SZSNZ v Minister for Immigration
[2015] FCCA 2257
•20 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSNZ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2257 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal –whether the Tribunal had regard to an irrelevant consideration – whether the Tribunal failed to provide an “intelligible justification” – whether the Tribunal failed to afford the applicant a fair hearing – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 425, 476 |
| Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 SZOXH v Minister for Immigration & Anor [2011] FMCA 256 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 M100 of 2004 & Anor v Minister for Immigration & Anor [2007] FMCA 829 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 |
| Applicant: | SZSNZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 165 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 May 2015 |
| Date of Last Submission: | 25 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr P. Gnanakaran of Gnana-Karan Solicitors |
| Solicitors for the Respondents: | Mr S Speirs of Clayton Utz |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 30 January 2013 and ultimately amended on 1 May 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $10,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 165 of 2013
| SZSNZ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 January 2013, and ultimately amended on 1 May 2015, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), now known as the Administrative Appeals Tribunal, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
Background
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following relevant background can be ascertained from those documents.
The applicant is a citizen of Sri Lanka (CB 4). He arrived in Australia as an “irregular maritime arrival” on 11 April 2012 (CB 2 to CB 17 and CB 49). On 1 July 2012 the applicant was notified that the Minister had exercised his power pursuant to s.46A(2) of the Act to permit him to lodge an application for a protection visa (CB 35).
The applicant made such an application with the assistance of a registered migration agent on 1 July 2012 (CB 36 to CB 108, including attachments). Included in the application was a Statutory Declaration made by the applicant on 1 July 2012 outlining his claims to protection.
The applicant claimed to be a Hindu Tamil. The applicant had previously lived and worked in Qatar. He returned to Sri Lanka in 2011 after being arrested for overstaying his working visa. He claimed that he had originally gone to Qatar because of harassment against him because he “was a Tamil living in Sri Lanka”, and because he was “always suspected of being involved with the Liberation Tigers of Tamil Eelam”.
The applicant claimed to fear harm, primarily, due to an incident that had occurred in January 2012, after his return to Sri Lanka in 2011. He claimed that he had been assaulted by two intoxicated men while riding his motorbike home on 14 January 2012 (relevantly, this was said to be “Thai Pongal Day”), and that he had injured one of the men with a large stone. He claimed that the following day four men from the Sri Lankan army (“the SLA”) arrived at his house and asked his mother about his “whereabouts”. Further, that they had told his mother that he had “assaulted a senior official in the army” and that he was required to go to the “camp” to see them when he returned.
The applicant claimed that army officers returned later that day in a “white van” and that he ran away so that they would not catch him. He claimed that they arrested his father instead, and that his father was not released for five days. The applicant claimed that after his father’s release the SLA still “stalked” his family in search of him. He did not return to his family home, and moved in with his “aunty”. The applicant claimed that he considered going to Saudi Arabia or Dubai. However, he was told that he would encounter problems “exiting” the airport. He claimed that his “aunty” then arranged for him to travel to Australia.
The delegate refused the application on 23 August 2012. The delegate did not believe the applicant’s central factual claims, involving the encounter in January 2012, and the SLA’s pursuit of him. The delegate did not find the totality of the applicant’s claims to fear harm, and the factual elements of his claims, to be plausible.
The Tribunal
The applicant applied for review of the delegate’s decision to the Tribunal on 19 September 2012 (CB 139 to CB 142). He continued to be assisted by a registered migration agent.
The applicant’s representative provided written submissions in support of the applicant’s claims on 8 November 2012. Further submissions were provided to the Tribunal on 23 November 2012. The applicant and his representative attended a hearing before the Tribunal on 9 November 2012.
The Tribunal did not accept that the applicant had an altercation with the SLA on 14 January 2012 ([64] at CB 268 to CB 270). It made this finding for the following reasons:
1)It did not accept that two senior members of the SLA “would attempt to take the bike…without asserting their authority and telling the applicant that they were members of the Army”.
2)The Tribunal found the applicant’s evidence to be “repetitive” and that it “gave the impression that he was referring to a memorised narrative, rather than answering questions regarding events that he had actually experienced”.
3)It found the applicant’s “recounting of events was vague and fanciful…”. Further, that his evidence was “at times contradictory”, and that this “gave the impression that the applicant was not recalling events that he had actually experienced”.
