SZULG v Minister for Immigration
[2017] FCCA 1588
•13 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZULG v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1588 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for protection visa – allegation by applicant seeking judicial review that Administrative Appeals Tribunal failed to consider all integers of his claims and that he was unable to meaningfully participate at the Administrative Appeals Tribunal hearing – Tribunal decision not affected by jurisdictional error and no evidence that he was unable to meaningfully participate in the Tribunal hearing – application for judicial review in this Court dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 425 |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Minister for Immigration v SCAR (2003) 128 FCR 553 Minister for Immigration v SZNCR [2011] FCA 369 SZUIJ v Minister for Immigration [2016] FCA 1574 SZMSA v Minister for Immigration [2010] FCA 345 |
| Applicant: | SZULG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1458 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 11 October 2016 |
| Date of Last Submission: | 9 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms G Doyle |
| Solicitors for the Respondents: | Sparke Helmore |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 29 May 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1458 of 2014
| SZULG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this proceeding is a male citizen of Sri Lanka aged 61 years, having been born on 15 June 1956.
By Application filed in this Court on 29 May 2014 he seeks to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal) dated 29 April 2014 which affirmed a decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) dated 22 July 2013 refusing to grant to him a Protection (Class XA) visa (Protection visa).
The Applicant entered Australia by plane using a fraudulently altered passport with a bogus identity on 20 May 2011 and on 5 August 2011 applied for a Protection visa using his real identity. He claimed to have left Sri Lanka on 20 May 2011.
Claims for Protection
In his Written Statement dated 5 August 2011 (Statement) forming part of his Protection visa application the Applicant claimed to be of Tamil ethnicity and Hindu religion. In short he claimed to fear returning to Sri Lanka where as a Tamil he would be perceived as having offered support to the Liberation Tigers of Tamil Eelam (LTTE) and detained and interrogated and physically abused and possibly killed.
Grounds and Criteria for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of Delegate
The Applicant attended an interview with the Delegate on 2 April 2012 with the support of his Australian resident son.
The Delegate, in her Decision Record of 22 July 2013, recited that the Applicant claimed to have been born in Trincomalee in 1956 and to be married with three children, being two sons and a daughter, with the eldest son an Australian resident. The Applicant was trained as a mechanic at a private mechanical workshop, at which he worked from January 1973 to January 1980. The Applicant’s wife, daughter and other son continue to reside in Sri Lanka.
The Delegate recorded that the Applicant claimed to fear returning to Sri Lanka because he is a Tamil accused of transporting former LTTE combatants in August 2009 by a privately hired bus as fare paying passengers who evaded Sri Lankan Army (SLA) soldiers at checkpoints en route to Trincomalee and as a result of which he was detained at a SLA camp. As a Tamil he would be perceived to have offered logistical support to the LTTE and if he returned to Sri Lanka as a failed asylum seeker the Sri Lankan authorities would treat him as a supporter of the LTTE and he would be detained and interrogated and physically abused and possibly killed.
In the result the Delegate did not accept that the Sri Lankan authorities had been harassing the Applicant in Trincomalee because of any continuing adverse personal interest in him or that he would face a real chance of Refugees Convention based persecution if he returned to Sri Lanka. She found that the Applicant had no adverse profile with the Sri Lankan authorities or any paramilitary group or groups in Sri Lanka at the time he departed Sri Lanka to come to Australia and that he would not be of interest to the Sri Lankan authorities if he were to return to Sri Lanka now or in the foreseeable future and the Delegate was not satisfied that Australia owed protection obligations to the Applicant as provided for either under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act) and she refused to grant him a Protection visa.
Decision of Tribunal
The Applicant applied for merits review of the Delegate’s decision to the Tribunal on 6 August 2013.
By letter dated 7 November 2013 the Applicant’s solicitor and registered migration agent, Ms Katie Wrigley, sent to the Tribunal a pre-hearing written submission summarising his claims for protection together with a Statutory Declaration of the Applicant declared on 7 November 2013 (Statutory Declaration).
