SZSOY v Minister for Immigration & Border Protection
[2014] FCCA 1811
•13 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSOY v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1811 |
| Catchwords: MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s decision is affected by bias or apprehended bias – whether the Refugee Review Tribunal’s findings were open to it – whether the Refugee Review Tribunal should have made further enquiries about a claim made by the applicant to have received telephone calls from the Australian High Commission in Sri Lanka – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474 Migration Regulations 1994 (Cth), reg.2.01 |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 Minister for Immigration v SZLSP [2010] FCAFC 108 Minister for Immigration v Li [2013] FCA 18 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 |
| Applicant: | SZSOY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 263 of 2013 |
| Judgment of: | Judge Emmett |
| Hearing dates: | 6 March 2014 28 July 2014 |
| Date of Last Submission: | 28 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Michael Jones (Parish Patience Immigration Lawyers) |
| Solicitors for the Respondents: | Mr Julian Pinder (Minter Ellison) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 263 of 2013
| SZSOY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 18 January 2013 and handed down on the same date (“the RRT”).
The applicant claims to be a citizen of Sri Lanka and Sinhalese ethnicity, who fears harm from the Sri Lankan Army.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.
Background
The applicant arrived in Australia on 24 October 2011 having departed legally from Sri Lanka on a passport issued in his own name and a Temporary Business Entry (UC 456) visa issued on 18 October 2011 .
On 3 November 2011, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).
On 28 May 2012, the Delegate refused the applicant’s application for a protection visa.
On 15 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 18 January 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.
On 13 February 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.
Legislative framework
Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Section 5 and s.36(2A) of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
The applicant provided a statement in support of his protection visa application in which the following claims were made:
a)The applicant claimed to have been a landscaper and a friend to a Lance Corporal of the Sinha Regiment in the Sri Lankan Army (“the Lance Corporal”). The Lance Corporal was involved in many confrontations against the Liberation Tigers of Tamil Elam (“LTTE”) in the Northern Province.
b)The Lance Corporal fought in the “final battle” of 2009 and met with the applicant that same year in June. The Lance Corporal described to the applicant the battles in which he had fought and the manner in which Tamils had been killed. The Lance Corporal then showed the applicant footage and photographs on his mobile phone, depicting scenes of torture and indiscriminate killing.
c)A year later, the Lance Corporal came to the applicant and told the applicant that he had sold the footage on his phone for “a very good price” and that he “might have problems as a result of it all”. The Lance Corporal told the applicant that if anyone came searching for him, the applicant was to deny knowing the Lance Corporal. The Lance Corporal then left, however the applicant claims that he received information that Army Intelligence arrested the Lance Corporal and took him away.
d)Three to four months following the visit from the Lance Corporal, the applicant’s house was surrounded by soldiers in the middle of the night and the applicant was detained. The soldiers seized the applicant’s computer and accused him of selling the Lance Corporal’s footage to white foreigners and of being a traitor. The applicant was beaten and then taken away from his family in an Army jeep, whereupon he lost consciousness.
e)When the applicant regained consciousness, he found himself bound to a tree in an Army camp in thick jungle. He discovered that there were another 20-25 people who had also been detained by the Army. At this time, the applicant saw the Lance Corporal, who refused to look at him. The applicant was then locked in a room on his own.
f)The applicant was taken out of the room for questioning. The soldiers took the applicant to a room where he saw his computer playing the footage taken by the Lance Corporal. The applicant was restrained on a table and questioned as to the price for which he had sold the footage. The applicant denied selling the footage, whereupon he was beaten. The applicant continued to deny selling the footage and the soldiers beat the applicant into unconsciousness. The applicant was interrogated and beaten for another three days. He was then told by a soldier that the Lance Corporal had informed the Army that the applicant had sold his footage to white men.
g)The applicant was detained for another month before the camp was visited by the Defence Secretary, who informed all the detainees that they would be released that night.
