WZASW v Minister for Immigration
[2019] FCCA 237
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZASW v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 237 |
| Catchwords: PRACTICE AND PROCEDURE – Application by a person who is a non-lawyer to appear for the applicant – consideration of factors. PRACTICE AND PROCEDURE – Application by a person to appear as a McKenzie Friend – consideration of factors. |
| Legislation: Evidence Act 1995 (Cth), s.140(2) Federal Circuit Court of Australia Act 1999 (Cth), s.44 Migration Act 1958 (Cth), Pt.7, Div.4, ss.36, 46A, 425, 474, 476, 477 Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Cases cited: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472 Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; (1992) 110 ALR 449 Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 Smith v R (1985) 159 CLR 532; (1985) 71 ALR 631 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZHTIv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 WZASU v Minister for Immigration & Anor [2013] FCCA 2109 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 |
| Applicant: | WZASW |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 148 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 29 November 2013, 27 February 2014, 27 May 2014 and 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| For the Applicant: | In person, with the assistance of an interpreter |
| Counsel for the First Respondent: For the Second Respondent: | Ms N Johnson, Mr B Dube, Ms K Low and Ms E Tattersall Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
That the name of the second respondent be amended to “Administrative Appeals Tribunal”.
That the documents annexed to the applicant’s affidavit affirmed 21 November 2013 and marked I, II, III, IV and V be struck out.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 148 of 2013
| WZASW |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has filed an application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The applicant also applied for an order that the time for making the Judicial Review Application be extended under s.477 of the Migration Act. An extension is only required where a Judicial Review Application is not made within 35 days of the date of the Tribunal Decision. The Tribunal Decision was made on 4 June 2013 and therefore the Judicial Review Application does not fall outside the 35 day period, it having been made on 1 July 2013.
Before the Court are the following materials and evidence which the Court has read and considered in preparing the Reasons for Judgment:
a)a Court Book (“CB”) of relevant documents in relation to the Protection Visa application, including the Tribunal Decision at CB 152-163;
b)an affidavit of the applicant affirmed 21 November 2013 marked as exhibit 1 at hearing on 29 November 2013 (“Applicant’s Affidavit”), subject to the Minister’s objection to the tender of certain documents annexed thereto and marked as I, II, III, IV and V respectively (which the Court will refer to as Document I, II, III, IV and V respectively);
c)an affidavit of Bromley Hornsby sworn 17 December 2013, annexing a transcribed copy of the audio recording of the Tribunal Hearing (“Tribunal Transcript”); and
d)transcripts of the hearings in this Court on:
i)29 November 2013 (“November 2013 Hearing and Transcript” respectively);
ii)27 February 2014 (“February 2014 Hearing and Transcript” respectively);
iii)27 May 2014 (“May 2014 Hearing and Transcript” respectively); and
iv)17 July 2015 (“July 2015 Hearing and Transcript” respectively).
The admissibility of Documents I to V is dealt with at [32]-[46] below.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)the applicant is a Sri Lankan citizen, born on 26 July 1992: CB 28 at Item 1, who arrived in Australia as an irregular maritime arrival on 17 May 2012: CB 153 at [2];
b)on 23 August 2012, the Minister, pursuant to s.46A(2) of the Migration Act, allowed the applicant to apply for a Protection Visa, which he did on 23 August 2012: CB 1-52;
c)in support of his Protection Visa application the applicant specifically claimed that:
i)his uncle had worked as a mechanic and was forced to assist the Liberation Tigers of Tamil Eelam (“LTTE”) to repair a boat and when the Sri Lankan Army (“SLA”) found out about this they accused his uncle of being an LTTE member and planted weapons in his uncle’s house. When his father, who was well respected in the community, saw this he spoke up for the uncle, and the father was then also accused of being an LTTE member, and both the uncle and the father were imprisoned for six months. They were beaten and tortured in jail. His father was only released because he had influential friends: CB 56 at [5]-[9];
ii)his father was subsequently forced to pay money to the Criminal Investigations Department (“CID”) to avoid further arrests and in 2007 his family were questioned by the CID after his neighbours reported them to the authorities for being connected to the LTTE: CB 56 at [9] and 57-58 at [18];
iii)his family were also harassed and discriminated against by the Sri Lankan Navy (“SLN”) for being Tamil fisherman: CB 56-57 at [10]-[17];
iv)in late 2011 the CID came to the applicant’s house looking for him, but he does not know why, but his mother thought it was because of the previous problems with his father, and although they could not be sure his father told him it was time for him to leave: CB 58 at [19];
v)he would have “a lot of difficulties with the authorities”: CB 58 at [21], if returned to Sri Lanka, and the CID would not leave him alone, and he fears arrest at the airport, and the authorities will not protect him: CB 58 at [21]-[22]; and
vi)he cannot relocate within Sri Lanka, as if he did he would have to register with the local authorities and it would be easy for the authorities to find him: CB 58 at [23];
d)the applicant’s migration agent provided written submissions to the Delegate in relation to the applicant’s Protection Visa claims: CB 68-78;
e)on 29 August 2012 the applicant attended an interview before the Delegate in relation to his claims for protection: CB 87-88;
f)on 22 October 2012 the Delegate’s Decision was to refuse to grant the applicant the Protection Visa: CB 84-96;
g)on 29 October 2012 the applicant lodged an application with the Tribunal to review the Delegate’s Decision and on 4 December 2012 the Tribunal invited the applicant to appear before the Tribunal (“Tribunal Hearing”) to give evidence and present arguments relating to the review of the Delegate’s Decision: CB 97-104 and 109-112;
h)on 16 January 2013 the applicant’s migration agent provided written submissions to the Tribunal in support of the review application: CB 117-138 (“16 January 2013 Submissions”);
i)on 30 January 2013 the applicant appeared at the Tribunal Hearing with the assistance of an interpreter and his migration agent, and both the applicant and his migration agent provided information to the Tribunal: CB 138-141 and 157-158 at [27]-[37];
j)on 31 January 2013 the Tribunal received further written submissions dated 30 January 2013 from the applicant’s migration agent on the current political situation in Sri Lanka: CB 142-148 (“30 January 2013 Submissions”) and 158 at [38]; and
k)on 4 June 2013 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 152 and 163 at [59].
