WZASX v Minister for Immigration
[2017] FCCA 563
•29 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZASX v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 563 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – Sri Lankan Tamil – whether lack of procedural fairness – whether bias – whether jurisdictional error. |
| Legislation: Constitution, s.75(v) Immigrants & Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), div.4, pt.7, ss.91R, 422B, 425, 474, 476, 477 Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) |
| Cases cited: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (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 & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412 Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 Minister for Immigration & Multicultural Affairsv Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Plaintiff S157/2002 v The Commonwealth of Australia [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 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 WZATI v Minister for Immigration & Border Protection [2015] FCA 923 |
| Applicant: | WZASX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 175 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 August 2014 and 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 29 March 2017 |
REPRESENTATION
| For the Applicant: | In person (with the assistance of an interpreter) |
Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs. |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the second respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 175 of 2013
| WZASX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively). The Tribunal Decision is at Court Book (“CB”) 227-248. The Tribunal Decision affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, then the Minister for Immigration, Multicultural Affairs & Citizenship, now the Minister for Immigration & Border Protection (“Minister”) to refuse to grant a protection (Class XA) visa (“Protection Visa”) to the applicant. The Delegate’s Decision is at CB 123-145.
The applicant also sought an interlocutory order for an extension of time under s.477 of the Migration Act. It was, however, unnecessary for the applicant to make the application for an extension of time because the Judicial Review Application was filed within the 35 day limit under s.477(1) of the Migration Act.
Factual and procedural background prior to the Tribunal Decision
The applicant:
a)is a citizen of Sri Lanka who arrived on Christmas Island as an undocumented irregular maritime arrival on 17 May 2012: CB 160;
b)lodged his application for a Protection Visa on 15 September 2012: CB 23-48;
c)claims to fear persecution in Sri Lanka from the Sri Lankan authorities, and in particular the Criminal Investigations Department (“CID”) by reason of his:
i)Tamil ethnicity;
ii)imputed political opinion, on the basis that his brother was suspected of being a member of the Liberation Tigers of Tamil Eelam (“LTTE”); and
iii)membership of a particular social group composed of failed Tamil asylum seekers: CB 49-52;
d)on 19 November 2012 the Delegate’s Decision was to refuse the Protection Visa application: CB 123-145;
e)the applicant lodged an application with the Tribunal for review of the Delegate’s Decision on 17 December 2012: CB 147-152;
f)on 21 January 2013 the applicant was invited to a hearing before the Tribunal (“Tribunal Hearing”), which was held on 8 March 2013: CB 173-174, and attended by the applicant and his registered migration agent, and with the applicant having the assistance of an interpreter: CB 228 at [3]-[4];
g)on 7 March 2013 the applicant’s representative forwarded a length written submission and supporting materials: CB 184-219; and
h)on 21 June 2013 the Tribunal Decision affirmed the Delegate’s Decision: CB 227-248.
The Tribunal Decision
In summary, in the Tribunal Decision the Tribunal:
a)generally found the applicant was an unreliable witness who appeared prepared to exaggerate and fabricate his evidence. In particular, the Tribunal found that the applicant was not a person of any interest to the Sri Lankan authorities and that he had fabricated his claim to have been pursued and beaten by the CID: CB 243 at [80];
b)accepted that it was plausible that the applicant’s father and older brother travelled to a particular place (“Fishing Place”) for the fishing season in 1993 and his older brother may have died in the bombing attack that took place at that time during the conflict between the Sri Lankan Army (“SLA”) and LTTE. Furthermore the Tribunal accepted that sometime after that, there may have been enquiries made by the CID about whether the applicant’s older brother had any involvement with the LTTE: CB 244 at [82]-[83];
c)did not accept that the CID would have continued to follow up with subsequent enquiries especially in light of the applicant’s brother’s death certificate: CB 244 at [83];
d)rejected the applicant’s claim that the CID did not see his brother’s death certificate because they were torturing his mother. The Tribunal also rejected the applicant’s claim that the CID returned to question his parents in mid-2010 or December 2011 or that he and his father were beaten during this time because they did not tell the CID where his brother was. The Tribunal based these findings on the applicant’s unreliability as a witness and found that his claim that he did not seek medical treatment after the alleged beating weakened his claim that he was beaten: CB 244 at [83];
e)did not accept that the applicant was targeted by the CID, and also rejected his claim that he felt that he needed to go into hiding : CB 244 at [84];
f)in response to a submission from the applicant’s migration agent, found that based on country information, the Sri Lankan authorities targeted particular Tamil profiles and were not inclined to expend their limited resources on trying to target all Tamils. The Tribunal found that having investigated the applicant and being aware of his brother’s death, the authorities moved on and did not harass or harm the applicant after that: CB 244-245 at [85]-[87];
g)found that the applicant had provided no evidence that either he or his brother were members of the LTTE. In light of his unreliability as a witness, was not satisfied that either the applicant or his brother were members of the LTTE. As the applicant had not put forward any evidence of links with anyone else who was a member of the LTTE, the Tribunal was not satisfied that the applicant was a person of interest to the Sri Lankan authorities: CB 245 at [89];
h)accepted that the applicant may be subject to discrimination on the basis of his Tamil ethnicity, however in light of the country information was not satisfied that the applicant would face persecution: CB 246 at [90];
i)accepted that the applicant may have departed Sri Lanka in contravention of the Immigrants & Emigrants Act 1949 (Sri Lanka) (“I & E Act”) and that upon return he may be charged, detained briefly and then bailed, but found that this would not constitute significant harm: CB 246 at [91];
j)undertook a cumulative assessment of the applicant’s claims and found that the applicant’s fear of persecution for a Convention-based reason was not well-founded now or in the reasonably foreseeable future, and had regard to the applicant’s personal characteristics, country information and the individual claims made by the applicant: CB 247 at [92]-[96]; and
k)considered whether the applicant was owed complementary protection under the complementary protection provisions of the Migration Act, but found that it was not satisfied that the applicant’s circumstances gave rise to substantial grounds for concluding that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka that there was a real risk that he would suffer significant harm: CB 248 at [98].