h)The applicant was again locked in a room on his own. A soldier then told him that he was going to be executed that evening. The applicant was taken into the jungle by the soldiers, along with fifteen other detainees. The applicant was blindfolded and the detainees all taken in different directions. The applicant was given a hand torch by the soldier escorting him. The soldier said he did not want to harm him and instructed the applicant to lie on the ground, whereupon he fired into the ground near the applicant and then left. When the applicant heard the soldiers’ vehicle leave, he should make his escape.
i)There were a number of shots fired by other soldiers, as well as the soldier escorting the applicant, who fired into the ground. The applicant then made his escape through the jungle.
j)Two months later, the applicant departed Sri Lanka for Australia with two other people, posing as a businessman.
k)Although the applicant escaped execution, he claims to still fear harm so long as the present Sri Lankan government remains in power.
The Delegate’s decision
At his interview with the Delegate, the applicant said that the Lance Corporal had come to his home with the video evidence and asked the applicant to save the video images to the applicant’s son’s computer. The Delegate rejected the applicant’s claims of past harm and found his claim relating to the downloading of video material not to be plausible.
On 28 May 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.
The RRT’s review and decision
On 15 June 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.
On 3 October 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 31 October 2012 to give oral evidence and present arguments.
On 31 October 2012, the applicant attended the RRT hearing and gave evidence. The applicant provided to the RRT copies of x-rays and a medical report dated 24 April 2012 conducted in Australia.
The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment. The RRT identified with particularity the country information to which it had regard.
The RRT voiced concerns in relation to evidence from the applicant regarding his decision to leave Sri Lanka on legitimate travel documents (rather than documents in another name, which country information indicated are readily available) and the period of time between the applicant’s escape from captivity and subsequent departure from Sri Lanka. The RRT noted that the applicant maintained his employment and contact with his family up until the point at which he left Sri Lanka, thereby casting doubt upon the applicant’s claim to fear being tracked down and killed by Sri Lankan authorities.
The RRT also considered the medical imaging and clinical notes provided by the applicant. The RRT found that there was no self-evident link between those documents and the applicant’s claim to have been detained and tortured and that the reference to a shoulder injury by itself did not displace the concerns the RRT otherwise had regarding the applicant’s credibility.
The RRT noted the readiness of the applicant’s wife to give oral evidence and accepted that, had she spoken to the RRT, she would have confirmed the applicant’s claims for protection. However, the RRT placed very little weight on this as independent corroboration of the applicant’s claims, given their relationship and her family’s obvious direct interest in the outcome of the review.
In light of its concerns, the RRT found that the applicant had fabricated his claims and was not a witness of truth. The RRT rejected all of the applicant’s claims, including that the military has since called on the applicant’s home in Sri Lanka; that the military has declared their knowledge of the applicant’s presence in Australia; that the applicant has received telephone calls from Sri Lanka ordering him to return to Sri Lanka; and that the applicant’s family moving to their newly built home in Sri Lanka had anything to do with the applicant’s claims.
The RRT found that the applicant was not and is not of adverse interest to the Sri Lankan military or other authority for any reason. The RRT found that there was not a real chance of the Sri Lankan authorities persecuting the applicant for any Convention reason were he to return to Sri Lanka either then or in the reasonably foreseeable future.
The RRT then considered whether the applicant was eligible for protection under the complementary protection criterion in s.36(2)(aa) of the Act. For the reasons given in relation to the applicant’s credibility, the RRT found that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Sri Lanka, that there was a significant risk of harm to the applicant.
Having decided that the applicant was not a person to whom Australia owed protection obligations, nor eligible for complementary protection, the RRT affirmed the decision not to grant a protection visa.
The proceeding before this Court
On 17 May 2013, the applicant attended a directions hearing before a Registrar of this Court.
