MZZSN v Minister for Immigration
[2014] FCCA 1067
•2 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZSN v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1067 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Tribunal considered applicant’s claims – whether applicant accorded procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424, 422B, 425, 424AA, 424A |
| SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43 SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18 Prasad vMinister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Luu and Anor v Renevier (1989) 91 ALR 39 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 SZHQC v Minister for Immigration & Anor [2006] FMCA 1275 Dhanoa v Minister for Immigration & Anor [2009] FMCA 383 Goodreau v Minister for Immigration and Anor [2009] FMCA 35 Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1 NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 SZHOA v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 501 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 SZMCD vMinister for Immigration and Citizenship (2009) 174 FCR 415 |
| Applicant: | MZZSN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1493 of 2013 |
| Judgment of: | Judge Jones |
| Hearing date: | 29 April 2014 |
| Date of Last Submission: | 29 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 2 July 2014 |
REPRESENTATION:
| Counsel for the Applicant: | Self represented |
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondents: | Mr Petrie |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS:
The application filed on 12 September 2013 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,646.00 within 28 days of this Order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1493 of 2013
| MZZSN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 August 2013 affirming a decision of a delegate of the Minister for Immigration and Citizenship (as it then was), dated 14 March 2013 not to grant the applicant a Protection (Class XA) visa (“the Protection visa”).
The applicant is a 37 year old citizen of Sri Lanka who arrived in Australia on 29 July 2012 as an un-authorised maritime arrival (CB 20, 22, 128). His ethnicity is Tamil and his religion is Catholic.
Applicant’s claims
The applicant applied for the protection visa on 1 November 2012. Included with his application was a statutory declaration setting out his claims for protection (CB 40 to 42). In this statutory declaration, he made the following claims:
a)he was taken by the army to account on April 2009 and remained there until March 2012;
b)in 2011 the CID (the Criminal Investigation Department) questioned him for an hour and then released him;
c)in 2012 he was again questioned by the CID regarding the scars on his hands and legs. He told them he was wounded during a shelling in March 2009, and that his father died that day. He was beaten by the CID as they were suspicious of him as he lived in a LTTE area. He told the CID that two of his cousins died the day after his father, that there were five deaths from his family. After he told them this they released him;
d)because of the CID questioning he was fearful so he applied for leave from the camp. This was granted but he was told to return in 15 days;
e)he did not return in 15 days. He was afraid CID would find out and look for him and that is when he decided he needed to leave Sri Lanka and go overseas;
f)he left Sri Lanka on 14 June 2012 by boat having paid an agent Rs.1 million;
g)he fears that because of the questioning by the CID and the fact he didn’t return to the camp in 15 days, if he returns to Sri Lanka the CID will question him and shoot him;
h)as a Tamil he has no protection from the authorities;
i)he is not able to relocate as the CID will find him anywhere he goes in Sri Lanka; and
j)as he left Sri Lanka illegally he will be subjected to questioning by the CID.
On 19 March 2013, the applicant applied to the Tribunal for merits review of the delegates decision (CB 120 to 146). On 13 May 2013 the applicant nominated representative provided the Tribunal with a written submission (CB 172 to 245). In the written submission the following claims were made:
a)the applicant fears he will be persecuted on the basis of his Tamil ethnicity. Peoples of the Sinhalese ethnicity form the majority and control their police force and army in Sri Lanka. Tamils continue to be regularly abused and persecuted by the Sri Lankan authorities. Young single Tamil males like the applicant are suspected of affiliation with the LTTE as a consequence of their ethnicity. Tamils who seek asylum in the West and who are returned to Sri Lanka are more likely to be suspected of LTTE links. The applicant is therefore, as a result of his ethnicity, likely to be harmed by the Sri Lankan authorities if returned (CB 174 to 175);
b)the applicant fears persecution by reason of his membership of a particular social group this being returnee asylum seekers. Tamil returnees from the West are particularly vulnerable and likely to be detained and tortured if re-fouled. Given his ethnicity and the fact he is a single Tamil male he will be seen as a dissident and having involvement with the LTTE (CB 177);
c)the applicant fears persecution by reason of his membership of two particular social groups; a young male Tamil and a returnee from the West. He will also be persecuted on the basis of an implied political opinion, that being an anti-regime political opinion (CB 177);
d)the applicant cannot seek protection from the Sri Lankan authorities because they are the ones responsible for his persecution (CB 178); and
e)in the event that the applicant is not a refugee for a convention reason there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm if re-fouled from Australia.