4)The Tribunal did not find it “believable” that certain important elements of the applicant’s factual claim had occurred. This included that his mother had not attempted to contact him after the men first arrived at his home, that he had remained in his home that day, and that he was able to travel across Sri Lanka without identification.
In all, as the Tribunal did not believe that the claimed events occurred, which were the basis from which the applicant claimed to fear harm, it found that the applicant did not have a well-founded fear of persecution ([66] at CB 270). Further, it did not believe the applicant’s claims that the SLA had continued to harm and harass his family, including fatally injuring his father.
The Tribunal also considered the applicant’s claim to fear harm on return to Sri Lanka as a “failed asylum seeker”. It found that the small number of people detained “are detained because of outstanding criminal matters”. As it did not believe that the applicant was of interest to the Sri Lanka authorities it found that it did not have evidence before it to find that the applicant would be detained beyond a “relatively short period to enable processing and security checks, and may be fined” ([70] at CB 271).
In relation to the complementary protection criterion, the Tribunal concluded that as it had found that the applicant’s factual claims in relation to the January 2012 event did not occur, he would not be of interest to the Sri Lankan authorities on return, and any detention on return would not constitute significant harm.
Application Before the Court
The application before the Court, as ultimately amended on 1 May 2015, is as follows:
“1. The Tribunal committed jurisdictional error by taking into account irrelevant considerations, such as the manner in which the motor bike was left behind and disposed of, the inability of the applicant to describe the men with whom he had the confrontation. The Tribunal acted unreasonably in that it repeatedly challenged the evidence of the applicant and suggesting to him that he was merely recollecting his statement and by engaging in an adversarial type of hearing, thus committed jurisdictional error.
2. The Tribunal committed jurisdictional error by failing to take into account relevant considerations in that that it brushed aside the applicant’s evidence in an arbitrary manner and substituted its own view of what is likely or unlikely, rendering it unreasonable in lacking evident and intelligible justification. The tribunal described it as unlikely that whist he was trying to flee on the motorbike it would seem unlikely that the second man would’t be able to apprehend him (31); seemed usual that someone in apposition of authority ... would run backwards ... (32) : unusual. that high level people in the Sri Lankan army would not have their own transport..(34); unusual the ..... men would not drive to his brothers house ... (35 and 36); unusual that the father would pass away from being hit in the genitals (40)
3. The above is also manifested in that The Tribunal erred in concluding that the applicant did not have an altercation or encounter with the Sri Lankan army on 14 January 2012.Such finding is in disregard to the submissions on behalf of the applicant that the army engages in unlawful activities, their drunken state on the particular day and contrary to available evidence.(CB226- 227)
4. The Tribunal erred in not according sufficient weight to the occasion of the Pongal festival in assessing the manner in which Army officers conducted themselves on the particular day.
5. The Tribunal by repeatedly challenging the evidence of the applicant and suggesting to him that the was merely recollecting his statement and that the events as described by him are unlikely, impeded the applicants giving evidence which amounted to a failure to afford a fair hearing . The tribunal described it as unlikely that whist he was trying to flee on the motorbike it would seem unlikely that the second man wouldn’t be able to apprehend him (31); seemed usual that some one in apposition of authority ... would run backward:; ... (32); unusual. that high level people in the Sri Lankan army would not have their own transport .. (34); unusual the ... men would not drive to his brothers house ... (35 and 36); unusual that the father would pass away from being hit in the genitals.
6. The Tribunal erred in not considering available alternative information that Tamils/failed asylum seekers face detention and arrest on their return to Sri Lanka. The Tribunal referred to such information (58 ff) but attached no weight to such material.
7. The Tribunal erred in failing to consider the possibility of the harsh consequences to the applicant if in fact he is of interest to the authorities arising out of the confrontation with Army officers on 14 January 2012.”
[Errors in the original.]
Consideration
The applicant was represented by a solicitor before the Court. As set out above the applicant has amended his application on a number of occasions. At the final hearing, leave was granted to the applicant to proceed on the basis of the grounds set out above, even though this version of his application had not been served on the Minister. The Minister did not object on the basis that leave was granted to file further written submissions.
As set out above, there are seven grounds of the third further amended application. Despite the numerous opportunities given to him since June 2013 at the First Court date to prepare his grounds, the applicant advised, variously, during the course of the hearing, that he did not press grounds two and seven.
