SZTQD v Minister for Immigration

[2015] FCCA 2530

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTQD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2530

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had prevented the second applicant from putting her case to it and had failed to give the second applicant’s claims consideration separate from its consideration of the first applicant’s claims.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 425, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

WZARH v Minister for Immigration & Border Protection (2014) 316 ALR 389
SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125

First Applicant: SZTQD

Second Applicant: SZTQE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3042 of 2013

Judgment of: Judge Cameron

Hearing date: 1 September 2015

Date of Last Submission: 1 September 2015

Delivered at: Sydney

Delivered on: 29 September 2015

REPRESENTATION

Counsel for the Applicants: Mr P. Bodisco

Solicitors for the Applicants: Rasan T. Selliah & Associates

Counsel for the First Respondent: Mr O. Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3042 of 2013

SZTQD

First Applicant

SZTQE

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants, who are husband and wife, are citizens of Sri Lanka who arrived in Australia on 19 June 2011. At the time of their arrival the second applicant held a student visa and the first applicant was her dependent on that visa. On 29 July 2011 the applicants lodged an application for protection visas with what is now the Department of Immigration and Border Protection, alleging that they feared persecution in Sri Lanka because of the first applicant’s political activities. On 28 August 2012 the applicants’ application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicants’ claim for protection visas.  As summarised by the Tribunal, the first applicant relevantly made the following claims in a written statement which accompanied the application:

   a)he is Tamil;

   b)he feared that supporters of the political party “UPLF” would harm him because he supported a different political party, the Democratic People’s Front;

   c)during the 2010 Sri Lankan presidential and parliamentary elections he had put up posters and distributed flyers on behalf of the leader of the Democratic People’s Front;

   d)on 4 April 2010 while on his way to work, he was stopped by a “UPLF” supporter, Mr W, who slapped him and took some posters which were in his car;

   e)on 23 April 2011 the leader of the Democratic People’s Front asked him to put up some posters.  The applicant asked two friends to put the posters up for him and lent them his mobile phone and motorbike.  While they were putting up a poster outside Mr W’s house, the latter’s bodyguards seized the posters, the mobile phone and the motorbike.  The bodyguards found on the mobile phone video clips of Tamil people being killed in a camp in Jaffna and beat his friends to find out who owned the phone;

   f)his friends led Mr W’s bodyguards to his home where he lived with his parents, his younger brother, his wife and her parents.  He had not been home at the time so Mr W’s bodyguards had questioned his wife and her father and had slapped his wife.  One of them had shown his father-in-law a police badge;

   g)he telephoned the leader of the Democratic People’s Front who told him that the video clips were not his problem because they were not related to his posters;

   h)he had been given the video clips by a friend who was in the Sri Lankan navy but when he telephoned the friend, the latter said that he had deleted the video clips from his own phone and could not help him;

   i)he then went into hiding at a friend’s house.  His father and father-in-law had visited Mr W to try to resolve the issue but Mr W told them that if he did not come forward his wife would be taken instead;

   j)some men had visited his home, ransacked it and unsuccessfully tried to take his wife.  After that he and his wife went into hiding at her uncle’s house; and

   k)Mr W’s men had continued to visit his home and ultimately all his family members apart from his grandmother had relocated.

2. In her written statement in support of the application the second applicant claimed that on 23 April 2011 unknown people had attended her home looking for the first applicant.  She claimed that they had asked her if the first applicant was a member of the LTTE and had tried to abduct her.  The second applicant claimed that her father-in-law had told her that the visit related to some video clips on the first applicant’s phone.  She claimed that she had gone to her uncle’s house and had remained there until she and the first applicant travelled to Australia.

3. The first applicant made the following additional claims at a Tribunal hearing on 6 March 2013:

   a)while working as a wharf clerk at Colombo Harbour, the person who gave him the video clips had bossed him around, made him perform tasks and forced him to buy him cigarettes because he was Tamil.  The reference in his statement to the person being his friend was a translation error;

   b)in 2008 he had been advised by Sri Lankan navy officials that the person who had given him the video clips had done some bad things to Tamil people when he had been posted in Jaffna but he had not believed it;

   c)he was unsure when he had been given the video clips but thought that it was in February 2011.  He was at a checkpoint at the harbour when the person who gave them to him said he had done bad things to Tamil people, took his phone and downloaded the clips onto his phone.  He believed that the person had the video clips because he had been involved in the atrocities;

   d)his brother had recently advised him that the person who had given him the video clips had joined an anti-Tamil paramilitary group but he did not know the name of the group.  The applicant later said that he had been told this by a friend;

   e)the police, Mr W and the paramilitary group of which the person who had given him the video clips was a member were searching for him in Sri Lanka to see if he had any more video clips.  The police had tortured his parents and beaten his brother in an attempt to make him return to Sri Lanka;

   f)the posters the leader of the Democratic People’s Front had asked him to put up in 2011 had been about a meeting between the leader and a third person; and

   g)he and his wife had applied for their student visa while in hiding at his wife’s uncle’s house.