The Judicial Review Application
In the Judicial Review Application there are three grounds of judicial review as follows:
1.JUDICIAL ERROR
2.THE TRIBUNAL DID NOT FOLLOW THE LAWS OF NATURAL JUSTICE
3.THE TRIBUNAL WAS BIASED IN ITS DECISION
THE REASONS STATED ABOVE WILL BE SUBMITTED IN DUE COURSE ON THE BASIS OF DOCUMENTS WHICH WILL BE FILED IN COURT.
(Transcribed from the Judicial Review Application without amendment).
The Judicial Review Application has a lengthy procedural history which it is unnecessary to set out in detail, save to note that:
a)on each of 22 July 2014 and 31 July 2014 the applicant filed an affidavit, each affidavit being identical (“Applicant’s July 2014 Affidavit”);
b)at hearing on 11 August 2014 the applicant handed up submissions annexed to which were two documents, a letter addressed to the Court, and a further copy of the Applicant’s July 2014 Affidavit, and an extract from a document concerning the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”) (“Applicant’s August 2014 Submissions”); and
c)at a further hearing on 17 July 2015 the applicant handed up a letter addressed to the Court in which further written submissions were made (“Applicant’s July 2015 Submissions”).
Relevant material from the Applicant’s July 2014 Affidavit, including the submissions made in that affidavit, and the Applicant’s August 2014 Submissions is set out below in relation to the relevant grounds of the Judicial Review Application. The Applicant’s July 2015 Submissions are considered separately.
Consideration
Ground 1
This ground originally alleged “judicial error”, but the context of the materials subsequently filed by the applicant indicates that it was obviously intended to allege “jurisdictional error” in the Tribunal Decision.
In the Applicant’s July 2014 Affidavit the applicant says that:
…
II.The Second Respondent failed to exercise his proper jurisdiction by not examining the implications of my of the death of my brother and the presence of my family at … [Fishing Place] in the Eastern Province of Sri Lanka as seen in paragraph 19, 20, 21, 22, 23 and 24 of the RRT Report.
III.The Second Respondent did not examine the real situation of the Tamils in Sri Lanka and the plight of asylum seekers returning to Sri Lanka. Reliance was only placed on the reports submitted by the Department of Foreign Affairs and Trade of the government of Australia. No attention was paid to independent reports of the situation in Sri Lanka by human rights organizations like Amnesty International and Human Rights Watch. Reference is made in this regard to paragraph 25 of the RRT Report in this regard.
IV.The Second Respondent failed to examine the contents and the implications of Sri Lanka’s Prevention of Terrorism Act. This Act was mainly enacted to oppress the Sri Lankan Tamil revolt and if I am forcibly returned to Sri Lanka the provisions of this Act will be applicable to me.
…
(Transcribed from the 31 July 2014 Affidavit without amendment).
In the Applicant’s August 2014 Submissions the applicant, relevant to the issue of jurisdictional error, submitted that:
IV.The Second Respondent did not access the real situation of the ongoing human right abuses in Sri Lanka. Document marked B issued by Amnesty International on the 26th of June 2014 [“2014 Amnesty International Statement”] indicates the situation in Sri Lanka at present and at the time the Second Respondent heard my case …
V.The Second Respondent relied mainly on the report of the Department of Foreign Affairs and Trade in assessing the situation of human right abuses in Sri Lanka.