For the remainder, a feature of the applicant’s submissions before the Court was to argue matters not raised by the grounds, or to seek to explain each of the grounds with reference to multiple assertions of jurisdictional error. I have proceeded on the basis of considering each ground as best as it could be understood, in light of the submissions.
Ground One
Ground one directs attention to the applicant’s claim before the Tribunal involving the incident on 14 January 2012 while riding his motorbike.
Before the Court, the applicant explained that there were two assertions of jurisdictional error said to arise in ground one. These were first, legal unreasonableness and two, that the Tribunal took into account an irrelevant consideration.
In relation to legal unreasonableness, the applicant, at first, sought to rely on Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) to make good his proposition of legal error. Subsequently, the applicant also sought to rely on SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093 and Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145.
Li involved the question of the reasonable exercise, or failure to reasonably exercise, a statutory discretion. In the current case, the applicant did not relate the ground to any such statutory discretion of the Tribunal.
When pressed to develop his argument the applicant asserted that the “main ground of the complaint” was about the way the Tribunal conducted the hearing. The applicant then agreed that he was pursuing, what was said to be a “different ground” in ground one. Namely, a breach of s.425 of the Act. However, this was subsequently withdrawn.
Ultimately, as best as it could be understood, the applicants complaint in ground one appeared to derive from Li at [5] and [10] per French CJ:
[5] In their joint judgment dismissing the Minister's appeal to the Full Court of the Federal Court, Greenwood and Logan JJ correctly described the review function conferred on the MRT as its ‘core function’ and said:
‘The MRT is given power to adjourn proceedings from time to time ... An unreasonable refusal of an adjournment of the proceeding will not just deny a meaningful appearance to an applicant. It will mean that the MRT has not discharged its core statutory function of reviewing the decision. This failure constitutes jurisdictional error for the purposes of s 75(v) of the Constitution.’ (emphasis in original)
Their Honours also concluded that an unreasonable refusal of an adjournment would mean that the MRT had not conducted its review function in a way which was ‘fair’, that being a requirement of ss 353 and 357A(3) of the Act. In so concluding, they invoked observations in Minister for Immigration and Citizenship v SZGUR referring to s 353 as imposing a ‘requirement’ on the MRT. As appears later in these reasons, their Honours seem to have taken more from that observation than it conveyed.
…
[10] Section 348 provides that if an application for review of an MRT-reviewable decision is properly made ‘the Tribunal must review the decision’. It may, for the purposes of the review, ‘exercise all the powers and discretions that are conferred by this Act on the person who made the decision’. It is well established that the reviews that both the MRT and the Refugee Review Tribunal (‘the RRT’) undertake (both tribunals operating under similar legislative schemes) are non-adversarial and that they involve no contradictor nor the joinder of any issue. The review function of the tribunals created by the Act is sometimes called ‘inquisitorial’. That designation is a characterisation of their function which distinguishes it from adversarial proceedings. The word ‘review’ has no settled pre-determined meaning; it takes its meaning from the context in which it appears. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. There are similarities to the kind of review provided by the Administrative Appeals Tribunal (‘the AAT’), described by Brennan J in Bushell v Repatriation Commission as:
‘an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it.’
As for the AAT, so too for the MRT and the RRT, the onus of proof relevant in judicial fact-finding has no part to play in administrative proceedings. There being no party to a review adverse to the applicant, no question of prejudice to a party other than the applicant can arise when the applicant asks the MRT to adjourn a review to enable additional information to be provided to the MRT. Nor can there be any prejudice to the tribunal although it is entitled to have regard to legislative objectives including timeliness in its processes.”
From this, the applicant sought to direct attention to [27] of the Tribunal’s decision (CB 258 to CB 259):
“Asked to describe the men that he had the encounter with, the applicant referred to information he had already submitted in his Statutory Declaration, saying that the men raised their hands towards him and they spoke in Tamil. The Tribunal said that it had read the applicant’s Statutory Declaration, and it had listened to his earlier interview with the delegate and his entry interview. The Tribunal made clear that what it was seeking was additional information that it did not have, and that the hearing also gave the applicant the opportunity to respond to issues that it had raised. The Tribunal asked the applicant not to repeat information that he had already submitted in his Statutory Declaration if it was not related to the question that was asked. The applicant then said that the people were wearing civilian clothes and trousers and they had their hair combed. The Tribunal asked again that the applicant should not repeat information that was in his Statutory Declaration and said it was asking for answers to the question that it was actually raising as in were the men tall, short, big, or overweight. The applicant then said the men were almost his height in size. One was fairer and the other one was darker. The applicant said that one who was fairer would be referred to as ‘common white’ as he had common white skin.”
