SZSZH v Minister for Immigration
[2014] FCCA 357
•6 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSZH v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 357 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal fell into error by failing to consider relevant evidence or by adopting the wrong test. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 424A, 430 |
| Cases cited: Minister for Immigration and Citizenship v SZRKT [2013] HCATrans 251 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 |
| Applicant: | SZSZH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1414 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 11 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the First Respondent: | Ms Cirillo |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
A writ in the nature of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent made on 24 May 2013 in Tribunal case number 1301316.
A writ in the nature of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review of the decision of the delegate of the First Respondent made on 7 January 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1414 of 2013
| SZSZH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 24 May 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, arrived in Australia by boat on 21 May 2012.
Relevantly, in his entry interview of 2 July 2012 the Applicant claimed he left Sir Lanka because the Criminal Investigation Department (CID) was looking for him and that he feared he would be put in jail or killed. In particular, he claimed that:
One day, Somasundaram Mathanraj, this person came one night and spent the night with us and the following morning he left to Colombo for inquiry. Three days after that, in April 20th 2012, CID came and asked where Mathanraj was but at the time I was not at home. They asked my wife that Mathanraj and myself should go to the police or CID with a certain amount of money as Mathanraj is kept hidden by me. They came to our house and said that Mathanraj had been with the LTTE for sometime and he was held in Vavuniya camp for sometime. That is how they said and asked me to locate him and he has gone into hiding and that I was hiding him. But I don’t know but he said he was going to Colombo and I don’t know what happened after that.
When asked why Mr Mathanraj stayed in his house the Applicant responded: “He was familiar with my mum when he was with my mum in Mullathivu and as he wanted to travel to Colombo the next morning he came and stayed with us that night.” The Applicant claimed he did not know where Mr Mathanraj has gone into hiding and that he feared harm if he failed to “submit” Mr Mathanraj.
On 17 September 2012 the Minister exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the Act) to allow the Applicant to lodge a protection visa application. The Applicant lodged a protection visa application on that date.
In a statutory declaration dated 17 September 2012 provided in support of his protection visa application, the Applicant expanded on the claims made in his entry interview. He explained that he had sought asylum in the UK during the civil war in Sri Lanka but returned in 2008 assuming the country would be safe.
He claimed that in July 2008 he was detained and mistreated by the police and charged with illegal possession of firearms and affiliation with the LTTE because weapons were found on his prawn farm. He claimed that he was tortured, but released on payment of a bribe. He claimed the police threatened to kill him if he disclosed the torture or bribe. He claimed he was later told by the police that they had arrested the real owners of the guns who were affiliated with a regional council (the Arachch Kattwa Prades Sabai or AKPS).
The Applicant also claimed that a local Minister (referred to for convenience as the politician) regarded him as responsible for his AKPS election loss in March 2011. The politician was said to be of the view that the Applicant had publicly released information about the arrest of members of the politician’s party for illegally possessing the arms hidden on the Applicant’s prawn farm. The Applicant claimed that in April 2011 the politician’s men had approached his father-in-law asking about his whereabouts and threatening revenge. The Applicant, who was fishing at the time, decided to stay away from his home village for a few months to evade the politician’s men.
The Applicant also claimed that he was involved in a Tamil protest in September 2011 and that he was scared that thereafter the police who were at the riot might recognise and arrest him.
In addition, the Applicant claimed that on about 20 April 2012 his mother contacted him and said that a person she had known as a child (Mr Mathanraj) was on his way to Colombo from Mullaitheevu and needed a place to stay on the way. The Applicant agreed to let him stay at his home for the night. He claimed that the next morning Mr Mathanraj left for Colombo and that he had not seen him since.
The Applicant claimed that on or about 24 April 2012 members of the CID came to his home while he was away fishing and told his wife they were looking for him and for Mr Mathanraj because Mr Mathanraj was a former LTTE member and the Applicant was an LTTE supporter who had stored weapons on his prawn farm. The Applicant claimed his wife was told that he had to bring the CID money and Mr Mathanraj to save his life. He claimed to believe that this action was somehow connected to the politician who had power and influence as a former member of the AKPS and who was seeking revenge. He claimed he was wanted by the CID and by the politician, that the authorities wanted to kill him and that the police, the CID and the government were all working together.
The Applicant also claimed that in August 2012 his mother-in-law was abducted by “the Minister’s thugs”, stripped and beaten. She made a complaint to the police against one of the attackers who was a local man she recognised. He claimed that in September 2012 that man and several other men raided his wife’s house and threatened to kill her. He claimed to believe his family would be killed because the politician and his men sought “revenge against him”.
The Applicant claimed generally to fear harm from the Sri Lankan authorities, including the Sri Lankan Army, the Sri Lankan police, the CID and other paramilitary groups as well as from the politician’s men. He claimed he would be harmed because of his religion, race, and imputed political opinion as a perceived supporter of the LTTE and that as a failed Tamil asylum seeker he would be treated as a member of the LTTE, detained and interrogated. He claimed that as he feared the authorities they would not protect him.
The Applicant provided a letter in support of his claims from a Mr J.A.M. Cyril dated 1 June 2012 addressed “to whom it may concern”. The letter (“Mr Cyril’s Letter”) gave an office and residential address and contact details in Sri Lanka for Mr Cyril, an Attorney at Law. The letter stated that the Applicant was known to the writer, was suspected by the police of having close contact with Mr Mathanraj, a hardcore LTTE terrorist, and that if he returned to Sri Lanka there was a likelihood he would be arrested and detained.