VI.I submit that Sri Lanka is a terror state and that I will be subject to the provisions of both the Immigration and Emigration Act and the Prevention of Terrorism Act if I am forcibly returned to Sri Lanka.
Essentially, what is put by the applicant is that the Tribunal failed to exercise jurisdiction because it failed to have regard to relevant material or failed to consider claims made by the applicant.
The Tribunal Decision is only judicially reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [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.
The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J. Findings of fact made, including any assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s ability to be satisfied or otherwise of the applicant’s claims, are matters for the Tribunal to determine on the evidence before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where the failure by the Tribunal to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov at [24]-[25] per Gummow and Callinan JJ.
In Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610; (2015) 320 ALR 467; (2015) 89 ALJR 639; (2015) 146 ALD 480 (“WZAPN – High Court”) the High Court of Australia found that the application of s.91R(2)(a) of the Migration Act, referring to a threat to a person’s life or liberty as an instance of serious harm for the purposes of s.91R(1)(b) of the Migration Act, required an evaluation of the likely circumstances of the loss of liberty feared by a claimant for refugee status, and that both the Refugees Convention and s.91R of the Migration Act embody an approach that is concerned with the effects of actions upon persons in terms of harm to them, but that such an approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence: WZAPN – High Court at [52] and [70]-[71] per French CJ, Kiefel, Bell and Keane JJ, and Gageler J agreeing at [100]. The High Court expressed its agreement with the approach of the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577 wherein the Full Court said that s.91R(2)(a) of the Migration Act was not to be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s.91R(1)(b) of the Migration Act and Article 1A(2) of the Refugees Convention: WZAPN – High Court at [4]-[5] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100], referring to SZTEQ at [59] and [154] per Robertson, Griffiths and Mortimer JJ. The High Court said in WZAPN – High Court that the language of each of the conditions in s.91R(1) and (2)(a) of the Migration Act calls for a qualitative judgment in order to determine whether it is satisfied in any case, which involves an evaluation of the nature and gravity of the alleged serious harm: WZAPN – High Court at [35], [41] and [45] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100].
Paragraphs 19-24 of the Tribunal Decision
The applicant asserts a failure to properly exercise jurisdiction by the Tribunal by reason of a failure to examine the implications of the death of the applicant’s brother and the presence of his family at the Fishing Place in the Eastern Province of Sri Lanka as seen at CB 230 at [19]-[24].
At CB 230 at [19] the Tribunal sets out the applicant’s claimed birthplace. The Tribunal examined the documentary evidence and accepted that claim: CB 244 at [82]. No jurisdictional error, or error of any kind, arises on the basis of this claim which was accepted by the Tribunal.
At CB 230 at [20] the Tribunal sets out the applicant’s claim that in March 2009 his older brother and father travelled to the Fishing Place in the Eastern Province of Sri Lanka for the fishing season, and that at that time there was conflict between the SLA and the LTTE. The applicant gave evidence in support of this claim at the Tribunal hearing. The Tribunal examined this claim and accepted that it was plausible that the applicant’s brother died in the bombing attack as described by the applicant: CB 244 at [82]-[83] and CB 245 at [89].
At CB 230 at [21] the Tribunal sets out the applicant’s claim that at the end of a day’s fishing an airstrike was being conducted at the Fishing Place and that the applicant’s father was able to get to a bomb shelter and survived, but the applicant’s brother could not get to the bomb shelter and was killed. The Tribunal considered the evidence concerning the bombing attack in which the applicant alleges his father and brother were caught up, and clearly accepted that it occurred, and that the applicant’s brother had been killed: CB 244 at [82]-[82] and CB 245 at [89]. The Tribunal went on to expressly refer to the death of the applicant’s brother and the existence of the applicant’s brother’s death certificate in the context of enquiries that the applicant says were subsequently made by the CID as to his brother’s whereabouts: CB 244 at [83].
At CB 230 at [22] the Tribunal sets out the applicant’s claim that in approximately April 2009 after his brother’s death three CID officers visited his home and spoke to his father, accusing the dead brother of LTTE involvement, and that in approximately the middle of 2010 the CID visited the applicant’s family home again to question the applicant’s parents as to his brother’s whereabouts. At CB 230 at [23] the Tribunal sets out the applicant’s claim that in December 2011 the CID again visited his family home and questioned the applicant, beat him and his father, and threatened to kill them if they did not reveal the applicant’s brother’s whereabouts.