The submission included extensive extracts of country information. On 6 June 2013 the applicants nominated representative provided the Tribunal with further written submissions which contained extracts of country information (CB 261 to 270).
Tribunal decision
The applicant appeared before the Tribunal on 24 May 2013, together with his migration agent, to give evidence and present arguments. At the hearing the applicant was invited by the Tribunal to comment on certain information which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. Following the hearing, on 6 June 2013, the applicant’s nominated representative provided the Tribunal with further written submissions containing extracts of country information (CB 261 to 270).
In considering the claims and evidence of the applicant, the Tribunal referred to the statutory declaration attached to the applicant’s application for a protection visa, information from a departmental interview the applicant attended on 19 February 2013, the evidence given at the hearing before the Tribunal and the submissions provided by the migration agent to the Tribunal. The Tribunal noted that during the hearing the applicant submitted letters from the parish priest and two articles from the Sydney Morning Herald online (CB 279 at [23] to [25]).
The Tribunal identified the applicants claims as:
“He will be persecuted if returned to Sri Lanka on the basis of his Tamil ethnicity, his membership of the particular social groups young Tamil males and returnee from a western country and an imputed political opinion.” (CB 279 at [23])
The Tribunal accepted that (CB 280 at [29] to [30]:
·the applicant and his family were displaced from their village and moved into an IDP camp in April 2009;
·the applicant’s father was killed in a mortar attack along with other members of his family in March 2009 and the applicant was injured in the same attack;
·the applicant lived in the IDP camp in Vavuniya until 1 March 2012; and
·the applicant may have been questioned by the CID in mid – 2011 for a period of an hour, noting the applicant’s evidence at hearing that he had never been questioned by the CID or any other authority before this particular occasion.
The Tribunal stated, however that, on the basis of the relatively short period of questioning, it did not accept that the applicant was suspected of being associated with the LTTE by the CID (CB 280 at [30]). The Tribunal stated at [31]:
“31.While the Tribunal accepts that some general enquiries may have been made with the applicant in mid-2011, the Tribunal does not accept that any further enquires were made with the applicant by the CID and it also does not accept the applicant was questioned again on 28 February 2012. The Tribunal has carefully considered the applicant’s evidence and finds for the following reasons that the applicant was not of any interest to the CID and was not questioned for a second time in February 2012.
32.First, the Tribunal does not accept that if the applicant was suspected of having an association with the LTTE and was of interest to the CID for this reason, that they would have waited several months after they questioned him the first time, to make enquiries with him a second time. As the Tribunal put to the applicant in the hearing, taking into consideration the country information regarding the treatment of people suspected of being LTTE members or supporters, particularly in the camps, the Tribunal finds it implausible that the applicant would have been simply let go after being questioned by the CID after just one hour and subsequently questioned a second time so many months later if he was truly suspected of having an association with the LTTE. The Tribunal has taken into consideration the applicant’s explanation that the CID officers change their rotations and there were new officers in 2012 and they went through the files and made enquiries based on that. The Tribunal finds it far-fetched that if the CID had a file on the applicant and he was suspected of having an association with the LTTE, that he would have simply been questioned for an hour in mid-2011 and nothing further happen until several months later when allegedly new CID officers were posted to the camp. The Tribunal also finds it implausible that in a camp which was described by the applicant as being a big place with a high population, that every time new CID officers were stationed at the camp, they would make new enquiries with people who had been questioned at some stage earlier.
33.Secondly, the Tribunal finds it improbable that if the applicant was taken a second time for questioning on the basis of suspected association with the LTTE, during which time he was allegedly beaten, that he would again be released after only one hour of questioning.
34.Thirdly, the Tribunal finds it implausible that if the applicant was suspected of having an association with the LTTE and had been questioned by the CID, he would have subsequently be granted a leave pass for fifteen days, the day after he had been allegedly taken by the CID for questioning. The Tribunal has taken into consideration the applicant’s evidence in the hearing that the CID has one procedure and the police have a different procedure and that the CID, police and army operate separately, however it does not accept that these authorities operation in complete isolation and there would be no communication at all between them given the obvious deficiencies such a lack of system would have. The Tribunal has also had regard to the applicant’s evidence in the hearing that the leave form was required to be authorised by three different people, the Gramsevak, the district officer and the Army Officer in Charge and in light of the various officials who are required to approve such leave passes, the Tribunal finds it implausible that if the applicant was a person of interest to the CID based in the camp, that it would not be known to at least one of these three people.