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)referred to the relevant law it was to apply in respect of s.36(2)(a) and (aa) of the Migration Act: CB 153-155 at [4]-[18];
b)detailed the claims and evidence the applicant put to the Minister, which included the written submissions from his migration agent and oral submissions at the Tribunal Hearing: CB 155-158 at [19]-[38];
c)set out independent country information in respect of the applicant’s claims as a Tamil fisherman and potential failed asylum seeker: CB 158-161 at [39]-[42];
d)did not accept on the basis of the country information that simply being a Tamil or a young Tamil male meant that the applicant had a well-founded fear of persecution, however, did accept that the applicant may have faced discrimination as a fisherman, but was not satisfied that such discrimination amounted to serious or significant harm: CB 161 at [44]-[47];
e)found that the applicant was unable to provide any relevant detail at the Tribunal Hearing about the alleged arrest and imprisonment of his uncle and father, or in relation to any ongoing or systemic action by Sri Lankan authorities since those events allegedly occurred, and therefore did not accept that the applicant’s family were perceived as having LTTE links, but did accept that the applicant’s family may have been questioned by the CID in 2007 in relation to displaced relatives lodging with them, but that such questioning did not amount to serious or significant harm: CB 161-162 at [48]-[51];
f)held that although the applicant may be questioned, placed under surveillance, and briefly detained on his return to Sri Lanka due to his illegal departure, that this would not amount to serious or significant harm, and nor would he be treated more harshly than other persons who had departed the country illegally and sought asylum overseas: CB 162 at [53];
g)noted the applicant’s family may not be wealthy and that the payment of a fine to secure the applicant’s release may cause financial hardship, but it did not accept that such hardship would constitute serious or significant harm: CB 162 at [54];
h)concluded that the applicant did not face a real chance of persecution for any Convention reason or that there was a real risk that he would face significant harm if he returned to Sri Lanka: CB 162 at [55]; and
i)was not satisfied that Australia owed the applicant protection obligations and therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 163 at [56]-[59].
Judicial Review Application
The Judicial Review Application sets out three grounds of review as follows:
Jurisdictional error.
The Tribunal did not follow the laws of natural justice.
The Tribunal was biased in its decision.
The applicant did not file and serve any amended Judicial Review Application giving complete particulars of each ground of review as he was permitted to do by orders made by a Registrar of this Court on 15 August 2013.
The substance of the Applicant’s Affidavit contains what appears to be further particularisation of ground 1 of the Judicial Review Application, as follows:
…
2. I submit that the Second Respondent failed to consider the current and future situation in Sri Lanka in applying section s36 (2A) and (e) to my claims based on my ethnicity and social position.
3. The second Respondent failed to consider my claims adequately based on his report Folio paragraphs 24, 26, 29, 30, 31, 37, 41, 42, 45, 47, 48, 51, 54 & 58 Review Tribunal Report.
…
(Copied from the Applicant’s Affidavit without amendment).
The proceedings in this Court were protracted because of:
a)an adjournment ordered by the Court in order for the Minister to provide the transcript of the Tribunal Hearing; and
b)consent orders allowing for the delivery of High Court judgments perceived to be relevant to the Court’s consideration of the issues, on two occasions,
and the Reasons for Judgment were primarily delayed by the Court’s caseload, which the Federal Court has previously described as “extreme”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other consequences and effects, both obvious and not, that flow therefrom.
Consideration
Application for a non-lawyer to appear
At the November 2013 Hearing the applicant made an oral application for a non-lawyer, Mr Somasunderam, to appear on his behalf. The basis for the applicant’s seeking to have a non-lawyer appear for him was, as best the Court can understand it, as follows:
a)the applicant did not understand legal matters;
b)the applicant did not have any lawyers to represent him;
c)the applicant went to the Tamil Association and they, and in particular Mr Somasunderam, assisted him to make the application;
d)the applicant “do[es] not know anything about this matter so Mr … [Somasunderam] is here to appear for me”; and
e)the applicant does not know how to put his submissions because he does not have any idea what has gone wrong (presumably in relation to the outcome of the Tribunal Decision).
See November 2013 Transcript, page 2.
In support of the application to appear on behalf of the applicant Mr Somasunderam submitted that:
a)he had assisted the applicant before the Tribunal, formulated the arguments and discussed them with the applicant; and
b)
the applicant is very young, and when he arrived he had not reached the “age of majority”, he has limited schooling and has never travelled outside his country: November 2013 Transcript,
pages 2-3.