The core of the Applicant’s claims for protection as formulated in this written submission were that he feared that if he were forced to return to Sri Lanka he would be seriously harmed because of his suspected links with the LTTE, being:
a)Assisting LTTE personnel by servicing their vehicles, including busses;
b)Involvement with or knowledge of LTTE bombings;
c)Directly involved with assisting the LTTE with transporting and housing personnel;
d)Anti-government political opinions against the United People’s Liberation Front and personal political support and membership of the LTTE and activism on behalf of Tamils in Australia through the connection with his Australian resident son. It was said that the Applicant would be arrested, detained and tortured by reason of his alleged former and continuing links with the LTTE.
The Applicant’s Statutory Declaration recited a history of claimed events in Sri Lanka and at [99] said as follows:
99.I would like to add that I still suffer from neck pain after the beatings I suffered in 2009 and I also suffer from loss of memory sometimes which makes it hard for me to answer questions.
By a Response to Hearing Invitation form Ms Wrigley advised that she and another solicitor from her office would be attending the scheduled hearing before the Tribunal on 12 February 2014 with the Applicant. There was no application for any adjournment of the scheduled hearing before the Tribunal on 12 February 2014 on medical or any other grounds, and the hearing took place before the Tribunal from 11.08am until 3.58pm, with an adjournment from 12.54pm to 1.20pm.
At [1] of its Decision Record the Tribunal summarised the core claims made by the Applicant for protection in the following terms:
1.The applicant, a citizen of Sri Lanka of Tamil ethnicity, from Tricomalee, claims to fear return as he is suspected to have links with the LTTE and of providing them with personal support, as he is suspected of anti-government opinions against the UPLF, suspected of activism on behalf of Tamils in Australia through his son who had involvement with the Tamil National Congress and as a returned Tamil asylum seeker who departed illegally.
At [22] the Tribunal recorded the evidence and information to which it had regard in considering the Applicant’s claims.
At [29] the Tribunal accepted that the Applicant was a Tamil who had lived most of his life in Trincomalee in Sri Lanka and that he had a wife, son and daughter in Sri Lanka with a son who lived in Australia. The Tribunal further accepted the Applicant’s evidence at the Tribunal hearing that he had never been a member of the LTTE.
At [31] the Tribunal indicated that it had significant concerns as to the Applicant’s credibility with regard to certain incidents and claims, with which it then proceeded to deal at [32] to [162]. In short, the Tribunal comprehensively rejected all of the Applicant’s claims and found that as of January 2011 he had no profile with the Sri Lankan Government, Police, Army or anyone else as a LTTE supporter.
The Tribunal did not accept that the Applicant was ever involved in the activities he claimed or that he was questioned, detained or had his house searched or was accused of being with the LTTE because of any of the activities that he claimed to have been involved in from September 2009 until January 2011 in Sri Lanka.
At [100] the Tribunal found that the Applicant was not a witness of truth.
Accordingly, the Tribunal found that the Applicant did not meet the Refugees Convention criterion provided for by s.36(2)(a) of the Act or the complementary criterion provided s.36(2)(aa) of the Act, and affirmed the Delegate’s decision not to grant the Applicant a Protection visa.
On its face the Decision Record of the Tribunal extends over 166 paragraphs and to constitute a reasoned, coherent and comprehensive analysis of the Applicant’s claims which does not manifest illogicality, irrationality or legal unreasonableness or lack of intelligible justifications for the views and findings which it expresses.
Grounds of Attack on Tribunal Decision and Hearing in this Court on 11 October 2016
The Ground relied upon by the Applicant in his Application of 29 May 2014 was as follows:
1. The Tribunal applied the wrong test in assessing complementary protection and/or failed to consider all the integers squarely put.
On the day prior to the hearing in this Court the Applicant filed and served a document entitled Applicant’s Submissions which also annexed certain pre and post Tribunal decision medical evidence concerning himself. The Applicant’s Submissions alleged that before the Applicant went to the Tribunal hearing on 12 February 2014 he was suffering from a severe heart problem and was seriously unwell and could not answer questions correctly.
In the circumstances I considered it appropriate for the Applicant to be granted leave to rely on a further Ground, notwithstanding that it had not been raised until as late as the day before the hearing, such Ground being:
2.By reason of illness or depression the Applicant was unable to meaningfully participate in the Tribunal hearing on 12 February 2015.