A delegate of the First Respondent rejected the application for a protection visa on 7 January 2013, finding that the Applicant was not credible and that his claims had not been consistent. The delegate made no mention of Mr Cyril’s letter in the reasons for decision.
The Applicant sought review by the Tribunal. His representative provided a supporting written submission dated 3 April 2013 which elaborated on the Applicant’s claims and addressed the bases on which he claimed to fear persecution under the Refugees Convention and the complementary protection criterion. It was claimed that the Applicant had forgotten to disclose that he was also held by the Sri Lankan authorities for a day in January 2009 and questioned about his believed affiliation with the LTTE and that while this incident was not a “primary driver” for his later escape from Sri Lanka, the Applicant believed his “problematic identity” in the eyes of the authorities was further established by this incident. It was submitted that the various incidents in which the Applicant had been involved (including hiding a former LTTE member) meant that he had been identified by the authorities and imputed with a pro-LTTE political opinion.
The Applicant attended a Tribunal hearing on 5 April 2013. An English language transcript of the Tribunal hearing is in evidence before the court as an annexure to the affidavit of Yathushiya Mahenthirarasa affirmed on 24 September 2013.
In the course of the hearing the Tribunal asked the Applicant if there was anyone who could verify some of the claims he was making, such as his wife or a member of his family. The Applicant agreed that the Tribunal could speak to his wife. The Tribunal telephoned her in Sri Lanka. She gave evidence, although not on oath. She referred to receiving threats from the local politician and a follower that the Applicant claimed had attacked his mother-in-law and threatened his wife after he came to Australia. In describing the politician’s involvement in hiding weapons at the prawn farm, the Applicant’s wife appeared to suggest that the politician was in partnership with her husband. The Applicant immediately denied this. The Applicant’s wife also claimed the Applicant was not arrested immediately over the weapons found on his farm in 2008, but that the following year he was found in “a general round up” of problematic people and taken into custody. She stated that no money was paid for his release.
When the Tribunal asked if, apart from the issue with the politician, there was any other reason the Applicant left Sri Lanka, the hearing continued (Transcript pp.18 – 19, lines 271 – 310):
Applicant’s wife: Yes, sir, that Mathan, we actually had him at our place, that was the problem for him as well.
Tribunal Member: Who, was that?
Applicant’s wife: He is actua-, is his father’s, Mathan was his father’s elder brother’s son.
Tribunal Member: So it’s your husband’s cousin?
Applicant’s wife: Yeah.
Tribunal Member: Okay so do you remember what the person’s name is?
Applicant’s wife: Yes his name is Somasundaram. Surname: Mathanraj.
Tribunal Member: And how long did he stay with you
Applicant’s wife: He stayed for a long time. He stayed for a long time, we had him for a long time.
Tribunal Member: By a long time, what do you mean? Weeks, months, years?
Applicant’s wife: Yeah around I think roughly around 3 months or so but he used to move around to our aunt’s place and here so he was –
Tribunal Member: So how long did he actually stay with you?
Applicant’s wife: I forgot I really don’t know much but …
Tribunal Member: But you, as far as you remember, he was around for about three months?
Applicant’s wife: Yep, yep.
Tribunal Member: And why is your, why did this person lead to trouble for your husband?
Applicant’s wife: I mean he was actually taken in LTTE and he actually came back hiding in and was hiding.
Tribunal Member: And what was the trouble that your husband had in relation to this person?
Applicant’s wife: Yeah because of him, having him at his house, that was the problem.
Tribunal Member: Who was harassing your husband?
Applicant’s wife: Yeah police one who comes in search of him.
Tribunal Member: And were, were they, do you know what police station they were from?
Applicant’s wife: From Mundal.
Tribunal Member: So was police or CID?
Applicant’s wife: We don’t know the difference sir between the thing, police and CID may be together but we don’t, we can’t differentiate.
Tribunal Member: And how did they harass your husband, the police or the CID?
Applicant’s wife: I mean they were questioning him why did you keep Mathanraj and where has he gone and what’s the reason for you keeping him, because of that he never stayed home.
Tribunal Member: They, they directly questioned your husband?
Applicant’s wife: Yeah, no, he was not directly questioned because he actually moved to his mother’s place and here and there.
Tribunal Member: So what did these people say you to (sic), these police officers?
Applicant’s wife: Everybody in our household, first, first they first will ask the question where is, about his whereabouts and then they will keep on questioning everybody in the house.
Applicant’s wife: And did they make any threats?
Tribunal Member: They have actually asked us to hand him over if he come, if he return home, hand him over to the police.
Applicant’s wife: Hand him over. Any, anything, any –
Applicant’s wife: Yeah I mean like they actually asked him, asked them to um surrender him or hand over him to them and fear he came t6o this country.
Tribunal Member: Ok did, did, did they make any other demands of you or your husband, from you or your husband?
Applicant’s wife: Yeah they come and – they actually threatened me saying that when he comes back he has to surrender otherwise we will take one of your child as well so, type of threatening they were doing.
Tribunal Member: And have you experienced any difficulties with any these people that are threatening your husband since he left the country?
Applicant’s wife: They come in search of him but we said we don’t know.
