SZVYG v Minister for Immigration
[2016] FCCA 2887
•11 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVYG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2887 |
| Catchwords: CLAIM – What constitutes a valid “claim” – whether information raised in a post-hearing submission was a claim requiring Tribunal to convene for a second hearing – whether post-hearing information was merely a particular of a claim already advanced, considered and rejected by the Tribunal – review of authorities on “claim” – whether applicant in fact and in law felt fear, after the Tribunal hearing, by reason of a telephone call with his parents allegedly reporting anti-Muslim activities 60 kilometres away from where the parents lived – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.414, 425(1) |
| Cases cited: ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’ (2014) |
| Applicant: | SZVYG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 5 of 2015 |
| Judgment of: | Judge Wilson |
| Hearing date: | 26 May 2016 |
| Date of Last Submission: | 26 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen (Australia) Pty Ltd |
| Counsel for First Respondent: | Mr B Kaplan |
| Solicitors for First Respondent: | Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to “Administrative Appeals Tribunal”.
The amended application filed 29 June 2016 is dismissed.
The applicant pay the Minister’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 5 of 2015
| SZVYG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The major point in this case is whether the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), should have invited the applicant to appear before it a second time following a detailed hearing on 20 May 2014 and whether any such failure to have extended that invitation to the applicant amounted to jurisdictional error. The applicant asserted that it did. The first respondent
(“the Minister”) contended that no jurisdictional error was committed. The Tribunal filed a submitting appearance.[1]
[1] Notice of Address for Service filed 13 January 2015.
Synopsis
For the reasons that follow, in my judgment this application for review[2] did not disclose any jurisdictional error. The application must be dismissed.
[2] Amended application filed 30 June 2015.
Relevant factual setting
Most of the factual material underpinning this case was common ground and so I may shortly state it.
The applicant arrived in Australia on 29 June 2012 as an irregular maritime arrival. He was interviewed on 1 July 2012.[3] On
27 August 2012 the applicant participated in an irregular maritime arrival interview.[4] He lodged a protection visa application on
14 November 2012.[5] On 5 July 2013 the Minister’s delegate
(“the delegate”) decided that a Protection (Class XA) visa would not be granted to the applicant.[6] On 26 July 2013 the applicant applied to the Tribunal for a review of the delegate’s decision.[7]
[3] Court Book filed 11 March 2015 at pp.1-4.
[4] Court Book filed 1 March 2015 at pp.5-20.
[5] Court Book filed 11 March 2015 at pp.21-99.
[6] Court Book filed 11 March 2015 at pp.116-131.
[7] Court Book filed 11 March 2015 at pp.131-141.
On 14 January 2014 the applicant’s legal representatives and migration agent, Fragomen (Australia) Pty Ltd (“Fragomen”) provided a
29-page submission on fact and law to the Tribunal.[8] On
17 March 2014 the Tribunal wrote to Fragomen inviting submissions and evidence by 13 May 2014.[9] The applicant was invited to appear before the Tribunal on 20 May 2014.[10] The Tribunal hearing was duly convened on 20 May 2014. It commenced at 10:07 am and concluded at 1:01 pm. A transcript of the hearing before the Tribunal was adduced into evidence without protest by the Minister.[11] I have carefully read that transcript.
[8] Court Book filed 11 March 2015 at pp.147-176.
[9] Court Book filed 11 March 2015 at pp.178-179.
[10] Court Book filed 11 March 2015 at pp.180-181.
[11] Affidavit of Lisa Thomas affirmed 6 July 2015 at Annexure A.
In response to an invitation by the Tribunal to provide further information, on 1 July 2014 Fragomen on the applicant’s behalf provided a short submission in support of his contention that he feared there was a real chance he would be persecuted on the basis of religion and that he urged the Tribunal to find that he had a well-founded fear of such.[12]
[12] Court Book filed 11 March 2015 at pp.191-192.
In further response to the Tribunal’s invitation to provide further information, by letter dated 11 November 2014,[13] Fragomen wrote to the Tribunal in support of the applicant’s contention that he feared his family was being subjected to ransom demands and that he, the applicant, would feel responsible for any harm to which his father and mother had may have been subjected. On 28 November 2014 the Tribunal decided to affirm the delegate’s decision not to grant the applicant a Protection (Class XA) visa.[14]
[13] Court Book filed 11 March 2015 at pp.193-195.
[14] Court Book filed 11 March 2015 at pp.201-218.