Again, as best as it could be understood, the argument appeared to be as follows. The Tribunal asked the applicant at the hearing to describe the men he claimed harassed him (“…tall, short, big or overweight…”). When this question is considered in the context of what was said to have occurred at the “confrontation” on 14 January 2012, the Tribunal’s question should be seen as unreasonable.
This was said to be so because it was unreasonable of the Tribunal to expect the applicant to be able to describe these men in the circumstances of a “tense” and “threatening” situation. Any person faced with this situation would not be able to properly recollect it, and describe those by whom he was confronted. That is, it was unreasonable, in the circumstances, to ask the applicant to describe people with whom he had encountered.
Drawing on the applicant’s reference to Li at [10], I subsequently understood the applicant’s submissions to explain this aspect of the ground as being that the Tribunal acted unreasonably because, by its questioning, as set out at [27] of its decision record, it engaged in an “adversarial” approach as referred to by the Chief Justice in Li.
This aspect of ground one must fail. The Tribunal is entitled to test the applicant’s evidence. It is not “adversarial” on the part of the Tribunal to ask questions of an applicant in order to elicit the facts. Nor is jurisdictional error revealed simply by the Tribunal asking challenging questions, even in a robust manner (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”)).
In any event, the applicant has not provided a transcript of the Tribunal hearing. On the Tribunal’s account it cannot be said that its questioning was unreasonable, in the manner in which it was conducted and thus prevented the applicant from giving his evidence.
Further, it must be said that the applicant’s understanding of what was said in Li was misconceived. In my respectful view what was stated there in relation to “non-adversarial”, is immediately explained with the reference that “reviews” before the Tribunal “involve no contradictor nor joinder of any issue”. That is, the Tribunal operates not as a Court. That is made clear, for example, in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [44].
During subsequent submissions the applicant also asserted that the Tribunal’s repeated insistence, that the applicant not repeat at the hearing what was in his Statutory Declaration, but provide further evidence to what was set out there in relation to the January 2012 incident, was “unfair”.
It may be that this is what the applicant meant with his earlier reference in submissions to a lack of “procedural fairness”. The applicant sought to explain this procedural unfairness by submitting that this interfered with a “person’s thought process”.
The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s own references on its decision record. There is no transcript before the Court. The Tribunal’s explanation for its concern, in this regard, is set out variously in its decision record. For example, the Tribunal reported that the applicant’s evidence at the hearing “was repetitive and gave the impression that he was referring to a memorised narrative, rather than answering questions regarding events he had actually experienced” ([64] at CB 268).
I cannot see that the applicant was denied a meaningful or fair opportunity to give his evidence. The Tribunal specifically invited the applicant to give an account, in his own words, during the hearing, of relevant events for the purpose of understanding and testing what had been put in writing in his Statutory Declaration.
It cannot be said that in these circumstances the applicant was denied procedural fairness. Further, the Tribunal was entitled to satisfy, for itself, the credibility of what had been put in the Statutory Declaration. This aspect of ground one does not assist the applicant in revealing jurisdictional error.
The applicant also complained, by way of his “explanation” of ground one, that the Tribunal fell into jurisdictional error because it took into account irrelevant considerations. These were said to be certain details concerning the incident of 14 January 2012. That is, the way in which the motorbike was left behind, and the applicant’s inability to identify the men with whom he claimed to have had the confrontation.
The applicant’s complaint was that the Tribunal’s “statement” (see generally at [64] at CB 268 to CB 270), that the Tribunal found “that the applicant provided contradictory evidence regarding where his motorbike was left in Sri Lanka”, was an irrelevant consideration.
Before the Court, it appeared that this argument was an extension of the unreasonableness complaint. What was said to be an irrelevant consideration, and unreasonable of the Tribunal to have taken it into account, were the various details of the incident.
It must be said that, ultimately, the applicant’s complaint is to be characterised as a challenge to the Tribunal’s evaluation of the evidence before it, largely, in this regard, the applicant’s own evidence, and the Tribunal’s findings that flowed from that analysis.
