SZSNX v Minister for Immigration and Anor (No.2)

[2019] FCCA 275

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNX v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 275

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in critical respects and other fears found not to be well-founded – whether the Tribunal overlooked cogent evidence or breached s.425 of the Migration Act 1958 (Cth) or otherwise fell into jurisdictional error considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 414, 424A, 438

Cases cited:

Minister for Immigration v CQZ15 [2017] FCAFC 194

Minister for Immigration v SZMTA; CQY15 v Minister for Immigration; BEG15 v Minister for Immigration [2019] HCA 3

Minister for Immigration v Wang (2003) 215 CLR 518

MZAFZ v Minister for Immigration (2016) 243 FCR 1

SZSNX v Minister for Immigration & Anor [2015] FCCA 2271

Applicant: SZSNX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3189 of 2016

Judgment of: Judge Driver

Hearing dates: 22 November 2018, 25 January 2019

Date of Last Submission: 4 March 2019

Delivered at: Sydney

Delivered on: 9 May 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application filed on 17 November 2016 and the amended application filed on 31 January 2019 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3189 of 2016

SZSNX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 October 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the Minister filed on 13 November 2018.

3. The applicant is citizen of Sri Lanka who arrived in Australia on 17 February 2012 and, on 29 May 2012, made an application for a protection visa. He claimed to fear harm if returned to Sri Lanka on the basis of an incident in 2006 in which a person named Selvam who, unknown to the applicant, was a suspected member of the LTTE[1] and used his telephone to make an international call.  He claimed that one week later, the police came to his home looking for the person who used the telephone, that they blindfolded the applicant and took him to a house where he was interrogated and beaten. The applicant claimed that in 2007 he was required to attend the police station and accused of being associated with the LTTE, and since then has been regularly visited and questioned by the police. The applicant's agent also advanced a claim on behalf of the applicant that he would be harmed on his return to Sri Lanka because he was a failed asylum seeker.

   [1] Liberation Tigers of Tamil Eelam

4. On 17 August 2012, the delegate refused to grant the applicant a visa.[2]

   [2] Court Book (CB) 77.  The decision is incorrectly dated 17 August 2011 (CB 90)

5. On 14 September 2012, the applicant applied to the Tribunal (then, the Refugee Review Tribunal) (first Tribunal) for review of the delegate's decision.[3]  On 28 November 2012 the applicant attended a hearing before the first Tribunal.[4]

   [3] CB 93

   [4] CB 120

6. On 20 December 2012, the first Tribunal affirmed the decision under review.[5]  The applicant sought judicial review of this decision in this Court and, on 30 September 2015, I found that the applicant had established that the decision of the first Tribunal was affected by jurisdictional error.[6] The matter was accordingly remitted back to the Tribunal (differently constituted) for reconsideration according to law. The applicant was notified about the remittal, informed that his case would be re-allocated to a new member, and that the member may seek further information, seek his comments or response to particular information, invite him to attend a hearing and make a decision.[7]

   [5] CB 128

   [6] SZSNX v Minister for Immigration & Anor [2015] FCCA 2271

   [7] CB 155

7. On 14 January 2016 the applicant attended a hearing before the Tribunal.[8] On 1 February 2016, the Tribunal received post-hearing submissions from the applicant's agent, which reiterated the applicant's claims and addressed issues raised with the applicant at hearing.[9] By letter dated 5 October 2016, the Tribunal invited the applicant to comment on or respond to information, pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act), concerning information in a BBC report dated 1 December 2006 about a bomb attack on the brother of the then Sri Lankan President.[10] The letter set out the relevance of this information and the consequences of it being relied upon by the Tribunal. On 19 October 2016, the applicant responded to the s.424A invitation.[11]

   [8] CB 182

   [9] CB 191

   [10] CB 259

   [11] CB 263

Tribunal’s decision

1. On 20 October 2016, the Tribunal affirmed the decision under review.[12] The Tribunal accepted various aspects of the applicant's claims.[13]  However, it concluded that the core elements of the applicant's claims to be of adverse interest to the authorities were not credible.[14]

   [12] CB 268

   [13] CB 286-287 at [81]

   [14] CB 287-290 at [82], [83]-[91]