Ms Doyle, who appeared for the Minister as a model litigant, did not oppose this course of action. She also did not object to the Applicant’s Submissions being received as evidence in the case as if it were an affidavit to the extent that its contents would be otherwise admissible nor to the Court receiving into evidence, to the extent it was relevant, the post-Tribunal decision medical evidence attached to the Applicant’s Submissions.
I note that the parties agreed that the Tribunal hearing took place on 12 February 2014 (not on 13 February 2014 as stated in [5] of its Decision Record) and that the Applicant tendered a transcript of the Tribunal hearing.
Consideration
Ground 1
This Ground is completely unparticularized and the integers which it seems to allege as not having been considered by the Tribunal have not been identified in any way. They were also not identified by the Applicant orally at the hearing.
In my view this Ground fails and does not establish that the decision of the Tribunal was affected by jurisdictional error.
At [7] of the Decision Record the Tribunal referred to the relevant criteria for the grant of a Protection visa and specifically referred to the complementary protection criteria provided for in s.36(2)(aa). Then at [18]-[20] the Tribunal relevantly and correctly summarized the complementary protection criteria and the applicable statutory provisions.
From [154]-[162] the Tribunal considered whether the Applicant was owed protection obligations under the complementary protection criterion provisions of the Act and at [164] came to the view that that the Applicant did not meet the alternative complementary protection criterion provided for in s.36(2)(aa).
Further, in my view the Decision Record of the Tribunal appears to deal with and consider all of the Applicant’s claims for protection as made up to the point in time of the Tribunal’s decision on 29 April 2014.
Accordingly, in my view Ground 1 fails.
Ground 2
The Applicant bears the onus of establishing that he was unfit to meaningfully take part in the Tribunal hearing on 12 February 2014: see Flick J in SZMSF v Minister for Immigration [2010] FCA 585 at [17] and Gilmour J in SZMSA v Minister for Immigration [2010] FCA 345 (SZMSA) at [32] approving as correct [108] of the decision of the primary Magistrate under appeal. In my view, for the reasons which follow, he has failed to do so.
The requirement by s.425(1) of the Act that the Tribunal must invite an Applicant to appear before it to give evidence and present arguments means that the invitation must not be a hollow or empty one. If an applicant before the Tribunal can establish that he or she was in truth not in a fit state to appear and represent himself or herself before the Tribunal, the invitation under s.425 of the Act is not a meaningful one, even if the Tribunal is through no fault of its own unaware of the alleged unfitness and otherwise blameless: see Minister for Immigration v SCAR (2003) 128 FCR 553 and Gageler and Keane JJ in Wei v Minister for Immigration (2015) 257 CLR 22 at 32 [23].
Accordingly, an applicant must have a meaningful opportunity before the Tribunal to give an account of his or her experiences, to present argument in support of his or her claims and to understand and to respond to the questions of the Tribunal that are put: Minister for Immigration v SZNVW (2010) 183 FCR 575 at 582 [20] per Keane CJ.
In my view the Applicant has failed to establish that he was denied a real and meaningful opportunity to participate in the hearing before the Tribunal in the sense of being unable to give evidence, present arguments and answer questions in the course of the hearing: Minister for Immigration v SZNCR [2011] FCA 369 at [30] per Tracey J.
I so find for the following cumulative factors and reasons:
a)First, at the Tribunal hearing the Applicant appeared with an interpreter together with his solicitor and registered migration agent and another solicitor. Ms Wrigley was well conversant with the Applicant’s claims for protection in that she had sent an extensive written submission to the Tribunal by her letter of 7 November 2013. She would have been well able to assist the Applicant or intervene on his behalf but in actual fact, as revealed by the transcript, she apparently did not feel the need to do so and did not speak at the Tribunal hearing at all until she was invited to by the Tribunal member just before the end of the hearing.
b)Second, my review of the transcript of the hearing before the Tribunal does not in the slightest support a finding that the Applicant was unable to meaningfully participate in the hearing. To the contrary, he is recorded as speaking, including answering questions, competently, comprehensively and responsively.
c)Third, in the first instance it was for the Tribunal to form its own assessment as to the ability of the Applicant to participate in the Tribunal hearing: SZQBN v Minister for Immigration (2014) 226 FCR 68 at 83 [49] per Flick J.
