SZVZI v Minister for Immigration
[2018] FCCA 972
•30 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVZI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 972 |
| Catchwords: MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal complied with s.424AA and s.424A of the Act – whether the Tribunal failed to consider the applicant’s fear of harm in the context of complementary protection – whether the Tribunal made findings based on no evidence – whether the Tribunal’s decision was illogical or unreasonable – s.438 certificate – no practical injustice – no jurisdictional error – application dismissed. |
| Legislation: Evidence Act 1955 (Cth), s.55 Migration Act 1958 (Cth), ss.36, 424AA, 424A, 425, 438, 476 |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 |
| Applicant: | SZVZI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 79 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 28 November 2017 |
| Date of Last Submission: | 28 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 14 January 2015, amended on 26 February 2015 and further amended on 21 August 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 79 of 2015
| SZVZI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 January 2015, amended on 26 February 2015 and further amended on 21 August 2017, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), which, on 19 December 2014, affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”) and the affidavit of Charlotte Elizabeth Saunders, solicitor, made on 21 November 2017 with relevant annexure and exhibit.
Background
The applicant is a citizen of Sri Lanka and is of Tamil ethnicity and Catholic religion (CB 14). The applicant arrived in Australia as the holder of a visitor visa on 11 September 2012, and applied for a protection visa which was received by the Minister’s department on 5 October 2012 (CB 1 to CB 64). The application included various documents as attachments, including the applicant’s claims to fear harm contained in a written statement (CB 61 to CB 64).
The applicant claimed to fear harm from Sri Lankan government forces, the Sri Lankan police and paramilitary groups. He claimed to have been employed by the United Nations Office for Project Services (“UNOPS”) from around 2007 to 2012. ([2] at CB 61 and see [21] at CB 63 to [31] at CB 64). The applicant claimed that he was threatened by members of the Tamil Makkal Viduthalai Puligal (“TMVP”) by telephone and letter, and on 15 May 2008, they came to his home and asked him to “act as a [spy] for them” regarding the Liberation Tigers of Tamil Eelam (“LTTE”) ([4] – [6] at CB 61).
The applicant claimed that on 19 May 2008, members of the LTTE came to his home and “took [him] to their camp”. He was questioned about his attendance at the TMVP office. He claimed to have been beaten with wooden clubs where he “sustained minor injuries and got (sic) bleeding” and “injuries inside [his] body” that were subsequently treated by his “[r]oommates” ([8] – [9] at CB 61).
Further, the applicant claimed that on 12 June 2008, he had been forcibly removed from a bus by members of the Eelam Peoples Democratic Party (“EPDP”) and taken to another camp. He claimed to have been questioned about his involvement with the LTTE, and was kept in a room. He was subsequently told that he would be released if he paid money, and a member of the EPDP took him to withdraw money, which the applicant handed over to him, and was then released ([11] – [14] at CB 62).
The applicant claimed that he was then removed from a bus by “Omanthai military police” as he was suspected of providing the Sri Lankan government’s “information” to the LTTE. He was taken to a room where his clothes were removed and he was assaulted. The applicant tried to make a complaint to the police but they refused to assist him ([16] – [17] at CB 62).
The applicant also claimed to have continued receiving threatening phone calls and letters. On 12 January 2009, he attended a TMVP office again out of fear. The applicant told them that he worked for UNOPS and he was then “locked up” for three hours forced to “point out LTTE cards who were mixed with the people came (sic) from Seddikulam” ([18] at CB 62 to [19] at CB 62 to CB 63). The applicant claimed to have then received threatening telephone calls, to have been followed by unknown people, and his driver was also “taken by [an] unknown arms group” but released after three months ([20] at CB 63).
The applicant claimed to have then applied for a tourist visa to travel to Australia as he feared for his life, but he “altered the letter date” which he then “tendered to the Australian Embassy in Colombo”. However, his application was “rejected” ([21] at CB 63).
While working in Batticaloa on or about 25 August 2012, the applicant claimed to have been approached by “Mr Thurairatnam”, an election candidate of the Tamil National Alliance (“TNA”), and was asked to work for him. The applicant refused, but the man came to his house “again and again”, and he was “convinced” to work for him.