The Minister opposed Mr Somasunderam appearing for the applicant on the basis that Mr Somasunderam is not legally qualified, and that the applicant was provided with an interpreter to assist him.
The Court notes that the submission about the applicant not having reached the age of maturity when he arrived in Australia is wrong, the applicant being just over two months short of being 20 years of age at the time that he arrived in Australia: see [4(a)] above.
The Court dismissed the application by the applicant for Mr Somasunderam to appear on the applicant’s behalf at the November 2013 Hearing, and indicated that written reasons would be given at a later time, but referred to the Court’s dismissal of a similar application in WZASU v Minister for Immigration & Anor [2013] FCCA 2109 (“WZASU (No 1)”) also refusing Mr Somasunderam leave to appear for an applicant in migration judicial review proceedings, where it was held that:
a)Mr Somasunderam had no legal qualifications or any other entitlement to be admitted as a lawyer in any Australian jurisdiction, and no right of appearance before the Court without leave, although he was otherwise qualified with tertiary degrees in arts and social work: WZASU (No 1) at [2]-[4] per Judge Lucev; and
b)the relevant principles for determining whether to grant a non-lawyer leave to appear were set out in WZASU (No 1) at [4] per Judge Lucev as follows:
4. … The authorities, based upon the New South Wales Court of Appeal decision in Damjanovic v Maley (2002) 195 ALR 256; [2002] NSWCA 230 (“Damjanovic”), which has been followed by this Court in Reynolds v The Minister for Health & Anor (2010) 247 FLR 425; [2010] FMCA 843 (“Reynolds”), indicate that any discretion that the Court has to allow an unqualified person to appear before it must be exercised cautiously. The Court also notes that generally speaking the experience of the federal courts with respect to allowing the appearance of persons in migration matters who are not qualified as lawyers is such that they have been of little assistance to the federal courts, and importantly, to their clients. In that regard the Court refers to NAGM v The Minister for Immigration & Multicultural and Indigenous Affairs (2002) 125 FCR 488; [2002] FCAFC 395, SZPZY v The Minister for Immigration & Anor [2011] FMCA 463 and WZAOT v The Minister for Immigration & Anor [2011] FMCA 577. In Reynolds, this Court observed at FLR 429, FMCA at para.8 as follows:
When deciding whether to exercise discretion to grant leave to allow a non-lawyer to appear on behalf a party, courts generally take into account the following principles:
(a) the complexity of the matter;
(b) the genuine difficulties of a self-represented party;
(c) the unavailability of disciplinary measures against, and the absence of any duty to the Court by, lay advocates;
(d) protection of the client and the opponent from the actions of an unqualified person;
(e) whether lay advocates ought to appear in inferior courts and tribunals; and
(f) the interests of justice.
In relation to the principles, or factors for consideration, set out at [15(b)] above the Court observes as follows:
a)as to complexity the Court observes that this matter is generally, and the grounds of the Judicial Review Application are specifically, the same as WZASU (No 1) where, at [5] per Judge Lucev, the Court observed as follows:
5. Turning first then to the complexity of this matter, the issues in this matter are on their face no more or less complex than the usual judicial review applications for review of protection visa application cases. In this case the grounds are three simple and straightforward grounds, although that says nothing about their competence, which assert jurisdictional error by the Tribunal, a failure to afford procedural fairness and that the decision was affected by legal error. Even though those grounds are not particularised, they are grounds which the Court regularly sees in a similar or not dissimilar form in applications such as this. There is nothing in respect of the complexity of the matter on its face which would warrant the intervention of an external unqualified advocate.
b)there was a general difficulty faced by all self-represented litigants in the Court, and that whilst having limited or no English language skills might mean an applicant is more disadvantaged compared to self-represented litigants with English language skills, the applicant was in reality in no different a position to many applicants appearing before the Court in migration judicial review cases (particularly in relation to Protection Visas): WZASU (No 1) at [7] per Judge Lucev;
c)as a non-lawyer there are no disciplinary measures available to the Court in the event of any misbehaviour or misconduct by Mr Somasunderam before the Court (the Court noting that nothing indicated Mr Somasunderam would act in such a manner): WZASU (No 1) at [10] per Judge Lucev; and
d)Mr Somasunderam is a member of the Tamil Association and as such is more likely to be closely engaged with the applicant’s arguments, and not able to necessarily bring the degree of professional objectivity that a trained lawyer would bring in the circumstances, which in WZASU (No 1) was exemplified by a remark by Mr Somasunderam that the Tamil Association “have to tell them (Protection Visa applicants) what to do”: WZASU (No 1) at [11] per Judge Lucev.
In this matter the Court conveyed to Mr Somasunderam that in WZASU (No 1), where he was allowed to appear as a McKenzie Friend: WZASU (No 1) at [15] per Judge Lucev, he appeared to the Court to be “running the show” for the applicant and was “saying whatever it was that … [Mr Somasunderam] thought needed to be said … [which] was being repeated by the applicant and then given to the Court by the interpreter”: November 2013 Transcript, page 3. Plainly that is not the role of a McKenzie Friend. In response, Mr Somasunderam submitted (November 2013 Transcript, pages 3-4) that:
… my own observation is my own observation, but even for an average layman who’s competent in English --- in this case, if he had not been to lawyer and he formulated this plea, he will not necessarily understand the legal terminologies like jurisdictional error, natural justice – he won’t understand it nor would he understand some of the documents that are given in English that he has filed in his affidavit, which he wants to file, and if he were to be asked to comment on those, we have – when I say we, as a team – explained all this to the best of our knowledge before he signed the affidavit, but whether it filtered into his mind in that legal form, I have my great doubts.