On 6 March 2014, the applicant appeared before this Court without representation but with the assistance of a Sinhalese interpreter. However, due to the unsatisfactory nature of the interpretation being provided to the Court, by consent, the matter was stood over for hearing to 26 March 2014. By consent, the matter was further adjourned for hearing to 28 July 2014 upon the applicant becoming legally represented.
At the commencement of the hearing, the applicant was given leave to file in court a Further Amended Application identifying the following grounds:
“1. The Tribunal’s decision gives rise to a reasonable apprehension of bias.
Particulars.
(a) The Tribunal decided not [to] take evidence by telephone from the applicant’s wife, considering it inappropriate to do so “for reasons of confidentiality as well as the applicant’s specific claim that army personnel have come by the family home on several occasions looking for him” (para [74]), and because it would have placed very little weight on the wife’s evidence (para [78]). A fair-minded lay observer [would] have reasonably apprehended that the Tribunal did not have an open mind about what weight it might have given to the wife’s evidence if it had heard it.
(b) The Decision Record at [68]-[78] suggests that the Applicant’s claims with respect to video footage shot by an acquaintance “corresponds closely with” material in a UK documentary, although the Tribunal does not explain how the material which it had not seen actually did correspond with the documentary. Although the Tribunal did not refer to this “close correspondence” in the “Findings and Reasons” section of the Record, its deliberate inclusion in the Record might give rise to an apprehension that the Tribunal considered the Applicant’s claim to be plagiarised and therefore had a closed mind as to its credibility.
(c) The particulars given under ground 3 may also give rise to an apprehension of bias.
2. The Tribunal’s assessment of the Applicant’s credibility in relation to medical evidence provided by him was without an evident and intelligible justification.
Particulars
The Tribunal said that the medical evidence provided by the Applicant “might be consistent with long-term physical labour” (para [75]). That conclusion is not apparent from the evidence itself, and the Tribunal provided no justification for drawing such a conclusion from it.
3. The Tribunal failed to complete its review of the case because it failed to make an obvious inquiry about a critical fact, the existence of which could easily have been ascertained.
Particulars
The Applicant claimed to have received telephone calls purporting to be from the Australian High Commission in Sri Lanka. The Tribunal rejected out of hand the possibility that the High Commission might have made such calls. It could easily have ascertained whether the High Commission had in fact made such calls or whether it was aware that such calls were being made by others pretending to be the High Commission .”
Ground 1
Ground 1 asserts that the RRT’s decision gives rise to a reasonable apprehension of bias by reason of the RRT’s finding that it would give little weight to evidence from the applicant’s wife in circumstances where the RRT decided not to take evidence by telephone from the applicant’s wife despite being requested to do so.
Mr Jones submitted that, having decided not to take the applicant’s wife’s evidence, the way the RRT dealt with what the RRT says the wife’s evidence would have been is biased.
Mr Jones tended the applicant’s affidavit annexing a transcript of the RRT’s decision. The transcript makes clear that the applicant requested the RRT to call his wife so that she could confirm his claims. The RRT stated that it would make a note that the applicant had offered for the RRT to talk to his wife and that it would take into account that she would be ready and willing to confirm his claims and evidence. However, the RRT stated that in its view it would not be appropriate to call the wife on the telephone about allegations and criticisms in relation to the Sri Lankan army or government, or that the applicant was seeking protection in Australia, because it could not be confident that the confidentiality of his application could be maintained.
The RRT made the following finding in respect of that evidence:
“The Tribunal notes the readiness of the applicant’s wife to give oral evidence and accepts that, had she spoken to the Tribunal, she would have confirmed his claims for protection. However, the Tribunal places very little weight on this as independent corroboration of the applicant’s claims, given her relationship with him and her and the family’s obvious direct interest in the outcome of this review.”
The applicant does not take issue with the RRT’s decision not to take evidence from the wife. Rather, applicant’s complaint is with the RRT’s finding that it placed very little weight on the wife’s evidence as independent corroboration of the applicant’s claims.