In this court
By amended application filed 29 June 2015 the applicant relied on two main grounds of review, the first having six subsets. At the hearing before me, the applicant did not press the second ground. Mr B Kaplan, counsel for the Minister, submitted that at least four of the subsets to the applicant’s principal ground were, in reality, separate grounds of review. I agree. That was all the more apparent when counsel for the applicant devoted the majority of the hearing time to ground 1(f) in which a complaint was made to the effect that the Tribunal should have but failed to invite the applicant to a further hearing so as to give evidence and present arguments in relation to certain issues.
Grounds of review
It is as well to set out the grounds of review verbatim as they appeared in the amended application.
1. The Tribunal engaged in jurisdictional error in respect of its rejection of the applicant’s claim to fear persecution by virtue of being a Muslim.
Particulars
a.On 1 July 2014, the applicant’s advisor sent the Tribunal a submission in which the applicant claimed to fear persecution by virtue of being a Muslim (CB191-2). Specifically, the claim and supporting evidence was:
i. he had a conversation with his parents on
22 June 2014, in which they referred to recent attacks against Muslims in Beruwala and Aluthgama, and posting of guards in their local Udappu mosque;
ii. a Human Rights Watch publication dated
19 June 2014 referred to an outbreak of violence on 15 June 2014 against Muslims;
iii. an Integrated Regional Information Networks publication dated 24 June 2014 referring to the attacks as recent attacks and quoting an Amnesty International figure referring to a real risk of the violence spreading;
iv. a statement from the UN High Commissioner for Human Rights on 24 June 2014 referring to a concern that the violence could spread to Muslim communities in other parts of the country;
v. an Amnesty International publication dated
17 June 2014 referring to the anti-Muslim violence spreading to other towns in Sri Lanka.
b. The Tribunal rejected the claim on the basis that the applicant had not raised the claim earlier, the material cited did not relate to Udappu and it was “not willing” to extrapolate from the reporting provided, that the applicant faced a risk in Udappu (CB211[54]-[57]).
c. In rejecting the claim on the basis that the applicant had not raised it earlier, the Tribunal misconstrued the claim before it in that it misunderstood that the applicant was claiming that the fear of persecution was due to events that occurred in late June 2014 after the Tribunal hearing on 20 May 2014.
d. Further and in the alternative, rejecting the claim on the basis that the applicant had not raised the claim earlier, the Tribunal failed to have regard to a relevant consideration; namely that the applicant did not have an opportunity to raise the claim earlier because the claim concerned events that occurred in late June 2014 after the Tribunal hearing on 20 May 2014 and relied on country information created those events.
e. Further and in the alternative, in finding that it was not willing to extrapolate a risk of harm to the applicant in Udappu, the Tribunal:
i. failed to take into account the Amnesty International figure referring to the existence of a real risk of the violence spreading, the statement from the UN High Commissioner fot [sic] Human Rights on 24 June 2014 referring to a concern that the violence could spread to Muslim communities in other parts of the country, and the Amnesty International publication dated 17 June 2014 referring to the anti-Muslim violence spreading to other towns in Sri Lanka;
ii. made a finding that was manifestly unreasonable, arbitrary or capricious;
iii. in any event, such finding was not independent of its rejection of the claim based on the applicant not exercising an asserted opportunity to raise the claim earlier.
f. Further and in the alternative, the Tribunal failed to comply with s 425 of the Act by failing to invite the applicant to a hearing before it to give evidence and present arguments in relation to the issues arising in relation to the following issues:
i. the timing of the applicant in raising this claim;
ii. whether the violence against Muslims was localised away from Udappu and would not, in the reasonably foreseeable future, spread to Udappu.[15]
[15] Amended Application filed 29 June 2016 at pp.3-4.
Before turning to each ground of review, the Minister and the applicant agreed that the claims advanced by the applicant were contained in five documentary sources, namely –
(a) the irregular maritime arrival interview;[16]
(b)the statutory declaration made by the applicant on
9 November 2012;[17]
(c)the pre-hearing submission dated 14 January 2014 prepared by Fragomen;[18]
(d)the post-hearing submission dated 1 July 2014 prepared by Fragomen;[19] and
(e)the post-hearing submission dated 11 November 2014 prepared by Fragomen.[20]
[16] Court Book filed 11 March 2015 at pp.5-20.
[17] Court Book filed 11 March 2015 at pp.53-56.
[18] Court Book filed 11 March 2015 at pp.147-176.
[19] Court Book filed 11 March 2015 at pp.191-192.
[20] Court Book filed 11 March 2015 at pp.194-195.