It is pertinent to note that in WZASU (No 1) at [11(b) and (c)] per Judge Lucev the Court observed as follows:
b) it would appear, at least in some form of collective sense as Mr Somasunderam described it, that he has assisted with the drafting of the application which, as the Court has observed, is unparticularised and which the Court further observes does not indicate what form of jurisdictional or other legal error is alleged to have been perpetrated by the Tribunal, or in what respects the Tribunal is alleged to have departed from the relevant standards of fairness or procedural fairness, bearing in mind particularly that the common law of procedural fairness does not apply in this case and the applicable standard of procedural fairness is tightly confined by the terms of Part 7 of the Migration Act 1958 (Cth);
c) it is not satisfied from what it has heard from Mr Somasunderam today that he has any detailed understanding of the concept of jurisdictional error as it operates in judicial review applications before this Court;
and the position in this matter is no different.
Mr Somasunderam was correct to note that even a competent English speaking non-lawyer might not necessarily understand the terminology of jurisdictional error or natural justice, for, as at least one member of the High Court has observed, the “subtleties of ‘jurisdictional error’ have sometimes escaped experienced judges”: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [24] per Kirby J. Mr Somasunderam is, however, in little or no better a position than the applicant to assist the applicant with the subtleties of jurisdictional error, a fact which is borne out by the Court’s observations based on WZASU (No 1) as to Mr Somasunderam’s understanding of jurisdictional error, and the content of the Applicant’s Affidavit: as to which see [18] above, an affidavit seemingly drafted by Mr Somasunderam with the assistance of others at the Tamil Association.
It is well accepted that there is no right to legal representation in migration proceedings in this Court: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20; (2000) 31 AAR 448 at [27], [32] and [36] per Sackville, Marshall and Lehane JJ; SZHTIv Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [4] per Gyles J; SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 at [24] per Katzmann J. Furthermore, a lack of legal representation cannot be a basis for allowing the appearance of an unqualified person who does not understand the central tenet of migration judicial review in these proceedings, namely, jurisdictional error, and who otherwise, for reasons set out above: see [16]-[19] above, is unlikely to be of any real assistance to the Court if allowed to appear.
The comments with respect to Mr Somasunderam’s application to appear as a non-lawyer for the applicant in WZASU (No 1) apply equally in this matter. He is a non-lawyer, and continues to be involved in the Tamil Association, and he met the applicant through the Tamil Association. The complexity of this case is of a similar level to that in WZASU (No 1), and whilst the applicant is self-represented, young, and without English language skills, he is in the same position as many applicants for judicial review of migration decisions to this Court. The Court observes that the applicant has worked as a mechanic in Sri Lanka, and had the wherewithal to be able to travel from Sri Lanka to Australia and lodge his Judicial Review Application on his own behalf. In any event, based on what had occurred in WZASU (No 1) (argued the day prior to the November 2013 Hearing in this matter) the Court raised with Mr Somasunderam the fact that the arguments he put were merits review based arguments and not judicial review arguments, and therefore of no assistance to the Court. Mr Somasunderam did not demur. Ultimately, it is not in the interests of justice to have a non-legally qualified person appear for an applicant in judicial review proceedings and put a merits review based submission which is of no assistance to the applicant or the Court.
It was for those reasons that the Court dismissed the applicant’s oral application for a non-lawyer, Mr Somasunderam, to appear on his behalf.
The above approach assumes that there is an ability on the part of the Court to grant leave to an individual to appear for another. Whether that is so or not might be doubted give the terms of s.44 of the Federal Circuit Court of Australia Act 1999 (Cth) which severely restricts rights of appearance in this Court, but it is unnecessary to determine that issue on this occasion.
McKenzie Friend application
In WZASU (No 1) the Court observed that although it had not been the subject of submissions it was prepared to allow Mr Somasunderam to appear as a McKenzie Friend which “ … would allow Mr Somasunderam to make suggestions to, prompt and otherwise assist the applicant without actually making any submissions on his behalf”: WZASU (No 1) at [15] per Judge Lucev, that being the proper role of a McKenzie Friend: cf. [17] above. The case for WZASU was heard on the day prior to the first day of hearing of this matter in November 2013.
Mr Somasunderam also sought to be a McKenzie Friend for the applicant in this matter: see McKenzie v McKenzie [1970] 3 All ER 1034; [1970] 3 WLR 472. Whether the applicant was allowed to have Mr Somasunderam present as a McKenzie Friend is very much a matter of practice and procedure, and within the Court’s discretion, however, the Court ought to consider the circumstances of an application before determining it: Smith v R (1985) 159 CLR 532; (1985) 71 ALR 631.
The Court reiterates its comments made at [16]-[21] above, and further notes that, whilst the Court does not doubt Mr Somasunderam’s good intentions, there had been very little, if any, benefit to the applicant in WZASU (No 1) where Mr Somasunderam had been granted leave to be a McKenzie Friend, and no reason to consider that Mr Somasunderam’s involvement in this matter as a McKenzie Friend to the applicant would be of any benefit to the applicant, or to the Court.
For those reasons the Court refused the applicant’s application that Mr Somasunderam be a McKenzie Friend.
