SZTKE v Minister for Immigration
[2019] FCCA 3098
•5 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTKE v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3098 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection (Class XA) (Subclass 866) visa application – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the Delegate of the Minister for Immigration and Border Protection not to grant to the applicant a Protection visa – applicant asserted that Administrative Appeals Tribunal failed to ask itself the correct questions and denied him procedural fairness – none of the grounds asserted by the Applicant established – no jurisdictional error or procedural unfairness by Administrative Appeals Tribunal – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: AWA15 v Minister for Immigration [2018] FCA 604 Minister for Immigration and Multicultural Affairs, Re; Ex Parte Durairajasingham (2000) 168 ALR 407 MZZGE v Minister for Home Affairs [2019] FCAFC 72 |
| Applicant: | SZTKE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1946 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 27 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Kumar of Counsel |
| Counsel for the First Respondent: | Mr A. Keevers |
| Solicitors for the First Respondent: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Amended Application filed in this Court on 4 October 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1946 of 2016
| SZTKE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a male citizen of Sri Lanka of Tamil ethnicity aged 31 years, having been born on XX XXXX 1968.
By Amended Application filed in this Court on 4 October 2017, he seeks to quash and have re‑determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 30 June 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 January 2013 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
Background
The Applicant was issued with his Sri Lankan passport in August 2009. He departed Sri Lanka illegally on 1 June 2012 and travelled directly to Australia by boat, arriving on Christmas Island as an irregular maritime arrival on 20 June 2012. The Applicant then applied for the Protection visa on 31 October 2012.
Claims for Protection
The Applicant’s original claims for protection were set out in his Statutory Declaration declared on 22 October 2012 (Statutory Declaration), which formed part of his Protection visa application. At the hearing of this matter on 27 November 2018 Mr Kumar of Counsel appeared for the Applicant and Mr Keevers for the Minister. Mr Kumar had summarised the Statutory Declaration at [10] of his Written Submissions, as follows:
[10] The Applicant’s written claims are as follows:
(a) The Applicant was injured in April 2009 from a shelling attack and shrapnel lodged in his chest;
(b) The Applicant’s family paid a bribe to secure his release;
(c) The Applicant was whilst at the camp interrogated and assaulted by officials at the camp because they wanted to know whether he had any links with the [Liberation Tigers of Tamil Eelam] (LTTE);
(d) The Applicant was told by camp officials to avoid being seen because he did not have formal documents to show that he had been formally released from the camp;
(e) The Applicant was detained at a camp in May 2009 by the Sri Lankan Army (SLA). The Applicant and people from his neighbourhood and surrounding areas were taken away by the SLA and Criminal Investigation Division (CID) in September 2009. After this the Applicant made arrangements to travel to India where he remained until May 2010;
(f) In May 2010 three plain clothed men attended his brother’s shop and made inquiries about him. The Applicant stopped working for his brother because he was fearful that the police would return;
(g) In April 2012 people who had been released from the camp were being detained by the authorities, including a friend who he has not seen again. He feared for his safety and made arrangements to leave Sri Lanka in June 2012.
Relevant Criteria and Law Applicable to Protection Visa Applications
A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:
[5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).
[6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:
... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....
Decision of the Delegate
The Applicant attended an interview with the Delegate on 8 January 2013, mistakenly stated in the Decision Record of the Delegate as 8 January 2012.
In her Decision Record the Delegate first summarised the claims made by the Applicant in his Statutory Declaration. She then noted that “… the applicant has not claimed that he was an LTTE combatant, member or supporter or that he has any real or perceived links to any specific LTTE members, combatants or supporters”. The Delegate further noted that the Applicant had been able to apply for a genuine passport and to travel from Sri Lanka to India in 2009 and return to Sri Lanka in 2010.
In the result the Delegate found that she did “not accept that the applicant was a person of ongoing interest to the Sri Lankan authorities because of an imputed association with the LTTE prior to his departure from Sri Lanka” and, having considered independent country information, that the Applicant did not face a real chance of being seriously harmed in Sri Lanka on account of his being a returned asylum seeker. The Delegate was not satisfied that Australia had protection obligations to the Applicant under the Refugees Convention criterion or the complementary protection criterion and she refused to grant the Protection visa to the Applicant.