The Applicant’s wife claimed that the politician’s follower and the police had come in search of her husband and that because the politician’s follower had threatened her son he had been sent to boarding school in Colombo.
After the telephone call concluded, the Tribunal member put to the Applicant that his wife had “pretty much contradicted most of [his] major claims” and advised that he would write to him about his wife’s evidence.
The Tribunal wrote to the Applicant pursuant to s.424A of the Act putting to him aspects of his wife’s evidence said to be inconsistent with his evidence, in particular regarding Mr Mathanraj and the consequences of his visit. Included in the information put to the Applicant was the fact that his claim was that he sheltered Mr Mathanraj for one night, whereas his wife’s claim was said to be that he sheltered Mr Mathanraj, who she said was the Applicant’s cousin, several times over a three-month period.
In a response from the Applicant’s representative dated 20 May 2013, it was submitted, among other things, that the wife’s evidence should be assessed in the context of her unprepared and unexpected interview, that she was confused about the questioning, that she believed she was being asked how long Mr Mathanraj had stayed in the village and that in her confusion she had responded “yes” to the Tribunal’s leading question “so about three months”. The Applicant confirmed that Mr Mathanraj spent one night at his home and that to the best of his knowledge he was travelling from Mullaitheevu to Colombo. However it was explained that the Applicant’s wife had discovered through local groups that Mr Mathanraj had been hiding in the local area for three months.
The Tribunal Decision
In its reasons for decision the Tribunal set out the claims made by the Applicant in his arrival interview, in connection with his protection visa application and before the Tribunal. The Tribunal summarised the Applicant’s claims as follows:
The applicant claims that he fled from Sri Lanka because he was facing harm by the authorities regarding his association with Mr Mantha Raj, an LTTE member who stayed at his house, and for his involvement in a protest march during September 2011. He claims that he was also facing harm from a local politician, Mr Moorthy, and the politician’s associates, because of election results in 2011. The applicant claims that he faces harm from the Sinhalese community because of his religious activities and his involvement in the demonstration during September 2011. He claims that he will be prevented from freely and safely practicing his religion. He claims that the authorities arrested him in 2008, on suspicion that he had hidden weapons on his prawn farm and he was forced to pay considerable bribes to the authorities to secure his release. He claims that he was detained and held for one day in 2009. The applicant claims that his wife, his wife’s mother, and his children, were targeted by the same persons who were seeking to harm him.
The Tribunal stated that it had considered these claims and the evidence provided by the Applicant and his wife regarding the Applicant’s circumstances in Sri Lanka but that it was not satisfied that these claims were credible.
The Tribunal had regard to the fact that the Applicant had not provided a consistent account of his circumstances in Sri Lanka or the reasons he departed his country, his failure to mention some of his main claims when initially asked to provide his reasons for leaving Sri Lanka and the fact that at the hearing the Applicant and his wife had provided “significantly different accounts” of the Applicant’s circumstances in Sri Lanka. The Tribunal was not satisfied that the reasons the Applicant provided for omissions and inconsistencies, adequately accounted for the “major omissions” and “significant lack of consistency” in his evidence. It was of the view that the Applicant was unable to provide a consistent account of his circumstances and that he and his wife had provided contradictory evidence regarding the circumstances because his claims were contrived to enhance his protection visa application. It observed that neither the Applicant nor his wife was able to recall and repeat the claims when the Applicant’s departure from Sri Lanka was discussed with them. It was not satisfied that the Applicant or his wife had provided an accurate or truthful account of his circumstances in Sri Lanka and the reasons he decided to leave the country.
The Tribunal did not accept as credible the Applicant’s claims that he was targeted by a named politician for any of the reasons provided or by the authorities because he gave shelter to Mr Mathanraj (a member of the LTTE). It did not accept that he was at risk of being detained and tortured for his religious activism; that he was detained by the authorities and forced to pay bribes in relation to weapons being found on his prawn farm in 2008; that his wife, her mother and their children were targeted by persons seeking to harm him; that he was at risk of harm by the Sinhalese community because of his religious activities; or that he was prevented from practising his religion freely and safely in Sri Lanka.
The Tribunal accepted that the Applicant was detained by the authorities for one day in January 2009. However it stated that the Applicant had indicated that this incident did not influence his decision to leave Sri Lanka in 2012. The Tribunal found that this was “an isolated incident in the context of the civil war” and that the Applicant was “not a person of particular or ongoing interest to the authorities in Sri Lanka at the time of his 2009 arrest or after he was released.”
The Tribunal considered whether the Applicant faced persecution for reasons of his race as a Tamil, but found that he had not been involved in any activities that would attract the adverse interest of the authorities, paramilitary groups or the broader community in Sri Lanka and that his fear of persecution for reasons of race was not well-founded.
The Tribunal rejected any claim by the Applicant to fear persecution on the basis that a political opinion adverse to the government would be attributed to him by the authorities because of his race and background, having regard to its findings that he lacked the political profile of a person who would attract the adverse interest of the authorities as an activist, an LTTE supporter or for any other political reason. It was not satisfied he has been implicated in any activities that would attract the adverse interest of the government or pre-government groups.