The full reasons that the RRT stated that it placed very little weight on the wife’s evidence as independent corroboration of the applicant’s claims, having accepted that it would be consistent with the applicant’s claims, was because of her relationship with the applicant and her and her family’s “obvious direct interest in the outcome” of the RRT’s review.
The RRT was obliged to evaluate all the evidence before it. It did not make any finding in respect of the wife’s possible evidence that was adverse to the applicant. The RRT accepted that the wife would have confirmed the applicant’s claims for protection. The applicant did not suggest that that the wife was going to give any evidence other than to confirm his claims for protection.
In the circumstances, it was open to the RRT to find that the wife’s evidence to that effect would give little weight as independent corroboration of the applicant’s claims for the reasons given.
I do not accept that the applicant’s findings in this issue demonstrate either bias or apprehended bias. The mere fact that the RRT makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
A fair reading of the RRT’s decision does not disclose any prejudgment on the part of the RRT in the sense that the RRT was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the RRT’s decision does not suggest that the RRT approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the RRT, might reasonably apprehend that the RRT may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly, ground 1(a) is not made out.
Ground 1(b) was withdrawn.
Ground 1(c) asserts that the failure of the RRT to make further inquiry as to persons from whom the applicant may have received telephone calls in circumstances where the applicant asserted that he had been rung by the Australian High Commission of Sri Lanka and told not to return to Sri Lanka.
The transcript disclosed that the applicant said that before his interview with the Delegate, he received two or three telephone calls from a female who said that the applicant was staying in Australia in a “wrongful way” and asked him to return to Sri Lanka. The applicant said that he asked this person how they came to know his number, and the response was that it was not important, but that he should return as soon as possible. When the RRT asked who “they” were, the applicant responded “the Australian High Commission in Colombo.”
The RRT explored this evidence with the applicant, who could not remember when he received this telephone call, although he believed there were about three or four telephone calls in two weeks. The RRT asked the applicant what made him believe that the calls were made from the Australian Embassy, and the applicant responded that he was told they were coming from the Australian Embassy and he had heard someone else speaking English, although the person speaking to him spoke in Sinhalese.
The RRT then said that it was not aware of anybody telephoning from the Australian Embassy. The RRT said that it imagined that if the applicant had overstayed and that someone gave them his telephone number when he arrived, maybe his wife, he may have been rung to inform him that his visa had expired. However, the RRT did note that such a scenario did not make any sense. The applicant’s only response was that he had not given out his number.
Later in the interview, the applicant said that if he had returned to Sri Lanka, his problems would be doubled because he came here and informed on the things that were happening in Sri Lanka and that “they called me and asked me to come back.” In response, the RRT stated that “I can say with certainty that the Australian High Commission in Colombo does not call asylum seekers and ask you to come back to Sri Lanka.” The applicant’s only response was that he did not know how they got his number.
The applicant and the RRT then had a discussion about whether the RRT should call the applicant’s wife to confirm his evidence. The applicant said that he was worried how “they” found out his telephone number, because at the time he had given his number only to the immigration office. The RRT then stated that it may have been someone from the immigration office who may have spoken to the applicant in Sinhalese, but it could not imagine that the Australian High Commission had contacted the applicant.
The RRT went on to put a hypothesis to the applicant about the reason why the Department may be ringing him and perhaps some confusion that the applicant may have had about why he was being rung and by whom. The applicant then repeated that “they” said that he could not stay in Australia and would be sent back. The RRT responded again that the Australian High Commission in Sri Lanka “will never speak to people in Australia” and that there must be some misunderstanding. The applicant then replied “Can you get the number from my telephone?” The RRT responded as follows:
“Anyway, I don’t know whether that call took place. But they would never discuss a person’s immigration status with individuals.”
The applicant then said that the person gave him their name but he could not remember the name.