The requirement for jurisdictional error
The Tribunal Decision may be set aside upon judicial review by this Court if it involves jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, that is, where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, the authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”). This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
Submissions in relation to Judicial Review Application
The applicant made the following submissions in support of the Judicial Review Application:
a)he is very scared to return to Sri Lanka and he has a problem that he told the Tribunal about, being while he was on his fishing boat the SLA and CID had “written him up” and he will be captured and he will be hit;
b)the Tribunal process was long and was not done in a correct manner, and he pleads for the Court to accept him as a refugee;
c)the Tribunal did not take into consideration the problems his family face due to “their friction with the LTTE”;
d)the Tribunal made some error, they did not “see” his case properly, and they rejected his case;
e)Documents IV and V were produced to the Tribunal and when he produced this they said “maybe you have more of this document with money so we can take this document into consideration”; and
f)he cannot really remember if the migration agent or the Tribunal said something about more money for the documents but he heard it from the interpreter that someone had said that.
(See November 2013 Transcript at pages 4-6).
The Minister made the following submissions in opposition to the Judicial Review Application:
a)the grounds of review contain no meaningful particulars;
b)there has been no apparent breach of the procedural fairness to be afforded to the applicant under Pt.7 Div.4 of the Migration Act;
c)it cannot be said that the Tribunal did not take a fresh look at the applicant’s claims or that it prejudged those claims;
d)the Tribunal considered the entirety of the applicants’ claims for protection but found when assessed against the country information there were no substantial grounds or basis for finding that the applicant would suffer, or that there was a real risk of persecution or significant harm;
e)the Tribunal’s assessment and findings on the applicant’s credibility were open to it based on the evidence before the Tribunal and the Court cannot review the merits of the Tribunal Decision; and
f)there is no jurisdictional error in the Tribunal Decision and the Judicial Review Application ought to be dismissed with costs.
Admissibility of Documents I to V
The Applicant’s Affidavit annexed five documents (Documents I to V) which the Minister objected to the Court admitting into evidence. The Court has considered the admissibility of Documents I to V below.
Documents I and II
Document I is an extract from the “Report of the Secretary-General Panel of Experts on Accountability in Sri Lanka” (“2011 Report”) and is dated 31 March 2011. The Minister submitted that Document I was not before the Tribunal. The 2011 Report was not referred to in the Tribunal Decision, but it was referred to in the applicant’s 16 January 2013 Submissions to the Tribunal: CB 122 and 124 at [5.2] and [5.5]. Document II is an extract from the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka dated 21 December 2012” (“Eligibility Guidelines”). Both Documents I and II refer to the Sri Lankan government’s treatment of Tamils in the years following the end of the civil war in Sri Lanka.
Documents I and II both refer to country information and it is well accepted that the Tribunal is entitled to have regard to its choice of particular country information, to weigh that country information, and make reasonable factual findings based on that country information, if it puts the country information to the applicant: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ.
The 2011 Report was not referred to in the Tribunal Decision, and while a failure to mention a document does provide a basis for inferring it has not been considered, it does not necessarily lead to that conclusion, particularly, where there is no evidence of the material being before the Tribunal: Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594.
It should not be inferred that the 2011 Report was not considered because it was not mentioned in the Tribunal Decision. The subject matter raised by the 2011 Report was based on a factual contention of an imputed association between the applicant and the LTTE that was rejected by the Tribunal, and the LTTE association claim was otherwise comprehensively dealt with. The Tribunal accepted the general proposition that the Sri Lankan government may persecute or harm former LTTE members or Tamil’s imputed with LTTE association: CB 161 at [44]. However, having had regard to other country information, and the submissions, generally, the Tribunal found that someone with the applicant’s profile would not be targeted by the Sri Lankan authorities because of an imputed LTTE association.
The Eligibility Guidelines were referred to by the Tribunal: CB 160-161 at [42], and the Tribunal found that the Eligibility Guidelines suggested the applicant did not have the profile of someone who would have a well-founded fear of harm on return to Sri Lanka: CB 161 at [44]. There is nothing to suggest that was not a conclusion reasonably open to it. At the Tribunal Hearing the Tribunal put that conclusion and the Eligibility Guidelines to the applicant: Tribunal Hearing Transcript at 16.
In seeking to put Documents I and II before the Court the applicant is doing no more than inviting the Court to reconsider the merits of his Protection Visa application, a task the Court cannot perform on judicial review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. For that reason Documents I and II are inadmissible and the Court will disregard them.
Document III
Document III appears to be a letter from a Bishop of Mannar, dated 3 December 2012, providing information of the “pathetic plight of deported Asylum Seekers … with restrictions, threats, intimidation, questionings, surveillance and other forms of harassment and discrimination …”. This document pre-dates the Tribunal Hearing, however, there is no indication in the Tribunal Decision that Document III was provided in support of the applicant’s case. It is not open for the Court to admit new evidence on an application for judicial review, particularly where it is for the purpose, as it appears to be here, of inviting the Court to disagree with factual findings of the Tribunal: MZXHY v Minister for Immigration & Citizenship [2007] FCA 622 (“MZXHY”) at [8] per Nicholson J.
Document III is inadmissible and the Court will disregard it.
Documents IV and V
Document IV is a letter, dated 30 May 2012, on its face from an Attorney and Public Notary, that sets out factual assertions that support the applicant’s claims for his Protection Visa application. Document V is an affidavit, affirmed in Sri Lanka, by the applicant’s father which also sets out factual assertions that support the applicant’s claims for his Protection Visa application.
