SZRKL v Minister for Immigration
[2017] FCCA 1287
•10 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRKL v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1287 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider or deal with a claim – whether the Tribunal failed to comply with s.424AA and s.424A – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 336F, 424A, 424AA, 476 |
| Cases cited: SZRKL v Minister for Immigration & Anor [2013] FMCA 64 | ||
| Applicant: | SZRKL | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 56 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 10 May 2017 |
| Date of Last Submission: | 10 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2017 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Ms Watson of Australian Government Solicitor |
ORDERS
The application made on 9 January 2015 and amended on 15 July 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 56 of 2015
| SZRKL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), made on 9 January 2015 and amended on 15 July 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 12 December 2014 which affirmed the decision of the Minister's delegate to refuse a protection (Class XA) visa to the applicant.
In evidence before the Court is a bundle of relevant documents, filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”). No evidence was sought to be read by the applicant.
I note that the Minister's written submissions filed in these proceedings on 3 May 2017 are a fair summary of the relevant background to this case, and for the sake of convenience I adopt, for the purposes of this judgment, what is set out there at [5] - [12]:
“[5] The applicant is a citizen of Sri Lanka. He initially applied for a protection visa on 31 January 2011. His application was refused by a delegate and this was affirmed by a previous Tribunal (see Court Book CB p 1). He made a further application for a protection visa, relying on the outcome of the judgment in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235 (CB p 27). This application was refused on 4 June 2014 (CB p 135). It is noted that the delegate made findings not only in relation to the complementary protection criteria (s 36(2)(aa) of the Migration Act 1958 (the Act)) but also in relation to claims under the Refugees Convention (s 36(2)(a) of the Act).
[6] The applicant applied for review to the then Refugee Review Tribunal which handed down its decision on 12 December 2014. It is noted that the applicant submitted to the Tribunal that it should deal with both the Refugee Convention claims and the claims under the complementary Protection provisions
(CB p 184). However, the Tribunal rejected that argument and proceeded to deal with the matter only under the complementary protection criterion. This approach has subsequently been endorsed as correct, even if the delegate has considered both aspects of the claim, by the Full Federal Court in Minister for Immigration and Border Protection v SZVCH (2016) 244 FCR 366.
[7] The applicant’s claims for protection are summarised by the Tribunal at CB 248-251. In essence, the applicant left Sri Lanka in 2010 aged 17 to escape from the Sri Lankan security forces. He was a young male Tamil from Jaffna. He claimed that the authorities still consider young male Tamils from Jaffna to be sympathetic to the LTTE. The college where he had studied was viewed as a further reason why he would be sympathetic to the LTTE. He was not a supporter of the LTTE but was sympathetic to commemorating the people who died in the name of Tamil nationalism and he had attended Great Hero Day events in Sri Lanka and similar events in Australia.
[8] He also claimed that the army was interested in a person who rented a room in his family’s house between 2004-2007. The family ultimately moved due to harassment by the army seeking information about this person although returned after 3-4 months. This person was ultimately arrested in 2009 and this person told the authorities that the applicant’s family was involved with a group associated with the LTTE. This lead to the army seeking out the applicant’s family again. Both he and his father were beaten by the army and the harassment continued.
[9] In early 2010, the applicant was stopped on his way to school and was told that he would not be taken then because he was in school uniform but would be taken later. He fled to his uncle’s house and stayed there for a year. His uncle eventually took him to Colombo where a passport was arranged and he caught a plane to Australia. He claimed that he feared being shot by the EPDP (a paramilitary group which has connections with the army) or tortured on his return or shot if he sought help from the authorities.
[10] The applicant was also the subject to a data breach incident which occurred in 2014 whereby certain details of people in immigration detention was inadvertently released on the internet for a period of time (for details see CB p 175). He claimed that he would be identified as a person who had sought protection in Australia and would be considered to be a traitor and enemy of the Sri Lankan state and be targeted and harmed for that reason.
[11] The applicant also claimed that due to information sharing between the Sri Lankan and Australian governments, his details may have been shared with the Sri Lankan police and fears he will face harm from seeking protection in Australia.