35.Fourthly, the Tribunal finds it far-fetched that if the applicant was suspected of being associated with the LTTE and had been questioned by CID on 28 February 2013 (sic), that there were no enquiries made regarding his whereabouts during the three months he was still in Sri Lanka, after he did not return when the fifteen days of permitted leave had passed. According to the applicant’s evidence in the hearing, his family had no contact from authorities regarding him or his whereabouts until after he left Sri Lanka and came to Australia. The Tribunal finds it implausible that the CID would conveniently wait more than three months, until after the applicant had left Sri Lanka, before making any enquiries about his whereabouts. The Tribunal does not accept the applicant’s explanation in the hearing that only after he left the country the CID checked the form system and saw that he had made a request for leave and he was not there. The Tribunal finds it implausible that if the applicant was suspected of being associated with the LTTE and had allegedly been questioned by the CID at the end of February 2012, during which time he was allegedly told he would be called back and taken, that the CID would not be aware that he was no longer in the camp until several months later. As the Tribunal put to the applicant in the hearing, the fact that nothing happened for several months after he did not return to the camp suggests he was of no interest to the CID or anyone because he was suspected of being LTTE or for any other reason.
36.The Tribunal does not accept the assertions made in the applicant’s adviser’s submission dated 13 May 2013 that the applicant was questioned by the authorities on numerous occasions. The applicant gave clear evidence in the hearing that he was not questioned by the CID or any other authorities before the first time he was questioned in mid-2011 and then there were only one other occasion that he was questioned, on 28 February 2012.
…
38.While the Tribunal accepts that the applicant did not return to the camp after being granted a leave pass allowing him to go to Mullaitivu and return in fifteen days, the Tribunal does not accept that the applicant will face persecution on return to Sri Lanka for this reason. The Tribunal notes that according to the applicant’s evidence he spent three months in Mullaitivu, prior to departing the country, without experiencing any problems and during that time no enquiries were made with his family members who remained in the camp about his whereabouts. The Tribunal also notes that in that three month period, after the applicant had failed to return to the camp, his brother was also permitted to leave the camp. The Tribunal finds it implausible that if the applicant’s failure to return to the IDP camp was of concern to the CID, army or any other authorities, there would not have been any ramifications for his family members remaining in the camp or at the very least, some investigations made regarding his whereabouts. While the Tribunal accepts the applicant’s name may have eventually been removed from his family’s relief assistance card, as the Tribunal put to the applicant in the hearing, this appears to be consistent with him no longer living in the camp. The Tribunal also accepts in these circumstances the applicant’s claim that after he had come to Australia, his mother and brothers may have been asked to advise the authorities of the applicant’s return to the camp. In considering all the circumstances, the Tribunal does not accept the applicant’s failure to return to camp within fifteen days is of any particular concern or ongoing interest to the CID or anyone else. The Tribunal has also taken into consideration the fact the applicant’ family are no longer living at the IDP camp and are residing in their home village in Mullaitivu. In light of all these circumstances, the Tribunal does not accept that there is a real chance the applicant will face serious harm from the CID, the army, police or any other authorities because he left the IDP camp in March 2012 and did not return.”
The Tribunal did not accept that a Tamil person will be imputed to be a supporter or to be involved with the LTTE solely on account of their ethnicity nor that Tamils as a group are vulnerable or exposed to serious violence. It reached this view based on country information (CB 282 at [39]).
Having regard to the country information provided by the applicant the Tribunal did not accept that:
·there was a real chance that the applicant would face serious harm for the reason of his Tamil ethnicity or his membership of the particular social group young Tamil males (CB 282 at [40]); and
·a person identified as a returnee from a Western country or failed asylum seeker will face a real chance of serious harm in Sri Lanka solely because they are so identified unless they are also perceived to be actively supporting the LTTE or opposed to the current Sri Lankan government. Given the Tribunal had already found that the applicant did not have such a profile, it did not accept that he will face a real chance of serious harm for this reason (CB 284 at [42]).
As to the applicant’s claim of persecution or serious harm because he left Sri Lanka illegally, having regard to country information the Tribunal found that the applicant may be held in remand for a period of a few hours or possibly a few days, however it did not accept that the applicant being held in detention prior to being bailed constitutes persecution as it is the operation of a law of general application. It further did not accept, given its findings regarding the applicant’s profile, that the applicant would face serious harm during any short period of detention. It therefore did not accept the applicant’s claim as to persecution on grounds of illegal departure (CB 284 at [45]).
