SZSRR v Minister for Immigration
[2016] FCCA 2463
•23 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2463 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal breached s.424A or s.424AA – whether Tribunal asked itself the wrong question – whether Tribunal applied a balance of probabilities test as opposed to a real chance test – grounds have no reasonable prospects of success. PRACTICE AND PROCEDURE – Application for leave to amend originating application – previous grounds abandoned – new grounds have no reasonable prospects of success – leave refused – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 65, 414, 425, 424A, 424AA, 430, 476 |
| Cases cited: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 |
| Applicant: | SZSRR |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2573 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 21 July 2016 |
| Date of Last Submission: | 21 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Bodisco |
| Solicitors for the Applicant: | Michaela Byers Solicitor |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The leave sought on 21 July 2016 to amend the application is refused.
The application made on 17 September 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2573 of 2014
| SZSRR |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
On 17 September 2014 the applicant filed an application in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking judicial review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 19 August 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed by the Minister on 18 December 2014 and tendered at the hearing by the applicant (“the Court Book” – “CB”, “AE1”).
b)The affidavit of John Sweeney, [no occupation given], affirmed 5 July 2016, annexing a copy of the transcript of the hearing of the Tribunal held on 31 January 2014 (“TH1”) (no objection by the Minister).
c)The affidavit of Michaela Byers, lawyer, affirmed 7 July 2016, annexing a copy of the transcript of the Tribunal hearing held on 12 February 2014 (“TH2”) (no objection by the Minister).
d)The affidavit of Michaela Byers, lawyer, affirmed 20 July 2016 (no objection by the Minister).
Background
The applicant is a citizen of Sri Lanka. He arrived in Australia on 11 April 2012 as an irregular maritime arrival (CB 1). Ultimately the Minister exercised his discretion pursuant to s.46A(2) of the Act and the applicant made an application for a protection visa on 30 June 2012 (CB 17 to CB 105, including attachments). He was assisted by a registered migration agent (CB 25).
The delegate refused the application on 1 October 2012 (CB 124 to CB 147). The applicant applied for review to the Tribunal on 17 October 2012 (CB 148 to CB 153). He was assisted and represented by a registered migration agent and a firm of solicitors. They made submissions on his behalf (CB 154 to CB 176).
The Tribunal, as constituted differently at that time, affirmed the delegate’s decision on 22 February 2013 (CB 177 to CB 204). This Court remitted the matter to the Tribunal for reconsideration (CB 205). The applicant was attended a hearing before the Tribunal on 31 January 2014 (CB 280 to CB 282) and again on 12 February 2014 (CB 289 to CB 291). The Tribunal affirmed the decision (CB 317 to CB 347).
The applicant’s claim to fear harm if he were to return to Sri Lanka was said to be because of his political opinion and as a failed asylum seeker. The applicant claimed that he and his family had worked for the Sri Lankan government for many years.
The applicant claimed had been a supporter of the United Peoples Freedom Alliance (“UPFA”) for some years and became an active member in 1997, and a “youth leader”.
The applicant claimed that in 2010, during presidential elections, he became disenchanted with the UPFA and switched his allegiance to General Fonseka’s party (“UNF”) and was openly critical of the government. The UPFA won the election, General Fonseka was arrested and he joined the United National Party (“UNP”).
The applicant claimed that he was harassed when he changed his political allegiance and was shot at, abducted and threatened. He also claimed that after arriving in Australia his wife was questioned as to his whereabouts by “CID officers”.
The applicant also claimed to fear harm because of his membership of a particular social group, said to be, “failed asylum seekers from Australia”, and that the authorities from whom he feared harm would not protect him.
The Tribunal accepted that the applicant and his family had been
long-standing and active supporters of the Sri Lanka Freedom Party (“the SLFP”) and then the UPFA ([130] at CB 337). It accepted that he had joined in 1997 ([131] at CB 337). Further, while the Tribunal expressed some doubt that he transferred his allegiance to the UNF/UNP in 2010, it could not find that he had not done so and therefore proceeded to consider his claims to fear harm on the basis that he had transferred his allegiance ([132] at CB 337).