It was none too easy to follow the applicant’s contentions in this case. The applicant’s written submissions did not correspond to the way the grounds of review were ordered. For example, the information in particular 1(a) of the grounds of review was a distillation of the contents of Fragomen’s 1 July 2014 submission yet the significance of that information, why it was said to provide a basis for an argument about jurisdictional error or even what the Tribunal allegedly did wrong was not stated.
Be that as it may, each subset of ground one was pressed. My consideration of each is as set out below.
Grounds 1(a) and 1(b)
In his written submissions Mr Reynolds of counsel for the applicant contended (counsel actually called it a matter of “central importance”)[21] that in the post-hearing submission dated 1 July 2014, the applicant made what he called “a specific and distinct claim on the basis of the Applicant’s religion”.[22] When one had regard to the wording of ground 1 (that is to say, so much of it as preceded the particulars) it was plain enough that the claim said to be “a specific and distinct claim” and one of “central importance”, was the applicant’s claim to fearing persecution by virtue of being a Muslim. Paragraphs 14(a) to (e) of the applicant’s written submissions[23] were an enlargement of factual items of information recorded in ground 1(a)(i) to (v) of the applicant’s grounds of review.[24] In his submissions before me, Mr Reynolds conceded that particular 1(a) of the amended application did not “actually independently allege some type of error”.[25]
[21] Applicant’s Outline of Submissions filed 13 May 2016 at p.2.
[22] Ibid.
[23] Applicant’s Outline of Submissions filed 13 May 2015 at pp.2-3.
[24] Amended Application filed 29 June 2015 at p.3.
[25] Transcript of proceedings, 26 May 2016 at p.4.
Similarly, in respect of ground 1(b) of the amended application
Mr Reynolds conceded that it was no more than a recital of what the Tribunal did. It is not presently necessary for me to say more about those grounds of review.
Ground 1(c)
The “claim” relevant to this ground of review, at least according to the applicant, was raised in the post-hearing submissions dated
1 July 2014 and it related to the applicant’s fear of persecution relating to his religion. That was how the applicant cast the matter in
paragraph 17 of Mr Reynolds’s written submissions.
The applicant submitted that the Tribunal addressed the applicant’s religion-based claims between paragraphs 54 to 58 of its reasons.[26] The more important issues in those paragraphs were –
[26] Court Book filed 11 March 2015 at pp.211-212.
(a) the Tribunal accepted that the applicant was a Muslim;
(b)until after the hearing and despite having the opportunity to do so, the applicant did not advance any religion-based claim of past harm or future feared harm;
(c)the applicant’s representative wrote in submissions dated
1 July 2014 that the applicant’s parents told the applicant that day (the parents) were very frightened as Muslims had been attacked in two areas about 60 kilometres from Colombo;
(d)the applicant said he feared he faced a real chance of persecution on account of his religion and, based on country information, his fear was well-founded;
(e)it had been open to the applicant to make his case and the timing of claims mentioned in paragraphs 56 and 57 of the Tribunal’s reasons[27] left the Tribunal in doubt about the applicant’s asserted subjective fears; and
(f)the Tribunal was not willing to extrapolate from the reporting recorded that the applicant as a Muslim person faced a real chance of religiously motivated attack or harm or serious harm in places well north of Colombo now or in the reasonably foreseeable future.
[27] Court Book filed 11 March 2016 at p.212.
The applicant made a great deal of the timing of events. No doubt that was on account of the Tribunal’s observations in paragraph 57 of its reasons that the timing of the applicant’s contentions left the Tribunal in real doubt about the applicant’s claimed subjective fears.
Chronologically, the submission from Fragomen dated 1 July 2014 was the first reference to the conversation between the applicant and his parents on the subject of their fear by reason of recent attacks against Muslims in places 60 kilometres from Colombo. The date of that conversation was 22 June 2014. The 1 July 2014 submission also spoke of a second incident on 15 June 2014. In both instances, so the applicant contended, by definition they occurred after the Tribunal hearing conducted on 20 May 2014.
That much was self-evident.
But the applicant’s counsel went further by pointing out how the two events mentioned immediately above took place prior to the Tribunal hearing then submitted “that the Tribunal’s reasoning in this regard demonstrates jurisdictional error in several respects”.[28]
[28] Applicant’s Outline of Submissions filed 13 May 2016 at p.4.
Far from it demonstrating jurisdictional error, the submission on behalf of the applicant on point was without merit.
