SZSQK v Minister for Immigration

Case •

[2013] FCCA 1781

•

18 October 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSQK v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1781
Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal failed to consider a claim – whether Tribunal failed to put matters to the applicant ‑ whether the Tribunal assessed the applicant’s claims in relation to complementary protection ‑ whether Tribunal failed to consider the process of investigation or interrogation upon arrival at the airport if the applicant was returned to Sri Lanka ‑ no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 424A, 424AA, 476
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Harjit Singh Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291
SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZQPA v Minister for Immigration [2012] FMCA 123
Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 372
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Applicant: SZSQK
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 439 of 2013
Judgment of: Judge Nicholls
Hearing date: 18 October 2013
Date of Last Submission: 18 October 2013
Delivered at: Sydney
Delivered on: 18 October 2013

REPRESENTATION

Applicant: In Person
Appearing for the Respondents: Mr Alderton
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 6 March 2013 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 439 of 2013

SZSQK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 March 2013 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 6 February 2013 which affirmed the decision of the delegate of the respondent Minister to refuse a protection visa to the applicant.

Background

  1. The applicant is a national of Sri Lanka, of Tamil ethnicity. He arrived in Australia on 18 May 2012 and was classified by Australian immigration authorities as an “Irregular Maritime Arrival” (CB 1).

  2. Following the relevant exercise of the Minister’s discretion under s.46A(2) of the Act (CB 24), the applicant applied for a protection visa on 23 August 2012 (CB 27 to CB 77, including attachments). He was represented by a registered migration agent (CB 35 and CB 75 to CB 77). His representative provided written submissions on 16 September 2013 (CB 81 to CB 89).

  3. The applicant’s claims to protection were initially set out in a statement attached to his protection visa application (CB 53 to CB 55). The applicant claimed to fear harm on return to Sri Lanka from the Sri Lankan authorities, including small armed groups allied to the government because of his uncle’s involvement with the “LTTE” ([5] at CB 53), and because he sought asylum in Australia ([14] at CB 54) and, further, because of his family’s ongoing problems with the Sri Lankan police. The applicant also recounted incidents of his father’s claimed detention by the authorities in 2002, and that he had been kidnapped for ransom in 2003 ([6] at CB 53 to [8] at CB 54). Further, he also claimed to fear harm from a paramilitary group which had moved into his area in 2006 ([9] at CB 54).

  4. The delegate refused the application for a protection visa on 18 October 2012 (CB 95 to CB 119). The delegate had regard to the applicant’s evidence and country information and found that while the applicant had “exaggerated” his claims, he accepted the credibility of the claims “in general” (CB 103.9). Nonetheless, the delegate was not satisfied that the applicant faced serious harm because of his ethnicity, political opinion or the activities of his family(CB 103.8).

  5. The delegate was also not satisfied that the applicant would face serious harm by reason of being a failed asylum seeker. Further, the delegate considered the applicant’s claims with reference to complementary protection criterion and found that he would not face significant harm on return to Sri Lanka (at CB114.2).

  6. The applicant applied for review to the Tribunal on 11 October 2012. He was again represented by a registered migration agent (CB 121 to CB 126). The applicant’s representative made written submissions to the Tribunal on 5 November 2012 (CB 140 to CB 159), which also attached a written statement by the applicant (CB 160 to CB 161).

  7. The written statement explained that the applicant sought protection on the basis of his Tamil ethnicity (race), actual or imputed political opinion as being opposed to the Sri Lankan authorities because he is a young Tamil male from the east of Sri Lanka, membership of a particular social group (a family member of an LTTE member) and as a failed asylum seeker.

  8. The applicant, accompanied by his representative, attended a hearing before the Tribunal on 27 November 2012. The Tribunal’s account is contained in its decision record ([26] at CB 177 to [57] at CB 182) and repeated variously in its “Findings and Reasons” ([74] at CB 188 to [115] at CB 197).

  9. On 6 February 2013, the Tribunal affirmed the decision of the Minister’s delegate to refuse the applicant’s application for a protection visa (see [119] at CB 197). The Minister has helpfully summarised the Tribunal’s findings in his written submission filed in these proceedings before the Court. I adopt these submissions for the purpose of this judgment ([15] – [24] of the Minister’s written submissions):

    “[15] The Tribunal did not accept that the applicant, his father or his uncle were of interest to the Sri Lankan authorities: CB 189, par 80. In support of this finding, the Tribunal relied on the applicant’s ‘very vague and repetitive or unrelated answer’ and ‘contradictory’ evidence about when his father had been questioned by the authorities, including the CID. It found this evidence reflected negatively on his evidence and generally on his credibility: CB 1[8]9, pars 79-80.