The Tribunal concluded (CB 285 at [47]):
“Considering the applicant’s claims individually, and cumulatively, the Tribunal does not accept that he faces a real chance of being persecuted by the CID, any other authorities or anyone else because of his Tamil ethnicity, an imputed political opinion as a suspected LTTE member or supporter or his membership of a particular social group of young Tamil males. Nor does the Tribunal accept that the applicant faces a real chance of persecution as a returnee from a Western country or failed asylum seeker, Tamil failed asylum seeker or because of his illegal departure from Sri Lanka. For the reasons provided above, the Tribunal finds the applicant’s fear of persecution is not well-founded.”
With respect to s.36(2)(aa) of the Act, based on its earlier findings, the Tribunal did not accept that:
·as a necessary or foreseeable consequence of the applicant being removed from Australia, there is a real risk the applicant will suffer significant harm from the police, CID, Sri Lankan Army or anyone else because the applicant did not return from leave to the IDP camp (CB 286 at [50]); and
·the discrimination and harassment faced by people of Tamil ethnicity generally in Sri Lanka amounts to treatment within the meaning of s.5 (1) of the Act (CB 286 at [51] to [54]).
The Tribunal concluded (CB 287 at [55]):
“Having regard to the applicant’s claims both individually and cumulatively, the Tribunal does not accept on the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk he will suffer significant harm. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).”
Judicial Review
The applicant’s grounds for judicial review our as follows:
“1. The Tribunal failed to properly consider all of my claims
2.The Tribunal denied me procedural fairness because they didn’t give me a fair hearing.”
The applicant appeared at the listed hearing date and was assisted by an interpreter in the Tamil and English languages. As the applicant was self-represented I attempted to explain to the applicant the nature of judicial review hearings. I explained to the applicant that it was not the function of the Court to decide whether or not he should be granted the visa, as that was a merits review which the Tribunal could not undertake. I explained to the applicant that the Court could only review the decision of the Tribunal and decide whether there was jurisdictional error or as I described it to the applicant, “the Tribunal had made a serious legal mistake.” I explained to the applicant that if the Tribunal had made a serious legal mistake then his case would be referred to the Tribunal to be heard again.
As the applicant’s specified grounds for review lack any particularity, I asked the applicant what he meant by each of these grounds bearing in mind the task of the Court in judicial review proceedings.
Ground 1 - failure to properly consider the applicant’s claims
I asked the applicant which of his claims he believed the Tribunal did not properly consider. The applicant responded by stating that he wanted the Court to reconsider his case. He said that he cannot return to Sri Lanka, that he lives in an LTTE controlled area, that he was asked to join the LTTE, he was in a camp, he will be arrested if he returns to Sri Lanka, his life is at risk.
As the first respondent correctly points out, and it is perfectly clear from the applicant’s oral submissions, the issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance where his Honour had said at [16]:
“I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:
A Tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”
In SZPZJ v Minister for Immigration and Citizenship [2012] FCA 18 Nicholas J stated at [62]:
“It is accepted by the first respondent that the Tribunal is obliged to consider claims which, while not expressly advanced, are apparent on the face of the material before the Tribunal: NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].”
I am satisfied that the Tribunal correctly identified all of the applicant’s claims, and having regard to the evidence before it made appropriate findings of fact in relation to those claims. Consequently, I am satisfied that the Tribunal discharged its obligation to consider the applicant’s claims either expressly advanced or which were apparent on the face of the material before it.
Ground 2 - denial of procedural fairness
I asked the applicant to explain the reasons he said the Tribunal did not give him a fair hearing. He responded stating that the hearing was conducted properly but because he was afraid he did not disclose information to the Tribunal the information he failed to disclose was his claim that he was involved in the LTTE. He did not disclose this information as he was fearful that he would be sent back into detention.
The first respondent referred the Court to the decision record of the delegate which states, “I asked the applicant at interview if he or any of his family had ever had any involvement with the LTTE or been accused of such, and he responded “no” (CB 107). The first respondent submits that the applicant is seeking to admit fresh evidence in these proceedings.
The applicant’s submission that he did not disclose he was involved in the LTTE because he was afraid he would be sent back to detention cannot found a basis for jurisdictional error. As pointed out by the first respondent, the evidence before the Tribunal was that neither he nor his family had ever had any involvement with the LTTE. It was for the applicant to make his case and provide all evidence to the Tribunal: Prasad vMinister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 170 and Luu and Anor v Renevier (1989) 91 ALR 39 at 45.
There is no positive obligation on the Tribunal to obtain further information: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43].
Whilst s.424 of the Act provides that the Tribunal may get any information that it considers relevant in conducting the review, there is no obligations on the Tribunal to do so. As stated in SZHQC v Minister for Immigration & Anor [2006] FMCA 1275 at [33]:
“The Tribunal has the power to obtain further information… it does not have a duty to investigate the Applicant’s claims.”
