WZATA v Minister for Immigration & Anor
[2016] FCCA 305
•17 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATA v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 305 |
| Catchwords: PRACTICE AND PROCEDURE – Application for extension of time in which to file application – consideration of factors on an extension of time application. |
| Legislation: Constitution (Cth), s.75(v) Federal Circuit Court Rules 2001 (Cth), rr.1.06(1), 44.05(2)(c) Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), Division 4, Part 7, ss.46A(2), 91R, 422B, 425, 474, 476, 477 Migration Regulations 1994 (Cth) |
| BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 Chen v Minister for Immigration & Anor [2014] FCCA 271 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 Shatku [2001] FCA 1857 Minister for Immigration & Multicultural Affairsv Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 |
| Applicant: | WZATA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 186 of 2013 |
| Judgment of: | Judge Lucev |
| Hearing date: | 26 May and 12 August 2014, 17 July 2015 and 5 February 2016 |
| Date of Last Submission: | 5 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 17 February 2016 |
REPRESENTATION
| For the Applicant: | In person (with an interpreter) |
| Counsel for the First Respondent: | Mr P Corbould (on 26 May 2014) Mr A Gerrard (on 12 August 2014, 17 July 2015 and 5 February 2016) |
| 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”.
That the applicant’s application under s.477(2) of the Migration Act 1958 (Cth) (“Migration Act”) for an extension of time in which to lodge an application under s.476 of the Migration Act be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 186 of 2013
| WZATA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks to apply for 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 Decision” and “Tribunal” respectively). The Tribunal Decision is at Court Book (“CB”) 244-257. The Tribunal affirmed a decision of a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively) of the then 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 applicant filed with the Judicial Review Application an affidavit made on 21 July 2013 (“Applicant’s July 2013 Affidavit”) which did no more than annex the Tribunal Decision.
The matter has been the subject of various delays. It was twice been adjourned with the consent of the parties pending High Court judgments and proposed legislative amendments in the Commonwealth Parliament. It was adjourned after hearing the parties in relation to the outcome of proceedings in the High Court in Minister for Immigration& Border Protection v WZAPN [2015] HCA 22; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480 (“WZAPN-High Court”) in which an appeal was allowed from the Federal Court judgment in WZAPN v Minister for Immigration & Anor [2014] FCA 947; (2014) 229 FCR 477 (“WZAPN-Federal Court”), and re-listed earlier this month to enable the parties to address an application by the applicant made under s.477(2) of the Migration Act for an extension of time in which to file the application (“Extension of Time Application”) which the parties had not previously addressed.
The Extension of Time Application
The Extension of Time Application made and grounds
The Judicial Review Application was not made within the time required by s.477(1) of the Migration Act. The applicant therefore made the Extension of Time Application.
The grounds set out in the Extension of Time Application are as follows:
1. I do not understand English
2. I don’t know court procedure
3. I don’t have service of a lawyer
Statutory framework
Section 477(1) of the Migration Act provides that an application to this Court for a remedy to be granted in the exercise of the Court’s original jurisdiction under s.476 of the Migration Act in relation to a migration decision must be made to the Court within 35 days of the date of the Tribunal Decision. The Judicial Review Application was lodged on 24 July 2013. The Tribunal Decision was made on 28 March 2013. The Judicial Review Application was therefore required to be lodged by 2 May 2013, but was lodged 72 days outside of the allowable time. Accordingly the Judicial Review Application is incompetent by virtue of s.477(1) unless the Court grants an extension of time pursuant to s.477(2) of the Migration Act.
Section 477(2) of the Migration Act provides that the Court may order that the 35 day period be extended as the Court considers appropriate if an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order, and the Court is satisfied that it is necessary in the interests of the administration of justice to do so.
Rule 44.05 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) provides that:
(1) An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the approved form.