At the November 2013 Hearing the applicant alleged he had sought to provide Documents IV and V to the Tribunal. The applicant stated at hearing that he tried to hand the documents up in the “RRT Interview” but they were not accepted, and said he was asked for “money” in order for them to be considered. Because of the applicant’s allegations concerning Documents IV and V the Court asked for the Tribunal Transcript to be provided by the Minister. The Tribunal Hearing Record indicates that no documents were provided by the applicant at the Tribunal Hearing: CB 139-141. The Court also notes the Tribunal Hearing occurred by video-link, and therefore the ability for the applicant to “hand up documents” would have required a hearing attendant collecting the documents and transmitting those to the Tribunal in Melbourne. There was no adjournment in the Tribunal Hearing to allow for this, and on the face of the Tribunal Decision the only materials provided to the Tribunal by the applicant were the 16 and 30 January 2013 Submissions.
Having considered the Tribunal Transcript it is apparent no documents were handed up, or sought to be handed up, by the applicant at the Tribunal Hearing. At the February and May 2014 and July 2015 Hearings the applicant made no submissions on this point: see February and May 2014 and July 2015 Transcripts.
There is no evidence to suggest that Documents IV and V were provided to the Tribunal, and the Court notes that:
a)Documents IV and V do not form part of the Court Book;
b)there is no indication or reference to Documents IV and V in the Tribunal Decision;
c)the Tribunal Hearing Record under the heading “Documents received/Comments” records “ID sighted” and “No doc”: CB 139;
d)the Tribunal Transcript shows that the Tribunal asked the applicant whether he had any documents to submit to which the applicant answered no: Tribunal Transcript, page 2;
e)after the applicant concluded his submissions to the Tribunal, his migration agent undertook to provide the Tribunal with additional material by email: Tribunal Transcript, pages 15-16; and
f)on 31 January 2013 the Tribunal received an email from the applicant’s migration agent attaching the 30 January 2013 Submissions, in which Documents IV and V are neither referred to nor attached.
There is no evidence that the applicant handed up, or sought to hand up, Documents IV and V to the Tribunal, rather all the evidence indicates he did not do so despite having the opportunity to do so: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ. In the circumstances, Documents IV and V simply amount to new evidence on an application for judicial review, which appear to invite the Court to disagree with the factual findings of the Tribunal, and which constitutes impermissible merits review: MZXHY at [8] per Nicholson J; Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. It follows that Documents IV and V are inadmissible and that the Court will disregard them.
Conclusion on admissibility of Documents I to V
The Court has concluded that each of Documents I to V is inadmissible, and it follows that each of Documents I to V will be struck out.
Ground 1
The Court has construed the applicant’s first ground – “Jurisdictional error” – when read in conjunction with the Applicant’s Affidavit, as alleging the Tribunal failed to adequately consider the applicant’s Protection Visa claims and the current and future situation in Sri Lanka.
The failure to consider an applicant’s claim to meet the mandatory criteria for a Protection Visa and to engage in an active intellectual process directed at a claim will usually constitute jurisdictional error: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J (“Htun”); Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ.
The applicant’s claims were directed toward his ethnicity as a Tamil, and that he feared to return to Sri Lanka on the basis of his Tamil ethnicity and returning as a failed Tamil asylum seeker, and his membership of a particular social group of Tamil fisherman and young Tamil men.
The Tribunal referred to country information that detailed the situation in Sri Lanka regarding returning Tamil asylum seekers and those with imputed LTTE political links, and it indicated that identifying as a Tamil from a previous LTTE controlled area was not enough to invite refugee protection: CB 160-161 at [41]-[42]. The Tribunal did not accept the applicant’s claim his uncle had assisted the LTTE to repair a boat, and that his family was imputed with an LTTE profile or links: CB 161 at [48]-[49]. The Tribunal was not satisfied that in the foreseeable future the situation for Tamil fisherman would worsen, or that the applicant would be prevented from earning a livelihood, as his family were currently operating two boats in Sri Lanka: CB 161 at [46]-[47]. On the basis of country information the Tribunal did not accept that because of the applicant’s Tamil ethnicity he will be treated more harshly on his return: CB 162 at [53]. The Tribunal accepted that the applicant may be required to pay a fine, or be briefly held in detention upon his return to Sri Lanka, and although this may cause the family financial hardship, it would not do so to the extent of being regarded as “serious or significant harm”: CB 162 at [54].
The Tribunal considered the situation (including the possible future situation) in Sri Lanka for the applicant on the basis of his being Tamil, a Tamil fisherman and a failed Tamil asylum seeker. The Tribunal gave proper consideration to these claims and reasonably weighed the country information and the applicant’s evidence to make findings that the claims were not credible or simply did not satisfy the refugee or complementary protection criteria. The applicant appears to disagree with the findings made by the Tribunal and the country information considered by the Tribunal, but in all the circumstances the allegation of jurisdictional error in ground 1 amounts to no more than an invitation to the Court to engage in impermissible merits review contrary to long-established principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Applicant’s Affidavit alleges that the Tribunal failed to consider his claims “adequately” based on various paragraphs of the Tribunal Decision (see [32]-[46] above). The use of the word “adequately” immediately suggests the applicant merely disagrees with the merits or factual conclusions reached by the Tribunal, or, possibly, that the Tribunal failed to undertake proper, genuine and realistic consideration of the applicant’s claims. Ultimately, where there is a contention that the Tribunal has failed to adequately, or properly, genuinely, or realistically consider a matter the Court’s role is to simply evaluate whether the Tribunal has failed to exercise its jurisdiction by committing a jurisdictional error.
