SZUNV v Minister for Immigration
[2016] FCCA 54
•4 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUNV v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 54 |
| Catchwords: MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – application for reinstatement under r.16.05 of the Federal Circuit Court Rules 2001 (Cth) – whether the Tribunal considered the applicant’s claims – whether the Tribunal failed to accord procedural fairness to the applicant – no reasonable prospects of success – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 430 Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05 |
| Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 R v War Pensions Entitlement Appeals Tribunal; ex parte Bott (1933) 50 CLR 228 |
| Applicant: | SZUNV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE TRIBUNAL |
| File Number: | SYG 1697 of 2014 |
| Judgment of: | Judge Smith |
| Hearing dates: | 12 March & 7 October 2015 |
| Date of Last Submission: | 27 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 February 2016 |
REPRESENTATION
| Solicitor for the Applicant: | Mr S. Hodges, Stephen Hodges Solicitor |
| Counsel for the First Respondent: | Mr M. Smith |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s application in a case filed on 23 September 2015, seeking to set aside the orders made on 12 March 2015, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1697 of 2014
| SZUNV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who applied for a protection visa on the basis that he feared persecution primarily for reason of his Tamil ethnicity. That application was rejected by a delegate of the Minister and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 27 May 2014 the Tribunal affirmed the delegate’s decision. On 23 June 2014 the applicant applied to this Court for judicial review of the Tribunal’s decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
The matter was set down for hearing on 12 March 2015; however, when the matter was called the applicant did not appear. In those circumstances, the application was dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).
The applicant now seeks to have his application reinstated pursuant to r.16.05 of the Rules.
This Court has power to vary or set aside its judgment after it has been entered if the order is made in the absence of a party: r.16.05(2)(a) of the Rules. The principles to be applied by the Court in exercise of that power were explained as follows by Ryan J in MZYEZ v Minister for Immigration & Citizenship [2010] FCA 530 at [7]:
7.In circumstances where, as in the present case, a proceeding has been dismissed in a party’s absence and reinstatement is sought, a discretion falls to be exercised by the court before which the application for reinstatement is returnable. That discretion requires the consideration of three factors, and whether, on balance, they tend for or against the reinstatement. Those factors are:
(a)whether there was a reasonable excuse for the party’s absence from the hearing in which the proceeding was struck out;
(b)the existence and nature of any prejudice which might flow to the other party from the reinstatement, and the extent, if any, to which that prejudice can be assuaged by an adjournment, an order for costs or other relief which the court is empowered to grant;
(c)whether the applicant has a reasonably arguable prospect of success on the substantive application. As North J said in MZKAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1066 at [18]:
The decision whether to reinstate the appeal depends, however, not only on the existence of a reasonable explanation for the need to adjourn the appeal, but also whether the appeal, if reinstated, has a reasonable chance of success. If not, there is no purpose in reinstatement.
(Emphasis in original)
The applicant has given evidence that the reason that he was not present at the hearing was that he was delayed on public transport and by the time he arrived at the Court building his case was over. He says that he then went to the registry but was confused about the process required in order to set aside the decision made in his absence. Eventually he lodged a Notice of Appeal to the Federal Court. That appeal was dismissed by Perram J on 21 August 2015 on the basis that the applicant ought to have applied to this Court for an order setting aside the orders made in his absence. The applicant then obtained legal advice and filed an application in the case essentially seeking an order that the proceedings be reinstated.
I accept that the applicant has established a reasonable excuse for having failed to attend the hearing and also for his delay in bringing these proceedings.
The second relevant matter is whether there is any prejudice to the other parties to the proceedings. None has been relied upon by the first respondent and I can see that there is no prejudice that cannot be overcome by an order for costs.
The critical question then is whether, if the proceedings were reinstated, there would be reasonable prospects of success. In order to determine this question, it is necessary first to have regard to the background of the applicant’s visa application, the Tribunal’s reasons for its decision and the ground upon which the applicant proposes to rely if the proceedings were reinstated.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia in July 2012. On 12 December 2012 the applicant applied for a protection visa on the basis that he was being persecuted by the Sri Lankan authorities for reason of his Tamil ethnicity. The applicant also claimed that he feared persecution for reason of an imputed political opinion in that the authorities suspected that he had an association with the Liberation Tigers of Tamil Eelam (“LTTE”), and for membership of a particular social group, namely being characterised as a failed asylum seeker returning to Sri Lanka.
The applicant claimed that in 2007 a very close friend of his went missing. Approximately one month after that, four unidentified plain clothed armed men stopped and beat the applicant and interrogated him about his friend’s whereabouts. The applicant claimed that the same men came looking for him at his house 15 to 20 days later, forced their way into the house and made him kneel down and pointed a gun at his head. They again questioned the applicant about his friend, saying that they suspected that he was involved with the LTTE because of its association with his friend.