The claims set out at CB 230 at [22] and [23] were considered by the Tribunal at CB 244 at [83] where the Tribunal said as follows:
The Tribunal accepts that sometime after the death of … [brother’s name deleted], there may have been inquiries made by the … [CID] who visited the applicant’s home and spoke to his father about whether … [brother’s name deleted] had been involved with the LTTE. The Tribunal does not accept that the CID would have continued to follow up with subsequent inquiries as to … [brother’s name deleted] whereabouts especially in light of the existence of a death certificate for … [brother’s name deleted]. Based on the unreliability of the applicant’s evidence, it does not accept his claim that the CID did not see … [brother’s name deleted] death certificate because they were torturing his mother. The Tribunal rejects the applicant’s claim that the CID again returned to visit and question the applicant’s parents in mid-2010, or in December 2011 where he claims the CID beat him and his father and claimed if they did not tell them where … [brother’s name deleted] was they would kill them. Based on the applicant’s lack of credibility as a witness, the Tribunal finds the applicant created this story for the purposes of his protection application. The Tribunal also considers the applicant’s claim that he did not seek medical treatment after the purported beating also weakens his claim that he was beaten.
The Tribunal’s consideration at CB 244 at [83] demonstrates that it considered the claims made by the applicant at CB 230 at [20]-[23] concerning his brother’s death (which it accepted had occurred), and the inquiries, investigations and beatings by the CID alleged by the applicant to have occurred following his brother’s death in 2009 and through to December 2011. In this context it is also relevant to note that the Tribunal, having considered the profile of persons who might be suspected of LTTE involvement: CB 245 at [88] and [89], found that there was no evidence that either the applicant or his brother were members of the LTTE, and that the only evidence before the Tribunal was that his brother was killed at the Fishing Place and that the Sri Lankan authorities continued to inquire as to whether the applicant’s brother was a member of the LTTE: CB 245 at [89]. In this regard, having regard to its findings as to the unreliability of the applicant as a witness, the Tribunal was not satisfied that the applicant’s brother was a member of the LTTE or that he continued to be perceived to be a member of the LTTE, and was satisfied that the applicant was not of any interest to the Sri Lankan authorities by reason of any purported close links with persons suspected of certain links with the LTTE, and found that the applicant did not face a real chance of serious harm for reason of an imputed political (pro-LTTE or anti-government) opinion: CB 245 at [89].
At CB 230 at [24] the Tribunal sets out the applicant’s claim that his father took him into hiding for two to three months and that during this time the CID again visited his home and asked about the applicant’s whereabouts, and that the applicant subsequently fled Sri Lanka and arrived at Christmas Island as an undocumented irregular maritime arrival on 17 May 2012.
The Tribunal considered the claims made at CB 230 at [24] and did not accept that the applicant was targeted for questioning or harm by the CID as he claimed, nor did it accept that he felt a need to go into hiding for two to three months as claimed prior to departing Sri Lanka: CB 244 at [84], and went on to find that the CID had not threatened him with a gun or said that he was a member of the LTTE, observing that if he had indeed been suspected to be an LTTE supporter it is more likely that he would have been arrested and taken away by the CID at the time: CB 244 at [85].
On the basis of the matters set out above it cannot be said that the Tribunal did not examine the implications of the death of the applicant’s brother, or the presence of members of the family at the Fishing Place. The Tribunal, rather, set out the claims made by the applicant at CB 230 at [19]-[24], and considered those claims both in and of themselves, and in the context of the applicant’s claim that the Sri Lankan authorities considered him to be an LTTE member or sympathiser: CB 244-245 at [82]-[89].
On the above bases, the applicant’s claims with respect to the matters referred to at CB 230 at [19]-[24] of the Tribunal Decision have not been made out.
Paragraph 25 of the Tribunal Decision
At CB 230-231 at [25] the Tribunal summarises the applicant’s claims of harm, which he fears at the hands of the Sri Lankan authorities, including the CID, by reason of his Tamil ethnicity, imputed political opinion (on the basis that his brother is suspected of being an LTTE member and that the applicant will therefore be imputed with an anti-government opinion), and because of his membership of a particular social group comprising failed Tamil asylum seekers. The applicant asserted, by reference to the Tribunal Decision at CB 230-231 at [25] that the Tribunal did not examine the real situation with Tamils in Sri Lanka and the plight of asylum seekers returning to Sri Lanka, and relied only upon DFAT reports and paid no attention to independent reports of organisations such as Amnesty International and Human Rights Watch.
The Tribunal referred to country information, specifically the UN High Commissioner for Refugees 2012 UNHCR Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (“2012 UNHCR Guidelines”), which indicate that Sri Lankan authorities do engage in activities which would amount to persecution within the meaning of the Migration Act and the Refugees Convention, but, relevantly, only in respect of those persons with profiles of a particular kind, including those suspected of being connected to the LTTE: CB 233-234 at [46]. The Tribunal did not accept that the applicant had a profile whereby he would be suspected of being involved with the LTTE, and relied upon the applicant’s own evidence that he had no LTTE involvement, and did not accept that his brother was a member of the LTTE or is now perceived to have been an LTTE member, and further did not accept that the applicant faced persecution by reason of his Tamil ethnicity giving rise to a suspicion of involvement with the LTTE: CB 245-246 at [87]-[90] (and see [4(f) and (g)] above).
