.
In SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 at [71] to [81], Griffiths J said:
71.The principles concerning mistranslations were recently discussed and analysed at some length in SZRMQ and, in particular, in the judgments of the Chief Justice at [13]-[24], Flick J at [42]-[44] and Robertson J at [65]-[75] (noting that his Honour also expressed his agreement at [74] with the Chief Justice’s general comments and his analysis of the authorities). As noted above, that case arose in a context other than s 425 of the Act. It was primarily concerned with the application of common law procedural fairness requirements to mistranslations or non-translations. It is evident, however, that there is some overlap in the relevant principles in a statutory and non-statutory context, even though, as Robertson J observed in SZRMQ at [74], s 425 of the Act may pose a “blunter question” of whether the Tribunal has given an applicant an opportunity to appear before it to give evidence and present arguments relating to the relevant issues.
I consider that it is unnecessary in this appeal to define with precision the extent of that overlap.
72.In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this which raises the application of s 425 of the Act is essentially that which was applied in cases such as Perera, SZOYU, Appellant P119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in a s 425 context in the following terms at [29]:
To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry...
73.In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of
s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in
s 422B(3) that, in applying Div 4, the Tribunal must act a way that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]).
74.Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.
75.Nor did the Minister contest the following observations of Allsop CJ in SZRMQ at [17]-[18]:
In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant's statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.
In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:
It is plain that there was a variety of factors operating upon the Tribunal's determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.
76.In SZRMQ, Robertson J agreed with the Chief Justice’s view that there is no requirement, at least for the purposes of procedural unfairness, to establish a causal connection between a mistranslation and the decision-maker’s ultimate conclusion. At [67]-[69], Robertson J said:
Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated.
The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness.
77.I respectfully agree with those observations, which were not challenged by the Minister here. I consider that they apply equally to a complaint that there has been non-compliance with the requirements of s 425.
78.In my opinion, Robertson J provided further useful guidance in SZRMQ. For example, his Honour emphasised the importance of distinguishing between a case where the mistranslation or non-translation is frequent or continuous, as opposed to a case where the errors are intermittent (see SZRMQ at [70]). His Honour also drew attention, correctly in my view, to:
(a)the importance of keeping separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see SZRMQ at [73]); and
(b)the distinction to be drawn between a mistranslation and a lack of detail in the relevant question the subject of translation (SZRMQ at [114]).
79.A further relevant principle is that in assessing whether or not one or more mistranslations or non-translations give rise to jurisdictional error, it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected (see generally the observations of Kenny J in Perera at [29]-[31]). It may well be enough that the translation is sufficiently accurate so as to convey the idea or concept being communicated (WACO at [66]).
80.Furthermore, it is necessary to consider not only alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the overall process, but also to have regard to their cumulative effect. As Robertson J said in SZRMQ at [116]:
I turn finally to consider whether, in the aggregate, the mistranslations constituted a denial of procedural fairness. In my view, in the circumstances of this case, they did not. While care must be taken to examine whether errors in translation may have contributed to adverse findings or otherwise have been of significance to the process and thereby to a lack of procedural fairness, in the present appeal the sum of the mistranslations did not rise to that level. The errors of translation were intermittent rather than continuous and did not have a cumulative effect.
81.Finally, as noted above I did not understand the Minister to contest the proposition as stated by Jagot J in SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] that the question whether inadequate interpretation has deprived an applicant of the opportunity given by
s 425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”.
In this case, the Minister provided to the court a full copy of the transcript of the Tribunal hearing on 25 February 2013. There was a second Tribunal hearing on 8 May 2013 concerning changes to Sri Lankan legislation, namely, the Immigrants and Emigrants Act No 31 of 2006 (Sri Lanka). However, no transcript of the second hearing was made available to the court.
In any event, there is nothing in the transcript of 25 February 2013 that suggests that there was a significant problem with the interpreting. More particularly, at the conclusion of the Tribunal hearing, the applicant was given five minutes to speak with his migration agent before the migration agent made submissions. There was no suggestion in those submissions that there had been any failure in relation to interpreting.
In the absence of expert evidence about what the interpreter said, and what he should have said, it is not possible to conclude that the Tribunal hearing miscarried as a result of inadequate interpretation.
Although the applicant said he had “great difficulty” communicating with the interpreter, that does not mean that ultimately there was any error in interpretation, much less an error that caused the Tribunal hearing to miscarry.