The applicant claimed to fear harm if he were to return to Sri Lanka. In large part, he claimed this incident, a past event in Sri Lanka, was relevant to the issue of whether he had a well-founded fear of persecution if he were to return to Sri Lanka, or would face significant harm.
In these circumstances the Tribunal was entitled, if not obliged, to consider the evidence and information before it. It gave reasons for this finding probative of the evidence and information presented to it. Further, the Tribunal was not obliged to uncritically accept the applicant’s evidence. What the applicant now says was unreasonable on the part of the Tribunal, and that the Tribunal took into account irrelevant considerations, is no more than a challenge to the findings of fact made by the Tribunal. In all, ground one is not made out.
Ground Three
Ground three asserts that the Tribunal erred in finding that the applicant did not have an encounter, or altercation, with the SLA on 14 January 2012. The applicant claims that the Tribunal’s finding was arrived at without having regard to submissions made by the applicant’s representative on 23 November 2012 (CB 222 to CB 244), and in particular in relation to the “altercation” (see [5] at CB 225 to [14] at CB 228).
It is the case that a failure by the Tribunal to deal with evidence before it in the appropriate manner, taking into account its importance to the exercise of the Tribunal’s function, is jurisdictional error (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 and see further Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [29]).
However, the applicant’s complaint does not succeed at the factual level. Before the Court, in answer to this ground, the Minister referred to the Tribunal’s statement at [49] (at CB 263) “[t]he agent provided post-hearing written submissions dated 23 November 2012, and these have been considered by the Tribunal.”
This must be read with the various specific references to the written submissions throughout its decision record (see in particular at [38], [45], [64], [67] and [70]).
In particular, I note that the Tribunal stated, at [64] (at CB 268) “…[i]t is also supported by the submissions made by the agent regarding Sri Lankan officials acting outside their powers (and corruption)”. At this part of the decision record the Tribunal was addressing the “…altercation or encounter with the Sri Lankan army on 14 January 2012” (see CB 268).
The relevant submissions from the representatives are headed “Thai Pongal Festival Incident and Credibility” (the day on which the “altercation” was said to have occurred, 14 January 2012). They directly relate to the matter of the claimed incident, which the Tribunal considered at [64] (at CB 268).
It is also of note that before the Court the applicant did not establish that the representative’s written submissions were in support of the proposition expressed in ground three. That is, that “the army engages in unlawful activities, their drunken state on the particular day and contrary to available evidence”.
In the submissions to the Tribunal, that “available evidence” is set out at [8] – [13] (at CB 226 to CB 228). I agree with the Minister that [9] (at CB 226), which sits in this part of the submissions, is not a reference to country information, but rather assertions not corroborated by the information which surrounds it. At best, the submissions in this regard are the representative’s speculation, not an argument that the applicant would likely face harm. In all, ground three is not made out.
Ground Four
Ground four asserts that the Tribunal did not give “sufficient weight” to the fact that the events of 14 January 2012 occurred during the Pongal Festival. In particular, that this was relevant to the assessment as to how the army officers conducted themselves on that day. The focus again appears to be “drunken”, or “unlawful behaviour”, of the army personnel and the likelihood of its occurrence during the Pongal Festival.
The difficulty for the applicant with this ground is that any fair reading of the representative’s submissions to the Tribunal, does not propose that the claimed conduct of the Sri Lankan officers was caused by, or exacerbated by, the fact that the claimed incident occurred on Pongal Day.
Even if it could be accepted on the country information referred to in the representative’s submissions (see [8] at CB 226), that the SLA is “heavily” involved in the Pongal Festival, there is nothing to link the claimed conduct to this involvement. The argument raised by the applicant now may have been available to his representative to be raised in his submissions, but it was not.
Further, the question of “weight” to be given to such evidence (country information), “sufficient” or otherwise, is for the Tribunal to assign (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ, Lee v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was) and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 at [45] per Spender, Moore and Foster JJ). The applicant’s assertion that the Tribunal did not assign sufficient weight to this particular piece of country information (that it was Pongal Day) does not, in the circumstances, provide a basis to say that the Tribunal’s decision is otherwise left without an “intelligible justification” as to how the conclusion on the review was achieved (Li and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280).