4. The second applicant advised the Tribunal that she had ceased studying in September 2011.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act.

2. The Tribunal did not accept any of the applicants’ claims.  It found that the applicants had given false evidence solely in order to remain in Australia after their student visas ceased and that they did not have a genuine fear of harm if they returned to Sri Lanka.  In reaching those findings, the Tribunal noted that:

   a)the applicants’ departure from Sri Lanka gave the appearance of orderly, methodical and sustained planning. The Tribunal noted that the first applicant had obtained his passport in October 2009 while the second applicant obtained hers in September 2010, that the second applicant had first applied for a student visa on 17 December 2010, an application which was refused on 10 March 2011, before being making a second application on 13 May 2011 which was granted on 15 June 2011;

   b)although the second applicant’s student visa had been valid until 29 August 2012, she had ceased studying in September 2011, two months after the applicants lodged their protection visa application;

   c)the applicants’ claim to have been in hiding before leaving Sri Lanka was contradicted by the residential address information in the second applicant’s second student visa application.  The Tribunal noted the first applicant’s explanation that they had used the family home address for consistency and that his grandmother had still been living there but it did not accept, if the first applicant’s family had been constantly harassed by someone with an apparent propensity to violence, that they would have left the most vulnerable member of the family to live in the family home;

   d)the first applicant was unable to explain why the leader of the Democratic People’s Front had required him to put up posters in April 2011 after he had already won the election in April 2010.  The Tribunal considered the first applicant’s response, that the posters were to promote a meeting between the leader and someone else, to have been a concoction;

   e)the first applicant’s description of how he came to possess the video clips was vague.  The Tribunal noted that he was unable to identify with any precision when he was given the video clips or how he knew that the person who had given them to him had been involved in human rights atrocities;

   f)the first applicant was unable to give a coherent explanation of why the person who had given him the video clips would have given him evidence of his involvement in atrocities against Tamils while serving in the Sri Lankan navy.  The Tribunal found it inconceivable that that person would have offered such evidence to the applicant, a politically active Tamil who worked with the leader of the Democratic People’s Front, who had an international profile as a pro-Tamil human rights activist;

   g)it was difficult to accept that the leader of the Democratic People’s Front, a human rights activist prominent in highlighting disappearances and human rights abuses against Tamils, would have told the applicant that the video clips were not his problem;

   h)in his written statement the first applicant claimed that the person who had given him the video clips had been his friend but at the Tribunal hearing he claimed that that person had not been his friend and had denigrated and abused him.  The Tribunal further noted that the first applicant had given inconsistent evidence about how he had found out that that person had joined an anti-Tamil paramilitary group, first saying that his brother had told him and then saying that he had been told by a friend.  It noted that the first applicant was also unable to identify any anti-Tamil paramilitary groups operating in his home area; and

   i)the second applicant did not have personal knowledge of the first applicant having been pursued and targeted because of his possession of the video clips, claiming that her father [sic] had told her that the trouble with Mr W and the men who had attended their house was related to the video clips.  The Tribunal found her recitation to be false.

3. The Tribunal did not accept that the first applicant had been involved in politics prior to leaving Sri Lanka or that he had been targeted by Mr W or any supporters of the “UPLF”.  It found that the first applicant’s knowledge of Sri Lankan political parties and political history was considerably less than could be expected from someone with his claimed level of political involvement.  In that regard it noted that the first applicant was unable to demonstrate much knowledge of the policies of the Democratic People’s Front, which he claimed to have actively supported for several years, or about the leader of the party, with whom he claimed to have had frequent dealings.  The Tribunal also noted that the first applicant had been unable to provide the correct name for the Democratic People’s Front’s main opposition party, giving the name “UPLF”.  It found that there was no such party in Sri Lanka, noting that the party led by the then-President of Sri Lanka was the SLFP and that the coalition of parties he led was the UPFA.

Proceedings in this Court

1. Of the grounds pleaded in the application commencing these proceedings, the applicants pressed only the first, namely:

   1.The Refugee Review Tribunal failed to lawfully address a claim relevant to both section 36(2)(a) and section 36(2)(aa) of the Migration Act 1958 (Cth) that arose on the evidence before it.