The Tribunal accepted evidence that the UPFA members and supporters routinely set out to intimidate opponents, and that in this light, it was plausible that the applicant had been subjected to harassment ([133] at CB 337 to [134] at CB 338).
However, the Tribunal noted that the applicant had remained in Sri Lanka for two years after the events in 2010 and made no claim that the UPFA, who were in power, made any attempt to arrest him ([134] at CB 338). Further, the Tribunal did not accept that he had been shot at by members of the UPFA. The Tribunal gave reasons for this (see [134] ‑ [138] at CB 338).
The Tribunal accepted that the UPFA bore the applicant ill will, but had every opportunity to arrest him but did not do so. The Tribunal found that while he claimed to be doing political work, no attempt was made to arrest him and this was because he had not been involved in political activities for most of 2011 and subsequently. The Tribunal rejected his claims of physical harm from the UPFA ([139] ‑ [141] at CB 338).
The Tribunal noted the applicant’s evidence that he had not been involved in political activities in 2012 and found that the UPFA’s motivation to harm the applicant was low and declining. The Tribunal also noted that the applicant’s evidence that about a third of the members of the UPFA had changed their allegiance to UNF/UNP in 2010, and there was no evidence of such persons being seriously harmed or killed as a result ([142] at CB 338 to [152] at CB 340).
The Tribunal rejected the applicant’s claim that he was threatened and harmed by UPFA so that he would work with them again. The Tribunal found this “so illogical and so obviously counterproductive” that it was not a “plausible” explanation ([145] at CB 339).
The Tribunal then concluded at [154] (at CB 341):
“For these reasons I am satisfied that the chance is remote the applicant will be harmed at all by the authorities and associated paramilitary groups, or supporters or members of the UPFA if he returns to Sri Lanka, whether because of his political opinion as a past critic of the government or supporter of the opposition, or for any other reason.”
The Tribunal gave extensive reasons for this conclusion (see [147] at CB 339 to [153] at CB 340).
The Tribunal accepted that the applicant would be subjected to scrutiny if he returned to Sri Lanka as a failed asylum seeker from Australia. However, it found he would not be regarded as a “traitor” as he had claimed ([159] at CB 341 to CB 342).
The Tribunal accepted he would be arrested and held on remand at the airport on return as he had left Sri Lanka in breach of the Sri Lankan Immigration and Emigration Act (“the IEA”) ([164] at CB 342). However, the Tribunal found that there was insufficient evidence to say that the applicant, as a failed asylum seeker, would be dealt with under anything other than a law of general application ([167] at CB 343).
In all, the Tribunal found that he did not satisfy either of the criteria at s.36(2) of the Act for the grant of the visa.
The Application before the Court
The application made to this Court on 17 September 2014 puts forward four grounds of review. That application was said to have been prepared by a solicitor, “Michaela Byers” of the “Edmund Rice Centre”, which is identified on the face of the application as the name of the relevant law firm.
Orders were made by consent on 21 October 2014 which, amongst other things, included a timetable for the filing of various documents by the parties. Further orders were made, again by consent, on 16 January 2015, and amongst other things, varying the previous orders to provide more time for the filing of documents as well as setting the matter down for final hearing on 21 July 2016. The orders also provided for the filing of written submissions by the applicant 14 days before the date of the final hearing (7 July 2016).
The applicant filed his written submissions in this matter on 12 July 2016. In these, he makes no reference to any of the grounds of the application, but simply proceeds to make submissions in relation to two proposed grounds which are set out in a document headed “(Draft) Amended Application”. The submissions were drafted by counsel. The draft amended application was said to have been prepared by “Michaela Byers, Solicitor”.
At the hearing, the applicant was represented by counsel. He sought leave to proceed with the grounds of the draft amended application. He confirmed that all of the grounds of the application were abandoned. In support of the “late” application to wholly amend the grounds of the application, counsel sought to rely on the affidavit of Ms Michaela Byers, solicitor, made on 20 July 2016 to explain the delay in making the application for leave to rely on the “new” grounds. The affidavit is in the following terms:
“[1] This matter was a referral from the Edmund Rice Centre when the former legal representative Thomas McLoughlin could no longer act for the applicant.