The Tribunal also addressed the Applicant’s claim that as a Tamil failed asylum seeker who left Sri Lanka illegally he would face serious harm by the authorities. The basis for the Tribunal’s finding in this respect is the subject of ground two and this part of the decision is considered in detail in discussion of that ground. Briefly, the Tribunal found that the Applicant’s fear that he would be mistreated by the authorities or persons associated with the government for being a Tamil failed asylum seeker and a person who left the country illegally was not well-founded. Nor was the Tribunal satisfied that as a Tamil the Applicant was discriminated against or mistreated to such an extent as to constitute persecution for Convention purposes.
The Tribunal was not satisfied that, considered cumulatively, the issues raised by the Applicant would place him at risk of being subjected to persecution in Sri Lanka for a Convention reason. It reiterated that it had found he was not a person of particular interest to the authorities or to anyone else in Sri Lanka. It was not satisfied his cumulative circumstances would attract the adverse interest of the authorities.
The Tribunal then considered the complementary protection criterion. It referred to the Applicant’s claims that as a Tamil failed asylum seeker he faced torture and other forms of significant harm by the authorities in Sri Lanka. It considered the Applicant’s assertion that all Tamil failed asylum seekers who departed Sri Lanka illegally were detained, tortured and mistreated by the authorities on return, but had regard to the fact that it had already rejected such claims for the reasons provided. It found that similar considerations applied to the complementary protection criterion. In this context the Tribunal (at [80]) found that:
...information from external sources, which was discussed with the applicant at the hearing, does not support the view that Tamil failed asylum seekers, including those who left the country illegally, and are forcibly returned to Sri Lanka, are commonly subjected to torture or other harm by the authorities. The Tribunal has already indicated that persons belonging to certain groups may attract the adverse interest of the authorities or pro-government groups once they return to Sri Lanka. However, the Tribunal finds that the applicant does not belong to a high risk group or have the profile of a person who may attract the adverse interest of the authorities or persons who are associated with the government in Sri Lanka. The Tribunal is satisfied that the applicant is not at risk of being subjected to torture or other forms of significant harm in Sri Lanka as a Tamil failed asylum seeker and a person who departed the country illegally.
The Tribunal acknowledged that it had accepted that the Applicant may be detained and questioned on return to Sri Lanka, but found that these and other processing measures the government may take in processing the Applicant’s return as a failed asylum seeker would not amount to significant harm for complementary protection purposes. It stated:
The Tribunal accepts the assessment of the Home Office and DFAT, in the reports referred to above, that Tamil failed asylum seekers who are being deported to Sri Lanka are not commonly mistreated by the authorities while their return is processed.
The Tribunal also considered, but rejected, the Applicant’s broad claim that for all the reasons he faced Convention-related persecution he also faced significant harm under the complementary protection provision.
The Tribunal affirmed the delegate’s decision.
The Applicant sought review by application filed in this court on 24 June 2013. He now relies on an amended application filed on 24 September 2013. There are two grounds in the amended application.
Failure to consider relevant material
The first ground in the amended application is that the Tribunal committed jurisdictional error by failing to consider relevant material. The particulars to this ground are as follows:
Failure to consider a document, being a letter under the letterhead and the signature of a person purporting to be J.A.M. Cyril, which was cogent and central to an issue to be determined in the proceedings.
The letter that is the subject of ground one is on a letterhead that describes Mr Cyril as an Attorney at Law, Notary Public and Commissioner for Oaths and includes residential and office addresses and a contact telephone number. It is as follows:
TO WHOM IT MAY CONCERN
This is to state that [the Applicant] of Ward No 4 [Applicant’s village]…is known to me.
[The Applicant] is suspected by the Police of having a close contact with on Mr Somasundaram Mathanraj who was a hardcore LTTE terrorist, arrested by the security forces after the conclusion of the war and sent for rehabilitation to the Vavuniya Rehabilitation Centre. Though rehabilitated, the security forces feel that Mr Mathanraj would cause problems being a hardcore terrorist. Hence the Police are in search of both Mr Mathanraj and [the Applicant].
The authorities are concerned about a regrouping of Tamil Tigers and with a view to preventing such a re-emergence, the provisions of the Prevention of the Terrorism Act are enforced even after three years of the conclusion of the war and the defeat of the Tamil Tigers. A number of Tamil youths were arbitrarily and indiscriminately arrested and detained at the end of April by the security forces ignoring the basic procedures of arrest and detention.
Human rights situation is fast deteriorating. White van abductions continue unabated. A number of abductions were reported in recent weeks by unidentified armed men travelling in white vans. The victims of such white van abductions are either murdered or made to disappear. The dreaded white van syndrome instills (sic) a sense of fear in the minds of the people. The situation is further compounded by an entrenched culture of impunity where the perpetrators of the crime are never arrested nor prosecuted.
The prevailing situation is not conducive to [the Applicant] returning to the country. In the event of [the Applicant] returning to the country there is a likelihood of his being arrested and detained under the provisions of the Prevention of Terrorism Act. He might have to languish in detention for prolonged periods without being brought to trial and be subjected to cruel torture and inhuman and degrading treatment. Further he might be exposing himself to grave risks to his personal safety and security.
The letter bears a signature identifying the author as Mr Cyril. It is dated 1 June 2012, which was after the Applicant arrived in Australia and before his irregular maritime arrival entry interview of 2 July 2012. However there is no reference to Mr Cyril’s letter in the written record of the Applicant’s entry interview (which refers to identity documents) or in the delegate’s decision.