[12] The applicant also claimed that his involvement in Tamil activities in Australian will mean that he is perceived as a Tamil nationalist and supporter of the LTTE. He supports the transnational government of Tamil Elan.”
[Errors in original.]
It is relevant to note that, after arrival in Australia, the applicant, at some point, applied for a protection visa at a time when s.36(2)(aa) of the Act was not a criterion for that visa. His application for protection was considered in the context of s.36(2)(a) of the Act, that is, in essence, the Refugee Convention, and those parts of the Act relevant to it. The application was refused. Then the applicant sought judicial review in this Court (see SZRKL v Minister for Immigration & Anor [2013] FMCA 64).
Subsequently, the Full Federal Court handed down judgment in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 (“SZGIZ”). That meant that persons, such as the applicant, were able to apply for a protection visa again, this time on the basis of s.36(2)(aa) of the Act. That is, on the basis of the complementary protection criterion.
In this case, the applicant applied for a protection visa again (“the second application”), and the delegate considered the applicant's claims as against both of criteria, that is, s.36(2)(a) and s.36(2)(aa) of the Act. However, on review, the Tribunal considered the applicant's claims only in relation to complementary protection, that is, s.36(2)(aa) of the Act. The Tribunal noted that the applicant’s claims as against s.36(2)(a) of the Act had already been considered and reviewed by the Tribunal (differently constituted) (see [40] at CB 252 to [43] at CB 253). I will return to this point later.
The Tribunal's decision is summarised comprehensively in the Minister's written submissions. I am satisfied that it is a fair summary of the Tribunal’s decision (other than for one matter, see [8] below), and for the sake of convenience, I will adopt what is set out there for the purposes of today's judgment as follows ([13] – [20] and
[23] – [25] of the Minister’s written submissions):
“[13] As referred to earlier, the Tribunal confined its consideration to whether the applicant satisfied the s 36(2)(aa) criterion.
[14] The Tribunal did not accept that the applicant was a credible witness. Its reasons for so doing commence at [44] (CB 253) of the reasons. It considered the country information provided by the applicant’s representatives but did not consider that it supported the fundamental assertions by the applicant that his college was considered to be pro-LTTE and that the security forces continued to suspect students of being Tamil nationalists. It also did not accept that the information supported the applicant’s claim that the LTTE started recruiting students from the school and that cadres from the LTTE used to go to the school to meet students. It did not accept that the applicant was involved in Great Heroes Day events at the school. The information supported a finding that such events were not held in the years after 2005.
[15] The applicant’s claims regarding the interest shown in his family by the army was not accepted. It was noted that no member of the family was taken away for interrogation and the applicant could not give a reason for this. Also the claim that people warned him he was to be taken away later was seen to be inconsistent with a serious intention to detain him. The Tribunal did not believe that the authorities would allow him to return home for several hours and then flee with his uncle’s assistance if they were serious about taking him away, nor that his uncle would have advised him to remain at home for several hours before fleeing. The applicant’s claim that he was able to hide for a year in a remote location without the authorities finding him was further reason to not [sic] accept that they were not looking for him.
[16] The Tribunal noted the applicant’s father’s lengthy government employment as a further reason to reject the claim that the authorities considered the family to have LTTE links.
[17] The Tribunal rejected the applicant’s claim that he used two different passports to leave Sri Lanka and found that he used a passport in his own name to leave the country. This was then also considered inconsistent with the claim that the authorities were interested in him.
[18] Corroborative material from the applicant’s cousin of ongoing interest in the applicant after he left Sri Lanka was considered by the Tribunal but was not a basis for overcoming the concerns the Tribunal identified with the applicant’s evidence about his claims.
[19] The Tribunal therefore concluded that there were not substantial grounds for considering that there was a real risk that the applicant will suffer significant harm because of any of his claims. The Tribunal also dealt with a claim that he may be identified on his return to Sri Lanka by an LTTE cadre as a possible LTTE supporter. As the Tribunal did not accept that he was considered to be an LTTE supporter, this claim was not accepted.
[20] The Tribunal also dealt with the claim that the applicant raised concerning the data breach incident. Based on the information which was disclosed, the Tribunal did not accept that the applicant would be identified as a person who had claimed protection. It also noted that there was no evidence to support the claim advanced by the applicant that the Sri Lankan High Commission or other government staff had accessed the information, nor was there any material to support a claim that any information accessed had been adversely used against a person.