Decision of the Refugee Review Tribunal
The Applicant applied for merits review of the decision of the Delegate to the Refugee Review Tribunal (RRT) on 19 February 2013, which affirmed the Delegate’s decision on 20 September 2013. However, the decision of the RRT was quashed in the Federal Court of Australia on 10 September 2015, when it was remitted to the Tribunal for reconsideration and determination according to law.
Decision of the Tribunal
By Written Submission dated 24 May 2015 (but which was recorded as having been received by the Tribunal on 25 May 2016) (migration agent’s submission) the Applicant’s migration agent raised for the first time the following further claim for the Applicant:
Imputed Association with the LTTE:
In the previous Tribunal hearing the applicant mentioned that he had involvement with the LTTE and had undergone a compulsory training with them although initially denying that he was a member of the LTTE. The applicant failed to mention his involvement with the LTTE during the entry interview and to the Delegate because he was scared and concerned that he will be locked up in an Australian jail for being a member of the LTTE. The applicant does not dispute that he had failed to mention in Form B of his Protection visa application that he had undergone military or paramilitary training.
The applicant instructs us that he had joined the LTTE in 2007. He served as a mortar operator in the Radha Battalion. He had a short training of two weeks in this field due to the time constraints of the war. He was stationed at Mannar District, Kilinochi and Mullaitivu District. Around March 2009, he was injured during the civil war. As a result of this injury the applicant has scars on his body.
…
The experiences of the Applicant and his past detention;
In May 2009, the applicant was arrested and taken away to the SLA camp 74 in Vavuniya. He was detained for two months and was released unofficially after his family paid a bribe to the authorities. He was interrogated, assaulted and tortured by the SLA during the period of his detention. The previous Tribunal accepted that "I accept he has been detained in a detention camp at Vavuniya for a few months in 2009 and above I find he was legally released."
Thereafter, the applicant gave evidence that about mid- 2010, after his return from India, three plain-clothes men came to his brother's Communication shop to look for the applicant.
At the same time the migration agent submitted to the Tribunal a Reference dated 24 May 2016 from the People Coordinator for Australia of the Tamil Coordination Committee (TCC), which stated as follows:
To Whom It May Concern,
This letter is to state that [the Applicant] of [address] is an active participant in all of the activities conducted by the Tamil Coordination Committee (TCC) since 2012. In this time, [the Applicant] has participated in numerous protests and events that support Tamil rights in Sri Lanka.
To highlight some of the key activities [the Applicant] has participated in, they are listed below.
— [The Applicant] has taken part in every annual Australia Day event for Tamils held at Binalong Oval, Toongabbie since his arrival. Approximately 5000 Tamil Australians gather at this oval yearly to celebrate Australia Day. This is a family event with sports, stalls and various other entertainment.
— [The Applicant] has taken part in all the protests in both Sydney and Canberra to ask for an international investigation into war crimes against the Sri Lankan government. [The Applicant] has also been in the frontline with other Tamil community members to protest the visit of Sri Lankan High Commissioner and alleged war criminal Admiral Thisara Samarasinghe in Australia. In this instance, Sri Lankan authorities had video-graphed and taken photos of the whole event.
— [The Applicant] is an active participant in annual Tamil events such as, Martyrs / Remembrance Day (Maaveerar Naal - Nov27) and Mullivaaikkaal Day (May 18th). It is noted that Sri Lankan authorities closely monitor, gather intelligence about these events and also try their maximum diplomatic powers to stop these events.
Thank You.
(emphasis added)
Finally, by email dated 30 May 2016 the migration agent submitted to the Tribunal a Witness Statement of the same date of Mr L. P. (i.e. a pseudonym), which stated as follows:
1) My full name is [Mr L. P.].
2) My address is ….
3) [The Applicant] is a casual friend of mine.
4)I met [the Applicant] in 2007 for the first time in Kilinochi, Sri Lanka. Thereafter, we met in Sydney and continued our friendship.
5) In 2007, I as working for the LTTE as a driver, transporting LTTE fighters, distributing food and medicine. I was also on occasion required to carry back wounded or killed LTTE fighters. I also sometimes transported materials, such as wood and sand.