Approximately 2 months later, a bomb blast occurred 500 metres from the applicant’s father’s business and many Sri Lankan Army personnel were killed. The applicant was taken in for interrogation three times in relation to that incident. The applicant claimed that this was because he was targeted as a young Tamil male. The applicant subsequently fled his hometown and only returned 3 months later after his father had told him things were safe. However, sometime after his return the applicant was pushed to the ground from his motorbike and beaten by two unidentified men. Two weeks later he was once again attacked at night. The applicant then left his home town, married and has never returned.
The applicant opened his own service station in 2010 and claims that Sri Lankan Army soldiers started interrogating him and told him that he had to report to them. When he did, he was told that he had been watched and they knew that he had not been returning to his home town. He was called in some time later when the soldiers physically assaulted him and asked him for the real reason why he was not returning home. The applicant then left and managed to organise his escape from Sri Lanka. The applicant claimed that the army is still harassing the applicant’s wife about his whereabouts.
On 5 July 2013 a delegate of the first respondent made a decision to refuse to grant the applicant a visa. The applicant applied to the Tribunal for review of that decision.
Proceedings before the Tribunal
In submissions dated 29 April 2014 the applicant’s advisers submitted to the Tribunal that the applicant feared persecution by the authorities in Sri Lanka and groups opposed to Tamil autonomy for cumulative reasons of:
a)imputed political opinion (suspected LTTE links);
b)race (ethnic Tamil); and
c)membership of a particular social group (illegal immigrant from Sri Lanka; failed asylum seekers returned to Sri Lanka).
The applicant attended a hearing conducted by the Tribunal on 13 May 2014. He gave evidence and made submissions in support of his claims.
On 27 May 2014 the Tribunal made his decision to affirm the decision of the delegate.
The Tribunal accepted that the applicant was a Tamil from the north of Sri Lanka but did not accept that simply being Tamil or a young Tamil male gave rise to a well-founded fear of persecution from the authorities of Sri Lanka. The finding was based upon country information from United Nations High Commissioner for Refugees (UNHCR) which indicated that merely coming from a particular region or being of a particular ethnicity did not of itself without an additional profile factor, give rise to well-founded fear of harm on return to Sri Lanka.
However, the Tribunal did not accept that the applicant had been imputed by the Sri Lankan authorities with an association with the LTTE, nor that he had been subjected to ongoing mistreatment. It considered that the basis upon which the applicant claimed to have been imputed with such an opinion was tenuous. It did not accept that that the disappearance of a friend would itself result in such an imputation, particularly since the applicant did not know whether his friend was associated with the LTTE and his friend had never spoken of any such association. In addition, the applicant also indicated that no member of his own family or himself had had any actual involvement with the LTTE that would lead the authorities to impute the applicant himself to be associated with that group.
The Tribunal also rejected the claim made at the hearing that the authorities might have imputed him with a political opinion on the basis of his having worked at a service station. The reason for this rejection was the evidence that the applicant’s father and brother had, and continued to run, the service station and yet were not suspected of being associated with the LTTE.
Further, the Tribunal did not accept that the incident during which the applicant claimed to have been interrogated by the authorities was related to any imputation of association with the LTTE. For example, the Tribunal accepted the applicant’s evidence that following a bomb blast he was taken, along with many young Tamil males, for questioning about the incident. However, that incident, along with the other events were related to specific matters and not part of an ongoing harassment of the applicant because of any perception of an association with the LTTE. The Tribunal also accepted that the applicant may have been questioned when he moved home but that was in line with information that the Sri Lankan authorities closely monitor all relocations within the country.
The Tribunal accepted that the applicant was assaulted in 2009 and sustained injuries however, it did not accept that the assault was orchestrated by the Sri Lankan authorities for any reason of the applicant’s ethnicity or imputed political opinion.
As the Tribunal did not accept that the applicant had a profile as an LTTE associate, the Tribunal did not accept that there existed a real chance that the applicant faced serious harm from the authorities for reason of an imputed political opinion.
Further, the Tribunal did not did not accept that the applicant departed Sri Lanka illegally but did accept that he would return there as a failed asylum seeker. The Tribunal accepted that the applicant would be questioned on his return, particularly if he no longer held a valid passport, but found that the questioning of the applicant in the manner described in the country information did not amount to either serious harm in respect to the Refugees Convention[2] or significant harm as required by the complementary protection legislation.
[2] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of the protection visa in s.36 of the Act and so affirmed the decision under review.