…
[23] In relation to the applicant’s activities in Australia, the Tribunal accepted that he had attended Tamil community activities in Australia including sport events. There was no contemporaneous evidence of attendance at events which would lead to him being perceived as a Tamil nationalist and supporter of the LTTE. The Tribunal noted that this was surprising in view of the length of time he has been in the community in Australia. As the Tribunal had already found the applicant was not a credible witness, these claims were also not accepted. It further found that he would not express such views on his return to Sri Lanka or support Tamil nationalism on his return.
[24] The Tribunal found that the applicant did not leave Sri Lanka illegally. It noted that he no longer has the passport that he left the country on and considered his claim that he will be investigated as a suspected failed asylum seeker. While the Tribunal accepted that there was information to support a finding that people suspected of LTTE links may be harmed on return, the Tribunal did not accept that the applicant will be suspected of, or imputed with, such links. Nor would this occur due to his status as a Tamil male, a young Tamil male, a young Tamil male who attended is school, a Hindu from North Sri Lanka or Jaffna, who has returned without a travel document.
[25] The Tribunal also referenced country information to support its view. It further noted that, even if it was wrong in relation to the finding that the applicant had not left Sri Lanka illegally, it did not accept that this would lead it to having substantial grounds for believing that there is a real risk that the applicant will suffer significant harm on his return.”
[Errors in original.]
Paragraphs 21 and 22 of the Minister's written submissions are submissions rather than representative of a summary of the Tribunal's decision record. Those submissions are as follows:
“[21] In relation to the claim that there had been information sharing between the Sri Lankan and the Australian governments, the Tribunal noted that s 336F specifically excludes from its operation an applicant for a protection visa if the disclosure is to a foreign country in respect of which the application or claim is made. This is due to the effect of s 336F(3). It therefore did not accept that there was a real risk that the applicant would suffer harm because information relating to the applicant may have been disclosed to the Sri Lankan police. At the time that the Tribunal was dealing with the matter, this was a correct statement, as the application had not yet been finally determined. However, it is noted by the first respondent that s 336F(5) provides that the exemption in s 336F(3) does not apply once an application for a protection visa is refused and finally determined. If it is suggested that the Tribunal overlooked that provision, the first respondent submits that in dealing with the claim that information may have already been provided, there was no error. The applicant’s claimed fears as set out at CB 251 was that this information may have already been provided to the Sri Lankan authorities. The Tribunal was correct to conclude that this would not have occurred.
[22] If it is considered that the Tribunal erred in not considering s 336F(5), it is submitted that this was not a material error. Any fear concerning the disclosure of information stemmed from his underlying claims that he was of interest to the authorities. This was totally rejected by the Tribunal. The Tribunal found no basis for the applicant claiming fear either due to his perceived profile or due to his status as a returned failed asylum seeker. Any concerns about the sharing of information between the Australian and Sri Lankan authorities were therefore directly linked to those underlying claims which had been rejected by the Tribunal. It is further noted that the purpose for which identifying information as specified in an authorisation may be shared under this provision is limited to those purposes set out in s 5A(3) – see s 336F(2).”
It is not clear from the Tribunal’s account whether the applicant’s representative’s submissions at the hearing were that the applicant’s personal information had been provided, or would be provided to the Sri Lankan authorities. However, I agree with the Minister that the Tribunal's dealing with the matter, at the relevant time, in the context of s.336F(3) of the Act, does not reveal any legal error given that the application had not yet been finally determined.
But I also note the Minister's subsequent submissions that s.336F(5) of the Act provides that the exemption in s.336F(3) of the Act does not apply once an application for a protection visa is refused and finally determined. On its face, the Tribunal does not appear to have considered s.336F(5) of the Act in its decision record. However, I also accept the Minister's submissions in the circumstances presented, that this is not a material error or a matter of substance. This is because it was central to the applicant’s claims to fear harm that he was of interest to the Sri Lankan authorities, a claim which the Tribunal comprehensively rejected on the basis that it was not credible and the Tribunal gave reasons for this probative of the material before it.