[2] When the file was transferred to me I believed the Edmund Rice Centre would organise and file the hearing transcript. However, this was not the case and it was only discovered in the weeks leading up to the hearing date that the transcript had not been done.
[3] I listened to the hearing discs and determined that they needed to be transcribed to be filed as evidence in court. John Sweeney and I then transcribed the hearing discs.”
The Minister did not object to the affidavit being read into evidence even though Ms Byers was not available for cross-examination.
There are a number of difficulties with Ms Byers’ evidence given in support of the application for leave to amend the grounds of the application.
In essence, and as set out above, Ms Byers’ evidence is that this matter was “referred” to her from the Edmund Rice Centre when the applicant’s former legal representative could no longer act for him (Mr Thomas McLoughlin). She believed that the Edmund Rice Centre would “organise and file the hearing transcript”. This was not done. She only “discovered” this in the weeks leading up to the hearing. She listened to the “hearing discs” and determined that they needed to be transcribed. She and Mr Sweeney did this.
Other than the reference to the weeks leading to the hearing, there are no temporal references, let alone specific dates as to these events. Importantly, Ms Byers does not say when the matter was “referred” to her from the Edmund Rice Centre, or when the file was “transferred” to her.
The clear implication in her evidence is that the opportunity to draft the grounds of the proposed amended application only arose when the Tribunal hearings were transcribed, which in turn only occurred in the weeks leading to the Court hearing.
From the Bar Table, the applicants counsel sought to explain that there had “been some issues with the Edmund Rice Centre” and that “simply” there was confusion between the Edmund Rice Centre and Ms Byers’ office.
That may be the case, but on the evidence before the Court, that still does not satisfactorily explain the late attempt to amend the grounds.
Contrary to the implication arising from Ms Byers’ evidence that the matter of the transcripts could have only arisen recently, Ms Byer’s involvement, on her own evidence, commenced with the transfer of the matter to her from the Edmund Rice Centre.
As stated above, the applicant applied for the protection visa on 30 June 2012 (CB 17). He was represented by a migration agent who is also a solicitor (Mr Fared Varess of Fragomen) (CB 59). The delegate refused the application on 1 October 2012. Notification was sent to Fragomen (CB 123).
The applicant applied for review to the Tribunal on 17 October 2012 (CB 148). He continued to be represented by Fragomen (CB 150). The Tribunal, as differently constituted, affirmed the delegate’s decision on 22 February 2013.
The applicant applied for judicial review. He continued to be represented by Fragomen, albeit now as his solicitors. This Court remitted the matter for reconsideration by the Tribunal in November 2013 (CB 205).
On 3 December 2013 the applicant appointed Ms Michaela Byers of “Migration Education Services” to represent him before the Tribunal in her capacity as a registered migration agent (CB 208).
On 5 December 2013, the applicant was invited to a hearing scheduled for 31 January 2014. The letter of invitation was sent to Ms Byers as his “authorised recipient” (CB 209 to CB 213). On the same day, the Tribunal wrote to the applicant by letter sent, appropriately, to Ms Byers inviting his submissions on certain country information to which the Tribunal member was required to have regard pursuant to Ministerial Direction No. 56 (CB 214 to CB 237).
Ms Byers, under the letterhead of “Migration Education Services Pty Ltd” responded on the applicant’s behalf on 21 January 2014 (CB 240 to CB 241). Attached to the response, amongst other documents was an affidavit made by the applicant on 5 June 2013 (CB 242 to CB 244), in the previous proceedings before this Court. This document was said to have been filed for the applicant by Thomas McLoughlin, solicitor (CB 242).
Therefore, it would appear that at some time between February 2013 and November 2013, Mr McLoughlin replaced Fragomen as the applicant’s solicitor in proceedings before this Court (see also Mr McLoughlin’s affidavit [undated] June 2013 at CB 270 to CB 277). Ms Byers continued her representation of the applicant as a migration agent before the Tribunal (as constituted for current purposes). Mr McLoughlin’s affidavit was attached to her submissions dated 15 January 2014 to the Tribunal (CB 240 to CB 278).