The assertion that the Tribunal relied only upon DFAT reports when examining the situation of Tamils and returning asylum seekers in Sri Lanka cannot be made out. The Tribunal considered independent country information at length in the Tribunal Decision: see CB 233-242 at [46]-[73], and the sources of information relied upon included the following:
a)in relation to the treatment of Sri Lankan Tamils generally:
i)the 2012 UNHCR Guidelines: CB 233-234 at [46];
ii)IPAO Country Advice of 2012: CB 234 at [47];
iii)the US Department of State “Country Reports on Human Rights Practices 2011 - Sri Lanka” (“US State Department 2011 Report”): CB 235 at [48]; and
iv)a 2010 report by the International Crisis Group (“ICG”) entitled “The Sri Lankan Tamil Diaspora After the LTTE” (“ICG Tamil Diaspora Report”): CB 235 at [49];
b)in relation to the treatment of LTTE members and supporters:
i)a 2012 press report from the Hindu Business Line concerning separatist supporters in Sri Lanka; CB 235 at [50];
ii)a UNHCR Refworld 2012 article on Sri Lanka’s ethnic problem in “Integrated Regional Information Networks” published on the UNHCR Refworld website: CB 235 at [50]; and
iii)the ICG Tamil Diaspora Report: CB 235 at [51]; and
c)in relation to the treatment of returned failed asylum seekers to Sri Lanka:
i)a 2011 Immigration and Refugee Board of Canada (“IRB Canada”) report on the treatment of Tamil returnees to Sri Lanka including failed refugee applicants (“IRB Canada 2011 Report”): CB 236 at [52]-[54];
ii)reports from agencies providing a contradictory view to that of the IRB Canada from groups such as Tamils Against Genocide, Amnesty International, Human Rights Watch and Freedom from Torture: CB 236-237 at [55]-[58] (thereby referring to reports from the very organisations which the applicant said no attention was paid to);
iii)the UK Home Office 2012, Country Policy Bulletin - Sri Lanka (“UK Home 2012 Report”): CB 238 at [59]-[60];
iv)a 2012 DFAT Report (No 1446) on Sri Lanka: CB 238-239 at [61]-[62] (“DFAT Report 1446/2012”);
v)a press report in the Chinese press from Xinhua in July 2012; and
vi)an article in The Age newspaper in Australia in December 2012: CB 239 at [64].
A similar range of country information including the DFAT Report 1446/2012, the UK Home Office 2012 Report, press reports from the United Kingdom, and a 2013 DFAT Report were considered by the Tribunal in relation to the consequences of illegal departure from Sri Lanka by returning asylum seekers: CB 239-242 at [65]-[73].
In assessing the applicant’s claims the Tribunal had regard to the full gamut of the independent country information which it cited. In dealing with imputed political opinion of the applicant the Tribunal expressly referred to the 2012 UNHCR Guidelines, and based on the country information which it had set out, accepted what was said in the 2012 UNHCR Guidelines concerning the profiles of Sri Lankans, and in particular those with links to the LTTE, whom the Sri Lankan authorities might target: CB 245 at [87]-[89]. In that regard, the Court also notes that the Tribunal specifically referred to the applicant’s representative’s submissions concerning the country information suggesting that there need not be actual involvement with the LTTE, but a mere perception of involvement was sufficient for a person to be targeted: CB 244-248 at [86], but that the Tribunal preferred the information in the 2012 UNHCR Guidelines in this respect: CB 245 at [89]. In determining whether the applicant might suffer persecution by reason of his Tamil ethnicity the Tribunal had regard to the IPAO Country Advice 2012 and the US State Department 2011 Report specifically, but also to “all the country information” in concluding that the applicant did not face persecution as opposed to discrimination were he to return to Sri Lanka: CB 246 at [90]. In relation to the applicant’s claim of harm for reasons of being a failed asylum seeker the Tribunal, having referred to that claim, immediately thereafter referred to the country information that it had cited in this matter (as to which see [29] above), and went on to accept country information from DFAT as to the applicant being held in detention pending formal charging with an offence and then being bailed, before going on to find that having “regard to all the country information” the Tribunal was not satisfied that the applicant faced a real chance of serious harm for reasons of being a returned failed asylum seeker or for reasons of illegal departure from Sri Lanka: CB 246 at [91].