Consideration
The only ground of review which the applicant proposes to rely on is as follows (at [31] of the applicant’s outline of submissions dated 20 October 2015):
The AAT failed to accord procedural fairness to the applicant and further failed to consider the claims made by the applicant in response to a question asked by the AAT.
Particulars
a)The applicant repeats the evidence set out in paragraph 21 above.
b)The question was asked in relation to a pivotal component of the applicant’s case. It is pivotal because on the applicant’s own evidence, he remained in Sri Lanka going, perhaps cautiously, about his life and business. The applicant’s family (parents and siblings) were well established. The applicant was married with children. He had been running his own business for about 2 years. On the applicant’s version, he received a threat which impelled him to flee Sri Lanka and eventually undertake a hazardous boat journey to Australia. No motive, other than fear was adduced, or suggested, for the flight.
c)It is submitted that the question from the AAT member to the applicant is unfair in that it is in the nature of a submission or reason rather than a question in respect of which evidence is invited;
d)Further, the question is unfair in that it indicates that the AAT has [sic] already formed the view as to the answer;
e)Further the question is unfair because the answer cannot carry weight. The applicant is being asked, not what the authorities said to him, but what they were thinking.
f)Although the rules of evidence to not apply in the AAT, it has been long accepted that
“…all rules of evidence may be ignored as of no account. After all, they represent the attempt made, throughout many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and disadvantage the opposing party. In other words, although the rules of evidence, as such, do not bind, every attempt must be made to administer substantial justice”. (Evatt J in R v War Pensions Entitlement Appeals Tribunal; ex parte Bott (1933) 50 CLR 228 at 256.
g)The injustice to the applicant in this case is underlined by the fact that the AAT has taken no notice of the answer. Notwithstanding that the AAT decision refers to DFAT Country Information [51], no resort to that information is made or considered in reference to the applicant’s answer as to the basis of his fears. The country information, the 2013 version is cited, refers to extra-judicial killings, disappearances and white van abductions. In order for the AAT to justly dismiss the reasons advanced by the applicant in response to the question, it was necessary for the AAT to consider the applicant’s answer and not just essentially recite the question again as part of the reasons. In the exercise of the requirement of fairness, it was necessary for the AAT give [sic] reasons why the answer was not persuasive. To this extent, the AAT breached the requirements of s430 of the Act that it provide reasons why the applicant’s answer to this pivotal point was rejected.
The question, and evidence referred to in particular (a), appears at page 18 of the transcript of the Tribunal hearing, as annexed to an affidavit of the applicant dated 19 January 2015. It is necessary to see the particular question in its context. The relevant passage of the hearing was as follows:
Applicant:…[unintelligible] got some information about myself … they would have investigated of … of my background … [unintelligible]. Yeah I mean even though I told them that … told these reasons they were saying that they can’t believe it … and they were saying that we suspect that you have problems in Point Pedro or you have been involved with the LTTE.
Tribunal:It’s very tenuous, isn’t it? You had no involvement with the LTTE.
Applicant:Yeah.
Tribunal:So what do you think would happen to you if you were to go back to Sri Lanka?
Applicant:The last questioning I had was in December two thousand … in two thousand and eleven in December I was questioned. Yeah I mean in that particular time they were questioning they made me stand on my knee and they were bashing me and questioning me … stating … accusing me that I have some involvement with the LTTE or I am hiding something from them and they will not believe whatever I say to them about my relocation. And they were threatening me that if I don’t tell them the truth they will kill me. they were pointing out guns on me actually. … [unintelligible].
Tribunal:And that’s why you left?
Applicant:I didn’t have anything else to say so I didn’t have any option so I couldn’t say anything different. I mean they were not believing whatever I was saying … so what can I do?
Tribunal:Ok. So what do you think will happen if you went back to Sri Lanka?
Applicant:They actually gave me a time frame after… [unintelligible] to come back and tell them the truth. It was the twentieth. At that time I wasn’t there I mean I had already left the country.
Tribunal:Look. I think the delegate touched on this. If … if they thought the truth was… [unintelligible] they wouldn’t be sending you away and asking you to come back and say this is the truth. If they were convinced that you were in the LTTE they would have taken action against you.
Applicant:Yeah I mean … we can talk from here but the reality in Sri Lanka is actually what they do is they will question and then they let you go and then they will shoot or … I mean we were scared of their questioning and their threats and … because they will do something after we leave or on the street or whatever. So that’s the fear we … I have.
… [unintelligible] what’s happening in Sri Lanka is like this. They will question someone and they will let them go. After two or three days that person is dead. Shot dead.