(2) An application must be supported by an affidavit including:
(a) a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b) any document or other evidence the applicant seeks to rely on; and
(c) if an extension of time is sought – the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Factors for consideration in extending time
Factors for consideration regarding the granting of an extension of time under s.477(2) of the Migration Act are well-established, but not exhaustive, in this Court, and are as follows:
a)the extent of the delay;
b)the reasons for the delay;
c)any prejudice to the respondent;
d)the impact on the applicant if time is not extended;
e)the interests of the public at large;
f)any exercise of the Court’s discretion; and
g)the merits of the proposed judicial review application.
SZRUG v Minister for Immigration & Anor [2013] FCCA 142 at [8] per Judge Nicholls (and cases there cited); WZASC v Minister for Immigration & Anor [2013] FCCA 1452 at [7] per Judge Lucev; MZZRO v Minister for Immigration & Anor [2014] FCCA 882 at [6] per Judge Jones (“MZZRO”); SZUAM v Minister for Immigration & Anor [2014] FCCA 2218 at [21] per Judge Lloyd-Jones; BZAER v Minister for Immigration & Anor [2014] FCCA 813 at [4] per Judge Jarrett; Chen v Minister for Immigration & Anor [2014] FCCA 271 at [9] per Judge Barnes.
Delay – extent and reasons
In this case the delay is quite significant. The application is 72 days out of time. The delay is more than twice the length of the limitation period. In those circumstances, good reasons for the delay, or powerful considerations arising from the other factors for consideration in extending time, would generally need to be present before the Extension of Time Application would be granted. The Applicant’s July 2013 Affidavit does not explain the delay in filing the Judicial Review Application. No explanation is tendered in any of the applicant’s other materials or submissions, including submissions at the 5 February 2016 hearing specifically convened to deal with the applicant’s Extension of Time Application. There was no affidavit filed in support of the Extension of Time Application. It is a mandatory requirement pursuant to r.44.05(2)(c) of the FCC Rules that an affidavit explaining the delay be filed in support of an application for an extension of time in which to file an application under s.476 of the Migration Act, although compliance can be waived under r.1.06(1) of the FCC Rules: Sandan v Minister for Immigration & Anor [2015] FCCA 1166; (2015) 296 FLR 48 at [24] per Judge Lucev (“Sandan”). In this matter there is, however, no explanation whatsoever for the delay, adequate or otherwise. As was observed in SZMWH v Minister for Immigration & Citizenship [2009] FCA 879 (“SZMWH”) the failure to provide an adequate explanation for the delay may, of itself, provide sufficient reason for the Court not to make an order extending time: SZMWH at [7] per Stone J.
Insofar as it might be said that the grounds set out in the Extension of Time Application constitute an explanation (albeit not on affidavit as required by r.44.05(2)(c) of the FCC Rules), the “reasons” there set out do not adequately explain the delay either.
Insofar as the applicant complains that he does not understand English, that is not uncommon, and indeed probably more common than not, in applications to this Court for judicial review of decisions of the Tribunal concerning protection visa applications. In relation to the applicant’s English language skills there is no evidence that the applicant is in any different a position to other applicants around Australia for judicial review of Tribunal decisions under the Migration Act, the vast majority of whom file their judicial review applications under s.476 of the Migration Act with this Court within time.
Ignorance of time limits, without any further justification, is not generally regarded as a satisfactory explanation for delay: SZSDA v Minister for Immigration & Citizenship [2012] FCA 1319; (2012) 135 ALD 17 at [38] per Foster J (“SZSDA”). As the Federal Court observed in SZSDA:
In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay…
SZSDA at [38] per Foster J, followed in MZZRO at [34] per Judge Jones and MZZQO & Anor v Minister for Immigration & Anor [2014] FCCA 2646 at [15] per Judge F Turner.
Insofar as the applicant complains that he did not have the services of a lawyer to assist him, that also does not assist the applicant in terms of an explanation of the delay, particularly a delay of this length. There is no right to legal representation in migration proceedings in this Court, nor any right to free legal advice: SZHTI v 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; MZZZL v Minister for Immigration & Anor [2014] FCCA 1309 at [11] per Judge Lucev. It follows that a lack of legal representation cannot of itself, be a reasonable explanation for a delay in filing judicial review proceedings in this court.
The Court does not consider that there has been any satisfactory explanation for the delay, or any reason as to why it would be in the interests of the administration of justice to grant an extension of time.