The applicant appeared at a hearing before the Tribunal on 31 January 2016. The Tribunal’s “Hearing Record” in evidence before the Court (CB 280), records that his “Representative” was also “In attendance: Ms Michaela Byers/Judy Mclallen”. The hearing was subsequently adjourned “to another day” (CB 282).
The Tribunal wrote to the applicant on 5 February 2014 to notify him of the date and time for the resumption of the hearing. The letter was sent to Ms Byers as his authorised recipient for the purpose of receiving correspondence (CB 284). The applicant attended the resumed hearing on 12 February 2014 (CB 289). The Tribunal’s “Hearing Record” records the attendance of his “representative” in similar terms to that on the previous occasion (see [41] above).
On 26 February 2014, Ms Byers, again under the letterhead of “Migration Education Services Pty Ltd” provided “further evidence” to the Tribunal as had been agreed at the hearing by the Tribunal member (CB 304). This included a Statutory Declaration from a “John Phillip Sweeney” (CB 308 to CB 309). The Tribunal made its decision on 20 August 2014. Notification was sent to Ms Byers (CB 314 to CB 315).
The application to the Court was made on 17 September 2014. As stated above, the application, on its face, asserts that it was prepared on behalf of the applicant by “Michaela Byers”. The application also contains “Name of law firm: Edmund Rice Centre”. The application is signed by Ms Byers as the applicant’s lawyer. Ms Byers also certified that she believes the application has reasonable prospects of success.
On 14 October 2014 the parties submitted “Short Minutes of Order” seeking orders by consent from the Court. Ms Byers signed that document on 14 October 2014. The applicant was required by order 3, to file any affidavit evidence, including a transcript of the Tribunal hearing, on or before 26 November 2014.
On 24 December 2014 the parties sought further orders again signed by their solicitors from the respective parties, including Ms Byers, seeking, in effect, a variation of the timetable for compliance. Orders were made on 16 January 2015, including Order 3, which amended Order 3 made on 14 October 2014 to extend the time for compliance to 13 February 2015.
In all these circumstances, I have difficulty with Ms Byers’ evidence. It is to be remembered her affidavit of 20 July 2016, was read into evidence for the purpose of providing an explanation as to why the grounds that the applicant now seeks to rely upon could not have been raised earlier than, at best, just prior the scheduled hearing.
The object, and effect, of Ms Byers’ evidence is to seek to explain the delay and/or late action on the basis that the applicant’s matter was “referred” to her, and when the file was “transferred” to her from the Edmund Rice Centre, there was a misunderstanding as to who would “organise” the transcription of the Tribunal hearings and “file” them with the Court.
This explanation must, in the circumstances set out above, be rejected as a reasonable or satisfactory explanation as to why the applicant’s legal representatives sought to significantly change the applicant’s grounds literally on the “eve” of the final hearing in circumstances where from the time of the filing of the application to the Court to the hearing, which was over 22 months, Ms Byers was on the record as the applicant’s solicitor. In this circumstance, it is reasonable to find that the applicant’s file was “transferred” to her at least at time before 17 September 2014, when she prepared as his lawyer, the application to the Court.
Further, despite the implication in Ms Byers’ evidence that she only became involved when the file was “transferred” to her, Ms Byers, in a broad sense, albeit as a migration agent, had been involved in the “applicant’s case” since at least 3 December 2012, over 21 months before the making of the application to the Court, on 17 September 2014.
While it is the case that Mr McLoughlin represented the applicant in his capacity as a solicitor in the applicants “first”, and successful, application to this Court, what is undeniably clear is that Ms Byers prepared and acted for the applicant in her capacity as a solicitor in the preparation and making of the current application to the Court. That is, Ms Byers has been the applicant’s solicitor “on the record” since 17 September 2014.
That application also asserts on its face that the name of the relevant law firm at the time of making the application was “Edmund Rice Centre”. I can take judicial note that the Edmund Rice Centre was, and is, not a law firm.