I do not accept the applicant’s characterisation that the RRT “rejected out of hand the possibility that the High Commission might have made such calls.” The applicant’s response was neither helpful, nor clear or even responsive in explaining why he thought that the Australian High Commission in Sri Lanka may be ringing him to tell him to return to Sri Lanka. The RRT explored with the applicant in some detail the applicant’s complaint about having been rung by the Australian High Commission in Sri Lanka before rejecting it. The applicant was unable to provide useful detail at all.
The RRT put to the applicant that it was its view that the Australian High Commission in Sri Lanka would not make such calls and to have regard to that fact in considering the applicant’s credibility as to whether or not he received such calls.
The RRT was entitled to rely on its accumulated knowledge from the repetitive nature of the matters in which it deals, given that it has access to official and other sources of information varied upon political and social circumstances in an applicant’s country of origin (see Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 604 and 605 per Gleeson CJ) (“Muin”).
I note the applicant’s solicitor’s submission that possession of the type of accumulated knowledge and experience referred to by the High Court in Muin does not equip the RRT to reject unconditionally the possibility that the Australian High Commission in Sri Lanka may have acted in this particular instance in a way which, in the RRT’s experience, it had not acted before.
However, I do not accept that submission as the RRT spent some time discussing with the applicant the unlikeliness that the Australian High Commission in Sri Lanka would telephone the applicant as asserted by the applicant. The RRT explored with the applicant various hypotheses consistent with the RRT’s accumulated knowledge and experience. As stated above, the applicant was generally unresponsive to the concerns raised by the RRT about the applicant’s evidence that he was rung by the Australian High Commission in Sri Lanka.
To the extent that the applicant’s solicitor submitted that the RRT’s rejection of the possibility that the applicant had been rung by the Australian High Commission was “unconditional”, such a finding was not made. The finding made by the RRT was that it rejected the applicant’s claim to have received any telephone calls from Sri Lanka, whether from the Australian High Commission staff or any authority, ordering the applicant back home. In the circumstances, the RRT’s rejection of the applicant’s evidence of being rung by the Australian High Commission in Colombo and ordered back home was open to it on the evidence and material before it.
Again, the exchanges disclosed in the transcript do not suggest bias for the reasons referred to above.
Accordingly, ground 1(c) is not made out.
Ground 2
Ground 2 asserts that the RRT’s assessment of the applicant’s credibility in relation to the medical evidence provided by him was without an evident and intelligible justification. The particulars in support of ground 2 state that the RRT’s conclusion that the medical evidence provided by the applicant “might be consistent with long term physical labour” was not open to the RRT on the evidence and material before it.
The medical reports provided by the applicant included a report resulting from x-rays taken of the applicant. The clinical notes stated there was a “rotator cuff injury after heavy lifting trauma.” The report concluded that there is “mild degenerative change in the right knee without evidence of ligamentous injury” and, further, that there was a “full thickness tear of the right supra spinatus tendon with subacronial/subdeltoid burstis with impingement.” Those injuries would appear to be consistent with injuries to back and shoulder.
There was also a letter, dated 26 April 2012, referring the applicant to an orthopaedic specialist and enclosing copies of the x-ray and report. The letter states that the applicant “is a manual worker and needs to be fit [to] earn his living.” The applicant first entered Australia on a sponsored business visa.
The transcript reveals that the RRT explored the medical report with the applicant and said to him that there had been a tear and an injury inside the shoulder. The applicant’s response was that he still has the problem. The RRT then put to the applicant, “But there has been no long term damage”. The applicant said, “You mean before I was beaten up?” The RRT responded, “Yes.” The applicant replied, “According to my knowledge, I did not have any problem.”
Prior to that exchange, the exchange between the applicant and the RRT was to the effect that the applicant asserted that he had this problem because he was beaten up and had not had any problems before he was beaten up. The RRT confirmed with the applicant that he appeared to have problems with his right knee and right shoulder and the applicant agreed. The applicant said that he had those problems for one and a half years and that he did not get treatment for them in Sri Lanka.