The “grounds” of the amended application that are before the Court are not numbered. It is, with respect to the applicant, difficult to understand whether the “grounds” are meant to be a narrative series of complaints, or whether they are discrete grounds of review. In any event, it is helpful to adopt the Minister's application of numbers to what is set out in the “grounds”, so that some structure can be given to what the applicant has put before the Court. Those grounds are as follows:
“[1] The RRT has declined its jurisdiction to me by failing to consider and assess one of my main claims for my Protection Visa and for my Complementary claims in Australia being I am a young single Tamil male from the North of Sri Lanka.
[2] The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424AA and 424A.
[3] I had a legitimate expectation that the RRT would contact me for a second hearing and/or that the RRT would invite me for comments if they found any negative information in respect of my RRT review after the hearing.
[4] The RRT did not give me an opportunity after the hearing, before this decision was taken, to respond to negative information by was of a further hearing or respond to me in writing their intention to use this information to refuse my application. The RRT decision indicates that there are major issues which RRT did not consider.
Particulars
The RRT did not raise/or put to me in writing part of parts of the adverse decision for me to comment in writing.
[5] The RRT has declined its jurisdiction to me by failing to consider the Refugee Convention criterion in s 36(2)(a) of my Convention claims.
I will provide the particulars of the grounds, before my final court hearing, after I have listened to the RRT hearing recording.”
[Errors in original.]
The applicant today appeared in person before the Court. He was assisted by an interpreter in the Tamil language. Although it was quite clear, and as the applicant indicated, he understood English and was quite conversant in English, the hearing proceeded on the basis that the applicant would use the services of the interpreter if, and when, it was required. The Minister was represented by a solicitor.
The applicant explained that he drafted “some” of the grounds himself. For the remainder, he said he had received assistance from a lawyer. Nonetheless, I gave the applicant every opportunity to explain at least those parts of the grounds that he had drafted himself, although there was no identification of which parts were drafted by him, and which parts were drafted by the lawyer.
In relation to ground one, the applicant submitted that his complaint was that the Tribunal did not agree with him. In that light, I understood that where the applicant complains in this ground that the Tribunal failed to “consider and assess” one of his “main” claims, what he meant was that the Tribunal did not agree that that set of claims would likely lead to harm if he were to return to Sri Lanka. That “main” claim was identified in ground one as being that the applicant was “a young single Tamil male from the [n]orth of Sri Lanka”.
A disagreement by the applicant with the Tribunal’s findings is not, of itself, an expression of a proper ground of review in matters of this type. Simply, the Tribunal is not required to uncritically accept anything, or part of, what an applicant says or puts to it (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451 per Beaumont J and Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 596 per Kirby J).
In the exercise of its jurisdiction, the Tribunal's task requires it to properly conduct the review of the delegate's decision. The Tribunal is required to consider all of the claims made to it, to make findings of fact in relation to those claims and, of course, to provide the applicant with all of the relevant procedural fairness opportunities. However, so long as those findings of fact are reasonably open to the Tribunal on what is before it, and is probative of the material before it, no legal error is revealed. The Court cannot intervene to change findings of fact made by the Tribunal. Even if there was some disagreement with those findings of fact on the merits of the application, the Court has no power to intervene.
The applicant's oral submissions in relation to ground one therefore, are not an articulation of a proper ground of legal review. They are not an assertion of legal error, and the applicant seeks impermissible merits review.
Looking at ground one, however, as written, the complaint is the Tribunal did not consider his claim that he was a young, single, Tamil male from the north of Sri Lanka. It is the case that a failure to consider or deal with a claim expressly made or clearly arising, or a failure to deal with a substantial clearly articulated argument, submission or claim relying on established facts may reveal jurisdictional error (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).
Notwithstanding what the applicant explained this ground to be, I did consider separately whether the Tribunal failed to consider a claim made. On the evidence, however, there is nothing in the material before the Court to show that the applicant ever claimed to fear harm because he was “single”, either of itself, or in combination with any other factors.
It is the case that the applicant did make claims to fear harm because he was a young Tamil male from the north of Sri Lanka. But I cannot find in the evidence anything to show that his marital status was an element, either of itself, or in combination with the other elements, a factor in his claim to fear harm.