   Particulars:

   1.1The second applicant made claims that she personally fears harm due to her husband’s, the first applicant’s, circumstances.  Further, the second applicant claimed that she was assaulted by people who tried to take her and behaved very badly.

   1.2This claim was not assessed independently of the first applicant’s claims.

2. The applicants submitted that the Tribunal had failed to deal with claims advanced by the second applicant in a particular way, contrary to representations it had made.  They argued that the review was, as a result, procedurally unfair. 

3. This allegation was based on the following statements made by the Tribunal at its hearing:

   Okay, thank you. You can have a seat.  Excuse me ... Um, what I propose is that I will give you both a brief overview of how the hearing will be conducted today.  And then I will take your evidence, you first, Mr. [first applicant] and then you, Mrs. [second applicant].  And while I take Mr. [first applicant’s] evidence, I will ask you to step out for a brief period of time.  But just wait here for the moment because I want to explain to both of you together how the hearing will be conducted.

   ...

   The Tribunal, the Refugee Review Tribunal is independent of the Department of Immigration, so we are not a part of the Department.  So, that means I am not bound in any way by the decision that was made by the Department.  My duty is to consider all of the evidence completely afresh and to decide for myself whether you can meet the criteria for the grant of a protection visa.  And that is the only function of the Tribunal, which is to say, I don’t have any power to decide whether there is some other basis on which you might remain in Australia.

   ...

   Um, I have a copy of I have the original of the departmental file which includes your application for a protection and I have read all that material and I am familiar with it.  Now that file also contains a copy of the recording of the interview that you had with the Delegate.  So, I am familiar with the protection visa application that you made and the written statements that you provided in support of it and the other material that you provided in support of the protection visa application.  And that file also includes the decision record by the Delegate at the Department.  I’ve also got your application to the Tribunal for review and I have read and reviewed that.  So, I’ll be taking all that information into account when making my decision.  I’ll also be taking into account evidence you give during the hearing today.  So, this hearing is an opportunity for me to ask you some questions about any gaps or inconsistencies that I might think that there is in the previous material that you provided to the Department.  It’s also your opportunity to tell me information or claims that you haven’t mentioned previously.  And the hearing is also an opportunity for me to put to you information that I may have from other sources which I think might be relevant to your protection visa claims.  So, that information might include information about the situation in Sri Lanka as it relates to your claims.  So, if I put that information to you during the course of the hearing today, it is not because I have made up my mind about it, it is because I want to be fair to give you an opportunity to respond to information that might not otherwise support your claims.  So, that’s the extent of the information I will be taking into account when it comes to making my decision.  We will be speaking to each other through an interpreter today so I would ask you to be conscious of pausing frequently so that the interpreter can interpret what you say.  Now, I am aware that people often feel anxious or stressed in hearings and that could cause them to speak at length.  So, if I stop you from speaking, it’s not because I want to prevent you from speaking, it’s because I want to give the Interpreter an opportunity to catch up with what you’re saying.

4. Although they had cited WZARH v Minister for Immigration & Border Protection (2014) 316 ALR 389 in argument, the applicants expressly eschewed reliance on concepts of legitimate expectation. The implication of the applicants’ argument was that a departure by the Tribunal from a statement of intention was necessarily unfair.

5. After judgment in this matter was reserved, the Full Court of the Federal Court gave judgment in SZSSJ v Minister for Immigration & Border Protection [2015] FCAFC 125 where, after referring to antecedent authorities, it was said:

   This suggests that a departure by an official from a representation about future procedure will be unfair in at least two circumstances:

   (a)where, but for the statement, the claimant for judicial review would have taken a different course, that is to say, situations of actual reliance by the claimant; or

   (b)where if the procedure had been adhered to a different result might have been obtained. (at [94])

6. The first question for consideration in light of that statement in SZSSJ is whether the Tribunal made a representation from which it departed.  In this case the argument was not particularly clear but the implication to be drawn from the application and the applicants’ submissions is that the Tribunal represented that it would assess the second applicant’s claims independently of the first applicant’s claims but failed to do so.  Contrary to that submission, however, the Tribunal did not make such a representation.  It said nothing about the manner in which it would reach its conclusions or how it would express its reasons.  Relevantly, all it said was that it would consider the evidence, including material proffered by the applicants at the hearing, and would make its own decision.  Consequently, the first part of the allegation fails on the facts.