2. The Tribunal did not accept as credible the applicant's claims that he was of adverse interest to the Sri Lankan authorities because he inadvertently assisted a person suspected of attempting to assassinate the President's brother.  The Tribunal did not accept that the applicant was:

   a)ever questioned by the Sri Lankan authorities or agents of the State in relation to his knowledge of a person believed to be involved in an attempted assassination of the President's brother in 2006;

   b)imputed with a pro-LTTE opinion because he was suspected of assisting an LTTE member called Selvam who was suspected of supporting an attempt to assassinate the President's brother; and

   c)of ongoing adverse interest to the Sri Lankan authorities between 2006 and 2012.[15] 

   [15] CB 290 at [92]

3. The Tribunal was not satisfied that the applicant's account of his abduction and mistreatment in 2006 was credible or that the Sri Lankan authorities ever suspected the applicant was implicated in, or had knowledge of, an attempt or attempts to assassinate the President's brother. The Tribunal did not accept that the authorities had an ongoing interest in the applicant for the reasons claimed or for any other reason.[16] While the Tribunal accepted that the applicant was questioned for around two hours by the authorities in 2007, it did not accept that this questioning was related to an earlier incident in November 2006 and/or that the applicant was questioned about an LTTE member called Selvam and/or that he was of any ongoing interest to the authorities after this questioning had concluded.[17]

   [16] CB 290-291 at [93]

   [17] CB 291 at [95]

4. The Tribunal did not accept that the applicant was running and hiding from the Sri Lankan authorities between 2006 and 2012 or 2007 and 2012.  It did not accept that the applicant and/or his wife were questioned about whether he received letters from Selvam between 2007 and 2012 or that the Sri Lankan authorities or other unknown persons visited or monitored the applicant's family home during this period as claimed.[18] 

   [18] CB 291 at [96]

5. The Tribunal was not satisfied that the applicant was ever threatened with, or subject to, serious harm or significant harm by unknown persons or his Sinhalese neighbours.[19]  It did not accept that, in 2012, the police visited the applicant's home and that this triggered his decision to travel to Australia.  It did not accept that the applicant's wife had been abused and/or questioned about the applicant and/or Selvam as claimed. It did not accept that, at the time the applicant left Sri Lanka and travelled to Australia, he was hiding from the authorities or any other person or group in Sri Lanka. The Tribunal found that, at the time the applicant left Sri Lanka and travelled to Australia, he was not of adverse interest to the Sri Lankan authorities or to any other group or person.[20]

   [19] CB 291-292 at [96]

   [20] CB 292 at [97]

6. The Tribunal did not accept that the applicant was of any adverse interest to the Sri Lankan authorities because they suspected he assisted and/or had knowledge of a suspected LTTE terrorist called Selvam. On the evidence before it, the Tribunal did not accept that the applicant had been involved in any activity that would lead the Sri Lankan authorities to impute him with pro-LTTE opinion. As such, the Tribunal found that there was no real chance that the applicant would face serious harm or significant harm for reasons relating to actual or perceived political opinion as an LTTE supporter or sympathiser if he returned to Sri Lanka now or in the reasonably foreseeable future.[21]

   [21] CB 293 at [101]

7. The Tribunal was not satisfied that there was a real chance any discrimination the applicant may experience if he returned to Sri Lanka because of his Tamil ethnicity would amount to serious harm or significant harm.[22]  While it noted that DFAT[23] assessed that there remains a moderate risk of societal discrimination against Muslim Sri Lankans, the Tribunal was not satisfied on the evidence before it that any discrimination the applicant may experience because of his Muslim faith would rise to the level of serious or significant harm.[24]  The Tribunal was not satisfied that there was a real chance any discrimination the applicant may experience because of his religion or because he is a Tamil man originating from the North of Sri Lanka or because of a combination of these factors would amount to serious harm or significant harm.[25]

   [22] CB 293 at [102]

   [23] Department of Foreign Affairs and Trade

   [24] CB 294 at [104]

   [25] CB 294 at [104]