The evidence of the applicant’s injuries was provided to the RRT to support the applicant’s claim that he was beaten by army members in Sri Lanka when abducted and detained. Ultimately, the RRT made the following finding:
“The Tribunal has considered the x-ray imaging made in Australia, which the applicant claimed related at least in part to knee and shoulder injuries that he suffered while being tortured by the military. He claimed to also have back pains and eye problems, implicitly also from his period in detention. The clinical notes refer to a ‘rotator cuff injury after heavy lifting trauma’ and otherwise mention degenerative change which appears to be longer-term. There is no self-evident link between these medical reports and the applicant’s claim to have been detained and tortured. The reference to a shoulder injury, by itself, does not displace the concerns set out above.”
There was no medical evidence before the RRT as to the origin of the applicant’s injuries. In the circumstances, it was open to the RRT to find that there was “no self-evident link between these medical reports and the applicant’s claims to have been detained and tortured.” It was further open to the RRT to find that the reference to a shoulder injury did not by itself displace the concerns that the RRT had about the applicant’s credibility.
In support of his contention that these findings lack an evident and intelligible justification, the applicant’s solicitor referred the Court to Minister for Immigration v SZLSP [2010] FCAFC 108, Kenny J stated at [72] and Minister for Immigration v Li [2013] FCA 18, where Hayne, Keifel and Bell JJ stated at [76] that “unreasonableness is a conclusion that may be applied to a decision which lacks an evident and intelligible justification.”
However, in the case before this Court, there was no such lack of an evident and intelligible justification for the manner in which the RRT considered the medical report and found that they did not support the applicant’s claim of sustaining such injuries whilst being detained and tortured by his persecutors. As stated above, that finding was open to the RRT on the evidence and material before it and for the reasons it gave.
Accordingly, ground 2 is not made out.
Ground 3
Ground 3 asserts that the RRT should have made further inquiries about the applicant’s claim to have received telephone calls purporting to be from the Australian High Commission in Sri Lanka, rather than rejecting out of hand such an assertion.
As stated above, the RRT did not reject the assertion “out of hand”. The RRT’s summary of its exchange with the applicant is referred to above and is summarised by the RRT as follows:
“The Tribunal indicated its puzzlement about the claimed calls from a Sinhalese-speaking woman claiming to be from the Australian High Commission in Sri Lanka. The most recent of these, the applicant said, had been shortly before his Department interview. There had been about 3 previous calls, asking him to go back to Sri Lanka. The Tribunal said that it was unaware of any Australian missions abroad contacting refugee applicants in Australia, as that was not their job. The applicant said that he did not know. He said that, about a week after arriving in Australia, he bought a new SIM card for his telephone, and gave the new number to his family. He also gave the Department his new telephone number. He did not know how anyone else in Sri Lanka would have the number. He did not see the number calling, and could not recall the name of the person who contacted him.”
Ultimately, the RRT rejected the applicant’s claim to have received any telephone calls from Sri Lanka ordering him back home, whether from the Australian High Commissions staff or any Sri Lankan authority.
There is no general obligation on a RRT to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the RRT by the Act is a duty to review and not a duty to enquire (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It may be that, in certain circumstances the RRT may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]).
The applicant was not able to identify what was the critical fact that was to be the subject of the inquiry. The origin of the calls and the assertion that they came from the Australian High Commission in Colombo, is not probative of the applicant’s claim to fear harm from the Sri Lankan authorities. Further, I do not accept that it is a matter that would have been easily ascertained, having regard to the somewhat incoherent and unclear evidence of the applicant (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In the circumstances, the RRT’s conduct in failing to make a further inquiry as to the origins of the calls neither gives rise to an apprehension of bias, nor was it an inquiry that the RRT was obliged to make.
Accordingly, ground 3 is not made out.
Conclusion
A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.
The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 13 August 2014