    [16] In addition, the Tribunal also referred to ICI [Independent Country Information] (CB 188, par 77) and relied on the applicant’s evidence that his uncle had departed Sri Lanka in 2002 (during the civil war) and re-entered in 2010 (after the civil war) lawfully and without coming to the attention of the authorities: CB 189, pars 80-81. It found the applicant’s explanation for this to be ‘fanciful’: CB 189, par 81. Given these findings, the Tribunal also rejected the applicant’s claims to fear harm because of any association that his family or uncle had with the LTTE, his association with his uncle and any related political opinion or social groups: CB 189-90, par 82.

    [17] Nor did the Tribunal accept that the applicant had a


    well-founded fear of harm because he had travelled to Australia, was held in immigration detention and the Sri Lankan authorities knew of this or any related claim: CB 190, par 85. It also rejected his claims that the authorities questioned his father and family about his travel to Australia and had beaten his father. It found that the applicant’s evidence lacked clarity and detail when compared with the details allegedly provided by the applicant’s family: CB 190, pars 83-85.

    [18] The Tribunal accepted on the basis of ICI and the applicant’s evidence that his father might have been questioned and detained by the Sri Lankan authorities in 2002 (CB 190, par 86) but did not accept that his father was detained after this time: CB 190, par 87. The Tribunal found the applicant’s evidence about the details of his father’s alleged detention was “contradictory and confused” (CB 191, pars 88-90) and did not accept, given the passage of time, that the applicant’s father was of any ongoing interest to the authorities for any reason or that the applicant had any well-founded fear because his father was detained in 2002, questioned or associated with his uncle: CB 191, par 91.

    [19] Whilst accepting that he applicant was kidnapped in 2003 by unknown persons the Tribunal did not accept there was a real chance that he would be of future interest to the kidnappers given that 10 years had passed and the applicant moved from adolescence to adulthood: CB 191, par 92.

    [20] The Tribunal accepted on the basis of ICI and the applicant’s consistent evidence that the TMVP joined the Sri Lankan Army in 2006 in his area and that he moved to his grandmother’s to complete schooling. It did not accept, however, that these events gave rise to any well-founded fear of persecution given that 12 years had passed and the applicant had not provided evidence as to how this would lead to a real chance of future persecution: CB 192, par 93.

    [21] The Tribunal accepted that the applicant may have been pressured by criminal gangs associated with political groups to loan them his motorbike, but did not accept he had a well-founded fear of persecution on this basis: CB 192-194, pars 94-98, 101. Given the “overall contradictions” in his evidence about this claim the Tribunal also did not accept that the applicant would face ongoing problems even if he did sell his motorbike or that gang members would keep targeting him. It also found his evidence about criminal activity were “general events” not targeted at the applicant: CB 193, pars 99-100.

    [22] The Tribunal did not accept that the applicant faced a real chance of harm for reasons of his Tamil ethnicity, either singularly or cumulatively when considered with a range of other factors: CB 194, pars 102-104. Whilst accepting that the applicant’s sister married young to avoid pressure to join the fighting, it found this was irrelevant to the applicant’s current claims given that the war had ended: CB 195, par 105. Although the Tribunal accepted ICI about the discriminatory application of the Prevention of Terrorism Act, it did not accept that the applicant faced any future risk of harm on this basis because it had already found that the applicant had not been of interest to the authorities in the past: CB 195, par 106.

    [23] Nor did the Tribunal accept that the applicant had a


    well-founded fear of persecution as a failed asylum seeker or on any basis related to this claim: CB 195-196, pars 107, 110. As there was no evidence that the applicant was of interest to the authorities or had outstanding criminal matters, the Tribunal found the applicant would only be detained a short time for processing and security checks and may be fined but this did not constitute serious harm. Nor did it accept that the applicant was at any risk because he would be treated in a discriminatory manner during checks and processing or because his family might not know if his return: CB 195-196, par 109.

    [24] Similarly, the Tribunal found that the questioning or delay that the applicant might experience whilst being processed at the airport upon return to Sri Lanka did not constitute ‘significant harm’: CB 196-197, par 114. It also found that there was no evidence to support a finding that there were substantial grounds for believing that the applicant faced a real risk of significant harm: CB 196-197, par 114. For these reasons, the Tribunal found the applicant was not a person to whom Australia owed protection obligations: CB 197, 116-118.