In the above circumstances it is not the case that the Tribunal placed reliance only on reports submitted by DFAT. Nor is it the case that no attention was paid to reports from Amnesty International and Human Rights Watch, those reports being referred to, as were the DFAT reports and numerous other independent country information reports, in the Tribunal’s setting out of the independent country information, to which it subsequently said it had regard: CB 246 at [90]-[91]. The country information relied upon by the Tribunal and considered in the context of the circumstances of this case justified the conclusion that the applicant did not have, or ought not to be perceived to have, any LTTE links on his return to Sri Lanka.
The assertion that the Tribunal did not have regard to the “real situation” in Sri Lanka is adequately dealt with above in relation to the particular claims made by the applicant, and the Tribunal’s consideration of the independent country information: see [16]-[33] above.
The applicant asserts that the Court ought to find jurisdictional error on the basis that the Tribunal did not have regard to the 2014 Amnesty International Statement.
The 2014 Amnesty International Statement, published on 26 June 2014:
a)indicates that the UN High Commissioner for Human Rights had announced that three experts would assist a UN team investigating war crimes and other crimes under international law committed in Sri Lanka;
b)referred to the UN Secretary General’s panel of experts on accountability in Sri Lanka investigation which, up to March 2011, found credible allegations of war crimes and crimes against humanity in Sri Lanka; and
c)asserts that there is credible testimony to war crimes and other crimes under international law being committed by both the SLA and the LTTE during the period under investigation (which period is not expressly stated).
The reliance on the 2014 Amnesty International Statement does not assist the applicant. The Amnesty International Statement post-dates, by exactly eight months, the Tribunal Decision, and was therefore not before the Tribunal for consideration. Furthermore, it is, as one might expect of an announcement of its type, very general in its content, and in any event, does not purport to be indicative of the current position in Sri Lanka, which is otherwise set out in the comprehensive reports and other country information relied upon by the Tribunal to arrive at the conclusion that the applicant was not at risk of persecution or serious or significant harm if he were to return to Sri Lanka.
On an application for judicial review of a decision of the Tribunal it is not open for this Court to have regard to material which was not capable of being put before the Tribunal because it post-dated the Tribunal Decision. To do so would be to embark upon fact-finding, and not judicial review, in respect of material, which because of its post-Tribunal Decision origins, cannot give rise to jurisdictional error in the Tribunal Decision. The choice of country information and the factual findings arising from it, where those factual findings are, as here, open on the available material, are matters for the Tribunal as the finder of fact: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (“NAHI”). The Tribunal cannot commit jurisdictional error by failing to have regard to relevant material which was not in existence at the time of the Tribunal Decision, and the Court cannot have regard to such material: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J (“WZATI”).
The applicant also asserts that the Tribunal failed to have regard to the implications of the I & E Act and the POT Act, and that the applicant will be subject to the provisions of both of those Acts upon return to Sri Lanka.
The Tribunal expressly referred to provisions of the I & E Act in relation to the applicant’s possible return to Sri Lanka as a failed asylum seeker, and referred to relevant provisions of the I & E Act: CB 240 at [65]-[66] and [68]-[69]. The Tribunal also had regard to country information in relation to the application, or enforcement, of the I & E Act provisions in relation to returning Sri Lankan citizens who had breached Sri Lanka’s departure laws, specifically to a 2012 DFAT report and an article in the Sri Lankan Sunday Observer newspaper: CB 240 at [65]-[67] and [69]. The Tribunal Decision makes plain that the Tribunal considered what would happen to the applicant upon his return to Sri Lanka, including his treatment by immigration and security officials, and having regard to country information, the Tribunal concluded that the applicant will be subject to the usual detention on remand, charging and then bail, and that there was not credible and reliable evidence to conclude that the applicant’s absence from Sri Lanka would give rise to a real chance that he would be treated differently to others, and that the Tribunal was satisfied that the applicant did not face a real chance of serious harm by reason of being returned as a failed asylum seeker or by reason of his illegal departure from Sri Lanka: CB 246 at [91]. In making that determination the Tribunal had regard to the country information that it had cited, which must include its consideration of the country information on the I & E Act: CB 240 at [65]-[67] and [69], and specifically referred to the fact that it appeared that the applicant may have departed Sri Lanka in contravention of the I & E Act, and was therefore liable to be charged for such a contravention: CB 246 at [91]. The Tribunal therefore had regard to the provisions of the I & E Act in arriving at its determination with respect to the applicant’s claim of harm for reasons of being a failed asylum seeker returning to Sri Lanka. There is, in the circumstances, no jurisdictional error apparent in the Tribunal’s consideration of the provisions of the I & E Act, and the Tribunal certainly did not fail to have regard to the provisions of the I & E Act.
