SZSQL v Minister for Immigration and Border Protection

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FEDERAL COURT OF AUSTRALIA

SZSQL v Minister for Immigration and Border Protection [2015] FCA 294

Citation: SZSQLv Minister for Immigration and Border Protection [2015] FCA 294
Appeal from: Application for extension of time: SZSQL v Minister for Immigration and Citizenship [2013] FCCA 2158
Parties: SZSQL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and J BARTLETT IN THE CAPACITY AS INDEPENDENT PROTECTION ASSESSOR
File number(s): NSD728/2014
Judge(s): GLEESON J
Date of judgment: 1 April 2015
Catchwords: MIGRATION – application for an extension of time to appeal – where primary judge dismissed application for judicial review of recommendation made by Independent Protection Assessor not to recognise applicant as person to whom Australia owes protection obligations – whether failure to deal with a component integer of the applicant’s claim – whether manifestly illogical or unreasonable finding – whether no evidence for finding – whether failure to take into account relevant considerations – whether failure to lawfully form requisite state of satisfaction –  application allowed in part
Legislation: Federal Court Rules 2011 (Cth), rr 1.61, 36.03(a)(i), 36.05
Migration Act 1958 (Cth), ss 5AA, 46A
Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Colonial Bank of Australia v Willan (1874) LR 5 PC 417
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
DZAAD v Department of Immigration and Citizenship [2013] FCA 204
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Multicultural Affairs [1994] FCA 1005; (1994) 34 ALD 347
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402
SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545
SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158
VWBF v Minister for Immigration and Multicultural and…
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Details
Case
[2015] FCA 294
Decision Date

CaseChat Overview and Summary

The applicant, a Tamil male citizen of Sri Lanka, applied for an extension of time to appeal against the Federal Circuit Court judge's dismissal of his application for judicial review of a recommendation by an Independent Protection Assessor not to recognise him as a person to whom Australia owes protection obligations. The legal issues before the court involved whether the assessor made errors in failing to consider certain components of the applicant's claim, making findings that were manifestly illogical or unreasonable, and making a critical finding in the absence of evidence. The court considered whether these errors constituted jurisdictional errors that could justify an extension of time for the appeal.

The court found that while the assessor's reasons for the recommendation were comprehensive, there were omissions that suggested certain issues were overlooked. Specifically, the court identified that the assessor failed to address evidence concerning the applicant's fear of persecution if returned to Sri Lanka, particularly regarding the assistance provided by the Karuna Group. The court also found that the assessor's critical finding regarding the applicant's fear of persecution was made in the absence of supporting evidence, which could amount to legal error. Based on these findings, the court concluded that the applicant had identified arguable grounds for appeal that were significant enough to warrant an extension of time. Consequently, the court allowed the application for an extension of time for those specified aspects of the appeal.

The court ordered that the application for an extension of time be refused for certain grounds, but allowed it for others, including the failure to consider specific components of the applicant's claim, the making of manifestly illogical or unreasonable findings, and the making of a critical finding in the absence of evidence. The costs of the application were to be costs in the appeal.

Orders

Orders of the court

1. The application for an extension of time within which to file a notice of appeal be refused for:

a. grounds 1 and 2 of the proposed notice of appeal;

b. grounds 3, 4 and 5 of the proposed notice of appeal insofar as those grounds allege that the assessor made an error of law by failing to deal with a component integer of the applicant’s claim;

c. ground 3(a) of the proposed notice of appeal;

d. grounds 4 and 5 of the proposed notice of appeal insofar as those grounds allege that the assessor made an error of law by making a finding that was manifestly illogical or unreasonable; and

e. ground 5 of the proposed notice of appeal insofar as that ground alleges that the assessor made an error of law by making a critical finding in the absence of evidence.