6) Around that time, as a driver I picked up the applicant several times and took him to is workplace.
7) I am able to confirm that [the Applicant] was a member of the LTTE at the material time.
8) [The Applicant] approached me recently and asked me whether I would be a witness in his ongoing refugee visa application in the Administrative Appeals Tribunal.
9) I agreed to be witness and made myself available for the hearing scheduled for June 2016.
I sincerely believe that the facts stated in this witness statement are true.
The Applicant then appeared before the Tribunal at a hearing on 1 June 2016 to give evidence and present arguments together with his migration agent, and Mr L. P. also gave oral evidence as a witness.
At [19] of its Decision Record the Tribunal relevantly summarised the Applicant’s claims, as follows:
[19]The applicant's claims at hearing were that he feared returning to Sri Lanka on the basis that he was of Tamil ethnicity from the north of Sri Lanka, that he was a former member and combatant in the Liberation Tigers of Tamil Eelam (LTTE), he was injured in a shelling, that after the end of the conflict he was detained in the Vavuniya Detention Camp for about 2 months from May 2009 and that he then secured his release by bribery. He obtained a Sri Lankan passport and travelled to India where he lived for 10 months before his return to Sri Lanka. When he returned the Sri Lankan Army (SLA) were looking for him and in 2012 he decided it was unsafe to remain and he boarded a boat for Australia without any travel documents. He stated that he would face harm if he returned due to his LTTE background and as a failed asylum seeker who had left Sri Lanka illegally.
Then from [21] – [133] of its Decision Record the Tribunal recorded, considered and analysed the Applicant’s claims, together with independent country information, under the following headings:
a)Family Members;
b)Was the applicant a member of the LTTE and combatant in the civil conflict?;
c)Was the applicant injured in March 2009 and was he treated in hospital in July 2009?;
d)Was the applicant detained in the Vavuniya Detention Camp in May 2009 and released in July 2009?;
e)Did the authorities have any adverse interest in the applicant after his release from Vavuniya?;
f)The applicant's passport and travel to India in 2010;
g)The period between May 2010 and the applicant's departure for Australia in June 2012;
h)Fears of return to Sri Lanka;
i)Does the applicant face harm as a young Tamil male or as a Tamil generally?;
j)Does the applicant face harm for reasons of actual or imputed political opinion?;
k)Does the applicant face harm as a failed asylum seeker and / or illegal departee?; and
l)Claims relating to Tamil diaspora activities.
In the result the Tribunal rejected the substance of the Applicant’s claims and found as follows, respectively in relation to the Refugees Convention criterion and the complementary protection criterion:
[134]Based on all the evidence before it, the Tribunal is not satisfied either individually or on a cumulative basis that if the applicant returns to Sri Lanka now or in the foreseeable future he faces a real chance of persecution for reasons of his Tamil race/ethnicity, as a younger Tamil male, for his actual or imputed anti-government / anti Sri Lankan Army/ pro LTTE political opinion or as a failed asylum seeker or an illegal departee. The Tribunal is not satisfied he has a well-founded fear of persecution for any Convention related reason.
[135]For reasons set out above the Tribunal does not accept that the Sri Lankan Army or other government agencies have any adverse interest in the applicant. It does not accept that he will face a real risk of significant harm as a result of his interaction with the SLA in 2009. The Tribunal does not accept the applicant will be imputed with pro LTTE political opinions or anti-government opinions for reasons set out above and it does not accept there is a real risk he will suffer significant harm if he returns to Sri Lanka for these reasons, or as a Tamil, a young Tamil male. It does not accept that he will he will suffer a real risk of significant harm arising from any actual or imputed associations with the LTTE.
Accordingly, the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.
Grounds of Attack on Tribunal Decision in this Court
I should first like to record that I and other members of the Court here at 80 William Street, Sydney, were saddened in September 2019 to hear of the unexpected death of Mr Kumar, who appeared regularly in this Court as Counsel.