The applicant distributed TNA leaflets and propaganda and claimed that on or about 2 September 2012, he was assaulted with wooden clubs by supporters of an opposing political party ([23] – [25] at CB 63). He claimed that supporters of the TMVP “had thrown sands and stones” on them whilst they were having a party meeting, and he claimed to have been assaulted again on 8 September 2012 ([26] – [27] at CB 63).
On 8 September 2012, the applicant claimed that “five people” came to his home with half their faces “block[ed]” and asked his wife whether the applicant was home. His wife told them that he was not home, and was then told by the “people” that they were going to kill the applicant. Fearing for his life, the applicant left his home, and the following day he left for Colombo where he made arrangements to fly to Australia ([28] at CB 63 to CB 64 to [31] at CB 64).
The delegate refused the application for the visa on 22 February 2013 and the applicant was notified by letter of the same date sent to his representative authorised to receive correspondence on his behalf (CB 142 to CB 167). The applicant applied for review to the Tribunal which was received on 12 March 2013 (CB 219 to CB 233).
The applicant was invited to, and attended a hearing before the Tribunal on 2 September 2014 (CB 238 to CB 242 and CB 245 to CB 247). The applicant’s representative provided post-hearing written submissions to the Tribunal on 16 September 2014 (CB 268 to CB 287) and 26 October 2014 (CB 332 to CB 335). The Tribunal affirmed the delegate’s decision on 19 December 2014. The applicant was notified by letter dated 22 December 2014 and sent by facsimile to the applicant’s representative (CB 336 to CB 364).
The Tribunal “did not accept much” of the applicant’s evidence regarding his claims to fear harm ([40] at CB 350 to CB 351). The Tribunal found that a reason for not accepting his evidence was that the applicant claimed that his problems were a direct result of his work with UNOPS, but that he never raised these problems with his superiors at UNOPS. The Tribunal also found that it did not “[make] any sense” for the applicant to have reported the military police to the police as he had claimed ([42] – [43] at CB 351).
Further, the Tribunal put to the applicant, at the hearing, previous evidence he had given to the former Migration Review Tribunal (“MRT”) on 6 May 2010 and 17 March 2011, concerning claims he had made in his previous visitor visa application. The applicant had said to the Tribunal on those occasions that the situation in Sri Lanka was different, and it was “safe for him”, and that he had “not had any problems with the Sri Lankan authorities or the government nor had he had any problems with the LTTE” ([45] at CB 352).
The applicant’s representative submitted that the applicant had given evidence to the Tribunal on those occasions and “feared that the authorities would intercept his conversation”. The Tribunal member did not accept that on those occasions the applicant had been “inhibited” in giving his evidence on this basis ([46] at CB 352).
Further, although the Tribunal accepted that people with a genuine fear of being persecuted “may feel the need to tell lies in order to obtain visas to leave their countries”, in the present case, the applicant’s evidence to the MRT was “more consistent with the objective evidence than his subsequent claims in connection with his application for a protection visa that he had come here to save his life” ([48] at CB 352 to CB 353).
For these reasons, the Tribunal did not accept that the applicant was “telling the truth” about the problems he claimed to have had as a result of his work with UNOPS. The Tribunal did not accept that most of the events the applicant claimed happened, had actually happened to him, and did not accept that he had had “any problems with the TMVP, the Karuna Group, the Pillayan Group, the LTTE, the EPDP or the military police”. Therefore, the Tribunal considered that there was not a real chance that the applicant would be persecuted by these groups on return to Sri Lanka ([49] – [50] at CB 353).
Further, the applicant had claimed that he had worked for a TNA candidate during a provincial council election held on 8 September 2012 and had been harmed as a result. At the hearing before the Tribunal, the applicant had indicated that he believed the election was a “local council election”. Considering the adverse view that the Tribunal had formed regarding the applicant’s credibility and the “absence of any independent contemporaneous reporting” of claims that TNA supporters had been threatened following the election, the Tribunal did not accept that the applicant was telling the truth in this regard ([51] at CB 354 to [55] at CB 355).
The Tribunal put country information to the applicant indicating that the situation in Sri Lanka had greatly improved since the end of the civil war. The applicant responded “that there were still problems for Tamil people in Sri Lanka”. However, the Tribunal did not accept that the applicant would face harm on return to Sri Lanka by reason of his Tamil ethnicity ([57] – [58] at CB 356).