Mr Reynolds submitted that the applicant spoke with his parents and only then did the claim of fear arise. In other words, it was put that by virtue of the parents being very frightened from attacks in areas about 60 kilometres away from them, while the applicant was residing in Australia, the applicant formed a well-founded fear of harm. In answer to the point put to Mr Reynolds during the hearing before me about why the applicant’s so-called fear was not mentioned earlier,
Mr Reynolds contended that the applicant could not express a fear he did not then hold. The exchange is in the following terms –
HIS HONOUR: But presumably that is at the front and centre of his contention of a well founded fear and the purpose of his seeking a protection visa. One would have imagined that almost immediately after he had completed the visa application, when he disclosed that he was a Muslim, that this would have featured much more prominently.
MR REYNOLDS: No, it didn’t because his basis for
HIS HONOUR: Well, I know – obviously, it didn’t.
MR REYNOLDS: Yes, the basis for his fear
HIS HONOUR: But the question is why.
MR REYNOLDS: Well, why? Because he was fearful because of his ethnicity and the imputed political opinion of, essentially, being a Tamil.
HIS HONOUR: But doesn’t that beggar the question? If that was the case, why wasn’t it front and centre of what he said in the Tribunal?
MR REYNOLDS: Because he wasn’t fearful at that time. It was only after he spoke with his parent that the claim and fear arose.[29]
[29] Transcript of proceedings of 26 May 2016 at pp.15-16.
Mr Reynolds pressed the point that the fear allegedly held by the applicant arose only after he spoke to his parents on 22 June 2014, one month and two days after the Tribunal hearing. Mr Reynolds
submitted –
The applicant’s claim is just simply he became afraid after he spoke with his parents. And in that regard, the question is whether the applicant had a well founded fear of persecution on his return.[30]
[30] Transcript of proceedings of 26 May 2016 at p.18.
In my view the Tribunal was entirely correct when it said that it had been open to the applicant to make his case and the timing of these claims left the Tribunal in real doubt about the applicant’s claimed subjective fears. I find it impossible to accept that for the very first time, on 22 June 2014, the applicant sensed a fear on account of a conversation with his parents. In debate with Mr Reynolds I raised that the conflict in or even near or 60 kilometres away from Colombo was not a new phenomenon that arose in July 2014 (being the date of the Fragomen submission) or even on 22 June 2014 (being the date of the conversation between the applicant and his parents). I find it impossible to accept that the applicant was struck with fear, essentially for the first time, based on a conversation he had with his parents on
22 June 2014 such that he had, on and from that date and only from that date a well–founded fear of persecution. Any such fear must have been apparent prior to 22 June 2014 in which case it was not raised as a claim or even as an integer of a claim. Alternatively, the so-called fear only arose on 22 June 2014 in which case the claim to fear was not
well-founded and more closely resembled a recent invention.
Mr Kaplan, counsel for the Minister, submitted that the Tribunal had a different basis for rejecting the applicant’s assertions concerning the timing of the alleged fear of harm. Mr Kaplan contended that the Tribunal specifically did not accept that the materials cited related to Udappu, well north of Colombo, and the Tribunal was not willing to extrapolate that the applicant, as a Muslim, personally faced a real chance of religiously motivated attack or harm or serious harm in Udappu, now or in the reasonably foreseeable future. In other words, as Mr Kaplan submitted, the area affected and to which the parents directed their attention, did not relate to the applicant’s home region, a significant distance from Colombo and there was accordingly, no warrant for finding that the applicant would suffer serious harm on account of being a Muslim.
To my mind, Mr Kaplan’s submissions are demonstrably correct.
Mr Reynolds submitted that the Tribunal was required to deal with the claim raised. He referred to Htun v Minister for Immigration and Border Protection[31] (“Htun”) and Dranichnikov v Minister for Immigration and Multicultural Affairs[32] (“Dranichnikov”). There are many other authorities for the proposition.
[31] (2001) 194 ALR 244.
[32] (2003) 77 ALJR 1088.
At the heart of the applicant’s case in respect of ground 1 was his contention that he was entitled to the issue of constitutional writs on the basis that the Tribunal had constructively failed to exercise its jurisdiction in the manner contemplated by the
Migration Act 1958(Cth) (“the Act”). The jurisprudential basis of that contention can be traced to authorities such as R v Toohey; Ex parte Northern Land Council,[33] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[34] and Dranichnikov. As Kirby J held in Dranichnikov, in a case where there has been a fundamental mistake at the threshold in expressing and therefore considering the legal claim propounded by the applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.
[33] (1981) 151 CLR 170, 267–268.
[34] (2001) 206 CLR 57, 82 at [81].