Application Before The Court

  1. The application before the Court made on 6 March 2013 contains the following grounds:

    “1. The second respondent constructively failed to exercise it’s jurisdiction and thereby fell into jurisdictional error.

    Particulars

    It si the evidence of the Applicant that his relatives, ie father and uncle, were associated with the LTTE and the RRT failed to find that the Applicant belongs to a particular social group namely ‘a person associated with the LTTE’. There was country information to the effect that persons associated with or suspected of links with the LTTE are at risk of harm by the authorities.

    2. The second respondent constructively failed to exercise it’s powers and thereby is in breach of ss 424(A) and (AA) of the Migration Act.

    Particulars

    A part of the decision of the second respondent was misconstrue by the RRT in that it concluded that persons at risk of harm would not be able to travel in and out of the country by bribing which led to wrong conclusion. That part of the RRT decision wa snot put to the applicant for comment. The Applicant intends to provide transcript evidence of the RRT hearing.

    3. The second respondent failed to assess the claims of the Applicant under the complementary protection obligation as a prospective asylum seeker returning to Sri Lanka in the light of country information.”

Before the Court

  1. At the first Court date in this matter orders were made giving the applicant the opportunity to file any amended application and any evidence. He was also referred for legal advice to a lawyer on the panel of the Court’s Refugee Review Tribunal Legal Advice Scheme (“RRTLAS”).

  2. At the final hearing, the applicant appeared in person. He was assisted by an interpreter in the Tamil language. Mr M Alderton appeared for the Minister.  Nothing further had been filed by the applicant.

  3. Before the Court, the applicant made a number of complaints about the Tribunal’s decision. These can be characterised as follows. First, the Tribunal failed “to take into account certain matters”. The applicant explained these as being his uncle’s involvement with the LTTE, his father’s experiences, that his life was in danger and that he would be perceived to be pro-LTTE because of his “political opinion”.

  4. Second, if he was to be returned to Sri Lanka, the Tribunal accepted, at least, that he would be detained for a short period of time by the authorities. The complaint is that the Tribunal did not “take into account” what would happen to him during the “short period” of detention.

  5. Third, the Tribunal refused to accept that his involvement, through his family and in his own right, with the LTTE, and his relevant “political opinion” would lead to his suffering harm.

  6. Fourth, he had consulted a number of lawyers in relation to his application to the Court. They told him they could “argue” his case and could “win”. However, because they asked for “exorbitant money” he could not pay them.

  7. The first three matters above all relate, in varying ways, to the grounds of the application.

  8. In the first complaint it is clear that the applicant used the phrase “failed to consider” in the sense as expressed in the third complaint. That is, that the Tribunal refused to accept that the factual aspects of the applicant’s claims to fear harm had occurred and that the claims revealed the likelihood of serious or significant harm.

  9. A failure to “consider” a claim (in the sense of engaging with the claim), or an integer of a claim where such a claim is expressly made or clearly arises on the material presented before the Tribunal may lead to jurisdictional error being revealed. However, in the current circumstances the applicant’s complaint is that the Tribunal did not accept his claims and that they were the basis of his fear of harm if he were to return to Sri Lanka.

  10. It is here that these complaints intersect with ground one of the application, which asserts a constructive failure to exercise jurisdiction on the basis that the applicant belongs to a particular social group. That is, a “person associated with the LTTE”. The applicant’s ground implies that the Tribunal should have made such a finding in light of his evidence that his relatives, his father and uncle, were associated with the LTTE.

  11. Relevantly, as articulated by his representative before the Tribunal, the applicant’s claim in this regard was that he was a member of a particular social group namely “a family member of an LTTE member” (see CB 143.4 and [24] at CB 177).

  12. As set out above, a failure to deal with a claim or an integer of a claim may indeed reveal jurisdictional error (NABE v Minister for Immigration and Multicultural and Indigenous Affairs No 2 [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630). In circumstances where a substantial, clearly articulated case, in the Dranichnikov sense (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”), has been presented then the Tribunal is obliged to consider the matter of the relevant particular social group (see Dranichnikov [24] to [34]).

  13. In the current case, the circumstances presented a clearly articulated claim as was set out above. However, what the applicant’s ground and complaints fail to appreciate, or accept, is that the Tribunal found that neither he, his father nor his uncle were associated with the LTTE (see [80] – [82] at CB 189). These findings were based on the applicant’s own evidence and the Tribunal’s assessment of it. Such findings were reasonably open to the Tribunal on the material before it.