However, in some unexplained way (that is, by Ms Byers’ evidence or any other evidence before the Court), no transfer of the file (relating to the current proceedings before the Court) occurred at a time after the making of the current application to the Court as claimed by Ms Byers’ evidence. Mr McLoughlin did previously represent the applicant before the Court. However, this was in relation to a different Tribunal decision, to the one that Ms Byers, and in some way the Edmund Rice Centre, made an application pursuant to s.476 of the Act on 17 September 2014, and which is the current application before the Court.
From orders sought by consent of the parties, signed on the applicant’s part by Ms Byers attached to two “Short Minutes of Order” can only lead to the conclusion that Ms Byers had carriage of the applicant’s case not only at 17 September 2014, but also subsequently.
In all, Ms Byers’ evidence does not provide a satisfactory explanation as to why the applicant, with the same legal representation from the date of the making of his application to the Court, did not seek to amend his application at an earlier time as the Court’s orders provided, or even to have sought the leave he sought at the hearing, in a more timely manner.
In his submissions before the Court, the Minister expressed concern with what was described as the “repeated failure” by Ms Byers and counsel in matters if this type to comply with Court orders in the filing of late submissions and, importantly, in the late attempt to raise new grounds.
There is no evidence before the Court, or anything in the Court’s file to say that counsel had any earlier involvement in this case. With Ms Byers however, as set out above, her evidence does not explain the failure to prosecute this case with the appropriate impulsion.
In submissions before the Court, the applicant’s counsel sought to explain the “misunderstanding” about who was to prepare the Tribunal transcripts as being that the Edmund Rice Centre did work in the community on a “pro bono” basis.
The Edmund Rice Centre is not a law firm. As the solicitor who prepared the application to the Court, Ms Byers should have taken greater care not to represent the Edmund Rice Centre as a law firm on the face of the application. Ms Byers did have carriage of the applicant’s case from the time of the making of the current application.
It was not clear whether the submission concerning pro bono work was meant to extend to Ms Byers’ role in this case. However, even if it did, it does not provide a satisfactory explanation for the failure to raise the grounds that the applicant seeks to rely on now, at a time earlier than the seeking of leave to do so at the final hearing.
The Leave Sought to Amend the Application
Notwithstanding the expression of his “concerns”, the Minister’s central opposition to the grant of the leave sought by the applicant was that the proposed grounds lacked merit. In that light, the hearing proceeded on the basis of whether the grounds had such merit, or reasonable prospects of success, such that the interests of justice called for the leave to be granted. The applicant’s counsel was given the opportunity to explain the merit in the grounds such that the leave should be granted. Having said that however, I ultimately understood that the applicant’s approach was to exhaustively argue that his grounds were made out. Nonetheless, the basis for the following consideration is to determine whether the proposed grounds have such merit that the interests of justice calls for the leave to be granted.
The proposed grounds are in the following terms:
“1. The Tribunal breached section 425 and/or 424A of the Migration Act.
Particulars
a. By putting to the Applicant evidence given during an earlier hearing which was aborted due to translation difficulties, the Tribunal failed to apply the statutory procedural fairness obligations imposed by section 424A or section 424AA of the Act, including the provision of clear particulars of information relevant to the Review; and
b. The Applicant was therefore denied the opportunity of gaining favourable credit inferences on his evidence which may have occurred had the proper statutory procedures been followed.
2. The Tribunal made a legal error by asking itself the wrong question.
Particulars
By focussing on the:
a. ‘significance’ of a claim regarding the shooting of the Applicant at [136];
b. actions of those who attempted to shoot the Applicant at [137];
c. failure of those members of the UPFA ‘who I accept bore the applicant ill will for transferring his support to the opposition party’ to harm the Applicant ‘or to have him arrested’ at [141]; and
d. why members or supporters of the UPFA never came to Matara at [143];
the Tribunal failed to ask itself the correct question, namely whether there was a real chance the Applicant could face serious or significant harm as opposed to a balance of probabilities formulation of the question.”
[Errors in original]
As mentioned previously, the applicant has not provided any satisfactory explanation for the late attempt to amend his application. However, leave should be refused because neither of these grounds, as the grounds have been explained in submissions before the Court, have such merit, or reasonable prospects of success such that the interests of justice call for the leave to be granted.