7. However, even if it had not failed on the facts, the applicants’ argument is one of form rather than of substance.  The second applicant expressly told the Tribunal, as recorded at p.22 of the transcript of the Tribunal hearing, that she relied on her husband’s claims and, implicitly, that she had no claims of her own.  Further, no separate claims referable to the second applicant and requiring consideration arose tolerably clearly from the materials before the Tribunal.  In the circumstances, the second applicant’s claims to be entitled to protection were indivisible from those of her husband.  Consequently, the Tribunal did not err by considering with her husband’s claims such claims as the second applicant had. 

1. Further, the Tribunal was not required to give more consideration than it did to the mistreatment allegedly suffered by the second applicant when men purporting to be police entered her home in April 2011.  That event was said to have been provoked by conduct claimed for the first applicant which the Tribunal rejected as a fabrication.  As the motivation for the alleged intrusion was rejected by the Tribunal, the alleged event lacked any relevant significance and the fact that it was not addressed in greater detail does not evidence error on the Tribunal’s part.

2. The applicants also submitted that the Tribunal had failed to give the second applicant an opportunity to put her case, an assertion which turned on the following statement at the Tribunal’s hearing:

   Yes, I’ve read your statement so we don’t need to go over that because I understand that you find that distressing.  But if there’s anything that you want to add to the statement, then this is your opportunity to do that.  I have a few problems with some of your husband’s claims and I put those to him for his comment but I should raise them with you as well. 

3. The applicants also referred in this connection to statements made earlier in the Tribunal’s hearing when they were advised by the Tribunal that it was undertaking a fresh consideration of the evidence, that it would ask them questions about their evidence and that its hearing was their opportunity to advance information or claims which they had not advanced previously.

4. The applicants submitted that the Tribunals’ statement quoted above at [19] amounted to a direction to the second applicant to not “retell her account” in circumstances where the Tribunal had not identified to her any difficulties it had with her version of events. 

5. Although the Tribunal was required to afford the second applicant an opportunity to put her case to it, it was not required to afford her an opportunity to “retell her account” if that involved nothing more than repetition of matters already articulated and before the Tribunal.  In circumstances where the second applicant has not suggested that her purported desire to “retell her account” would have amounted to anything more than simple repetition, the Tribunal discharged the relevant duty by inviting the second applicant to add to what she had already said.

6. Further, the applicants did not identify any matters which the Tribunal should have raised with the second applicant pursuant to s.425(1) of the Act and which it did not raise. Page 23 of the transcript of the Tribunal hearing records that the Tribunal put to the second applicant its concerns over her knowledge of events involving her, which were the basis of the findings summarised above at [9(a) and (c)]. Consequently, to the extent that the second applicant alleged that she was denied an opportunity to address issues determinative of the review she has failed to make out the allegation.

7. The applicants also submitted that the Tribunal capped its purportedly unfair conduct of the hearing by stating to the second applicant, after putting to her certain of its concerns regarding her husband’s claims:

   Okay, rather than continue, I think it’s probably a good time to stop the hearing now.  What I’ll do is that I’ll take into account all the evidence that you have given during the hearing today and I’ll come to a decision on your application for review.  And I will try to do that as quickly as I can. 

8. However, that statement needs to be read in context.  On that page of the transcript the following exchanges between the Tribunal and the second applicant are relevantly recorded:

   Tribunal:Okay.  Okay, is there anything else that you wanted to tell me?  There’s nothing else that I wanted to ask you.

   Interpreter:   I would like to ask you, tell you one thing Member, that my, there is no safety for my life, to my husband and to myself, there is no safety at all.   They behave very brutally, they will behave cheaper than animals.  When they were trying to take me at the time, I thought they would actually take me, abuse me but, somehow, I’d been left (sobbing).

   Tribunal:Okay, unless there is anything else that you wanted to ask, I don’t want to distress you any further.

   Interpreter:   I would like to ask you that don’t send us back to our country because if anything happens to my husband, if anything happens to my husband, I don’t have anyone to support me.  We are scared, the police will start searching for us.

   (A1 and A2 sobbing)

   Tribunal:Okay, rather than continue, I think it’s probably a good time to stop the hearing now.  What I’ll do is that I’ll take into account all the evidence that you have given during the hearing today and I’ll come to a decision on your application for review.  And I will try to do that as quickly as I can. 

9. Those exchanges occurred, according to the transcript, approximately seventy-five minutes after the commencement of the Tribunal’s hearing and after the second applicant had been invited to add anything further which she wanted the Tribunal to take into account.  The evidence does not support a conclusion that the passage quoted above at [24] amounted to the Tribunal preventing the second applicant from presenting her case fully.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  29 September 2015