  14. In these circumstances, that is, once the factual bases for the applicant’s claims were found not to exist, it was not necessary for the Tribunal to further consider whether he would face harm because he belonged to a particular social group, which required an association with the LTTE.

  15. As the Minister submitted, the applicant’s ground really seeks to take issue with the factual findings made by the Tribunal and the conclusion it reached in this regard. This is a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

  16. Further, contrary to the implication in the applicant’s complaints, the Tribunal is not obliged to uncritically accept any or all of what he put to it (Harjit Singh Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J). The applicant plainly is aggrieved that the Tribunal did not believe the core factual basis of his claims. However, findings of fact, including the findings as to the credibility of his claims, were all, in the circumstances before the Court, made within jurisdiction. Ground one and, complaints one and three are not made out.

  17. In ground two, the applicant asserts a breach of ss.424A and 424AA of the Act. The particular to ground two takes issue with the Tribunal’s finding that a person at risk of harm would not be able to travel freely out of, and then into, Sri Lanka. The complaint is that the Tribunal did not put this to the applicant for comment.

  18. This appears to be a reference to the Tribunal’s reasoning at [76] ‑ [77] (at CB 188). That is, given, on the applicant’s own evidence, that the applicant’s uncle travelled into and out of Sri Lanka without difficulty on a number of occasions, including during the civil war, and in light of country information that persons with LTTE connections would have been detained, the applicant’s uncle had no LTTE connection.

  1. Section 424A(1) of the Act does require the Tribunal put to an applicant “information” that it considers would be the reason, or a part of the reason, for affirming the delegate’s decision. This must be done in writing (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162) (“SAAP”).

  2. However, the applicant’s complaint here is directed to the Tribunal’s analysis, its thought process and conclusion. As the applicant’s ground makes clear, his grievance is directed to the Tribunal’s “conclusion”. This is not “information” for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [17] – [18]).

  3. The Tribunal’s reliance on country information may be seen as what the Tribunal considers would be the reason or part of the reason for affirming the delegate’s decision. However, such country information falls within the exception in s.424A(3)(a) from the obligation in s.424A(1) of the Act (VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29, VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91; (2005) 141 FCR 291 and the like).

  4. The applicant’s reference to s.424AA of the Act also does not assist him. This section is a facilitative mechanism by which the Tribunal can orally discharge the obligation in s.424A(1) of the Act which otherwise must be met in writing to the applicant (SAAP and SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). As the obligation in s.424A(1) was not engaged then it was not necessary for the Tribunal to have considered the use of this mechanism. Ground two is not made out.

  5. Ground three asserts that the Tribunal failed to assess the applicant’s claims under the complementary protection criterion (s.36(2)(aa) of the Act) in relation to his claim that as a failed asylum seeker he would face a real risk of significant harm. The ground makes reference to unspecified country information.

  6. The answer to the applicant’s ground is to be found at [107] (at CB 195) to [110] (at CB 196) and [112] – [114] (at CB 196) of the Tribunal’s analysis. First, it is important to note that, with the benefit of representation by a registered migration agent, the applicant’s claim, as explained by the representative, was that the applicant, amongst other things, feared “persecution” (a clear reference to the Refugees Convention and not complementary protection) as a member of a particular social group (again a Refugees Convention concept) comprising in part of failed asylum seekers (see CB 143.4, CB 146 and CB 148 – “4.2.3 Young Tamil male returning as a failed asylum seeker”).

  7. Under the heading of “Complementary Protection” the representative stated (CB 156.2):

    “5.2 It is submitted that the member recommended the Applicant be afforded complementary protection because there are substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka there is a real risk that the Applicant will suffer significant harm on the following basis.

    5.3 It is submitted that, because he has a profile as a failed asylum seeker, he left Sri Lanka illegally, he is a young Tamil man from the east, and he is a family member of a LTTE member, there are substantial grounds based on other returnees’ experience upon return to Sri Lanka, that the Applicant will suffer significant harm.”

    [Emphasis in original, footnotes omitted]

  8. The Tribunal dealt with this claim as put by the applicant and explained by his representative, in the paragraphs set out above at [35]. The Tribunal made relevant factual findings at [108] – [109] (at CB 195) including, contrary to the applicant’s complaint now, references to relevant country information that also subsequently underpinned its findings in relation to complementary protection.

  9. The applicant’s ground requires attention to the Tribunal’s analysis under the heading of “Failed Asylum Seekers” ([107] – [109] at CB 195) and “Complementary Protection” ([112] – [114] at CB 196).