8. In respect of the applicant’s status as a person who had left Sri Lanka illegally the Tribunal found that there was no real chance that the applicant would be subject to serious harm or significant harm during the questioning process at the airport on return to Sri Lanka or as a consequence of any contact the authorities in his local area may have with him after he returns to his home area. It did not accept that there was a real chance that the applicant would be subject to serious harm, even considered in combination with what the Tribunal accepted about his characteristics and claims, because he was a failed asylum seeker.[26]  The Tribunal did not accept the applicant would be at risk of relevant harm as a consequence of having departed Sri Lanka illegally contrary to the Immigrants and Emigrants Act 1949.[27]    

   [26] CB 297 at [112]

   [27] CB 298-300 at [113]-[118]

9. The Tribunal was not satisfied that the applicant was owed protection obligations under either s.36(2)(a) or s.36(2)(aa) of the Migration Act.[28]

   [28] CB 302 AT [125]-[126]

The current proceedings

1. These proceedings began with a show cause application filed on 17 November 2016.  There are two grounds in that application:

   1. Ground One

   The decision of the Second Respondent is affected by Jurisdictional Error in that the Second Respondent overlooked evidence which was cogent and relevant to its decision, being evidence which appeared in the transcript of an earlier Tribunal hearing.

   The Second Respondent did not consider this transcript and relied upon the decision record of the Refugee Review Tribunal when considering the oral evidence given by the applicant at the Tribunal.

   Previous Tribunal accepted at the hearing that he was traumatised after the 2006 abduction and the wife’s complaint to the police on 20 September 2006.

   2. The Second Respondent committed jurisdictional error by not complying Section 424 and 425 of the Migration Act 1958.

   …

   Particulars:

   3.1 The Second Respondent made finding at paragraph 21 about the second section 438 certificate and stated that “Other items of information are relevant to the applicant’s claims but do not, in my assessment, contain any information that is adverse to the applicant’s claims”. The Tribunal failed to put all these information to the applicant.

   (errors in original)

2. At the time of the trial of this matter, the applicant continued to rely upon that application, and a short affidavit filed with it, which I received.

3. I also have before me as evidence the court book filed on 26 April 2017 and the affidavit of Chloe Ann Hillary made on 3 August 2018, to which was exhibited a confidential bundle of documents, which were the subject of a certificate issued under s.438 of the Migration Act.[29]

   [29] Exhibit R1 

4. By Application in a Case filed on 14 November 2018, the applicant sought an adjournment of the hearing until February (or as the Court saw fit).  That application was supported by an affidavit of Kathy Ragless made on 8 November 2018.  Ms Ragless deposed as to the applicant’s personal circumstances in Canberra and his state of mental health. 

5. At the hearing on 22 November 2018, I refused the adjournment application, but it became apparent fairly early in the course of the trial that the applicant was apparently affected by medication he had been taking, and there were issues with the procedural fairness of a hearing conducted remotely from Sydney.  With those considerations in mind, I adjourned the hearing part heard to Canberra on 25 January 2019.

6. The applicant attended in person at the resumed trial in Canberra with a support person (Mr Flanagan).  The applicant was unable to advance anything orally of any use in support of his grounds of review.  I invited Mr Flanagan to raise anything that the applicant might have failed to submit.  He referred to legal advice received by the applicant at an earlier stage which pointed to two potential errors by the Tribunal.  The first is the proposition that the Tribunal overlooked the applicant’s claim that he had to pay a bribe for a passport to depart Sri Lanka.  Secondly, the legal advice raised the proposition that the Tribunal failed to properly consider corroborative evidence furnished by the applicant. 

7. Counsel for the Minister was not able to deal effectively with these propositions on the day and I granted the Minister the opportunity to make post hearing submissions.  I also called on the applicant to file and serve an amended application raising the additional grounds of review.  I further called on the applicant to tender the record of legal advice, in which he had waived privilege. 

8. The terms of the legal advice are reflected in the additional grounds of review contained in an amended application filed on 31 January 2019 as follows:

   1.The Tribunal fell into jurisdictional error by failing to carry out its statutory task.

   Particulars

   a.The applicant’s evidence was that he had to pay a bribe to obtain a passport. The Tribunal gave mere advertence to that consideration by referring to it in the “Evidence before the Tribunal” section at [41] of the Tribunal's Decision.

   b.However for a consideration to be properly taken into account, the Tribunal must give more than ‘lip service’ to that evidence.

   c.The Tribunal failed to give any active intellectual engagement to the consideration that a bribe had to be paid for the passport, in making its adverse finding in the “Assessment of Claims and Evidence” section at [91] of the Tribunal's Decision.