In his Written Submissions dated 12 November 2018 Mr Kumar had indicated that Grounds 1, 3 and 4 of the Amended Application were not pressed. At the hearing he indicated that Ground 6 was also not pressed, nor was [31] of his Written Submissions, which referred to the data breach.
The two remaining Grounds relied upon by the Applicant were as follows:
2. The Tribunal fell into jurisdictional error when it found there “…is no evidence that he is an activist…” (AAT at [133]) thereby it failed to ask the correct questions / asked itself incorrect questions and failed to take into account relevant considerations.
Particulars
2.1 The Tribunal did not ask the correct questions.
2.2 The Tribunal failed to take into account letter provided by the President of Tamil Coordination Committee letter dated 24 May 2016 that detailed the applicant’s activities.
2.3 The Tribunal ignored the Applicant’s activist activities in Australia.
5. The Tribunal fell into jurisdictional error in assessing the evidence of the witness (AAT at [46]) and denied the Applicant procedural fairness and breached s 425 and / or failed to ask the correct question and / or finding is affected by irrationality / illogicality.
Particulars
5.1 The Tribunal failed to engage with the witness / committing errors about evidence not put to the witness regarding matters in which the Tribunal found adverse to the Applicant.
5.2 The Applicant was not put on notice that the Tribunal had concerns about matters not put to the witness.
5.3 The Tribunal rejected that the Applicant could be combatant.
5.4 The Tribunal’s rejection was based on the basis that the Applicant had met the witness only once.
5.5 The Tribunal’s rejected did not rely on any other explanations and all circumstances so that the witness could properly confirm that the Applicant was a combatant.
5.6 The Tribunal committed jurisdictional error.
Consideration
Ground 2
There appears to be a disconnect between Ground 2 as formulated:
a)in the Amended Application; and
b)in Mr Kumar’s Written Submissions and by him at the hearing.
Ground 2 appears in substance to assert that the Tribunal ought to have found that the Applicant had engaged in Tamil diaspora activities as an activist, whereas in his Written Submissions at [15] Mr Kumar stated:
[15]…The Applicant did not claim that he was attending events as an activist. The Applicant’s claim was that activities in Australia posed risks for the Applicant.
At the hearing he submitted in support of Ground 2 as follows:
MR KUMAR: The second ground we press on, and that is because of the way the tribunal has dealt with this matter. What in our submission we’re doing is the tribunal is looking – he doesn’t say that he’s an activist. He doesn’t describe himself as an activist. But what he does say is that he has been involved in ..... activities. So what the tribunal, in my submission, is looking for in that – and he does not claim to be an activist, but rather he is – we say that his problem would arise because he has been attending these..... activities..... in my submission, even one attendance could pose a risk. So what – the tribunal is not addressing his – not his claim, in my submission, but is looking at, well, he attended a few, but is he an activist? But that will involve danger for him if he return to Sri Lanka.
So my submission is simply that that is – his claim is not that he’s an activist, but he’s engaging in these activities in Australia..... activities and he’s saying that that is a basis for his fear, that when he return to Sri Lanka. Not that he’s an activist or whatever scale he’s doing so, but he’s saying that it will be noticed that – when he goes back that he was attending all of these..... activities and the tribunal has been dismissive of his claim on the basis that – in my submission, that he was looking whether he’s an activist or not. Therefore, whether one or few of the attendances would constitute a..... post a risk to the applicant..... the question in this case, rather than whether he’s an activist or not, in my submission, therefore, the tribunal, by asking that wrong question, is not realistically engaging or ..... is looking at something else, in my submission. Therefore it’s falling into error. So those are my submissions in relation to ground 2, your Honour.
In the result, however put, this Ground fails. The simple fact of the matter is that the Applicant did claim to be an activist in the migration agent’s submission, which asserted at page 5:
Tamil Diaspora Activities:
Furthermore, the applicant is an active participant in Tamil Diaspora activities organized by the Tamil Coordination Committee (TCC) in Sydney. According to the TCC letter dated 24 May 2016, the applicant had participated in annual Tamil events such as protests against the Sri Lankan government, Martyrs/Remembrance day and Mullivaaikkal Day. We respectfully submit that the Sri Lankan Intelligence community closely monitors events of this nature (attached letter from [the People Coordinator for Australia of the] TCC);
(emphasis added)
and at page 6:
In particular, the applicant has played an active role in the Tamil Diaspora in Australia. We respectfully submit that the applicant has an existing profile in Sri Lanka.