Proposed ground one asserts that the Tribunal breached its obligations under s.425 and/or s.424A of the Act. The basis of the applicant’s complaint requires some explanation.
As set out above, the application for review was first considered by a differently constituted Tribunal. The applicant attended a hearing conducted by the “first” Tribunal member on 30 November 2012 ([20] at CB 180). No attack is made in relation to the decision currently before the Court, arising from how the Tribunal treated what occurred at that earlier hearing.
The core of the applicant’s complaint is that the Tribunal (“current” member) “aborted” the first hearing held before the current Tribunal member on 31 January 2014 because of perceived difficulties with the adequacy of interpretation. There is no dispute that that hearing was adjourned to obtain the services of another interpreter.
I note that having regard to the evidence before the Court, the applicant himself did not raise, or complain of any difficulties with the interpretation. This was done at the initiative of the Tribunal member. As for the applicant’s representative who was present at the hearing, she also did not raise any concerns. Her response to the Tribunal’s relevant question can only be described as unhelpful (see the affidavit of Mr Sweeney at (unpaginated) page 6 of the transcript at 189-190).
“T: So, do you have a view about this? Ahh, Ms. Maclellan?
R: No. It's up to you.”
In submissions, the complaint in the proposed ground was initially described as the “ad hoc procedure deployed by the Tribunal member to affirm evidence” from the previous “aborted” hearing. However, the submission was developed as follows. At the second occasion of the hearing on 12 February 2014, the hearing “went off the rails” because the Tribunal member sought to “bring into evidence” the “flawed” material from the hearing on the first occasion.
I understood this to refer to the “material” that was “flawed” because of interpretation difficulties. That is, at best, the applicant’s argument was that the evidence, given by the applicant at the first hearing was “flawed” because of interpretation difficulties, and this “flawed” evidence should have been subsequently given to the applicant by the Tribunal in discharge of its obligation in s.424A of the Act in the manner required by that section.
At the hearing before the Court, the applicant did not appear to press the reference to s.425 of the Act as it appears in the proposed ground. The submissions focussed on s.424A of the Act. In any event, s.425 of the Act obliges the Tribunal to invite an applicant to a hearing to give evidence and make arguments in relation to the issues in the review. The applicant was invited to a hearing and there is nothing in the evidence to indicate that the hearing as resumed on 12 February 2014 was anything other than a meaningful opportunity for the applicant to give his evidence and present his arguments.
From the evidence (see the affidavit of Mr John Sweeney affirmed 5 July 2016), what was relevantly discussed at the “first” hearing, before the Tribunal expressed concerns about the interpretation, was that the applicant indicated that he had not been able to tell the earlier constituted Tribunal member about all of his “political views”. Further, that he would have given more details about his uncle, but was afraid of causing “problems” for him.
On a fair reading of the material before the Court, the issue dispositive of the review before the Tribunal was whether the applicant’s claim to fear harm from the Sri Lankan authorities, and the UPFA, as this fear was said to arise from claimed instances of past harm, would likely lead to serious or significant harm on return to Sri Lanka.
The applicant would have been on notice as a result of the delegate’s decision that his claim to fear harm from the Sri Lankan authorities, the UPFA, and as based on claimed instances of past harm, may not be accepted, and was at issue. Similarly, the delegate found he would not face serious or significant harm for the reason of return to Sri Lanka as a failed asylum seeker. In any event, this was discussed at the resumed (“second”) hearing.
Underlying the applicant’s submissions, albeit not pressed in the s.425 context, is that the Tribunal’s references at the resumed hearing to some matters raised at the first hearing, meant that the applicant did not receive a fair hearing because the “appropriate” procedure was not followed. That must be rejected. The Tribunal ceased the “first” hearing because it was concerned about the adequacy of interpretation. The “second” hearing, on the evidence, proceeded with an adequate level of interpretation and there is nothing to say that the issues dispositive of the review were not discussed, and that the hearing was not a meaningful, relevant opportunity for the applicant.
To the extent that the proposed ground makes reference to s.425 of the Act, no merit can be discerned in the ground to call for the leave sought.