It should also be noted that the first suggestion of difficulties with interpreting appears to have been contained in the application filed in this court. This ground is not made out.
Ground 6
The sixth ground of review in the application filed on 14 June 2013 and amended on 3 February 2015 is:
That the decision of the Second Respondent is affected by errors of law amounting to jurisdictional error in that the Tribunal failed to have regard to the seriousness of its findings that, in giving sworn evidence, the Applicant was attempting to mislead the Tribunal and obfuscate to it, and gave evidence which was not true; and failed to have regard to the need for the high degree of satisfaction which is informed by the seriousness of those findings.
In oral submissions, the applicant suggested, somewhat tentatively, that this ground concerned a failure to apply the rule in Briginshaw v Briginshaw (1938) 60 CLR 336; (1938) 12 ALRJ 100; [1938] ALR 334; [1938] HCA 34. That rule was expressed by Latham CJ at page 347 as follows:
… the ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.
The applicant argued that the Tribunal had made serious findings, in effect, that the applicant had lied to the Tribunal, without acting with the required care and caution.
The rule in Briginshaw has no application in refugee matters, where the Tribunal is required to apply the real chance test. The High Court’s decision in FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754; (2014) 64 AAR 15; (2014) 310 ALR 1; [2014] HCA 26, which concerned Article 1F of the Refugees Convention said at paragraphs [12] to [16]:
12The appellant invoked Briginshaw v Briginshaw, a case which concerned the degree of satisfaction necessary to discharge the civil standard of proof in relation to an allegation, in civil proceedings, of criminal conduct by a party. The requisite degree of satisfaction is informed by the seriousness of the allegation. The Briginshaw approach underpinned the appellant's analogous proposition that the characterisation of evidence as providing “serious reasons for considering” that an applicant for refuge had committed a “serious non-political crime” should be informed by the possible consequences of that characterisation. One such consequence was that a person otherwise qualifying as a refugee might be refouled to a country in which he or she would face persecution for a Convention reason.
The proposition that the consequences of refoulement for an individual applicant for refuge should inform the application of the criterion of “serious reasons for considering” that the applicant has committed a serious non-political crime does not fit readily with the logical structure of Art 1F(b). That argument, however, is not reached in the present case, in which the ultimate question is not about the strength of the evidence necessary to attract the application of Art 1F, but about the logical connection of the facts found by the AAT to the allegation that the appellant had committed a serious non-political crime. Nevertheless, the correct construction of Art 1F(b) does set the framework within which the AAT must undertake its task. (footnote omitted)13The construction of Art 1F(b) in its application to s 36(2)(a) of the Migration Act begins with the ordinary meaning to be given to its terms, read in context and in the light of its purpose. That ordinary meaning does not require a finding that the applicant for refuge has committed a serious non-political crime. The requirement that there be “reasons for considering” that an applicant for refuge has committed such a crime indicates that there must be material before the receiving State which provides a rational foundation for that inference. The question for the decision-maker, and in this case the AAT, was whether the material before it met that requirement. To answer that question in the affirmative the AAT had to demonstrate a logical pathway from the material to the requisite inference. (footnote omitted)
14The qualifying term “serious” indicates that the reasons must be sufficient to support a strong inference. There are a variety of mechanisms, administrative and judicial, by which a receiving State may determine whether that threshold is reached. Weinberg J, in a careful consideration of the construction of Art 1F(b) in Arquita v Minister for Immigration and Multicultural Affairs, stated the position accurately when he said (at [54]): (footnotes omitted)
[54] It is sufficient ... if the material before the decision-maker demonstrates that there is evidence available upon which it could reasonably and properly be concluded that the applicant has committed the crime alleged. To meet that requirement the evidence must be capable of being regarded as “strong”. It need not, however, be of such weight as to persuade the decision-maker beyond reasonable doubt of the guilt of the applicant. Nor need it be of such weight as to do so on the balance of probabilities. Evidence may properly be characterised as “strong” without meeting either of these requirements.
Baroness Hale of Richmond JSC and Lord Dyson MR observed in Al-Sirri v Secretary of State for the Home Department (at [75]): (footnote omitted)
[75] … It is unnecessary to import our domestic standards of proof into the question.
The circumstances of refugee claims, and the nature of the evidence available, are so variable.Underpinning the requirement for strong evidence is a consciousness of the potentially profound adverse consequences of exclusion from the protection of the Refugees Convention for a person otherwise entitled to that protection.