In written submissions the Minister conceded that it was not evident when Mr Cyril’s letter (which bears a handwritten number ‘3’ in the top-right hand corner) became part of the Applicant’s file or whether it was before the delegate. As the Applicant’s file was maintained by the Minister’s Department, this is somewhat surprising. I have not been asked to draw any inference in that respect. For the purposes of this decision the Minister accepts that Mr Cyril’s letter was before the Tribunal. It is not in dispute that Mr Cyril’s letter was not referred to at the Tribunal hearing or in the Tribunal’s reasons for decision.
Counsel for the Applicant acknowledged that the Applicant bore the onus of demonstrating that Mr Cyril’s letter was not considered by the Tribunal. However it was contended that the Applicant had met that onus. It was submitted that the very general statement by the Tribunal that it had considered the Applicant’s claims and the evidence provided by him and his wife regarding his circumstances did not suffice to establish that the Tribunal had regard to this letter.
It was also submitted that it was apparent that the Tribunal member had been a little “careless” in how he dealt with other evidence. Issue was taken with the factual accuracy of the Tribunal’s account of what had occurred in the Tribunal hearing in several respects in support of the proposition that the Tribunal did not consider the evidence accurately and did not actually consider Mr Cyril’s letter.
It was submitted that s.430(1)(b) of the Act, which requires the Tribunal to refer to the evidence or other material on which its findings of fact are based, would support the view that if the Tribunal did not refer to a particular piece of evidence the, its finding of facts may not have been based on such evidence.
The Applicant contended that, consistent with the approach taken by Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; (2013) ALR 572; [2013] FCA 317, the Tribunal was legally required to consider Mr Cyril’s letter and that its failure to do so constituted jurisdictional error. Reliance was placed on the remarks of Robertson J in SZRKT at [112] as follows:
As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77], whether the tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.
It was submitted that as independent corroboration of a claim that had been made consistently through the process of the Applicant seeking asylum, Mr Cyril’s letter was cogent material that was central to the assessment of the Applicant’s claims. It was also said to be relevant material in the terms considered in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at 351 [82].
The Applicant submitted that in determining whether the Tribunal was obliged to consider Mr Cyril’s letter it was necessary to have regard to the circumstances of the case as a whole (SZRKT at [111]). It was pointed out that the Tribunal had before it the testimony of the Applicant in relation to Mr Mathanraj and the statements of his wife made in Sri Lanka without notice, as well as the attempted reconciliation of this apparently inconsistent evidence by the Applicant’s advisor in the context of a basic overarching claim that the Applicant feared harm because of his association with Mr Mathanraj by giving him accommodation. The Applicant submitted that the letter from Mr Cyril was the only apparently independent evidence in support of this claim, so that in the context of the case it was potentially of critical importance.
In addition, the Applicant submitted that on its face Mr Cyril’s letter was corroborative evidence from a person of apparent standing in the community (as an Attorney at Law, Notary Public and Commissioner for Oaths) who claimed to have knowledge of the circumstances of the Applicant’s claim that he was sought by the police or the security forces, in particular because of a suspected close contact with Mr Mathanraj who was an LTTE terrorist.
It was submitted that had the Tribunal considered Mr Cyril’s letter it may have been persuaded to accept that the evidence of the Applicant and his wife could be reconciled in the way suggested by the Applicant’s advisor, that is, on the basis that when she referred to three months she was referring to the total amount of time that Mr Mathanraj stayed in the Applicant’s village and district, not to the time he stayed in the Applicant’s family home.
The Applicant submitted that Mr Cyril’s letter was cogent evidence in the sense considered by Robertson J in SZRKT. Contrary to the contentions for the First Respondent, it was submitted that no clear distinction could be drawn between official documents and other documents. It was submitted that the concept of cogency went little further than requiring something that on its face was corroborative of a claim of the Applicant, bearing in mind that the weight to be given to any such document was for the Tribunal to determine and not for the Court. Counsel for the Applicant submitted that if the Court could be satisfied that a document was on its face corroborative, it could be said to be cogent for the purposes of the review.
Moreover the relevance of the letter to the assessment of the Applicant’s claims was said to be clear having regard to the fact that the Tribunal based its rejection of the Applicant’s claim involving Mr Mathanraj on adverse credibility findings, which in turn reflected its concern about a lack of consistency in the Applicant’s claims as well as the inconsistencies with his wife’s evidence. Thus, Mr Cyril’s letter was said to be critically relevant corroborative evidence.
In these circumstances it was submitted that the Tribunal’s failure to consider such centrally relevant corroborative material constituted jurisdictional error.
At the time of the hearing SZRKT was the subject of an application for special leave to appeal to the High Court. The First Respondent accepted that SZRKT was the relevant authority on the question of whether the Tribunal had committed jurisdictional error in failing to consider a piece of evidence. The Minister’s submissions were based on acceptance of the test stated by Robertson J in SZRKT at [112], although alternative submissions were foreshadowed in the event that special leave was granted. The application for special leave in SZRKT was dismissed (see Minister for Immigration and Citizenship v SZRKT [2013] HCATrans 251). Hence it is not necessary to consider such alternative submissions.