I note particularly what is set out in this regard at Court Book page 8, which is part of the written submissions made by the applicant's then representative, as summarised in the “first” Tribunal decision of 20 March 2012. The submission is that, amongst other things, and put in the context of the Refugee Convention, that membership of a particular social group consisting of “young Jaffna Tamil boys”, could lead to a risk of harm.
Further, at Court Book page 45, which is part of the applicant's application for a protection visa made on 31 July 2013, the applicant indicates that he is a Tamil from Jaffna in northern Sri Lanka. At Court Book page 54, which is again a part of that same document, the applicant claims that he feared harm because, amongst other things, “I am a young Tamil male”.
At Court Book page 70 which is part of submissions from the applicant's then migration agents (who are also a firm of solicitors) to the delegate, on 1 May 2014, the proposition was put that the applicant's claims to protection on the “second” occasion should also be considered as against the criterion at section 36(2)(a) of the Act, that is, the Refugee Convention criterion. An “opinion” was subsequently provided by the applicant’s representative to the Tribunal from a person described as “Special Counsel”. “Special Counsel” opined that the Tribunal was obliged to consider the applicant’s claim on this “second” occasion as against both criteria at s.36(2) of the Act (CB 184 to CB 186). Notwithstanding these submissions were couched in the context of the Refugee Convention, for immediate purposes I note the description of the claim to fear harm is “Tamil male” and “young Tamil male” in the initial submissions to the delegate at Court Book page 70.
Similarly, at Court Book page 123, albeit again in the context of a particular social group, the description of the basis to fear harm is “Tamil young male”. In all, there is nothing to show that the word “single” or the description of the applicant's marital status, was a part of his claim to fear harm. Clearly, there was evidence that the applicant was not married, but it cannot be said that that was ever expressed as an element in his claims to fear harm, or that it clearly arose as part of the element to fear harm in the circumstances presented.
The Tribunal understood that the applicant claimed to fear harm as a young Tamil male, and as a young male Tamil from Jaffna (see [14] at CB 248 and [19] at CB 249). The Tribunal accepted that he was a young male Tamil from Jaffna in northern Sri Lanka ([36] at CB 252). The applicant had given, at various times, a lengthy explanation as to why he would suffer harm as a young Tamil male from northern Sri Lanka if he were to return to Sri Lanka.
On the evidence that is before the Court, the Tribunal gave extensive reasons probative of the material before it for finding that the applicant was not a credible witness in relation to his account of past events, and that those claims had been contrived so as to seek protection in Australia (see [44] at CB 253 to [62] at CB 256).
On a fair, and holistic reading of the Tribunal’s decision record, the Tribunal, in reaching that conclusion, fully considered the applicant's claims in relation to being a young Tamil male from the north of Sri Lanka in the context of section 36(2)(aa) of the Act. Therefore, the applicant's ground that the Tribunal failed to consider one of his main claims for protection, being a young single Tamil male from the north of Sri Lanka, cannot be made out.
The Minister further submitted (at [27] of his written submissions), that if what the applicant was seeking was to assert that the Tribunal failed to consider the claim that he was a young, single Tamil male from the north of Sri Lanka, in the context of a particular social group, then a particular social group is, of course, a concept relevant to the Refugee Convention. I can only agree with the Minister that it is not relevant to consideration under the complementary protection criterion. In all, therefore, there is no merit in ground one. The ground is not made out.
Ground two asserts that the Tribunal failed to comply with s.424AA and s.424A of the Act. Again, no particulars are provided. Before the Court today, the applicant, despite opportunity provided to him, said that he had nothing to say about that assertion.
Section 424A, and in particular s.424A(1) of the Act, requires the Tribunal to put to an applicant, in writing, “information” which it considers “would be the reason, or a part of the reason”, for affirming the delegate's decision.
The word “information” has been the subject of consideration by the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”) and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”). The High Court has provided, with respect, clear direction as to what is caught by the word “information” in the context of s.424A(1) of the Act. I should also note that the statute itself at s.424A(3) provides exceptions to the obligation in s.424A(1) of the Act. That is, what may otherwise be “information” is, for the reason set out in s.424A(3) of the Act, not caught by the obligation in s.424A(1) of the Act.