In any event, the applicant’s central focus was s.424A of the Act. At the hearing before the Court, the applicant explained that the “information” caught by s.424A(1) of the Act was information that the applicant gave about UPFA at the “first” hearing. That information, as set out in the affidavit of Mr Sweeney (see at [unpaginated] page 5 at 140 and onwards), related to the applicant’s claimed involvement with the UPFA and the People’s Alliance.
The applicant has not satisfactorily explained how this can be said to be information that in its terms constituted a “rejection, denial or undermining” of the applicant’s claims (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]). In essence, this was a part of the applicant’s evidence to the Tribunal over the entirety of the hearing (both occasions) where he sought to make and explain his claims.
It is important to note that the applicant’s evidence here was not the subject of any subsequent contradiction by any other information or evidence before the Tribunal. I agree with the Minister that what the applicant said at the “first” occasion concerning the UPFA and the People’s Alliance was a simply part of his claims, which in its terms, and on its own terms, did not reject or undermine his claims.
It is clear that the Tribunal adjourned the “first” hearing because of concern about the interpretation, and the interpreter’s apparent unfamiliarity with the names of political parties (see the affidavit of Mr Sweeney at page 6, 185-188). There is no evidence before the Court that there was inadequate interpretation of the remainder of what the applicant said on the “first” occasion of the hearing. For example, there is no evidence from a qualified interpreter in both the English and Sinhala languages, who has listened to the recording, and found interpretation errors.
In these circumstances, and in any event, the evidence the applicant gave at the “first” occasion of the hearing, as with the resumed hearing, was, even if it was to be characterised as “information” for the purposes of s.424A(1) of the Act, “information” caught by the exception in s.424A(3)(b) of the Act. I agree with the Minister that any problem with interpretation does not take the matter outside the scope of s.424A(3)(b) of the Act.
It may be at first glance that this matter could have been argued as a denial of procedural fairness pursuant to s.425 of the Act, given that the applicant is entitled to a meaningful opportunity to give his evidence and make his arguments in relation to the issues in the review. Inadequate interpretation may, in certain circumstances, frustrate that opportunity.
However, there is no complaint from the applicant now (or for that matter at any time before the Tribunal) that the interpretation at the resumed hearing was not adequate or competent.
The evidence before the Court (the transcript annexed to the affidavit of Ms Byers’ of 7 July 2016 and the Tribunal’s decision record in the Court Book), reveal that at the resumption of the hearing (the “second” hearing), the applicant was given the opportunity to give evidence about the matters raised on the “first” occasion.
The Tribunal said, “[j]ust correct me if there is any misunderstanding” (T1.28). The Tribunal then proceeded to put to the applicant the evidence he had previously given to the Tribunal on the “first” occasion, and the applicant was given the opportunity to respond, explain, amend, and even expand on that evidence.
In these circumstances, the Tribunal hearing, and the proceeding in general, was fair. The Tribunal, not the applicant or his representative, identified a concern with the interpretation at the first occasion of the hearing. On resumption, the applicant was given the opportunity to give his evidence and present his arguments, including in relation to the matter raised on the “first” occasion.
In all, proposed ground one, as “pleaded”, and as explained in submissions, does not have reasonable prospects of success. It lacks merit such that it could be said that it calls for the leave to be granted in the interests of justice.
I should also note that the applicant’s submissions also appear to assert a breach of s.424AA of the Act. This section is dependent on the enlivening of the obligation under s.424A of the Act. If that obligation is enlivened, the Tribunal may employ the mechanism at s.424AA of the Act to discharge that obligation. As the obligation under s.424A(1) of the Act was not enlivened, the Tribunal was not required to put any information to the applicant pursuant to s.424AA of the Act (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415).
Ground two of the proposed amended application asserts that the Tribunal erred because it asked itself the wrong question. The ground asserts that the Tribunal applied a balance of probabilities test rather than a real risk of harm test. It must be said that the applicant’s submissions were not clear in explaining this proposed ground.