The First Respondent accepted that in some circumstances where there was no evidence in either the Tribunal’s reasons or in the transcript of the hearing to suggest that the Tribunal considered particular material, the Tribunal may not have considered such material. However it was not admitted that such an inference could be drawn in this case. The First Respondent pointed out that the Tribunal was under no obligation to refer in its statement under s.430(1) of the Act to evidence that was not a reason for its decision and not evidence upon which its findings of fact were based (see Yusuf at [67]‑[68]). Thus it was said that it could not be inferred from the fact that Mr Cyril’s letter was not mentioned in the statement of reasons that the Tribunal had failed to consider it (see Applicant WAEEv Ministerfor Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47] and Minister for Immigration and Citizenship v SZGUR and Another (2011) 241 CLR 594; [2011] HCA 1 at [31] per French CJ and Kiefel J). It was submitted that the Applicant had not otherwise established a basis for drawing an inference that the Tribunal overlooked or failed to consider the letter (see SZGUR at [67] per Gummow J).
In any event, the First Respondent submitted that even if the Court was satisfied that the Tribunal did not consider the letter, whether by inadvertence or otherwise, the Tribunal did not fall into jurisdictional error.
It was submitted that while in SZRKT Roberston J had found (at [114]) that Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [28] per North and Lander JJ was “not authority for the proposition that it could never be a jurisdictional error to ignore a critical piece of corroborative evidence,” his Honour had also accepted that merely to ignore material relevant only to fact finding did not of itself constitute jurisdictional error (see SZRKT at [95], [97], [98] and [122]). Relevantly, in determining whether a failure to consider material constituted a jurisdictional error, Robertson J saw the “fundamental question” as “the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error” (at [111]).
The First Respondent acknowledged that relevant factors in relation to corroborative evidence included the cogency of the evidentiary material and the place of that material in the assessment of the Applicant’s claims (SZRKT at [112]) and accepted that as Mr Cyril’s letter purported to corroborate the Applicant’s claim that the police were searching for him it was central, or at least partly so, to the assessment of the Applicant’s claims.
However it was contended that the Applicant had not established the cogency of Mr Cyril’s letter. The First Respondent submitted that cogent evidence was that which assisted a person to establish the truth of a matter contended and that Mr Cyril’s letter lacked cogency because even if it was accepted as authentic, in the sense of having been written and signed by Mr Cyril, it would not have established that the Applicant was wanted by the police because of an alleged connection with Mr Mathanraj. Counsel for the Minister contended that Mr Cyril’s letter was distinguishable from an official document which, if accepted as authentic, would be relatively more persuasive corroborative evidence on the basis that such a document had a greater tendency to establish the truth of the matters it purported to convey.
It was also said to be relevant that the purpose of Mr Cyril’s letter was not explained therein and that it was addressed “to whom it may concern”. Further, it was submitted that even if Mr Cyril’s letter had been written to convey to an unknown person in a decision-making capacity in Australia or elsewhere that Mr Cyril had knowledge that would corroborate the Applicant’s claims (which was denied), the letter lacked detail (such as approximate key dates and events) that it would be thought that a person with knowledge of such circumstances would convey if his purpose was to persuade and did not explain the basis for Mr Cyril’s purported knowledge.
It was submitted that it was not open to invite the Court to traverse the evidence before the Tribunal to assess how the letter could have affected the Tribunal’s reasoning and that it was irrelevant to consider what the letter may have shown had the Tribunal accepted its authenticity because this would involve a consideration of the merits of the Applicant’s claim (cf. SZRKT at [120]). Nor was it said to be open to the Court to hypothesise that further inquiry would have established a basis for Mr Cyril’s knowledge, as the Court could only assess cogency by construing the letter itself.
The First Respondent submitted that Mr Cyril’s letter could not have assisted to persuade the Tribunal of the Applicant’s connection with Mr Mathanraj or that the police were searching for him and that therefore it would not have corroborated his claim.
RESOLUTION
It is not in dispute that a failure to consider evidentiary material may constitute a jurisdictional error in the sense considered in SZRKT. First, it is necessary to consider whether there was a failure to consider Mr Cyril’s letter. It is for the Applicant to establish a basis for inferring that the Tribunal did not consider Mr Cyril’s letter (SZGUR at [67]).
Mr Cyril’s letter was potentially corroborative evidence in relation to the Applicant’s claim that the police were searching for him because of a suspected association with Mr Mathanraj, an LTTE terrorist. This was one of the bases on which he claimed to fear persecution. The letter was relevant to the question of whether the Applicant had contact with Mr Mathanraj a hard core LTTE terrorist, whether the police were searching for him and whether he was likely to be arrested under the Prevention of Terrorism Act and mistreated. These questions were at the heart of the Applicant’s claims. Mr Cyril’s letter was also of potential relevance in relation to the assessment of the credibility of the Applicant’s claims.
The letter was not referred to in the entry interview or the delegate’s decision. The Tribunal did not refer to Mr Cyril’s letter in the hearing or in its reasons for decision.