   2.The Tribunal fell into jurisdictional error by failing to carry out its statutory task.

   Particulars

   a.The applicant provided a number of corroborating documents in support of his evidence, including:

   i.      a report to the Wattala police station about his abduction;

   ii.     a receipt in relation to his telecommunications business;

   iii.     his approach for protection to the IRC;

   iv.     his approach for protection to the Australian High Commission; and

   v.      his approach for protection to UNHCR in Sri Lanka.

   b.The Tribunal found that little weight could be put on the documents because “it is relatively easy to obtain fraudulent documentation in Sri Lanka”.

   c.When considering all the material put before it, the Tribunal must give a proper, genuine and realistic consideration to it.

   d.The Tribunal merely asserted country information at a high level of generality but failed to actively engage with each of the specific documents before it globally dismissed their probative value.

Consideration

1. The grounds advanced by the applicant in his original application do not establish any jurisdictional error.  In that regard, I accept the submissions of the Minister.

Ground 1

1. The applicant has not filed any evidence of what he told the first Tribunal during the hearing that he says was “cogent and relevant” to the Tribunal’s review, for instance in the form of a transcript of the hearing. He has not even identified what he told the first Tribunal. In any event, there is no obligation on a Tribunal conducting a review on remittal to have regard to the transcript of the hearing of the previously constituted Tribunal. The Tribunal indicated in its reasons that it listened to the audio recording of the first Tribunal hearing.[30] The Tribunal was otherwise entitled to have regard to the findings of the first Tribunal, subject to its duties to afford procedural fairness to the applicant pursuant to the requirements in Part 7 of the Migration Act. The Tribunal put specific concerns it had with inconsistencies in the presentation of the applicant’s claims to the first Tribunal and to the reconstituted Tribunal.[31]

   [30] CB 275 at [34]

   [31] CB 280 at [56]

2. Relatedly, the applicant asserts in the particulars to the ground that the first Tribunal accepted at the hearing that the applicant was traumatised after the 2006 abduction and his wife’s complaint to the police in 20 September 2006. To the extent that the applicant is here contending that the Tribunal was required to make the same factual findings as the first Tribunal, or that it denied him procedural fairness for having made its own factual findings on review of the delegate’s decision, such arguments do not establish jurisdictional error. The Tribunal was not bound by the facts as found by the first Tribunal. The findings of the first Tribunal, upon remittal, had no “legal status”.[32] To suggest, if the applicant is suggesting, that the Tribunal needed to make the same findings as the first Tribunal of itself would constrain the Tribunal’s function to conduct its own review of the delegate’s decision, on the materials before it, in accordance with its duty under s.414 of the Migration Act.

   [32] Minister for Immigration v Wang (2003) 215 CLR 518 at [15]-[16] (Gleeson CJ)

3. The first ground does not identify error by the Tribunal.

Second ground

1. The Minister concedes that the s.438 certificate issued in this matter[33] was invalidly issued.[34] Relevantly, and in stark contrast to the circumstances in MZAFZ v Minister for Immigration[35] in which the Federal Court found that non-disclosure by the Tribunal of the s.438 certificate to the applicant in that case resulted in jurisdictional error, in the present case the Tribunal was transparent in its reasons as to its approach to dealing with the certificate. At [21][36] the Tribunal noted that it considered the s.438 certificate was invalid and therefore it proceeded “to treat the documents in the usual way as if there was not a certificate”. The Tribunal expressly noted that it considered the information the subject of the certificate and did not consider the information to be adverse to the applicant. I examined the documents the subject of the certificate before me[37] and confirmed the accuracy of the Tribunal’s remarks at [21] by reference to the documents.

   [33] CB 91

   [34] MZAFZ v Minister for Immigration (2016) 243 FCR 1 at [35]-[37]

   [35] (2016) 243 FCR 1

   [36] CB 272

   [37] affidavit of Ms Hillary made on 3 August 2018

1. As the Tribunal was minded not to act on the certificate, this factor alone is a sufficient basis to distinguish MZAFZ and the more recent decision of the High Court in Minister for Immigration v SZMTA; CQY15 v Minister for Immigration; BEG15 v Minister for Immigration.[38] Further, as I have had the benefit of viewing the documents that were the subject of the invalid certificate,[39] I was able to assess whether any error has arisen in respect of the Tribunal’s dealing with the identified documents.  I am satisfied that there was none.