15The criterion for exclusion from the application of the Convention, defined by Art 1F(b), is not to be equated to a standard of proof. Standards of proof are applied in judicial proceedings for the purpose of making findings of fact which attract legal consequences, including civil liabilities and criminal sanctions. They are not substitutes for the application of the ordinary words of Art 1F(b). There is a degree of risk in the use which has been made of them as parameters defining necessary or sufficient conditions for the application of the Article. It has been held that satisfaction on the balance of probabilities that an applicant for refuge committed a serious non-political crime may be necessary to engage Art 1F(b). It has also been held that satisfaction that it is more likely than not that an applicant for refuge has not committed the alleged crime is sufficient to support a conclusion that Art 1F(b) is not engaged.
The proposition that a state of satisfaction beyond reasonable doubt that an applicant for refuge has committed the alleged crime is sufficient to enliven Art 1F(b) may be uncontroversial. However, if there is material strong enough to support such a conclusion it is probably unnecessary to go further than a finding that the material constitutes serious reasons for considering that the alleged crime has been committed. The risk with the use of domestic standards of proof as analytical tools is that they can evolve into substitutes for the words of the Article and may result in the bar being placed too high or too low, according to the circumstances. (emphasis added) (footnotes omitted)16It should be said, however, that the absence of a requirement under Art 1F(b) for a positive finding that the applicant has committed a serious non-political crime does not mean that the criterion requires anything less than “meticulous investigation and solid grounds”. In particular, and relevant to the present case, the decision-maker must pay close attention to the probative relevance of the material said to engage the application of Art 1F(b) in order to answer the question which the Article poses. (footnotes omitted)
The first respondent also referred to the decision of this court in SCAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 129 at [10], where Raphael FM said:
The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 would apply. The fallacy in that argument is that Briginshaw relates to adversarial proceedings and requires the person asserting the fact to prove it to the higher standard. These proceedings are inquisitorial.
While FTZK concerned a different type of refugee matter to the present matter, the reasoning in the passage set out above in bold applies equally. There is no reason to suppose that the Tribunal in this case did not apply the correct test, namely, whether the applicant faced a real chance of persecution. This ground is not made out.
Ground 7
The seventh ground of review in the application filed on 14 June 2013 and amended on 3 February 2015 is:
Further, the decision of the Second Respondent is affected by errors of law amounting to jurisdictional error in that the Tribunal failed to have regard to the seriousness of the consequences of its decision for the Applicant and the consequent need for the high degree of satisfaction which is informed by the seriousness of that decision.
This ground essentially repeats the Briginshaw point. It must fail for the same reasons.
Other matters
The applicant said in his affidavit affirmed on 30 January 2015 that:
1.When I was being questioned in the Tribunal about what happened to me in Sri Lanka, it was late in the afternoon. The Tribunal member appeared repeatedly to look at the time and to be in a hurry because it was approaching 5 pm. For that reason, I felt rushed and unable to take time to give full answers to his questions.
2.I have not given the Minister or his Department or the Tribunal details about the involvement of people closely related to me in the LTTE because of my concern for the safety of my family and my own safety if I am returned to Sri Lanka.
The first point appears to concern the Tribunal hearing on 25 February 2015. The transcript of the hearing on that day indicates that the Tribunal hearing started at 1.05pm and concluded at 5.25pm. The bulk of the hearing proceeded in the normal way with questions and answers that appeared to be given fulsomely. At the conclusion of the evidence, the transcript shows that the following exchange occurred:
MEMBER:It’s just hit 5 o’clock, so I’m sort of conscious of the time. I see you had a bit to say. [Agent], do you need time to speak to your clients before making a submission, or do you…
AGENT: Perhaps five minutes.
MEMBER: Five minutes?
AGENT: Yes, because I’m not sure if they have got something to discuss with me.
MEMBER:Interpreter, are you able to stay long? I’m conscious of the fact that…
INTERPRETER: I will stay longer, whenever the…
MEMBER: Thank you, that’s very appreciated.
After a break of seven minutes, the migration agent made submissions, none of which concerned the applicant feeling limited by time in his answers. After the migration agent’s submissions, the Tribunal asked the applicant again if he wished to say anything, and he responded. I do not consider, in these circumstances, that the applicant’s case was unduly impeded by time constraints.
In relation to the second point in the applicant’s affidavit, it is for the applicant to make out his case. The Tribunal can only base its decision on the material before it. These matters do not substantiate a claim of jurisdictional error.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 19 March 2015
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