The written submissions state that the “wrong question” asked by the Tribunal was whether the applicant could be believed on the balance of probabilities as opposed to whether there is a real chance his evidence could be believed ([38] of the applicant’s written submissions).
What was meant by [39] of the applicant’s written submissions was never satisfactorily explained:
“On a fair reading of the transcript and the Tribunal’s reasons, a disconnect emerges. Rather than being a genuine attempt to give the Applicant an opportunity to give evidence and present arguments on matters relevant to the review, the Tribunal deflects the findings to reflect issues he was in no position to lead cogent evidence regarding.”
As best as the proposed ground can be understood, the applicant appears to have confused and conflated certain elements of the relevant task of the Tribunal. The Tribunal is required to conduct the review (s.414 of the Act). Unless it can make a favourable decision “on the papers”, it must invite an applicant to a hearing (s.425 of the Act). The purpose of the hearing is to give an applicant the opportunity to give his evidence and explain his claims. At the hearing the Tribunal is obliged to ensure that the issues dispositive of the review, which were not live issues as a result of the delegate’s decision, are satisfactorily aired at the hearing.
The task for the Tribunal in drafting its decision record is to make findings of fact on the evidence, submissions and arguments raised (see s.430 of the Act). For example, the Tribunal can either accept, or not accept, that a particular claimed event occurred. If it has doubts then it should proceed to consider whether the applicant should be given the benefit of the doubt. The findings of fact must be reasonably open to it on what was before it.
Having made those findings of fact, the Tribunal is then required to consider whether the applicant satisfies, first the criterion at s.36(2)(a), and if not, then the criterion at s.36(2)(aa) of the Act (see s.430 of the Act). It is in relation to that consideration that the Tribunal must apply the real chance test and not a balance of probabilities test.
As the Minister submitted, the distinction between the necessity for the Tribunal to make factual findings on what is presented to it, and to then, in assessing the relevant criteria for the grant of the protection visa, apply the real chance test is explained by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (at 575 – 576):
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not ‘differentially at risk for a Convention reason.’ Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
In the present case, Einfeld J was critical of the Tribunal for making findings before it evaluated whether there was a real chance of persecution for a Convention reason. Thus, his Honour said (41):
‘As it appears to me, the Tribunal has thus been concerned to make findings and determinations in relation to each piece of evidence. It evaluated the credibility of Mr Guo and employed a continuous weighing-up process. It also engaged in a deductive reasoning process to justify some of its balance of probabilities findings. Clearly great weight was placed upon these findings when considering the ultimate question. Only after it had weighed the evidence and made its findings did the Tribunal engage in any consideration of whether or not Mr Guo’s fear of persecution on a Convention ground was well-founded. However, no consideration was given by the Tribunal to the possibility that any of its findings were inaccurate, and that there was in fact a possibility that the prior punishment had been Convention-related.’
With respect to his Honour, this criticism of the Tribunal’s reasons is wrong. For the reasons that we have given, the Tribunal was entitled to weight the material before it and make findings before it engaged ‘in any consideration of whether or not Mr Guo’s fear of persecution on a Convention ground was well-founded.’ Moreover, given the strength of some of the Tribunal’s findings – for example, ‘the treatment the Applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials’, ‘the Applicant’s illegal departure in 1993 will not result in an imputed political profile’, ‘these matters will not result in persecution to the Applicant for Convention reasons if returned to China’ – the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.
It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.
In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”
[Emphasis added]
The Tribunal in the current case made a large number of factual findings about the applicant’s claims and circumstances. These findings were absent doubt. It then proceeded to determine whether on those facts it could reach the requisite level of satisfaction, mandated by s.65 of the Act, that the applicant met either of the criteria at s.36(2) of the Act for the grant of the protection visa. The Tribunal’s relevant conclusions were reasonably open to it on what was before it.
On the evidence before the Court, the proposed ground two also lacks merit such as to argue for the grant of leave that the applicant seeks.
Conclusion
For the reasons set out above, leave to amend the application as proposed by the applicant is refused. I will make an order accordingly. Given that the applicant abandoned, in their entirety, the grounds of the application before the Court, that application must be dismissed. I will make an order accordingly.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 23 September 2016
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