The Tribunal also considered that the applicant would be returning the Sri Lanka as a failed asylum seeker. However, relevant country information indicated that “failed asylum seekers are not treated differently from other returnees and that it [the Department of Foreign Affairs and Trade] has not observed any difference in the way Tamil returnees are treated”. The Tribunal also noted that instances of returnees being harmed related only to returnees “recognised” as having links to the LTTE. The Tribunal did not accept that the applicant had the relevant profile, or that he would be perceived as having such links on return to Sri Lanka ([59] – [60] at CB 356).
The Tribunal did not accept that the applicant had a well-founded fear of persecution for any one of the five Refugee Convention reasons. On the basis of previous findings, the Tribunal also did not accept that the applicant met the complementary protection criterion for the grant of the visa ([66] at CB 358 to [72] at CB 361).
Before the Court
The parties first appeared before a Registrar of the Court on 26 February 2015 and orders were made, by consent, for the progress of the matter. Various orders were then made by a Registrar of the Court including that the matter be listed for final hearing on 8 February 2017, and that the parties file written submissions in the matter. The applicant had previously filed written submissions on 12 October 2015, and the Minister filed written submissions on 24 January 2017.
By orders made, by consent, on 1 February 2017, the final hearing of the matter was adjourned pending the Minister’s application for Special Leave to appeal to the High Court from the decision of the Full Federal Court in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 (“Singh”). That application was refused on 12 May 2017, and the matter was subsequently listed for directions on 17 July 2017. On that occasion, orders were made, by consent, allowing for the Minister to file any further evidence by way of affidavit, the applicant the opportunity to file any amended application and both parties the opportunity to file further written submissions.
The applicant filed a further amended application on 21 August 2017. The applicant filed written submissions on 15 November 2017. The Minister filed written submissions on 21 November 2017.
The Application to the Court
The further amended application to the Court is in the following terms:
“I still fear persecution in my home country. I seek justice and mercy as the Refugee Review Tribunal’s (RRT) review process is faulty. I am unrepresented.
Ground 1
The RRT did not comply with section 424AA and it has breached its statutory duty imposed by section 424A of the Act. The RRT has also failed to put to me orally the concerns and adverse information which arose during the RRT hearing and in writing the concerns and adverse information which arose in my review (reasons for refusing my review) and it has failed to invite me for my comments, after the hearing, before it made its decision.
I had a legitimate expectation and a matter of procedural fairness that the RRT would contact me for a second hearing and/or that the RRT would invite me for comments in writing if they found any negative information in respect of my RRT review after the hearing.
The RRT did not give me an opportunity after the hearing, before this decision was taken, to respond to negative information by way of a further hearing or respond to me in writing their intention to use this information to refuse my application. The RRT decision indicates that there are major issues which the RRT did not consider.
The RRT failed to consider my claims of hear harm from the Paramilitary groups under the complementary protection criteria set out in section 36(2)(aa) of the Migration Act 1958 (Cth).
Ground 2
Some findings, inferences, conclusions and reasoning of the RRT occurred in the absence of evidence and/or supporting materials or were based on foot notes cited below in the reasons and findings in the RRT’s decision.
A reasonable RRT reviewer might reasonably arrive at a divergent conclusion on all the information and evidence before the RRT.
Particulars
The RRT’s reasoning and conclusions are substantially based on foot notes cited below in the reasons and findings in the RRT’s decision.
I need to my protection visa interview CDs as well as the transcript and I also need to closely read the full evidence cited as footnotes in the RRT’s decision which will enable me to provide further particulars of my grounds before the court hearing.”
The matter was subsequently listed for final hearing on 28 November 2017. At the final hearing, the applicant appeared in person with the assistance of an interpreter in the Tamil language. The Minister was represented by counsel. The applicant said he wanted to rely on the further amended application and his most recent written submissions (of 15 November 2017). I note that the written submissions raise additional issues to the grounds of the further amended application.
Consideration
The applicant’s oral and written submissions to the Court, in essence, raised three complaints.