(emphasis added)
Further, the Reference dated 24 May 2016 from the People Coordinator for Australia of the TCC represented that the Applicant was “an active participant in all of the activities conducted by the TCC”: see [11] above.
At [88] of its Decision Record the Tribunal recognised this claim in the following terms:
[88]The applicant's representative made submissions that the applicant had been involved in Tamil activities in Australia following his arrival. He referred to a letter from the Tamil Association, which indicated that he was involved in a protest in Canberra against the visit by the Sri Lankan Foreign Minister. He stated that photographs of the protesters were taken by Sri Lankan authorities. He also stated that the applicant attended Tamil activities on Australia Day. As this appeared to be in the nature of the social event the Tribunal put it to him this to not appear to be particularly controversial. The applicant also attended Martyrs celebrations. He claimed these activities were monitored.
Then at [132] – [133] it rejected this claim, in the following terms:
[132] The applicant claims to attend activities organised by the Tamil Co-ordination Committee in Australia. These involve attendance at social events, a protest against the Sri Lankan government and attendance at Martyrs / Remembrance Day.
[133] Whilst the Tribunal accept[s] that the applicant may attend these events it does not consider that attendance at these events, on its own, would give him a profile which would be adverse. There is no evidence that he is an activist involved in separatist activities and the Tribunal does not accept that he would face a real chance of harm for reasons of his attendance at Tamil diaspora activities.
In other words, the Tribunal did not accept that the Applicant would face a real chance of harm because of his attendance at Tamil diaspora activities in Australia, and in my view Ground 2 fails to establish that the Tribunal committed jurisdictional error, either in the terms of Ground 2 itself or anything submitted in support of Ground 2, either in Mr Kumar’s Written Submissions or as put forward by him at the hearing. The Tribunal did not fail to consider this claim and did not fail “to ask the correct questions” in relation to it, nor did it fail to take into account the letter from the People Coordinator for Australia of the TCC.
Ground 5
This Ground contends that the Tribunal did not deal rationally with the evidence of Mr L. P., whose written statement is reproduced at [12] above. He gave oral evidence at the Tribunal hearing, which was recorded by the Tribunal at [38] and [46] of its Decision Record, as follows:
[38]The applicant brought a witness to the hearing who claimed he was of Tamil ethnicity and that he came to Australia in 2012 and that he had applied for a protection visa. He claimed he was a driver for the LTTE in 2007 and that he had transported the applicant and other members from Killinochi to Mannar in his truck. He stated that he had not had any other contact with the applicant in Sri Lanka and they happened to meet each other in 2013 at a local function in the community centre in Pendle Hill.
…
[46] The Tribunal finds that the applicant may have undergone compulsory LTTE training including weapon training and may have attended a military camp run by the LTTE in 2007. The Tribunal has given no weight to the evidence given by the witness. The Tribunal did not find that his evidence that he recalled the applicant from one contact in 2007 when the applicant was apparently in a group of 10 other group members was reliable. The Tribunal does not accept that the applicant was a member of the LTTE or that he was a combatant from 2007 until March 2009.
(emphasis added)
I note that at the hearing in this Court Mr Kumar agreed that in his oral evidence to the Tribunal Mr L. P. must have given evidence to the effect that he had only come into contact with the Applicant once in 2007 when Mr L. P. saw him “in a group of 10 other group members”, thereby qualifying and restricting the evidence given by him earlier in his Witness Statement.
In other words, at the Tribunal hearing Mr L. P. must have moved from his assertion in his Witness Statement that he had “picked up the applicant several times” to a position where he had only one contact with the Applicant in 2007 when the Applicant was in the company of 10 other persons. Mr Kumar submitted that the Tribunal was irrational, illogical and / or unreasonable in finding that Mr L. P.’s evidence was not reliable based on only one contact when the Applicant was in a group of 10 other people.