The applicant also asserts that the Tribunal failed to examine the contents and implications of the POT Act, and that he would be subject to the provisions of the POT Act upon return to Sri Lanka. On the basis of the Tribunal’s finding that the applicant did not have actual or perceived links with the LTTE, and was not a person of any interest to the Sri Lankan government: CB 245 at [89], and that the applicant would be subject to no more than the usual detention on remand, charge and bail upon his return to Sri Lanka: CB 246 at [91], it was unnecessary for the Tribunal to have regard to the POT Act because the clear inference from the facts found is that, on return to Sri Lanka the applicant would not, and would not be considered to be, a terrorist under the POT Act, or a person of any interest to the Sri Lankan authorities on account of any real or perceived links with the LTTE. In the circumstances, the findings made by the Tribunal were open to it, and the applicant’s submissions in relation to the POT Act do not demonstrate jurisdictional error because the Tribunal did not need to have regard to the POT Act: see WZATI at [36], [45], [65] and [67]-[68] per Barker J.
Insofar as ground 1 asserts jurisdictional error by the Tribunal, no jurisdictional error is apparent in the Tribunal Decision. The evaluation of the evidence before the Tribunal, including the country information, was a matter for the Tribunal: NAHI at [11] per Gray, Tamberlin and Lander JJ. The findings of fact made, including the assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s inability to be satisfied of the applicant’s claims, were findings which were open to the Tribunal on the evidence before it, for the reasons set out in the Tribunal Decision: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Those findings demonstrate the necessary qualitative judgment for the purposes of evaluating the nature and gravity of the alleged serious harm under s.91R(1) and (2) of the Migration Act: WZAPN – High Court cited at [15] above. Those findings reveal no jurisdictional error. Ground 1 is not made out.
Ground 2
As this was a case to which s.422B of the Migration Act applied, the Tribunal was not required to afford the applicant “normal” procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the Tribunal complied with the statutory obligation under s.425 of the Migration Act by validly inviting the applicant to the Tribunal Hearing: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, which invitation was accepted by the applicant: CB 173-174. The applicant attended the Tribunal Hearing and gave evidence in support of his claims, assisted by an interpreter and with his migration agent in attendance: CB 228 at [3]-[4]. The Tribunal Decision shows that the Tribunal put to the applicant matters in respect of which the Tribunal might make an adverse finding, or which were in some way in contention or dispute, including, for example:
a)as to why the CID might think that the applicant was an LTTE member: CB 232 at [31];
b)as to whether the CID had seen the applicant’s brother’s death certificate: CB 232 at [32];
c)the Tribunal’s difficulty in understanding why the CID would be interested in the applicant when it was his brother who had had contact with the north of Sri Lanka during the civil war: CB 232 at [33];
d)what the applicant’s fears were in relation to returning to Sri Lanka, and the Tribunal’s doubts about the applicant’s credibility in regard to those reasons: CB 232 at [34];
e)questions concerning increases in fuel price rises and greater competition making it more difficult to make a living by fishing in Sri Lanka: CB 232 at [35];
f)whether or not the applicant had received medical treatment when he was allegedly beaten: CB 232 at [37]; and
g)in putting to the applicant country information suggesting that former LTTE members had been released in Sri Lanka now that the situation in that country has improved: CB 233 at [38], and by reference to the UNHCR country information, that the applicant had no connection to the north of Sri Lanka and would not be targeted by reason of any such connection: CB 233 at [39].
In the above circumstances, no breach of procedural fairness (or natural justice) has been made out by the applicant, and ground 2 does not establish any jurisdictional error in the Tribunal Decision.
Ground 3
In the Applicant’s August 2014 Submissions the applicant asserts that:
II.The Second Respondent was prejudiced by the policy statements issued by the First Respondent against asylum seekers who arrived by boat in Australia, and by the reports by the Department of Foreign Affairs and Trade.
III.The document marked A clearly indicates that the first respondent was prejudiced in his attitude to Sri Lankan Tamil asylum seekers and by his policy statements influenced the decisions of the Second Respondent.
The “document marked A” contains the following text typed on an otherwise blank page:
Scott Morrison attacks critics of Sri Lanka
Dennis Shanahan
Political Editor
Canberra
Jared OwensReporter
Canberra
SCOTT Morrison has lashed out at “increasingly shrill” critics of Sri Lanka, accusing asylum-seeker advocates of using boatpeople to pursue a political agenda of internationally isolating the once war-torn nation.
On his return from Sri Lanka yesterday, the Immigration Minister said that isolating Sri Lanka would only harm economic growth and increase the prospect of more people-smuggler boats coming to Australia.