I have borne in mind that, of itself, the absence of mention of a matter in the s.430 statement of reasons does not necessarily mean that such matter was not considered (see SZGUR at [31]). I do not find the Applicant’s contentions about the “carelessness” of the Tribunal persuasive. However, in this case, despite the corroborative nature of the material in relation to a central claim made by the Applicant, there was no reference to the letter in the Tribunal’s reasons or in the course of the hearing, notwithstanding that the Tribunal referred in the hearing to the need for corroboration of the Applicant’s claims. Unlike the material considered in SZGUR (a request to the Tribunal that it arrange an independent medical assessment), Mr Cyril’s letter did not simply relate to a procedure by the Tribunal. It was corroborative evidence upon which findings of fact and in relation to credibility could have been based (see SZGUR at [32]). Having regard to the corroborative nature of the material in question and the absence of any reference to the letter in the Tribunal reasons for decision, I am not satisfied that the Tribunal’s general reference to having considered “the evidence provided by the applicant and his wife regarding the applicant’s circumstances in Sri Lanka” establishes that the Tribunal considered Mr Cyril’s letter.
Given the corroborative nature of Mr Cyril’s letter in relation to the facts on which the Applicant relied to claim he was a refugee and its potential relevance to his credibility, the “obvious inference” in this case is that the Tribunal did not take it into account (SZRKT at [72]). The relevance of Mr Cyril’s letter to the issues before the Tribunal was “so high” that this is not outweighed by the Tribunal’s general statement that it considered the evidence provided (SZRKT at [73]). It can be inferred that if material of this nature had been considered it would have been referred to by the Tribunal in its reasoning (see s.430(1)(b) of the Act), notwithstanding that the Tribunal could have rejected or placed little weight on such material (see Re Minister for Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 at [65] per McHugh J).
Hence it is necessary to consider whether the Tribunal was legally required to consider Mr Cyril’s letter. In SZRKT Robertson J considered the consequences of a failure to consider a document. As his Honour pointed out at [77] “this is a case specific inquiry and it is not one which should be analysed by reference to fixed categories or formulas...” (and see the discussion at [80]–[102]). Relevantly, his Honour expressed the view (at [111]) that there was no clear distinction between claims and evidence and that:
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.
His Honour then stated the central principle at [112]:
As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document.
Robertson J went on to suggest at [112] that relevant factors in relation to corroborative evidence “include” two matters:
…first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.
Thus the starting point is the circumstances of the case. As indicated, the circumstances of this case include the fact that the Applicant made claims based in a large part on his association with Mr Mathanraj who was said to be an LTTE terrorist and that his credibility was rejected for reasons that included the apparent inconsistency of his wife’s oral evidence. Mr Cyril’s letter was corroborative evidence in relation to a central element of the basis for the Applicant’s claim to fear persecution as well as potentially relevant to the Tribunal’s rejection of the Applicant’s credibility. While not an “official” document apparently emanating from a government or other authority, the letter purported to be from a lawyer with personal knowledge of the Applicant. It related specifically to the Applicant. As the First Respondent conceded, it was central to the assessment of the Applicant’s claim to fear persecution. It cannot be said that it was so “insignificant that the Tribunal’s failure to take it into account could not have materially affected the decision” (cf. Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at [40] per Mason J).
Insofar as the First Respondent submitted that a strict view should be taken of the question of cogency, as Robertson J pointed out in SZRKT, it is important to avoid determining a case by reference to “categories or formulas.” Moreover, while the relevant factors in relation to corroborative evidence “include” the cogency of the evidentiary material (SZRKT at [112]), in my view it is not necessary to find that the evidence in question is such that of itself it would “establish” a claim or the truth of the matter to which it purported to relate in order for it to be regarded as having such cogency (when considered in all the circumstances of the case) that the Tribunal’s failure to consider it would give rise to jurisdictional error.
Contrary to the First Respondent’s submission, Mr Cyril’s letter was not only central to the assessment of the Applicant’s claims, it was also of sufficient cogency that in all the circumstances the Tribunal was obliged to consider it. Mr Cyril’s letter may have been somewhat generally expressed and it was not an official document in the sense of a document appearing to come from a government or other authority. Such factors may have gone to the weight to be given to it but they do not lead to the conclusion that there was no obligation on the Tribunal to consider this material in the particular circumstances of the case. The letter was, on its face, the only apparently independent evidence in support of the main basis for the Applicant’s claim to fear persecution. I do not accept that Mr Cyril’s letter could not have assisted to persuade the Tribunal of the Applicant’s connection with Mr Mathanraj or that the police were searching for him.
Notwithstanding that the Tribunal’s obligation under s.430 is limited as described in SZGUR at [31]-[32], in this case the Tribunal’s reasons included more than required by s.430. However the Tribunal reasons do not disclose that it considered and evaluated all relevant material put forward by the Applicant in support of his claims about Mr Mathanraj, including the apparently corroborative letter from Mr Cyril. In particular, the reasons do not disclose that the Tribunal gave any consideration to the weight to be given to Mr Cyril’s letter, as would have been expected had it been evaluated.
Mr Cyril’s letter was sufficiently important to the exercise of the Tribunal’s function of review that the Tribunal’s failure to consider it amounted to jurisdictional error in the sense considered in SZRKT. Ground one is made out.
The test of a well-founded fear of persecution.
The second ground in the Amended Application is that the Tribunal “erred by misstating and misapplying the test of a well founded fear of persecution.” The particulars to this ground are that the Tribunal “erroneously stated and applied a test as to whether persons in the position of the applicant were “commonly mistreated” upon return to Sri Lanka”.
The Applicant relied on the fact that on two occasions (in paragraphs 74 and 75 of its findings and reasons) the Tribunal used the expression “not commonly mistreated” in finding that the Applicant’s claimed fear of persecution for a Convention reason was not well-founded.