One, the Tribunal should have invited the applicant to a further hearing to give him the opportunity to put his “concerns” to it. This is addressed under ground one below.
Two, the Tribunal used footnotes in its decision record. It was not clear what the footnotes referred to. This is addressed in ground two below.
Three, the applicant insisted he “really” does have “problems” in his home country.
In the circumstances, this could not be understood as anything other than a request for this Court to intervene and substitute its own findings of fact for those of the Tribunal. The complaint seeks impermissible merits review. It does not assert, let alone disclose, jurisdictional error in the Tribunal’s decision.
Ground one makes various assertions.
First, the applicant asserts that the Tribunal failed to comply with s.424A and s.424AA of the Act. The difficulty for the applicant is that he did not identify what “information” was caught by s.424A(1) of the Act such as to engage the Tribunal’s relevant statutory obligations.
Second, the ground asserts the Tribunal failed to put to him its “concern[s]” presumably about his evidence, and the “adverse information” which “arose” during the Tribunal hearing. The applicant asserts that the Tribunal did not put these to him either orally or in writing.
The Tribunal’s subjective views of the applicant’s evidence are not “information” for the purposes of s.424A of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 (“SZBYR”)).
It may be (it was not explained by the applicant before the Court), that the reference to “adverse information” which “arose” during the Tribunal hearing, is a reference to information which the applicant gave to the (then) Migration Review Tribunal in May 2010 and March 2011, in relation to a visitor visa application.
There is no transcript of the Tribunal hearing in evidence before the Court. The only relevant evidence of what occurred at the hearing is that contained in the Tribunal’s decision record. The decision record reveals that the Tribunal did put this information to the applicant at the hearing pursuant to s.424AA of the Act (see [30] – [32] at CB 348).
On what is before the Court, the Tribunal complied with the relevant requirements of s.424AA of the Act, and thereby discharged the obligation pursuant to s.424A(1) of the Act. The Tribunal gave details of the information to the applicant and explained the relevance of the information to the review (see [32] at CB 348).
The view that the Tribunal took of the information, and the applicant’s explanation in relation to it (see at [45] at CB 352), is not “information” for the purposes of s.424A(1) of the Act (SZBYR at [18] and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [23]).
Third, the ground also complains that the applicant had a “legitimate expectation” that the Tribunal would give him the opportunity to make comments in writing, on any “negative information” that it may have found.
Having discharged any obligation in relation to “information” by use of s.424AA of the Act, the Tribunal had already discharged its obligation pursuant to s.424A(1) of the Act. It was not required to write to the applicant, after the hearing, and give him a further opportunity to comment when this opportunity had already been given at the hearing.
In any event, the applicant’s ground appears to overlook the fact that the Tribunal did give the applicant the opportunity to make
post-hearing written submissions. This included the matter of his visitor visa application. The applicant’s representative responded on his behalf (see CB 268 to CB 287 and in particular CB 269.9 to CB 270.3 on the visitor visa issue). The Tribunal considered these submissions (see [46] at CB 352).
Fourth, the ground also complains that the Tribunal did not give the applicant the opportunity for a second hearing to discuss its “intention to use this information to refuse [his] application”, or give him an opportunity to comment in writing.
The Tribunal’s obligation pursuant to s.425 of the Act is to invite the applicant to a hearing to present his arguments and evidence, in relation to the issues dispositive of the review (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156; (2010) 189 FCR 494, Minister for Immigration & Multicultural & Indigenous Affairs v SCAR[2003] FCAFC 126; (2003) 128 FCR 553 and Minister for Immigration and Citizenship v SZNVW[2010] FCAFC 41; (2010) 183 FCR 575). The Tribunal in the current case did provide a meaningful opportunity for the applicant to do this.
On the evidence before the Court, the issues in the review were discussed at the hearing. I cannot see that there was any obligation on the Tribunal to invite the applicant to a second hearing.
The evidence before the Court reveals that the applicant would have been on notice, at the hearing, of the Tribunal’s concerns about some of the central parts of his evidence. The Tribunal also made repeated references in its decision record to what it “put” to the applicant at the hearing in this regard (see [18] at CB 344 to [32] at CB 348).