The Tribunal undertook this assessment by first referring at [22] of its Decision Record to the body of evidence before the Tribunal relating to the Applicant’s medical condition, including medical evidence sent by Ms Wrigley to the Tribunal after the Tribunal hearing on 2 April 2014. This post hearing medical evidence indicated that the Applicant had undergone an elective coronary angiography on 13 February 2014, the day after the Tribunal hearing.
At [31] of its Decision Record the Tribunal said:
31.In making its findings it has considered his claim that he suffers from memory loss, poor concentration, depression and anxiety in making its findings, particularly as to his credibility as to certain events. For simplification, his claim in this regard has been considered under a separate hearing, together with the reports of STARTTS and NSW Health.
Then at [108] to [111] of its Decision Record the Tribunal found that the Applicant had been able to participate effectively and to articulate his claims at the Tribunal hearing. Those paragraphs are as follows:
108.The applicant claims that inconsistencies in his evidence and a lack of detail have arisen because of his medical difficulties and because he has memory loss, concentration difficulties, anxiety and depression, To support his claim he has submitted a number of reports from NSW Health and on from STARTTS dated 20 December 2013 but received after the hearing on 2 April 2014. The STARTTS report indicated that the applicant has been treated by a psychologist on six occasions. The report noted he presented with depression, anxiety and post traumatic symptoms due to his experiences in Sri Lanka, and indicates he claims he experiences memory loss and concentration difficulties. However no diagnosis is made in this regard.
109.With regard to the reports from NSW Health, these note he suffers depression and anxiety, as well as diabetes, chronic pain, heart difficulties as well as a number of other ailments.
110.On the basis of these reports I have considered whether the applicant might have been hindered in presenting his claims to the Tribunal. Having had the opportunity to listen to the Department interview and read his detailed statement and statutory declaration I am satisfied that he was able to participate effectively and articulate his claims. His answers to questions put to him were generally responsive and coherent and he retained his composure throughout the Department interview. His statement attached to his protection visa application is particularly detailed and coherent, going back many years. Further the reports are unclear as to whether the applicant suffered from memory loss and loss of concentration to inhibit him providing evidence or being consistent at the Tribunal hearing or Department interview. I note the STARTTS report makes no diagnostic finding in this regard, merely indicates that the applicant experiences these symptoms.
111.I am not satisfied therefore on the evidence before me that the difficulties he describes caused him to forget or provide a lack of detail or to provide inconsistent evidence throughout the process, to both the Department and the Tribunal.
In my view the transcript of the Tribunal hearing supports the Tribunal’s view that the Applicant was able to meaningfully participate in the Tribunal hearing.
d)Fourth, at no point of time during the Tribunal hearing did either the Applicant or the two solicitors then present for him request an adjournment of the hearing, either on the basis of his medical condition or for any other reason.
e)Fifth, prior to the Tribunal hearing neither the Applicant himself or Ms Wrigley requested an adjournment of the hearing on 12 February 2014, which date had been scheduled and advised to the Applicant by the Tribunal’s letter of 4 December 2013.
f)Sixth, Ms Wrigley lodged post Tribunal hearing submissions by letter of 21 February 2014 which addressed concerns raised by the Tribunal at the hearing and later lodged on 2 April 2014 the medical evidence referred to in [38(c)] above. However, there was no suggestion made in these communications to the Tribunal that the Applicant had not been able to meaningfully participate in the hearing on 12 February 2014.