In the part of the Tribunal decision in issue, the Tribunal was considering the Applicant’s claims to fear persecution as a Tamil failed asylum seeker who left Sri Lanka illegally. The Tribunal stated:
74. The Tribunal considered the applicant’s claim that as a Tamil failed asylum seeker, who left the country illegally, he will face serious harm by the authorities in Sri Lanka. Information from external sources, which was discussed with the applicant at the hearing, including information from the Home Office and DFAT, indicates that Tamil failed asylum seekers such as the applicant, who are forced to return to Sri Lanka, are not commonly mistreated by the authorities. The information indicates that persons who fall within one of the high risk groups referred to above may face targeting after they return to Sri Lanka. However, the Tribunal finds that the applicant does not have the profile of a person belonging to one of those groups which may attract the adverse interest of the authorities or pro-government groups in Sri Lanka. The Tribunal finds that the applicant’s fear, that he will be mistreated by the authorities or persons associated with the government in Sri Lanka for being a Tamil failed asylum seeker, and a person who left the country illegally, is not well-founded.
75. The Tribunal accepts that the applicant may be detained, questioned, and fined, when he returns to Sri Lanka. It accepts that he may be charged if he is found to have committed an offence. However, the Tribunal is not satisfied by the information it has from external sources that the processing measures which may be undertaken by the authorities in Sri Lanka, in relation to the applicant’s return to Sri Lanka, will place him at risk of harm which will amount to serious harm for Convention purposes. The information provided by the Home Office and DFAT, which the tribunal accepts, indicates that Tamil failed asylum seekers are not commonly mistreated while their return is being processed by the Sri Lankan authorities. The Tribunal finds that the applicant’s fear in this regard is not well-founded. (Emphasis added).
The Applicant submitted that it was apparent from paragraph 74 of the Tribunal’s reasons that part of the basis for its finding that his fear was not well-founded was that people such as him were “not commonly mistreated”. Similarly, the conclusion in paragraph 75 that the Applicant’s fear was not well-founded was said to be based largely on the finding that Tamil failed asylum seekers were “not commonly mistreated”, insofar as this finding formed an integral part of the Tribunal’s reasoning on that subject.
The Applicant submitted that the Tribunal had used the wrong test and imposed the wrong standard of proof in making critical findings, as the test of “not commonly mistreated” did not equate to that of having a “well-founded fear of persecution” in the sense considered in Chan Yee Kin v Minister for Immigration (1989) 169 CLR 370 at 388‑9 per Mason CJ; 398 per Dawson J; 407 per Toohey J and 427‑434 per McHugh J.
The Tribunal decision is to be read fairly and as a whole. As the First Respondent pointed out, the Tribunal referred to the correct test earlier in its reasons for decision. The fact that the Tribunal did not discuss the concept of a well-founded fear of persecution in more detail in paragraphs 74 and 75 of its decision or expressly refer to the notion of real chance (see Chan Yee Kin) does not establish that it misunderstood the test or applied the wrong test in relation to whether or not the Applicant had a well-founded fear of persecution.
Considered in context, the Tribunal’s reference to country information to the effect that failed Tamil asylum seekers forced to return to Sri Lanka “are not commonly mistreated” at paragraph 74 of its reasons does not amount to an indication that it somehow adopted a “test” of whether a person of the relevant type was “commonly mistreated”. Rather, the Tribunal was clearly considering whether any information before it supported the Applicant’s claim to have a well-founded fear of persecution in the sense considered in the authorities that had been cited at paragraph 71 (in particular Chan Yee Kin and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559).
In particular, the Tribunal was considering the Applicant’s claim to fear serious harm or mistreatment by the Sri Lankan authorities. In this context the Tribunal’s reference to the fact that particular country information indicated that Tamil failed asylum seekers were “not commonly mistreated” does not establish that it misunderstood or misapplied the test for a well-founded fear of persecution. Notably, the Tribunal went on to find that the Applicant did not have a profile that would attract the adverse interest of the authorities and concluded that his claim to fear Convention-related persecution on account of being a Tamil failed asylum seeker was not well-founded. There is nothing in the construction of paragraph 74 of its reasons or in the reasons as a whole to suggest that the Tribunal was not aware of or failed to apply the correct test.
Similarly, at paragraph 75 the Tribunal accepted that the Applicant may be “detained, questioned and fined” on return to Sri Lanka and may be charged if found to have committed an offence. Again, it cited country information which was said to indicate that failed asylum seekers “are not commonly mistreated while their return is being processed” (Emphasis added). This reference to what country information indicated does not establish that the Tribunal misapplied the test under the Refugees Convention.
The Tribunal found that it was not satisfied on the information before it that the processing measures taken after the Applicant’s return to Sri Lanka would place the Applicant at risk of serious harm. It also addressed the possibility of mistreatment during processing. It concluded that the Applicant’s fear of harm in that respect was not well-founded. Again, there is nothing in the construction of this paragraph, either considered alone or in conjunction with paragraph 74 and the rest of the reasons, to suggest that the Tribunal was not aware of or failed to apply the correct test. To read these paragraphs otherwise would constitute review of the decision with an eye too keenly attuned to the perception of error as discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6 at [30].
Ground two is not made out. However as jurisdictional error has been established on the basis contended for in ground one the matter should be remitted for reconsideration according to law.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 6 March 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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