Section 424AA of the Act is a mechanism or statutory facility, available to the Tribunal to comply with any obligation under s.424A(1) of the Act orally, at a hearing, instead of writing to an applicant. Section 424AA of the Act is not engaged unless there is some obligation under s.424A(1) of the Act that is enlivened (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
The difficulty for the applicant today is that he has not identified how the Tribunal did not comply with s.424A of the Act. As the Minister submits, in the absence of any particulars by the applicant, the ground remains “a general assertion” and is not made out.
In any event, I did consider the evidence, and the “information”, relied upon by the Tribunal which could be said “would be the reason or a part of the reason” for affirming the delegate’s decision. This material was information that the applicant had given in relation to his application for a protection visa or oral evidence, or otherwise fell within one of the exceptions set out at s.424A(3) of the Act.
Further, this was material that, in light of what the High Court said in SZBYR and SZLFX, was not material that can be said to be “information” for the purposes of s.424A(1) of the Act. In particular, I note here, and that which is also relevant to one of the applicant's later grounds, that the Tribunal's evaluation of the material before it is not “information” for the purposes of s.424A(1) of the Act. The High Court in SZBYR (at [18]) agreed with what the majority of the Full Federal Court said in VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123; (2004) 236 FCR 549 in that regard. Further, there are parts of the material relied on by the Tribunal which, in their terms were not a “rejection, denial or undermining” of the applicant's claims, and were therefore not “information” for the purposes of s.424A(1) of the Act (SZBYR at [17]).
In all there are two answers to the applicant's ground two as stated. First, without identifying the particulars of what “information” was caught by s.424A(1) of the Act, and that which was not properly dealt with by the Tribunal, the ground cannot succeed. Second, and in any event, I cannot see that any such “information” exists in the material before the Court, such as to say that the Tribunal fell into jurisdictional error. I note again, that s.424AA of the Act is not engaged unless there is some obligation under s.424A(1) of the Act in the first place. Therefore, ground two is not made out.
Ground three asserts that the applicant had a “legitimate expectation” that the Tribunal would contact him for a “second” hearing, or the Tribunal would invite him for comments if, after the hearing, they found any “negative information” in respect of the review. Again, I cannot see, on the evidence before the Court, that the Tribunal relied on any “negative information” made available after the hearing, in its consideration and in reaching its conclusion.
As mentioned earlier, if by the use of the word “negative information” the applicant seeks to imply adverse “information” that was a “reason, or a part of the reason” for affirming the delegate’s decision, then I have previously dealt with that matter. There was not any “information” that came to light after the hearing, to which an obligation under s.424A of the Act could be said to have arisen.
The Minister's submissions make the point which I referred to earlier, that the Tribunal chose not to believe key aspects of the applicant's claims and gave reasons for that. There is no general obligation on the Tribunal to identify any concerns that it may have with the applicant's evidence prior to reaching its conclusion on the review.
The Tribunal's relevant obligation at a hearing is, pursuant to s.425 of the Act, to provide the applicant with a meaningful opportunity to give his evidence and make his arguments, and expose at that hearing any issues dispositive of the review that were not live issues as a result of the delegate's decision (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”) and AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494). The Tribunal rejected the applicant's claims to fear harm essentially because it did not believe critical aspects of his claims. It gave reasons for this probative of the material before it.
As the Minister submits, there is no general obligation on the Tribunal to indicate to the applicant what negative findings it may make. The obligation is for the Tribunal to expose issues for the applicant such that he knows the case against him and has the opportunity to respond.
It may be that in certain circumstances the Tribunal is required to tell an applicant that an adverse conclusion may be reached, which would not obviously be a conclusion open on the material being relied upon. But the Tribunal does not have to give the applicant a running commentary of what it thinks of the evidence (SZBEL at [48]).
The applicant does not explain, and it is not otherwise apparent on what is before the Court, where this “legitimate expectation” could be said to arise. There is nothing in the evidence to say that the Tribunal told the applicant that he would have another hearing. The basis for the “legitimate expectation” remains unexplained.