It is well established that an allegation of bias is a serious matter which must be made distinctly 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 17 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision shows that the Tribunal properly raised various concerns about the applicant’s case with the applicant, and, as set out above in relation to procedural fairness: see [42] above, canvassed relevant issues in accordance with its obligations under the Migration Act. The opportunity afforded to the applicant to make submissions before the Tribunal hearing, and the Tribunal’s questioning of the applicant at the Tribunal hearing, demonstrate that the Tribunal gave the applicant the opportunity to persuade the Tribunal to the requisite degree of satisfaction in relation to his claims. In relation to these matters, the Tribunal Decision does not demonstrate pre-judgment on the part of the Tribunal, nor does it give rise to a reasonable apprehension of pre-judgment by the Tribunal.
The applicant alleges bias in relation to comments attributed to the former Minister for Immigration and Border Protection. Assuming that the statement allegedly made by the Minister was made by him, it does not assist the applicant. There is no evidence that the Tribunal was aware of the statement, or that it influenced the Tribunal in any way. The statement is undated and it is therefore unclear as to whether it was issued before or after the date of the Tribunal Decision. The mere assertion of bias by the applicant does not establish bias, and the onus is on the applicant to put before this Court cogent evidence capable of distinctly and clearly proving bias. The applicant has not done so in relation to the comments attributed to the Minister and any affect they may have had on the Tribunal. In those circumstances, the allegation of bias in relation to the Minister’s comments influencing the Tribunal is not made out.
The applicant’s assertion that the Tribunal was biased by reason of reference to reports prepared by DFAT is misconceived. The Tribunal is entitled to have regard to country information of its choosing, and to derive factual findings from that country information where, as here, the import of that country information has been put to the applicant for comment: NAHI at [11] per Gray, Tamberlin and Lander JJ. No bias of any kind therefore arises from the Tribunal’s consideration of any DFAT report. This is all the more apparent from the wide-ranging country information which was actually considered by the Tribunal: see [29]-[30] above, and from the fact that in its assessment of the applicant’s claims the Tribunal expressly referred to it having had regard to “all” of the country information: CB 246 at [90] and [91], and otherwise expressly referred to country information other than DFAT reports, including the 2012 UNHCR Guidelines, the IPAO Country Advice and the US State Department Report 2011: CB 245 at [88]-[89]; CB 246 at [90].
In all of the above circumstances, the applicant’s allegation of bias has not been made out. It follows that ground 3 does not establish jurisdictional error in the Tribunal Decision.
Applicant’s July 2015 Submissions
The Applicant’s July 2015 Submissions are comprised of a letter addressed to the Court which was tendered at hearing on 17 July 2015, and which relevantly makes the following submissions:
Under section 36(2)(b) of the Refugee Convention I sought the status of a refugee under Article 1 of the Convention, and that defined under 1A(2).
The facts of my case proves that as a Tamil in Sri Lanka and belonging to the social group by the fact that I was a fisherman and a suspicion that on the basis of my political opinion of seeking self-determination for Tamils living in Sri Lanka I have a well-founded fear that I will be persecuted if I return back to Sri Lanka, which is my country of birth.
Tamils living in my village travelled to the Northern Province of Sri Lanka for fishing, and therefore were suspected of having connections with the LTTE who fought for a separate state for Tamils in Sri Lanka.
If a person was not found to meet the refugee criterion his case can be examined on the basis that if he or she returns to the country where person fled he or she will fact significant harm, under the Complementary Protection Criterion.
I submit that my case should be examined under this criterion
As a Sri Lankan Tamil I will face significant harm as the Provisions of the Prevention of Terrorism Act of 1979 and the Immigration and Emigration Act no 20 of 1948 and its amendments will be applied as I am a failed asylum seeker who is now forced to return to Sri Lanka.
I have therefore a well-founded fear of returning to Sri Lanka.
The Applicant’s July 2015 Submissions do not establish jurisdictional error in the Tribunal Decision because:
a)they seek to re-argue the merits of matters considered by the Tribunal contrary to the principles flowing from Wu Shan Liang;
b)for reasons set out above:
i)the provisions of the I & E Act were considered by the Tribunal: see [39] above; and
ii)it was unnecessary for the Tribunal to consider the provisions of the POT Act in the circumstances of this case: see [40] above; and
c)the Tribunal did consider the applicant’s claim under the complementary protection provisions of the Migration Act: CB 247-248 at [97]-[98] and [100]-[101], and did so being aware of the relevant law with respect to the complementary protection criteria which it set out at CB 229-230 at [16]-[18].
In the above circumstances, the Applicant’s July 2015 Submissions do not establish any jurisdictional error in the Tribunal Decision.
Conclusion and orders
The Court has concluded that none of the applicant’s grounds of the Judicial Review Application or submissions have made out a case showing that the Tribunal Decision involves jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 29 March 2017
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