(Emphasis added)
The applicant’s argument focuses upon the highlighted question in this passage. There is nothing unfair about that question. The Tribunal was simply giving the applicant the opportunity to address a question that he had about his claims. The applicant’s complaints about the question founded upon a misunderstanding of the role of the Tribunal and the nature of the proceedings conducted by it.
The first point made by the applicant is that the question was in the nature of a submission rather than a question. With respect, that point is unarguable, both because the statement by the Tribunal was clearly a question and secondly, even if it was in the form of a statement of fact or opinion there was no unfairness caused by it. Critically, as the passage above reveals, the applicant understood perfectly that the Tribunal was giving him the opportunity to address a concern that it had about his claims. He took that opportunity by explaining that the situation in Sri Lanka was not the way that the Tribunal understood to be. There was no false premise in the question and no trap set by the Tribunal: cf. Kaur v Minister for Immigration & Border Protection [2015] FCA 1 at [62].
The second point made by the applicant is that the question revealed that the Tribunal had already formed a view as to the answer. That may well be so, however, it does not mean that the question was unfair. Indeed, if the Tribunal had formed the view as to the answer, it may have been unfair not to ask the question. Further, the rule against bias does not require the decision-maker have no view about either the ultimate matter or a particular issue to be decided. In Minister for Immigration & Citizenship v SZQHH [2012] FCAFC 45; 200 FCR 200 Rares and Jagot JJ address the question of bias in the form of prejudgment and said, at [38] - [39]:
[38]… A decision-maker must have a fair and unprejudiced mind when he or she comes to decide a question including one concerning a generic claim that he or she has addressed on another occasion. However, that does not mean that he or she must have a blank or empty mind on the topic. As Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ said in The Queen v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554:
“Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.”
[39]And, in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at 533 [72] Gleeson CJ and Gummow J said:
“The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.”
The third point made by the applicant is that the question was unfair because any answer to it could not carry weight. This, it was argued, was because the applicant was being asked not what the authority said to him but what they were thinking. That is not correct. In essence, the Tribunal was putting to the applicant that the Sri Lankan authorities conducted themselves in a particular way towards those they suspect of being members of the LTTE. The applicant understood that at the hearing and gave his response accordingly.
The fourth point made by the applicant is that, although the rules of evidence do not apply to the Tribunal, it was unfair not to apply them. This point appears to be made in support of the third point and takes it no further. However, it should be noted that the passage from R v War Pensions Entitlement Appeals Tribunal; ex parte Bott (1933) 50 CLR 228 relied upon by the applicant was dealing with proceedings in which there was more than one party. In proceedings before the Tribunal only the applicant is a party (if that is the correct term). Thus, questions of fairness inter partes do not arise in proceedings before the Tribunal. In any event, it is not clear what rule of evidence the applicant relies upon to establish unfairness.
The final point made by the applicant is that the Tribunal took no notice of the applicant’s answer to its question and did not have regard to certain country information relating to the applicant’s answer. Underlying this point is the proposition that in order to “justly dismiss” the applicant’s answer to the Tribunal question, it was necessary for the Tribunal to consider the applicant’s answer and not just essentially recite the question again as part of its reasons. It was argued that it was necessary for the Tribunal to give reasons why the answer was not persuasive.
It may be accepted that it is incumbent upon the Tribunal to consider the evidence given by the applicant, particularly in respect of an issue that is important to the ultimate decision. However, it is a different thing to say that the Tribunal must also give reasons as to why it does not accept any particular part of an applicant’s evidence. The applicant alleges that this failure constituted a breach of the requirements of s.430 of the Act. However, this reveals a misunderstanding of the scope of the obligation imposed by that provision.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 McHugh J stated that the following passage from the judgment of the Full Court of the Federal Court in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 accurately stated the effect of s.430 of the Act:
[64]“… Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.
…
It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.”
His Honour went on to say, at [65]:
… Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that:
“(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.”
In this case, the Tribunal rejected the applicant’s evidence concerning the ultimatum he claims to have been given by the authorities in Sri Lanka and gave its reasons for that rejection: [54]. It was not required to give its reasons for rejecting each and every aspect of the applicant’s evidence in this respect and the fact that it did not do so does not give rise to an inference that it failed to consider that evidence.
The country information the applicant says that the Tribunal should have considered was not in evidence. In light of that, no error in failing to refer to it can be established.
For the reasons that I have given, the ground proposed to be relied upon by the applicant does not have any reasonable prospect of success. In those circumstances, even though there was a reasonable basis for the applicant’s failure to attend at the hearing and there is no prejudice to the first respondent, there is no utility in reinstating the application.
Conclusion
The application for reinstatement is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 4 February 2016
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