Each of the paragraphs in the Tribunal Decision sought to be impugned by the Applicant’s Affidavit are addressed hereunder.
CB 156 at [24] refers to the undated submissions of the applicant’s migration agent to the Delegate: CB 68-78, and correctly states the applicant’s claims for protection, while CB 156 at [26] refers to the applicant’s claims as put by his migration agent in the 16 January 2013 Submissions: CB 118-138, which reiterate the applicant’s claims to fear harm on the basis of his Tamil ethnicity, and his family’s past links with the LTTE, his being a Tamil fisherman and his identifying as a failed Tamil asylum seeker if returned to Sri Lanka. The Tribunal adequately considered each of those claims in the Tribunal Decision, and no jurisdictional error is discernible in that consideration: CB 161-162 at [44]-[55].
CB 157 at [29] and [30] refer
sto the applicant’s evidence at the Tribunal Hearing that a fisherman was required to produce a fisherman’s identity card on request to the SLN when operating boats in Sri Lanka and that his family have two boats. The applicant also stated that his brother had unsuccessfully sought to go “overseas” but was intercepted, briefly detained on return and now is back fishing with his father. The Tribunal made findings that the control and restrictions placed by the authorities on fishing activities did not amount to significant harm or persecution: CB 161 at [45], and that based on the applicant’s evidence of his family owning two fishing boats the applicant could earn a livelihood and also leverage these boats to provide the funds to pay a fine should one be incurred on the applicant’s return to Sri Lanka: CB 161-162 at [46] and [54].CB 157 at [31] refers to an exchange at the Tribunal Hearing where the applicant was asked to elaborate on one of his claims and could not. Reference to the Tribunal Transcript shows that CB 157 at [31] accurately sets out what occurred at the Tribunal Hearing. No jurisdictional error can arise from the Tribunal merely setting out an accurate account of an exchange at the Tribunal Hearing.
CB 158 at [37] refers to submissions made by the applicant’s migration agent, and the request (which was granted) to provide post-Tribunal Hearing submissions (the 30 January 2013 Submissions), while CB 158 at [38] acknowledged that the 30 January 2013 Submissions provided information on the treatment of Tamil asylum seekers and the human rights record of Sri Lanka. The Tribunal considered the applicant’s claim of being identified as a failed Tamil asylum seeker and country information specifically relevant to that claim at CB 158-161 at [39]-[42] and 162 at [52]-[54].
CB 159-161 at [41] to [42] simply set out country information, and there can be no jurisdictional error where, as here, the Tribunal has set out and relied on relevant country information: NAHI at [11] per Gray, Tamberlin and Lander JJ.
CB 161 at [45], [47] and [48] and 162 at [51] and [54] set out the Tribunal’s findings and reasons with regards to the applicant’s claims. The Tribunal referred to country information and the applicant’s evidence in reaching its findings and provides reasons for making its findings. Having regard to the Court’s findings and conclusions otherwise made in these Reasons for Judgment there is nothing to suggest the Tribunal committed jurisdictional error in the abovementioned paragraphs.
CB 163 at [58] is the Tribunal’s observation that there was no suggestion the applicant met s.36(2) of the Migration Act on the basis of being a member of the family unit of a person who satisfied the Protection Visa criterion, and the Tribunal’s ultimate finding that the applicant did not satisfy the Protection Visa criteria. The applicant raised no claim that he was a member of a family unit or may satisfy s.36(2) of the Migration Act on that basis, therefore it is unclear how the Tribunal can fail to adequately consider a claim that is not expressly made or that does not arise clearly on the material before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 at [61] per Black CJ, French and Selway JJ, and therefore, cannot give rise to jurisdictional error in the Tribunal Decision. Otherwise, having regard to the findings made in these Reasons for Judgment there is nothing to suggest the Tribunal committed jurisdictional error in making its ultimate finding as expressed at CB 163 at [58].
In all of the above circumstances, no jurisdictional error in the Tribunal Decision is established by ground 1, or by the various paragraphs referred to in the Applicant’s Affidavit, or by ground 1 considered in combination with those various paragraphs.
Ground 2
Ground 2 essentially alleges that the Tribunal did not provide the applicant with procedural fairness in determining his Protection Visa claim.
The Tribunal did not breach Pt.7, Div.4 of the Migration Act as the Tribunal:
a)invited the applicant to appear before the Tribunal in accordance with s.425 of the Migration Act to give evidence and present arguments in support of his Protection Visa application: CB 109-112;
b)the applicant accepted the invitation to attend the Tribunal Hearing, was provided with an interpreter and accompanied by a migration agent who provided submissions (the 16 and 30 January 2013 Submissions) prior to the Tribunal Hearing and after the Tribunal Hearing: CB 113-139 and 156 at [26]; and
c)put to the applicant matters in respect of which the Tribunal might make an adverse finding, in accordance with SZBEL at [33] and [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, or which were in some way in contention or dispute, including, for example:
i)asking the applicant to elaborate on his claim regarding his uncle’s detention after working on LTTE boats: CB 157 at [31] and Tribunal Transcript at page 10;
ii)stating to the applicant that the country information did not indicate that there was LTTE activity in the applicant’s area: Tribunal Transcript at page 11;
iii)putting to the applicant for comment that his brother did not face any problems in Sri Lanka upon return after an illegal departure: CB 157 at [35] and Tribunal Transcript at page 13; and
iv)putting to the applicant that he did not appear to have the profile of someone of adverse interest to the authorities: CB 158 at [36] and Tribunal Transcript at pages 14 and 16.