A substantial issue emerged in this case about the lengths and breadths of the applicant’s claim or claims. The task of ascertaining precisely what fell for determination by the Tribunal is frequently problematic in cases under the Act. It is equally problematic ascertaining whether,
by the failure to consider a particular issue the Tribunal has in fact fallen into jurisdictional error. Unlike in the arena of civil litigation where pleadings define the controversy between the parties, as was pointed out by Gleeson CJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs,[35] proceedings before the Tribunal are not adversarial so issues are not defined by the pleadings or by any analogous process. There, the Chief Justice held that –
Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process (footnote omitted).[36]
[35] (2003) 216 CLR 473 at [1].
[36] Ibid.
In the context of a protection visa, Gleeson CJ said the arguments and evidence of the applicant and the Minister cannot narrow the Tribunal’s jurisdiction to investigate the generality of the claim.[37]
[37] (2003) 216 CLR 473 at [39].
The “claim” that fell to the Tribunal to address was “a substantial, clearly articulated argument relying upon established facts”, as the expression was used in Dranichnikov, and as was considered by the Full Court of the Federal Court of Australia (Black CJ, French and Selway JJ) in NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2)[38] (“NABE”).
[38] (2004) 144 FCR 1.
Other authorities at single judge and Full Court level in the
Federal Court of Australia have wrestled with the parameters of the constituent elements of an applicant’s ‘claim’. By way of illustration in Htun, Allsop J (as the Chief Justice then was) with whom Spender J agreed, addressed the requirements in s.414 of the Act that the Tribunal considers ‘the claims’ of the applicant stating “[t]he claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration”.[39]
[39] (2001) 194 ALR 244 at [42].
The Tribunal is not to limit its determination to the ‘case’ articulated by the applicant if evidence and material which the Tribunal accepts raises a case not articulated. So much was the holding of Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs[40] as well as by the Full Court of the Federal Court of Australia (Wilcox and Magwick JJ) in Sellamuthu v Minister for Immigration and Multicultural Affairs.[41]
[40] (1998) 94 FCR 28, 63.
[41] (1999) 90 FCR 287, 293-294.
But if an unarticulated claim is relied upon by an applicant seeking review, the unarticulated claim must be raised squarely on the material available to the Tribunal, according to Cooper J in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs.[42] As the
Full Court in NABE observed, the use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.[43] Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[42] (2003) 129 FCR 137 at [19].
[43] (2004) 144 FCR 1 at [58].
It is true that the Tribunal is not to construe an applicant’s claim or claims as a common law court of law or equity might analyse a claim or claims raised in a pleading. In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs,[44] Selway J referred to the way the Tribunal is not obliged to consider claims not made then famously remarked “[b]ut this does not mean that the application is to be treated as an exercise in nineteenth century pleading”.[45]
[44] (2003) 199 ALR 364.
[45] (2003) 199 ALR 364 at [17].
The settled position nowadays is that stated in NABE.[46] The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate’s decision on the basis of all the materials before it. Whatever the scope of the obligation,
the Tribunal is not required to consider criteria for an application never made.
[46] (2004) 144 FCR 1 at [61].
To my way of thinking, it would place an impossible burden on the Tribunal to require it to refer to every piece of evidence and every contention made by an applicant, however wrong-headed, peripheral or tangential. For that matter, the Full Court of the Federal Court of Australia in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs[47] (French, Sackville and Hely JJ) held that the Tribunal is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. To that I add that the Tribunal is not a court of law and its reasons are not to be scrutinised with an eye keenly attuned to error nor is the Tribunal necessarily required to provide reasons of the kind that might be expected of a court of law. But even a court of law is not required to address every submission advanced in the hearing, as was observed by the Honourable Justice Mark Weinberg in his speech ‘Adequate, Sufficient and Excessive Reasons’.[48] Still less would the Tribunal be expected to provide reasons equivalent to those provided by a court of law, especially when dealing with high volume applications as does the Tribunal.
[47] [2003] FCAFC 184 at [46].
[48] Speech delivered at Judicial College of Victoria, 4 March 2014.
Accordingly, it seems to me that the proper approach in any consideration of the applicant’s contentions in this case is to commence by ascertaining the metes and bounds of the matters the Tribunal was required by law to consider. Dissected, the Tribunal was required to deal with –
a)a substantial clearly articulated argument relying upon established facts;[49]
b)a claim or claims and its or their component integers;[50]
c)evidence and material that the Tribunal accepts to raise a case not articulated;[51]
d)an unarticulated claim that is raised squarely on the material available to the Tribunal;[52] and
e)not an application or claim never made.[53]
[49] See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.
[50] See Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244.
[51] See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 and Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.
[52] See SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 and NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
[53] See NABE v Minister for Immigrationand Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1.