Prejudice to the Minister
In terms of prejudice to the Minister it is plain that there would be some prejudice caused by reason of the Minister having to argue an application, and incur costs in respect thereof, when there might have been an expectation that the matter was at an end. Further, in the circumstances of this case, where, for reasons set out below, no jurisdictional error is established, that prejudice is compounded. The degree of prejudice must, however, remain minimal in the context of proceedings where it is necessary to give consideration to the merit of the Judicial Review Application as one of the factors in determining whether to extend time. Further, the mere absence of prejudice is not enough to justify the grant of an extension of time: SZMNO v Minister for Immigration & Citizenship [2009] FCA 797 at [31] per Barker J; BZAFV v Minister for Immigration & Anor [2014] FCCA 2808 at [4]-[5] per Judge Jarrett.
Impact on the applicant
The failure of the applicant to provide any affidavit evidence to this Court in support of the Extension of Time Application makes it difficult to assess any alleged impact on him. Further, and in any event, the impact on the applicant of a failure to extend time for making the Judicial Review Application will be negligible, as, for reasons set out below, the proposed Judicial Review Application has no reasonable prospect of success because no jurisdictional error is established.
Public interest
As to the interests of the public at large, this matter is determinable on existing well understood and explained provisions in the Migration Act and under the Migration Regulations 1994 (Cth), and on established applicable legal principles, and is peculiar to its own facts. Nothing in the matter excites the interest of the public at large. For similar reasons, there is nothing otherwise in the circumstances of the matter which would warrant the exceptional exercise of the Court’s discretion to otherwise extend time for the making of the Judicial Review Application.
Merits of the Judicial Review Application
Background
Turning to the merits of the proposed Judicial Review Application, the background to the applicant’s Protection Visa application up to the time of the Tribunal Decision is as follows:
a)the applicant is an ethnic Tamil Sri Lanka citizen, born in Udappu, Chillaw District on 25 December 1982: CB 3, 5 and 15;
b)the applicant left Sri Lanka from Trincomalee and arrived in Australia as an irregular maritime arrival on 11 April 2012 on a boat codenamed “Rubin”: CB 110 and 136;
c)on 19 April 2012 an entry interview (“Entry Interview”) with the applicant was conducted by an officer of the then Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (“Department”): CB 1-26;
d)the Minister exercised his powers under s.46A(2) of the Migration Act, and on 28 June 2012 the applicant lodged a valid application for the Protection Visa: CB 32, 36-103;
e)on 16 August 2012 the Delegate refused the application for a Protection Visa, and the Department notified the applicant of that refusal on 21 August 2012: CB 105-125;
f)on 5 September 2012 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 129-135;
g)on 29 November 2012 the applicant attended a hearing before the Tribunal (“Tribunal Hearing”) and was represented by a solicitor and registered migration agent: CB 201-202 and 207, who had provided lengthy submissions to the Tribunal dated 27 November 2012 in support of the Protection Visa application: CB 171-198; and
h)the Tribunal Decision on 28 March 2012 affirmed the Delegate’s Decision to refuse to grant the applicant the Protection Visa, and, on the same day, advised both the applicant and the applicant’s lawyers of the Tribunal Decision by facsimile and letter: CB 239-241 and 244.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)found the applicant’s claims were not consistent and the Tribunal had serious concerns relating to the veracity of those claims and the applicant’s credibility. In particular, the applicant’s claims in his statutory declaration of where he was living from December 2009 until early 2012 were inconsistent with what he had said in his Entry Interview. The Tribunal took into consideration the explanations for these inconsistencies provided by the applicant and his migration agent, but did not accept those explanations as reasonable and found that the applicant had changed his story to enhance his Protection Visa application claims: CB 254 at [53];
b)noted that the applicant’s passport listed his profession as painter rather than fisherman. The Tribunal noted that the applicant could not provide a reasonable explanation for this. The Tribunal considered the country information in relation to Udappu, and was not reasonably satisfied that the applicant was ever a fisherman. The Tribunal found that the applicant had fabricated this claim to enhance his claims for a Protection Visa: CB 254 at [53];
c)did not accept the applicant’s recounting of his claims as true and found that he was not a credible witness. The Tribunal found that he had fabricated his claims of being of adverse interest to the Sri Lankan Navy and did not accept any of them as true: CB 255 at [54];
d)accepted that the authorities in Sri Lanka have dealt harshly with Tamils associated with the Liberation Tigers of Tamil Eelam (“LTTE”). However, the applicant had made no claims to have been associated with the LTTE and the Tribunal found there was nothing in his profile that would suggest that he had such an association. The Tribunal did not accept that he had ever been arrested or detained on any such suspicion: CB 256 at [59]; and
e)accepted that the applicant would be arrested and held on remand for a few days as a failed asylum seeker if he returned to Sri Lanka. However, the Tribunal found that being arrested, detained for a few days and fined for illegal departure was all part of the application of a law of general application, and that that treatment would not be for reasons based upon Convention (being the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967)) grounds. The Tribunal also found that this would not amount to serious harm: CB 256 at [61]-[62].