For the sake of completeness I note, as the Minister submits, there is nothing in the evidence to indicate that a further hearing was required in such a way as explained in the relevant authorities. That is, if some issue not exposed earlier, or an issue that was not a live issue as a result of the delegate's decision, arose subsequent to the hearing, then the Tribunal is required to provide the applicant with a further opportunity at a hearing (Minister for Immigration and Citizenship v SZKTI [2009] HCA 30; (2009) 238 CLR 489). But there is nothing in the evidence in this case to say that any such matter arose. Ground three is not made out.
Ground four asserts that the Tribunal did not give the applicant a further opportunity after the hearing for him to respond in writing to its “intention” to use this information to “refuse [his] application”. Again, the applicant does not identify before the Court, what information this may be said to be. The applicant explained that the complaint in ground four is that he did have further information to give to the Tribunal but, for whatever reason, he elected not to give it to the Tribunal.
In those circumstances, and as the Minister submitted today, no allegation of error can arise on the part of the Tribunal if it was not given, and did not have before it, any such materials. The applicant elected to pursue his case in that way. There is no suggestion therefore of any legal error on the part of the Tribunal.
It would appear that the applicant’s complaint in ground four is an attempt, in large part, to expand on the complaints made in the other grounds. That is, to express a grievance with the Tribunal’s failure to accept the applicant’s claims to fear harm. In this sense, the applicant seeks impermissible merits review, or to complain that the Tribunal should have accepted his claims and failed to give him a running commentary of its inability to accept his claims. For the reasons set out above, these matters do not give rise to any legal error.
The particular to ground four is expressed in the following terms: “[t]he RRT did not raise or put to me in writing part or parts of the adverse decision for me to comment in writing”. In short, the answer to the applicant is that the Tribunal is not required to provide to an applicant a draft of its reasoning for the applicant’s comments prior to it making its decision. As mentioned earlier, the Tribunal's obligations are clearly set out in the Act. There is no obligation on the Tribunal to provide a draft decision record to an applicant for comment, if that is what is meant by this complaint. Therefore, ground four is not made out.
The fifth ground asserts that the Tribunal declined, or failed in the exercise of its jurisdiction, by failing to consider the Refugee Convention criterion. As I have previously explained, in the circumstances of this case, the applicant had previously applied for a protection visa that had been considered on the basis of the Refugee Convention criterion (s.36(2)(a) of the Act). The application was refused, and a subsequent appeal to this Court was unsuccessful (see SZRKL v Minister for Immigration & Anor [2013] FMCA 64). As a result of the judgment of the Full Federal Court in SZGIZ, the applicant was able to apply a second time for a protection visa, this time on the basis of the complementary protection criterion (s.36(2)(aa) of the Act).
It is the case that on this “second” occasion, the delegate, for whatever reason, considered the applicant's claims for a second time in relation to the Refugee Convention criterion, as well as the complementary protection criterion. A submission, as mentioned earlier, was made by the applicant's migration/legal representatives that the Tribunal should do the same. The Tribunal rejected that argument, gave reasons, and proceeded to deal with the matter under the complementary protection criterion. As the Minister submits, the Tribunal's approach, in relevantly identical circumstances, was endorsed as being correct by the Full Federal Court in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366. Therefore no legal error arises in relation to ground five.
At the conclusion of the applicant’s amended application, the applicant states that “[he] will provide the particulars of the grounds before [his] final court hearing after [he has] listened in the RRT hearing recording.” The applicant confirmed today that he had not provided any further material to the Court. I note that the amended application was filed in this Court on 15 July 2015. It is now May 2017. The applicant has had ample opportunity to file any further particulars to the grounds, and indeed any further evidence by way of affidavit. For whatever reason, he has elected not to do so. Importantly, the applicant has been given more than a reasonable amount of time to have provided anything further in support, or explanation, of his grounds but chose not to do so.
I cannot see that any jurisdictional error arises from the grounds of the amended application. Nothing that the applicant has said today reveals jurisdictional error, or even indicates jurisdictional error, on the part of the Tribunal. Nor can I otherwise see that the Tribunal's decision is affected by jurisdictional error. For that reason, I am going to make an order dismissing the application made to the Court today.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 21 June 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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