As Robertson J held in Minister for Immigration and Citizenship v SZRKT[54] (“SZRKT”) “[a]lthough ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.[55]
[54] (2013) 212 FCR 99.
[55] (2013) 212 FCR 99 at [98].
Once the ‘claim’ that the Tribunal had to consider was identified, it fell to the Tribunal to give that claim or those claims “proper, genuine and realistic consideration”, as was canvassed by the High Court in Minister for Immigration and Citizenship v SZJSS.[56]
[56] (2010) 243 CLR 164 at [7].
In a protection visa case, it remains good law that it is for the applicant to advance whatever argument or evidence he or she wishes to advance in support of his or her contention that the applicant has a well-founded fear of persecution for a Convention reason, and that the Tribunal must then decide whether that claim is made out. That proposition emanated from the decision of the High Court in Abebe v Commonwealth of Australia[57] (“Abebe”) and was recently restated by the Full Court of the Federal Court of Australia (Kenny, Griffiths and Mortimer JJ) in Minister for Immigration and Border Protection v MZYTS[58] (“MZYTS”).
[57] (1999) 197 CLR 510 at [187].
[58] (2013) 230 FCR 431, 444 at [38].
More recently, a differently constituted Full Court (Gordon, Robertson and Griffiths JJ) in Minister for Immigration and Border Protection v SZSWB held that “[m]oreover, the claim must emerge clearly from the materials”.[59]
[59] [2014] FCAFC 106 at [33].
I do not agree that the Tribunal failed to comprehend that the applicant was claiming that a fear relating to his religion arose after his conversation with his parents on 22 June 2014. The Tribunal specifically stated that it did between paragraphs 55 to 57 of its reasons. The Tribunal was entitled to observe that the timing of the raising of the claim of fear left the Tribunal in real doubt about the applicant’s asserted subjective fears.
In my opinion, the Tribunal did not fall into jurisdictional error in relation to ground 1(c). It seems to me the applicant took an approach in relation to ground 1(c) that should not be taken by construing the Tribunal’s reasons minutely and finely with an eye keenly attuned to the perception of error.[60]
[60] See Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.
In my judgment, ground 1(c) failed.
Ground 1(d)
Mr Reynolds advanced the contention that if I held against the applicant on ground 1(c), the relevant events complained about came to light after the hearing and therefore the applicant had no opportunity to raise them earlier than the date on which they were raised.
Mr Reynolds submitted that the Tribunal should have invited the applicant to be interviewed on some date after the 1 July 2014 submissions from Fragomen.
In support of his contentions under this ground, Mr Reynolds relied on the decision of Robertson J in SZRKT.[61]
[61] (2013) 212 FCR 99.
The debate in relation to ground 1(d) became circuitous at one point with Mr Reynolds constantly bringing the proposition back to a single point – that the applicant only felt fear after having a telephone conversation with his parents and that the conversation took place after the hearing so, by force of logic, as the applicant did not fear harm until a date after the Tribunal hearing he was unable to have raised the issue of harm at the Tribunal hearing, the Tribunal hearing having occurred prior to his feeling harm.
During the hearing before me, I canvassed with Mr Reynolds that the information given during the telephone call with the applicant’s parents was not the first episode in which violence was evident. Mr Reynolds and I discussed that the phenomenon said to have emerged from the telephone call was not raised for the first time during that call or in the letter dated 1 July 2014. The exchange went as follows
HIS HONOUR: It’s pretty hard to imagine, just as a matter of human experience, that these events would not have been occurring prior to 22 June or
1 July.
MR REYNOLDS: They may or may not have, but the applicant wasn’t fearful of them. He’s saying that, because of what has been described as increase in – well, basically, what has been described as the worst clashes in five years by the country information cited by him, he’s now fearful.[62]
[62] Transcript of proceedings 26 May 2016 at p.22.
To my mind, the assertion raised in this ground of review bears the hallmarks of unreality. I find it impossible to accept that the applicant felt fear for the first time, after the Tribunal hearing, following a conversation with his parents. His parents lived in an area that was subject to conflict. The fear that they seem to have transmitted to the applicant only emerged for the first time in June 2014, according to the applicant. Such a curious position no doubt explained the Tribunal’s reluctance to accept it. I also have enormous difficulty accepting it and for present purposes do not.
In my view, the Tribunal made no error in respect of ground 1(d).
Ground 1(e)
The applicant asserted that the Tribunal failed to take into account information from Amnesty International and other information concerning the spread of anti-Muslim violence. The applicant said that the Tribunal’s finding that it was not willing to extrapolate a risk of harm to the applicant in Udappu was “manifestly unreasonable, arbitrary or capricious”.[63]
[63] Applicant’s Outline of submissions filed 13 May 2016 at para.31.