In Dhanoa v Minister for Immigration & Anor [2009] FMCA 383, Driver FM stated at [34]:
“In SZIAI Flick J held that there may be circumstances in which a failure on the part of the Tribunal to make enquiries, or further enquiries, on a matter would amount to jurisdictional error. Such circumstances will be rare. At [25]-[26] his Honour said:
“The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:
... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant’s case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...
This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:
[214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be “strictly limited”: Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.”
In Goodreau v Minister for Immigration and Anor [2009] FMCA 35 Lindsay FM ( as his Honour then was ) stated at [23]:
“As for the conditions that must be satisfied for an appellate Court to receive further evidence (apart from the issues that arise on account of s.476 of the Act and the nature of the review this Court is conducting) they are set out conveniently by the Full Court of the Federal Court in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 at [43]:
In order for an appellate Court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, ... , an opposite result would have been reached by the primary judge’).
In this case, the information the applicant stated he did not provide to the Tribunal at the hearing was not obvious material readily available to the Tribunal. Indeed, the evidence before the Tribunal was to the contrary effect (see [26] above). I am not satisfied that the applicant could not have, with reasonable diligence, informed the Tribunal regarding this claim he now makes in the Court proceedings. It seems to the Court that his fear of returning to Sri Lanka must surely have outweighed any fear of detention. I am further not satisfied, given the findings of the Tribunal in relation to the applicants claims, that evidence of this nature if given by the applicant to the Tribunal would have produced a different result.
Moreover, as pointed out by Lindsay FM at [25] to [26]:
“But there are especial problems arising from the nature of this review and the fact that under no circumstances must this Court engage in a merits-based review of the Tribunal’s decision. When he was asked to receive fresh evidence in these circumstances O’Loughlin J in the Federal Court in SBBJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 761 said as follows at [21]:
There is a line of authority in this Court which strongly suggests that it is beyond my power to receive new evidence and to use it to remit the matter to the Tribunal: Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532; Servos v Repatriation Commission (1995) 56 FCR 377; Ozberg v Minister for Immigration and Multicultural Affairs [1998] FCA 12; Demir v Minister for Immigration and Multicultural Affairs [1998] FCA 1308.
Here, the purpose of the receipt of the fresh evidence would be to contradict the evidence put to the Tribunal and upon which it relied. I could not receive such evidence for such purpose without departing from my duty to hear this review according to law.”
Likewise, in these proceedings the purpose of the receipt of this fresh evidence would be to contradict the evidence before the Tribunal and upon which it relied. The reception of such evidence would likely involve this Court engaging in a merits review of the Tribunal decision, a course which is clearly impermissible.
Section 422B of the Act states that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
The effect of this section is that the common law rules of procedural fairness have been largely excluded. In Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214, the Full Court held that s.422B operates to exclude the “hearing rule” aspect of procedural fairness in relation to decisions of the Tribunal. The Court said at [66]-[67]:
“What was intended was that Subdiv AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
Other aspects of the common law of natural justice, such as the bias rule are not excluded…”.
The decision in Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat (2006) 151 FCR 214 was followed by the Full Court in SZHWY v Minister for Immigration and Citizenship (2007) 159 FCR 1. In NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419, Young J (with Gyles and Stone JJ in agreement) said at [85] that:
“… there is no scope for the operation of general requirements of procedural fairness outside the specific provisions of Div 4 of Pt 7 of the Act: see s 422B(1); Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [66]; and SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8].”
Turning to the provisions of Division 4 of Part 7 of the Act. The applicant was invited by the Tribunal to present arguments and give evidence relating to the issues arising in relation to the decision under review. It therefore complied with s.425 of the Act. During the course of the hearing the Tribunal orally gave to the applicant clear particulars of information which it considered would be the reason, or part of the reason, for affirming the decision under review. It therefore complied with s.424AA of the Act. Consequently, it was unnecessary for the Tribunal to reduce such particulars to writing accordance with s. 424A: MZYFH v Minister for Immigration and Citizenship [2010] FCA 559 at [30]; SZMCD vMinister for Immigration and Citizenship (2009) 174 FCR 415 at 431 to 432 at [88] and 436 at [104].
For the reasons set out above I reject the applicant’s second ground for judicial review; namely, that the Tribunal failed to accord him procedural fairness.
Conclusion
I find that the Tribunals decision is not affected by jurisdictional error and is therefore a privative clause. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere with the Tribunal’s decision.
The proceedings before this Court should be dismissed with costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 2 July 2014
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