  10. The representative’s presentation of the applicant’s claims to the Tribunal regarding the complementary protection criterion are comprehensive of the circumstances that were generally presented by the applicant in his applications. That is, his applications for the protection visa and the review by the Tribunal (see [36] above, and in particular 5.3 of the representative’s submissions at CB 156).

  11. The reference to the applicant’s familial link to the LTTE in the representative’s submissions was dealt with by the Tribunal on a factual basis. As stated above, the Tribunal rejected any such claim absent any reference to the Refugees Convention or complementary protection. Once the Tribunal had come to that factual conclusion, no further consideration was necessary.

  12. What remains, therefore, is what is set out in the applicant’s ground and his complaints to the Court. The ground asserts a failure to deal with his fear of significant harm on return to Sri Lanka as a failed asylum seeker. His complaint before the Court asserted a failure by the Tribunal to address the likelihood of a real risk of significant harm in the process of interrogation at the airport on return to Sri Lanka.

  13. In relation to the first matter, the Tribunal had regard to country information that ([109] at CB 195 to CB 196):

    “…all returnees are treated alike, and that only a small number have been detained after initial processing and security checks. The information reports that people with outstanding criminal matters have been detained upon return, but that only a small number of returnees are detained, and that departees were reportedly “initially detained by the police at Colombo international airport”, but were then released after questioning. As a result the Tribunal finds that the conclusion that people are detained because they are returnees is not supported, as it suggests that the small number who are detained are detained because of outstanding criminal matters. Based on the evidence before it the Tribunal has no evidence to find that the applicant is of interest to the Sri Lanka authorities, and the applicant has not raised any other outstanding criminal matters. Therefore the Tribunal does not have evidence before it to find that the applicant will be detained beyond a relatively short period to enable processing and security checks, and may be fine.”

  14. The Tribunal then went on to consider this situation under the Refugees Convention concepts of “persecution” and “serious harm” (see the remainder of [109] and [110] at CB 196).

  15. What, factually, remained was the “detention and initial” processing immediately on return. Here, the applicant’s second complaint before the Court appears to seek to echo the situation found in SZQPA v Minister for Immigration [2012] FMCA 123 (per Judge Driver) where the relevant decision maker was found to have fallen into legal error by focusing “on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interruption…” (SZQPA at [29]). I note that Justice Gilmour rejected the Minister’s appeal in this case (see Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025).

  16. In the current case the Tribunal, on any plain reading of its decision record, did not fall into any such legal error.

  17. Importantly, at [114] (at CB 196), the Tribunal specifically addressed the question of what would occur at the airport if the applicant were to return to Sri Lanka. Again, the Tribunal relied on country information here ([114] at CB 196 to CB 197):

    “The Tribunal also finds that the applicant may face questioning and a delay enable checking and processing upon arrival in Sri Lanka, and he may be fined, but that he will not be detained on any longer term basis. This is based on country of origin information that all returnees are treated the same way, and have their details checked, and that deportees were reportedly “initially detained by the police at Colombo international airport”, but were then released after questioning. The Tribunal does not accept that either the questioning process and/or delay constitutes significant harm as per the legislation…”

  18. In all, therefore, the Tribunal did address the applicant’s claims in relation to failed asylum seekers as against the complementary protection criterion. It did so with reference to, and in light of, country information. I note that the choice and weight to be accorded to such information is for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 372). There is also nothing before the Court to say that the Tribunal fell into the error identified in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 as to the use of current country information. In this regard see, for example, the reference at [73] (at CB 187) of the Tribunal’s decision record to

    “Recent reports were located which refer to specific examples of both failed asylum seekers from Sri Lanka and Tamils being detained at the airport on arrival in that country…”

    [Emphasis Added].

  19. I should note further, the applicant’s fourth complaint (see [17] above). The procedural fairness obligation to the applicant in this Court, is to provide him with the opportunity of a fair hearing. While the applicant is not entitled to legal advice (SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702), he was referred to and did obtain advice, at the taxpayers’ expense, from a lawyer on the panel of the Court’s RRTLAS.

  20. The applicant was given the opportunity at the first Court date to file any amended application and evidence in support. He was given a reasonable period of time within which to do this (six months). He submitted that he had spoken to lawyers. The claim that he was unable to afford their fees to pay for their representation before the Court does not reveal any failure of procedural fairness.


Conclusion

  1. The applicant’s grounds and his complaints to the Court do not reveal jurisdictional error. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 1 November 2013

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0