It was difficult to follow this submission. The Tribunal finding on which it was based appeared at paragraph 57 of the Tribunal’s reasons. The relevant section of the Tribunal’s reasons were these –
Regardless, I do not accept that the material cited relates to Udappu (which is well north of Colombo) specifically, and I am not willing to extrapolate from the reporting provided that the applicant as a Muslim personally faces a real chance of religiously-motivated attack or harm or serious harm in Udappu, now or in the reasonably foreseeable future.[64]
[64] Court Book filed 11 March 2015 at p.212.
While the applicant did not refer to the specific information that the Tribunal would not extrapolate, a fair reading of the Tribunal’s reasons indicated that the relevant information of which the Tribunal spoke was set out in paragraph 56 of the Tribunal’s reasons.
Mr Reynolds submitted that the country information that the Tribunal declined to extrapolate was sufficiently important that it amounted to a relevant consideration. He cited the decision of Robertson J in SZRKT in support. The specific sentence on which Mr Reynolds placed reliance was at paragraph 111 of that judgment where his Honour said the following –
The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error.
The applicant argued that the Tribunal’s unwillingness to extrapolate a risk of harm to the applicant in Udappu was manifestly unreasonable, arbitrary or capricious. The applicant called in aid the observations of the High Court of Australia in Minister for Immigration and Citizenshipv SZMDS[65] as well as the observations of the Full Court of the Federal Court in SZTAP v Minister for Immigration and Border Protection.[66]
[65] (2010) 240 CLR 611 at [40], [130]-[135].
[66] [2015] FCAFC 175 at [60].
The Minister resisted this ground. Mr Kaplan contended that the Tribunal did in fact address relevant country information in other passages of paragraph 56 of the Tribunal’s reasons and, so the Minister submitted, in accordance with the observations of the High Court of Australia in Minister for Immigration and Citizenship v SZGUR,[67] the Tribunal discharged its obligations.
[67] (2011) 241 CLR 594.
Next, the Minister submitted that the Tribunal did not overlook country information merely because the Tribunal did not refer to that information in its reasons. The Minister relied on the observations of the Full Court of the Federal Court of Australia in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[68] in that regard. In addition, the Minister submitted that the task of the Tribunal was not to gather information, as the High Court of Australia stated in Abebe.[69]
[68] [2004] FCAFC 10.
[69] (1999) 197 CLR 510, 576.
Next, the Minister submitted, without conceding, that even if the Tribunal overlooked aspects of country or nation, any such overlooking did not amount to jurisdictional error because the information was not sufficiently important to amount to a relevant consideration. The Minister contended that the information advanced by the applicant was vague, speculative and unconnected to Udappu. The Minister submitted that the applicant’s assertions were not cogent as was mentioned in SZRKT.[70]
[70] (2013) 212 FCR 99, 131.
So far as ground 1(e) was concerned, I do not accept that the Tribunal made the error for which the applicant contended. The Tribunal was not required to act as the applicant’s contradictor as was pointed out in Abebe. It was not for the Tribunal to gather the information that the applicant needed to make good whatever point he asserted under this ground.
In addition, I do not agree that it was irrational or even illogical for the Tribunal to decline to extrapolate certain country information in the manner contended for by the applicant. There is real force in the Minister’s submission when he argued that the information advanced by the applicant was so vague as to be speculative. That information included phrases such as “violence spreading elsewhere”, “this violence could spread to Muslim communities in other parts of the country”, “spread of violence”, and “there is a risk of it [violence] spreading further”.[71] Nowhere was there a reference to the spread of violence specifically near Udappu. Little wonder the Tribunal declined to extrapolate the information. There was no basis for it doing so. I disagree with Mr Reynolds when he wrote in written submissions that it was impossible to identify any basis that would support the Tribunal’s unwillingness to accept that the risk could spread to Udappu. In fact the reverse was true – it was impossible to provide any basis for finding that there was a risk of violence in Udappu having regard to the vague and non-specific information given.
[71] Submissions of the Minister filed 20 May 2016 at [20].
In my view, this is not a situation where country information was overlooked, as Mr Reynolds seemed to have characterised the case.
Mr Reynolds in submissions before me referred to the decision of the Full Court of the Federal Court of Australia in MZYTS as well as to the decision in SFGB v Minister for Immigration and Multicultural and Indigenous Affairs.[72] While it is true that a failure to take into account relevant country information may amount to jurisdictional error[73] on the facts of this case the Tribunal did in fact take into account country information. It declined to extrapolate certain information, however. That is a very different situation to the position of wholly failing to consider country information.