In this connection it is appropriate to bear in mind what the Full Court of the Federal Court of Australia comprised of Besanko, Farrell and Thawley JJ stated in MZZGE v Minister for Home Affairs [2019] FCAFC 72 at [22] in connection with what might constitute irrationality or irrationality sufficient to give rise to jurisdictional error, namely:
[22]A decision might be shown to be affected by jurisdictional error if:
(1)no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);
(2)there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31at [45] (Perram, Farrell and Thawley JJ);
(3)there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].
Assuming for present purposes that illogicality, irrationality or legal unreasonableness in connection with a mere finding of fact could establish jurisdictional error leading to the quashing of the Tribunal decision in this case, in my view there is no such illogicality, irrationality or legal unreasonableness.
Mr L. P. had originally stated in his Written Statement that he had “picked up the applicant several times and took him to his workplace”, without any suggestion that he was in the company of others. At the hearing before the Tribunal Mr L. P. gave evidence that he had transported the Applicant only once when he was in a group of 10 other group members. In coming to the view that Mr L. P.’s evidence was not reliable in establishing that the Applicant was a combatant member of the LTTE, the Tribunal reasoned within a range of possible logical and intelligible justifications. Changes or inconsistencies in evidence given by a party or a witness which are not minor or trivial can rationally lead to an inference that the person’s evidence is not reliable. Here the changes in Mr L. P.’s evidence were not minor or trivial. Whilst credibility findings must be made on probative material and logical grounds and are amenable to judicial review on jurisdictional error grounds, it remains the case that, as stated by McHugh J in Minister for Immigration and Multicultural Affairs, Re; Ex Parte Durairajasingham (2000) 168 ALR 407 at 423 [67]:
[67]…If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed...
In my opinion, the Tribunal’s view was not one which no logical or rational decision-maker could arrive at on the same evidence and it must in any event be seen, in the context of the Tribunal’s rejection for other reasons that are not attacked, that the Applicant was never a member of the LTTE and its conclusion at [58] of its Decision Record that it did not accept the Applicant’s account of events given at the Tribunal hearing and considered that he had changed his evidence to be consistent with his new claim that he was a combatant member of the LTTE.
Finally, insofar as Ground 5 contends a breach of s.425 of the Migration Act 1958 (Cth) in the manner identified in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) there is no basis for such a claim. The claim that the Applicant had been a combatant member of the LTTE in Sri Lanka was a new claim which had not been made to the Delegate: see [7] above.
In such circumstances SZBEL was simply inapplicable and irrelevant. As Edmonds J said in SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 at [14]:
[14] Section 425, as construed in SZBEL, requires the Tribunal to disclose to an applicant additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue. If the Tribunal proposes to make an adverse finding on a matter where the delegate accepted or found no deficiency in the applicant’s claims and the applicant has not otherwise been notified that the matter is in issue, the Tribunal should disclose to the applicant that it has a concern about the matter ((2006) 81 ALJR 515 at [36]). It is an entirely different matter to say that the Tribunal is bound to treat the applicant’s case before the Tribunal as identical to the case the applicant presented to the delegate. Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. Nor does the Tribunal have a duty under s 425 to inform an applicant that because the claims are now framed on the basis of a different Convention ground it will be required to consider whether the evidence supports the new claim.
More recently see Perry J in BYF15 v Minister for Immigration and Border Protection [2016] FCA 774 at [46].
Further, as Wigney J recently stated in BTU18 v Minister for Home Affairs [2019] FCA 540 at [53]:
[53]Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Cmr for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).
Accordingly, Ground 5 also fails to establish that the decision of the Tribunal is affected by jurisdictional error.
A Final Matter
At [10] above I noted that the Applicant first claimed that he was a member of the LTTE in the migration agent’s submission.
Ground 3 of the Amended Application, which Mr Kumar had abandoned in his Written Submissions, had attacked the overstatement in the first sentence of [40] of the Decision Record of the Tribunal that the Applicant had not mentioned his claim to be a member of the LTTE until the Tribunal hearing of 1 June 2016.
At the hearing I sought Mr Kumar’s confirmation that he did not make any independent argument on behalf of the Applicant based on the overstatement in [40] and he agreed that this was the case.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Amended Application filed in this Court is to be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 5 November 2019
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