g)Seventh, none of the medical evidence submitted to the Tribunal either before or after the hearing on 12 February 2014 established or had a tendency to establish that the Applicant was unable to meaningfully participate either for physical or mental health reasons, including depression. Depression of itself would rarely if ever constitute a good reason for a finding that a hearing before a Tribunal could not fairly proceed. In SZMSA at [32] Gilmour J in the Federal Court approved as correct the following statement from the decision of the primary Magistrate under appeal:
100. The fact that the applicant suffered from depression and post traumatic stress disorder and continued to receive treatment is relevant to but not determinative of his fitness to participate in the Tribunal hearing. As Branson J pointed out in NAMJ v Minister -for Immigration (2003)76 ALD 56 at pages 67-68 [52]:
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees at [207]–[208] recognises that determinations of refugee status may need to be made in respect of individuals suffering mental and emotional disturbances. The legislature may also be presumed to have been aware of this need. For this reason it seems unlikely that the legislature would have intended to set a jurisdictional standard of “fitness” that might prevent a significant number of individuals seeking asylum in Australia from being able to progress applications before the tribunal to the stage of a hearing when the tribunal is not able to decide the applications “on the papers”. That is, it seems likely that the legislature intended that a tribunal hearing should be able to proceed notwithstanding some measure of psychological stress and disorder in the applicant. The decision in MIMIA v SCAR establishes, however, that there is a point at which an applicant’s psychological state renders a tribunal hearing a nullity.
h)Eighth, no medical report or evidence has been adduced by the Applicant in this Court to support a finding that he was not able to meaningfully participate in the Tribunal hearing on 12 February 2014.
Post Court Hearing Event
On 7 November 2016, nearly a month after the hearing in this Court, the Applicant purported to file a document entitled Amended Application and Submissions which contained three grounds. I had not given him leave to file an amended application or to rely on any further grounds and I now refuse him leave to do so in circumstances where the final hearing had concluded and no notice had been given to either the Minister or his legal representatives or this Court that the Applicant wished to rely on further grounds.
I record that the first ground was in substantially the same terms as ground 2 considered and disposed of by me above.
The new asserted grounds 2 and 3 were as follows:
2.The decision of the Second Respondent is infected with bias.
Particulars
Applicant attempted to give documents from Sri Lanka to prove his case and the Tribunal member said it is possible to get fraudulent documents in Sri Lanka. That statement suggested that Tribunal did not like persons coming with Sri Lankan documents as the Tribunal will reject them without any further inquiry into those documents whether they are true or not
The Tribunal was biased against persons coming with Sri Lankan documents.
3. The Second Respondent made a jurisdictional error in that it did not deal with a crucial claim of the Applicant
Particulars
Applicant son was involved in ex patriate Sri Lankan Tamil activities and based on that Applicant claimed persecution. Tribunal did not deal with this claim.
Notwithstanding my refusal of leave to the Applicant to rely on these fresh grounds, I record that in my view they are hopeless and would have had no reasonable prospects for success. If I had thought otherwise I may have granted leave.
As to the allegation of bias, there is not the slightest evidence that the Tribunal member was actually biased in any way, including by way of any form of pre-judgment. Further, there is no evidence that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345.
The Particulars to this assertion of bias refer to “fraudulent documents in Sri Lanka”. This must refer to [93]-[95] of the Decision Record of the Tribunal, where it recorded that it placed no weight on certain documents relied on by the Applicant. In this connection the Tribunal cited and footnoted country information to the effect that document fraud was prevalent in Sri Lanka. There is nothing here that establishes any form of bias.
As to the allegation contending that the Tribunal did not consider and deal with the Applicant’s claim that his son in Australia was involved in expatriate Sri Lankan activity, for which reason the Applicant would be persecuted, this is also without foundation. The Decision Record of the Tribunal refers to the Applicant’s claims about his son in Australia and the son’s activities in Australia from 2009 to 2010 in [25], [27], [29], [101], [103], [106] and [107]. At [127] of its Decision Record the Tribunal expressly recognises this claim:
127.The applicant claims that since his departure he will be harmed on return because of his son’s political activities in Australia, together with his other claims, and that his wife and son in Australia had been questioned about both of them.
At [128]-[129] the Applicant’s claims about his son’s activities in Australia are further set out by the Tribunal.
At [132] the Tribunal stated:
132.… I do not accept that the applicant was ever of any interest to the authorities because of his son’s activities in Australia.
Finally, at [135] the Tribunal concluded as follows:
135.For these reasons, on the basis of the evidence before me I cannot be satisfied that the applicant faces a real chance of persecution involving serious harm were he to return to Sri Lanka in the reasonably foreseeable future because of the activities of his son in Australia in 2009 / 2010.
Conclusion
The Applicant has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court on 29 May 2014 is to be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 13 July 2017
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