[72] [2003] FCAFC 231.
[73] (2013) 230 FCR 431.
In my view, ground 1(e) failed. No error was shown.
Ground 1(f)
The applicant contended that the Tribunal fell into jurisdictional error by failing to invite the applicant to give evidence before it, for a second time, on issues raised in the 1 July 2014 submission.
The Minister submitted that the Tribunal was under no obligation to do so and that the Tribunal did not contravene s.425(1) of the
the Act by omitting to so invite the applicant. Of s.425 of the Act, the Minister submitted that the section does not confer on an applicant an absolute or unqualified right to appear, nor does it impose on the Tribunal an obligation to ensure that the applicant makes the best of an invitation to attend[74] nor to actively assist the applicant in putting his or her case.[75]
[74] SZTXE vMinister for Immigration and Border Protection [2015] FCA 493.
[75] Minister for Immigration and Multicultural and Indigenous Affairsv SCAR (2003) 128 FCR 553, 561.
Section 425 of the Act gives an applicant an opportunity to address at a hearing before the Tribunal the issues arising in relation to the decision under review, as a Lindgren J held in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs.[76]
[76] (2003) 130 FCR 456, 476.
It is well-established that the Tribunal is not required to expose its thought processes to scrutiny as part of the hearing as was held in SZHKA v Minister for Immigration and Citizenship[77] (“SZHKA”).
[77] (2008) 172 FCR 1, 5.
On behalf of the Minister, Mr Kaplan submitted that the matters contained in the post-hearing submissions did not give rise to a new issue. He contended that they were merely particulars of existing issues, the leading case of which that is authority being Minister for Immigration and Citizenship v SZKTI.[78]
[78] (2009) 238 CLR 489.
Taking the last point first, there is merit in it. The issue of the applicant fearing harm on the basis of his religious belief was live before the Tribunal. The matter raised in the post-hearing submission was no more than an elaboration on that point. The Tribunal addressed the issue. The post-hearing submission was the applicant’s version of when he allegedly felt fear. The Tribunal had in the course of its reasons (at paragraph 57 of those reasons) already addressed the timing of the applicant’s claims to subjective fear. The Tribunal was left in real doubt on the point. To say the applicant first felt fear in June or July 2014 was no more than an elaboration on a point he had already made on which the Tribunal had expressed its “real doubt”.
Mr Kaplan contended that this exact point had been canvassed but not decided in ACC15 v Minister for Immigration and Border Protection[79] in Minister for Immigration and Border Protection v SZTQS[80]and in SZTAP v Minister for Immigration and Border Protection.[81]
[79] [2016] FCA 97.
[80] [2015] FCA 1069.
[81] (2015) 238 FCR 404.
Against that, the applicant contended that the decision of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[82] required the Tribunal to give the applicant the opportunity to satisfy the Tribunal about any specific reservations that may have emerged in respect of the applicant’s case. The applicant also relied on the decision of Besanko J in SZHKA (at [103]) in which Besanko J held that a second invitation must be given by the Tribunal to appear if an issue in relation to the decision under review emerges after the hearing.
[82] (2006) 228 CLR 152 at [35].
That beggars the question. Was the information in the 1 July 2014 submission an ‘issue’ to which the observations of Besanko J applied? In my opinion the answer must be in the negative.
One of the issues, as it happened one that consumed most of the Tribunal’s attention, was the fear allegedly held by the applicant of persecution by reason of his being a Muslim. As Mr Reynolds submitted throughout and with force, on the occurrence of the telephone call on 22 June 2014 the applicant felt fear. The submission of 1 July 2014 advanced the applicant’s contention of fear on and from the date in June 2014. The issue was already on foot but the date was not. In the 1 July 2014 submission, the date on which the applicant first felt fear was given as 22 June 2014, so the applicant said. To my mind, the date itself was a mere particular of an issue already then alive. There was no issue that emerged after the hearing, to use Besanko J’s wording in SZHKA. That issue had been on foot and was the subject of the Tribunal’s adverse observations in paragraph 57 of its reasons.
I do not agree that the Tribunal was required to invite the applicant back for a second hearing based only on the fact that date for the applicant’s feeling of fear was given.
In my judgment, ground 1(f) failed. No error was shown.
Conclusion
The applicant failed in every ground. This application must be dismissed. I order the applicant to pay the Minister’s costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 11 November 2016
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Procedural Fairness
-
Natural Justice
32
2