Fifth, the ground complains that the Tribunal “failed to consider” the applicant’s “[fear of] harm from the [p]aramilitary groups” when it considered the complementary protection criterion (s.36(2)(aa) of the Act).
This complaint fails at the factual level (see [66] at CB 358 to [67] at CB 359). If the applicant’s complaint is that the Tribunal did not accept his claims, then this is no more than an invitation for the Court to engage impermissible merits review.
In all, ground one does not reveal jurisdictional error in the Tribunal’s decision.
Ground two appears to assert that the Tribunal fell into jurisdictional error because there was no evidence for some of its findings. In this light, the ground appears to assert that the decision was legally unreasonable.
The only particular given to “explain” this ground, is that the Tribunal used “footnotes” on which to base its reasoning and conclusions. The applicant also raised the matter of footnotes orally before the Court.
It must be said that the actual assertion of legal error in this ground is difficult to comprehend.
As the Minister submits, the Tribunal’s use of footnotes was entirely orthodox. The footnotes variously sourced the evidentiary basis for the propositions and information on which it relied in its reasoning. The fact that the applicant does not understand this well established method of referencing source material, does not reveal jurisdictional error in the Tribunal’s decision.
To the extent that the ground appears to indicate that the Tribunal’s decision was unreasonable or illogical, no such claim can be made out in light of relevant authority (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 and CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 70 AAR 413). In fact, the Tribunal’s decision was based on a series of findings which were reasonably open to the Tribunal to make, and for which it gave intelligible and cogent reasons based on the evidence before it.
Ground two is not made out.
As the evidence before the Court reveals, the Tribunal had a certificate issued by an officer of the Minister’s department pursuant to s.438(1)(a) of the Act (“the s.438 certificate”) in the material before it.
Given that the applicant was unrepresented before the Court, it was appropriate to consider whether the Tribunal fell into error in the manner identified in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1 (“MZAFZ”) and Singh. That is, whether the applicant was denied procedural fairness in relation to the s.438 certificate and the documents to which the s.438 certificate covered.
The affidavit of Ms Saunders made on 21 November 2017 was read into evidence pursuant to s.55 of the Evidence Act 1995 (Cth), including the copy of the s.438 certificate (annexure “A”) and “exhibit 1” (the documents covered by the s.438 certificate) were provided to the Court in a sealed envelope (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”)
at [62] – [65], Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 at [62] – [69] and BEG15 v Minister for Immigration and Border Protection[2017] FCAFC 198 at [30] and see also Singh at [67]).
The certificate in this case was issued under s.438(1)(b) of the Act. It is distinguishable from MZAFZ where the certificate was issue under s.438(1)(a) of the Act. No submissions were made as to whether the certificate was valid or invalid (see further below at [65]).
There are two sets of documents to the exhibit. The first concerns a protection visa interview with the applicant’s father (in a separate application made by him). The second concerns legal advice regarding the Tribunal decision in the applicant’s father’s case.
In its decision record, the Tribunal did make reference to the applicant’s father having come to Australia as a visitor, and that he had successfully applied for protection (see [13] at CB 343 and footnote 3).
However, there was no reference in the Tribunal’s decision record to the father’s protection visa interview, nor the legal advice. The reference was merely to the father having come, and having been successful in his protection visa application. I agree with the Minister that these documents were of no significance to the Tribunal’s decision.
In the circumstances, and as the Minister submits, whether or not the certificate was validly issues, there was no “practical injustice” that arose from the Tribunal having not disclosed the existence of the s.438 certificate to the applicant (AVO15 v Minister for Immigration and Border Protection [2017] FCA 566). Further, having regard to the documents, there is no basis to say that the Tribunal “acted on” the s.438 certificate (MZAFZ at [40]).
There is nothing to indicate that the Tribunal considered these documents as material to the conduct of the review of the decision before it (CQZ15 at [65]). It is reasonable to infer that the Tribunal did not refer to, or act on, the s.438 certificate or the relevant documents, because the content of the documents could have had no impact on the task it was jurisdictionally required to exercise. Therefore, there was no denial of procedural fairness to the applicant.
Conclusion
There is no jurisdictional error arising from the grounds of the further amended application or as otherwise set out above. It is therefore appropriate to dismiss the application. I will make the appropriate order.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 30 April 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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