In circumstances where the applicant was invited to and attended the Tribunal Hearing, was represented at the Tribunal Hearing and during which the migration agent did not raise any issue with the fairness of the Tribunal Hearing, and likewise did not do so in the post-Tribunal Hearing 30 January 2013 Submissions, there is no evidence before the Court that the applicant was denied procedural fairness or that Pt.7, Div.4 of the Migration Act was breached. A reading of the Tribunal Transcript discloses no basis for an assertion that the applicant was denied procedural fairness at, or in relation to, the Tribunal Hearing.
For the above reasons Ground 2 does not establish jurisdictional error in the Tribunal Decision.
Ground 3
Ground 3 claims that the Tribunal Decision was affected by bias on the part of the Tribunal.
It is well established that an allegation of bias is a serious matter which must be distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). It has been said that it will be a "rare and exceptional case" where actual bias can be demonstrated solely from the published reasons of an administrative decision-maker: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. The applicant provided no evidence to the Court to establish his claim of bias by the Tribunal. By reference to the Tribunal Decision generally, and specific paragraphs of the Tribunal Decision referred to in the Applicant’s Affidavit, neither provides any evidence that:
a)the Tribunal had a pre-existing state of mind which disabled the Tribunal from undertaking, or rendered the Tribunal unwilling to undertake, any proper assessment of relevant materials: Jia Legeng at [35] and [72] per Gleeson CJ and Gummow J; or
b)a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind to the assessment of the materials and the relevant issues: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The Court notes the applicant made the following statement at hearing:
… All my documents as well as during the RRT, and when I give it to the time in RRT, they said maybe you have more of this document with money so we can take this document into consideration.
During the RRT interview, I have shown them this document and hand over these documents, but they said this one- we cannot accept this one, you can take it for – you can… this for money…
I couldn’t really remember whether the representative say it other member say it, but what I hear from the interpreter, someone has said that.
November 2013 Transcript, pages 6, 7 and 8 respectively.
Having reviewed the Tribunal Transcript, the only reference to any documents having been provided at the Tribunal Hearing was in an exchange between the Tribunal and the applicant’s migration agent in which it was agreed the migration agent would provide a copy of the Asian Human Rights Commission report by email in post-Tribunal Hearing submissions: Tribunal Transcript, page 15.
Nothing arises on the material before the Court to support this most serious allegation, and the Court notes that if such an issue had arisen at the Tribunal Hearing then it ought to have been raised by the migration agent by whom the applicant was represented at the Tribunal Hearing. Evidence of such a serious allegation, which essentially amounts to an allegation of official corruption, requires evidence that is clear or cogent or amounts to strict proof, and findings in relation to such serious allegations cannot lightly be made: Evidence Act 1995 (Cth), s.140(2); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 67 ALJR 170; (1992) 110 ALR 449, ALR at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ, and in this case no findings can be made because there is no evidence at all to support the serious allegation made.
For the above reasons, Ground 3 does not establish jurisdictional error in the Tribunal Decision.
Otherwise
As to the applicant’s oral submissions made at hearing, each of these simply cavil with the factual findings of the Tribunal and the Court, and are either irrelevant or constitute a plea for impermissible merits review: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Specifically:
a)it is irrelevant to the Court’s task that the applicant has only ever travelled outside of Sri Lanka to come to Australia and the Court cannot entertain his plea to “please accept me as a refugee”;
b)the Tribunal:
i)acknowledged the applicant’s claims his family face harm as a result of his uncle and father being arrested and that they continue to be investigated: CB 155 at [21];
ii)asked the applicant to elaborate on this claim, and the applicant was unable to do so as he said he was young when it occurred and “Tamil people are often accused of being supporters of the LTTE and always under suspicion”: CB 157 at [31] and [48]; and
iii)stated it did not accept these claims,
therefore, the Tribunal had considered the claim, contrary to what the applicant submitted at hearing, and any “review” of the Tribunal’s findings would be impermissible merits review;
c)the submission that the applicant does not know “how to tell” the Court of the error because he does not have any idea about “what has gone wrong and everything” (notably after the Court had read the applicant’s grounds of review in his Judicial Review Application back to him for comment: November 2013 Transcript at page 5) indicates the applicant simply disagrees with the Tribunal Decision, and hopes that this Court will somehow make a different decision, which it cannot, without undertaking impermissible merits review; and
d)simply because the Tribunal rejected the applicant’s case is an inadequate basis for review by this Court: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J.
On the face of the Tribunal Decision no other jurisdictional error is apparent to the Court.
Conclusion and orders
The Court has concluded that the Tribunal Decision is not affected by jurisdictional error. It follows that there must be an order dismissing the Judicial Review Application.
There will also be an order striking out Documents I to V of the Applicant’s Affidavit.
Pursuant to the Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2, there will also be an order that the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
The Court will hear the parties as to costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 February 2019
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