2. Otherwise, the application for an extension of time within which to file a notice of appeal be allowed.

3. Costs of the application be costs in the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

This is an application pursuant to rule 36.05 of the Federal Court Rules 2011 (Cth) (“Rules”) for an extension of time within which to file a notice of appeal from a judgment of a judge of the Federal Circuit Court (“FCC judge”) delivered on 13 December 2013: SZSQL v Minister for Immigration and Border Protection [2013] FCCA 2158. In that decision, the FCC judge dismissed the applicant’s application for judicial review of the recommendation made by the second respondent (“assessor”) not to recognise the applicant as a person to whom Australia owes protection obligations. The assessor’s recommendation was made on 10 October 2012.Background The applicant is a Tamil male citizen of Sri Lanka born on 30 January 1985. He arrived at Christmas Island by boat on 1 December 2011. By reason of his mode of arrival, the applicant is an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth) (“Migration Act”). Consequently, s 46A(1) of the Migration Act prevents the applicant from making a valid application for a visa unless the first respondent (“Minister”) makes a determination under s 46A(2) allowing him to do so, having formed the view that it is in the public interest. On 4 February 2012, the applicant made a request for “Protection Obligations Evaluation”. That is a process that results in a recommendation to the Minister as to whether an applicant is owed protection obligations, for the purpose of the Minister considering whether to make a determination under s 46A(2). The recommendation was required to be made according to the criteria and principles identified in the Migration Act as construed and applied by the courts of Australia: Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319 at [87]-[89]. An officer of the Department of Immigration and Border Protection (“Department”) evaluated the applicant’s claims and rejected them. The applicant’s claims were then referred to the assessor for independent assessment. On 10 October 2012, the assessor made a recommendation that the applicant not be recognised as a person in respect of whom Australia has protection obligations or as a member of the same family unit as such a person. The assessor’s reasons for the recommendation were set out in a report entitled “Independent Protection Assessment”.PROCEEDINGS BEFORE THE FCC By application dated 30 January 2013 and filed on 7 March 2013 the applicant sought judicial review of the assessor’s decision. There was one ground of review in the application, namely that the assessor’s recommendation “was affected by legal error”. The applicant appeared in person at the FCC hearing. In summarising the applicant’s claim, the FCC judge noted the following matters:·From May 2009 to October 2009 the applicant lived in the Seven Four Refugee Camp in Sri Lanka with his parents and his older and younger brothers. Shortly after the family arrived at the refugee camp, the applicant and his older brother, together with other young men, were questioned by members of the Sri Lankan Army about their possible involvement with the Liberation Tigers of Tamil Eelam (“LTTE”). Members of the Army also searched the bodies of the applicant, his older brother and the other young men for evidence of injuries or scars;·The applicant’s older brother had worked until 2008 as a mechanic at a workshop near Kilinochchi which was managed or owned by a member of the LTTE. In about August 2009, the applicant’s older brother was arrested and detained. This alarmed the applicant’s parents and, wishing to prevent the same fate falling on the applicant, arranged to pay a bribe to a paramilitary group known as Karuna (“Karuna Group”) to secure the applicant’s release from the refugee camp and to assist the applicant to leave Sri Lanka. Members of the Karuna Group arranged to obtain a passport and a visa for the applicant, and arranged to transport the applicant from the camp to Colombo. The applicant travelled to Bangkok where he stayed for a few days. He then travelled to Malaysia and, from there, to Indonesia;·The applicant claimed he feared persecution if he were to return to Sri Lanka for a number of reasons. First, because he left the refugee camp without the government’s permission, he would have to explain on his return how he did that, and this would lead him to disclose he had been assisted by the Karuna Group. Secondly, he feared he would face the same fate as his brother. He claimed that, after he left, the army had returned to the refugee camp looking for him, and the army continued to regularly make enquiries of the applicant’s parents as to the applicant’s whereabouts after his parents had been released from the camp. Thirdly, the applicant claimed that the Sri Lankan government regarded all Tamils who travelled to Australia by boat as members of the LTTE.

Evidence

Evidence Before The Court

In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 at [38], the Full Court stated that the formation of the requisite state of satisfaction “could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant”. At [49] and [50], the Court stated:The court is entitled to take the reasons of the tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69]. … the Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference. Making a critical finding in the absence of evidence The making of a finding which is a critical step in the decision-maker’s ultimate conclusion in the absence of evidence may amount to legal error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at [19]. The fact of which there is said to be no evidence must be a jurisdictional fact, that is “an essential preliminary to the decision-making process” as distinct from “a fact to be adjudicated upon in the course of the inquiry: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 851; (2006) 154 FCR 302 at [19], citing Colonial Bank of Australia v Willan (1874) LR 5 PC 417 and VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388; (2005) 146 FCR 562. In WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139, the Full Court said at [11] and [12]:Counsel referred to the principle that an administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact which lacks any supporting evidence.There is no doubt about the existence of that principle. However, it is difficult to apply it to a rejection of evidence. After reviewing the relevant case law up to that date, in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150, Wilcox J said that all of the cases of which he was aware, in which ‘no evidence’ was treated as a separate ground of invalidity, ‘were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact’. We are unaware of any later case that departs from that pattern.

Decision

Reasons for decision

Accordingly, in my view, and subject to the question of whether leave should be allowed to raise a new ground of appeal, an extension of time should be granted in relation to these aspects of ground 5 of the proposed notice of appeal.Conclusion In my view, having identified arguable grounds of appeal, in the absence of particular prejudice to the Minister and taking into account the seriousness of the potential consequences for the applicant if a possible error of law is not corrected, it is expedient in the interests of justice that the applicant should be granted leave to appeal on those arguable grounds even though they were not agitated before the FCC judge. An extension of time to file a notice of appeal should be given in relation to the matters identified in paragraphs 72, 76, 82 and 83 above.

Ratio Decidendi

Legal Principle Established

In any event, as explained below, a failure to consider evidence may amount to reviewable error.The requirement to take into account relevant considerations In Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, Robertson J said (at [111]):In my opinion there is no clear distinction in each case between claims and evidence: SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24]….The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 at [46]-[47], the Full Court addressed the role of the Refugee Review Tribunal (“RRT”) in reviewing a decision to refuse a protection visa application:It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.