Finally, I should also note that, there is nothing in the applicant’s oral evidence to the Tribunal at the hearing to indicate that the fact that 14 January 2012 (the date of the claimed incident) being Pongal Day, was a particular factor in the claimed conduct of the army officers. That is, there was nothing in that evidence to support the submission now made to the Court. Ground four is not made out.
Ground Five
Ground five asserts that the Tribunal impermissibly “challenged” the applicant’s evidence at the Tribunal hearing and that the suggestion that he was merely “recollecting” his written statement “impeded” the applicant in giving his evidence and this amounted to a failure on the Tribunal’s part to afford a fair hearing. The ground also appears to take issue with what is said to be the Tribunal’s conduct in having put to him some of its concerns with the applicant’s evidence at the hearing. That is, as it related to the “details” of the claimed incident with the army officers on 14 and 15 January 2012.
As set out above, the applicant has not provided a transcript of the Tribunal hearing. The only account before the Court is contained in the Tribunal’s references in its decision record. This account shows that the Tribunal made plain its concerns with the applicant’s evidence. However, I cannot see that telling the applicant that his answers appeared rehearsed exceeded the relevant limits of dealing with the evidence in a “…in a robust, even sustained manner… the Tribunal is under a statutory duty to explore claims and make findings of fact that support its conclusions” (SZOXH v Minister for Immigration & Anor [2011] FMCA 256 at [50] per Judge Driver, see also SZRUI).
If anything, putting the applicant on notice of its preliminary view of his evidence afforded him an opportunity to respond to the Tribunal’s concerns. An opportunity which his representative took up in making subsequent written submissions.
The applicant also complained, in relation to this ground, that the Tribunal acted “outside” relevant Tribunal “credibility guidelines” in the manner in which it conducted the hearing. The “guidelines” were said to be that part extracted in the representative’s submissions (see [21] at CB 229 to CB 231). Again, this appears to be part of the applicant’s general theme before the Court that the Tribunal acted unreasonably in pressing the applicant for details of the incident on 14 January 2012.
The applicant did not satisfactorily explain before the Court how the Tribunal failed to follow these guidelines. These parts of the guidelines extracted are directed to conducting the hearing in a context of an applicant’s claimed “mental health and credibility”, and capacity to give evidence, and the “credibility” assessment “generally”.
In relation to the first, the Tribunal specifically turned its mind to the representative’s submissions on this issue (see [67] at CB 270). On a fair reading the Tribunal took the submissions into account, but found that the applicant was able to “meaningfully participate” at hearing. This was reasonably open to the Tribunal on what was before it. In relation to credibility generally, I cannot see on the evidence before the Court, that is, the Tribunal’s account of the hearing, that the Tribunal acted inconsistently with the guidelines.
I also agree with the Minister that a fair reading of the guidelines do not impose a positive duty on the Tribunal in this regard, but address various circumstances that “may” arise and offer, as the heading implies, “guidelines” on how to proceed. The Tribunal’s obligation, indeed the exercise of its jurisdiction, requires it to consider claims and to assess their credibility (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]).
In any event, the Tribunal does fall into jurisdictional error in not following a non-binding guideline or advice (M100 of 2004 & Anor v Minister for Immigration & Anor [2007] FMCA 829 and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634). Nor did the applicant satisfactorily explain, let alone provide any relevant authority to support his submission, that the Tribunal was bound to take the guidelines into account. In all, ground five is not made out.
Ground Six
Ground six asserts that the Tribunal fell into legal error because it failed to take into account what is described as “available alternative information that Tamils/failed asylum seekers face detention and arrest on their return to Sri Lanka”.
The amendment to the ground, as it appears in the third further amended application, reveals the weakness in the applicant’s ground “[t]he Tribunal referred to such information (58ff) but attached no weight to such material”.
The evaluation of country information, and the weight to be assigned, is for the Tribunal to determine (see reference above to NAHI). Nor is this a case where the Tribunal was presented with more recent country information which it failed to consider (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114).
In any event, on a fair reading, the Tribunal referred to relevant country information, and found that the applicant would not fall into the category of a “returnee” as he claimed. This was because he had been deported from Qatar to Sri Lanka. The Tribunal dealt with the circumstances as presented. In all, ground six is not made out.
Conclusion
In all, the applicant’s grounds, as ultimately amended, do not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 20 August 2015
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