   [38] [2019] HCA 3

   [39] Minister for Immigration v CQZ15 [2017] FCAFC 194

2. The applicant appears to assert that the fact that the Tribunal referred to certain of the information that was subject to the certificate as being “relevant to the applicant’s claims”, yet did not disclose it to the applicant, led to error. The applicant does not explain the basis for the assertion. The applicant is in possession of the documents that were subject to the certificate, and was in a position to articulate by reference to the documents what error he says the Tribunal made. No error has been identified. The Tribunal did not have any obligations of disclosure under s.424A(1) in respect of the information. Some of the applicant’s answers to questions asked of him during his entry interview were raised during the Tribunal hearing: see for example at [47][40] and [55].[41]

   [40] CB 278

   [41] CB 280

3. No error has been identified.

The additional matters

1. The applicant raises two new grounds in his amended application, which apparently reflect legal advice he received at an earlier stage of these proceedings.  Although the applicant waived privilege in that advice by disclosing the substance of it at the trial, only a summary of the advice has been provided.  The applicant’s further written submissions filed on 4 March 2019 go to the merits of this aspect of his claims for protection.  I accept the Minister’s submissions on the additional grounds.

2. First, the applicant contends that the Tribunal failed to give any active intellectual engagement to the applicant’s claim that he paid a bribe to obtain a passport. Secondly, he contends that the Tribunal erred in respect of its consideration of a number of documents the applicant provided to it.

3. In respect of the first ground, the applicant misstates the nature of the claim he made concerning paying a bribe. The claim was made by the applicant during the hearing on 14 January 2016. The Tribunal records at [41] of its decision record the following:[42]

   He said that after the problem he applied to get the passport to leave the country. He got the passport in 2006; he paid some bribe and got the passport. … I asked how long it takes to get a passport in Sri Lanka. He said depends on how much you pay. His wife applied for him; it took three days or so. He said it was a genuine passport but they paid money to get it quicker.   (Minister’s emphasis retained)

   [42] CB 276-277

4. The Tribunal took into account the applicant’s evidence concerning how he obtained his Sri Lankan passport at [91].[43]  It found that the applicant’s ability to lawfully obtain a passport two years after he claimed to have been abducted and when he was in hiding from the authorities undermined his claims.

   [43] CB 290

5. The Tribunal’s findings at [91] were open to it. The applicant never claimed that he paid a bribe in order to get a fraudulent passport. Rather, he claimed that the purpose of the bribe he paid was to hasten delivery of the passport. The applicant expressly told the Tribunal his passport was genuine.

6. In respect of the second ground, the Tribunal dealt with a number of the applicant’s submitted documents at [94].[44] In relation to the documents supporting the claim that the applicant had approached the Australian High Commission, the UNHCR and the Red Cross, the Tribunal was prepared to accept the applicant had approached these organisations. In relation to the Wattala police report, the Tribunal appeared not to accept its authenticity, due to the fact that it pre-dated the assassination that the applicant claimed had led to his abduction, which in turn prompted his wife’s report to the police station.

   [44] CB 291

7. The Tribunal does not appear to refer to the business receipt in its consideration, however if that is so I accept that there is no jurisdictional error arising from it, as it is not apparent what claim the receipt purported to support. The Tribunal does not need to refer to every piece of evidence submitted to it.

8. It was open to the Tribunal to observe that it is relatively easy to obtain fraudulent documentation in Sri Lanka.[45] The Tribunal made the observation in reliance on country information.  Importantly, however, the Tribunal engaged with the substance of the documents submitted to it by the applicant, and with the exception of the Wattala police report and the business receipt, it accepted the veracity of the other documents the applicant nominates in the particulars to the ground.

   [45] [94]

9. For the above reasons, neither of the grounds of the amended application establish jurisdictional error by the Tribunal.

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

2. I will so order.

3. I will hear the parties as to costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 9 May 2019