The Judicial Review Application proceedings thus far
On 24 July 2013 the applicant lodged the Judicial Review Application in this Court, together with the Applicant’s July 2013 Affidavit. The grounds of the Judicial Review Application are as follows:
1. Judicial error
2. The Tribunal did not follow the Law 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.
The Court has assumed that the reference to “Judicial error” in ground 1 above is a reference to jurisdictional error.
The applicant filed an affidavit on 23 July 2014 (“Applicant’s July 2014 Affidavit”) which was entirely comprised of submissions, which are set out in more detail and dealt with below in relation to the relevant ground or grounds of review. Annexed to the Applicant’s July 2014 Affidavit was an extract of the Prevention of Terrorism (Temporary Provisions) Act 1974 (Sri Lanka) (“POT Act”).
At a hearing on 12 August 2014 the applicant handed up submissions (“Applicant’s August 2014 Submissions”), annexed to which was a copy of the Applicant’s July 2014 Affidavit and various other materials, all of which were essentially submissions, and which are also dealt with below in relation to the relevant ground or grounds of review.
The Minister did not object to the lateness of either the Applicant’s July 2014 Affidavit or the Applicant’s August 2014 Submissions, but did object to them being admitted as evidence in the proceedings. Because both the Applicant’s July 2014 Affidavit and the Applicant’s August 2014 Affidavit are essentially submissions, and for reasons which will become apparent hereunder, it is unnecessary for the Court to consider the objection.
At a resumption of the hearing on 17 July 2015 the applicant handed up written submissions (“Applicant’s July 2015 Submissions”). Again, these submissions are dealt with below in relation to the relevant ground or grounds of review.
Oral submissions concerning the Extension of Time Application were made by the parties on 5 February 2016, neither party having made either written or oral submissions in relation to the Extension of Time Application previously, notwithstanding orders of a Registrar and the Court to do so. As indicated above, the applicant made no submissions relevant to the question of extension of time. The Minister submitted that:
a)the delay was not unduly lengthy but was of sufficient length to expect there to be a reasonable explanation, but that none had been provided; and
b)the merits were not of sufficient strength to satisfy the Court that an extension should be granted.
See Transcript, 5 February 2016, page 3.
Consideration
Ground 1
Applicant’s submissions
In the Applicant’s July 2014 Submissions the applicant says that:
…
II.The Second Respondent failed to exercise his proper jurisdiction by not examining the implications of my treatment and detention by the security forces in Sri Lanka as stated in paragraphs 25, 27, 28, 29, 30, 31, 34, 35, 38 and 44 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 Applicant’s 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 [“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.
In the Applicant’s July 2015 Submissions the applicant relevantly submitted that:
As a Sri Lanka 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 Court has taken the relevant Sri Lankan legislation referred to be the POT Act and the Immigrants and Emigrants Act 1949 (Sri Lanka) (“I & E Act”).
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.
Minister’s submissions
With respect to the applicant’s submission that the Tribunal failed to consider the implications of the applicant’s treatment and detention by security forces in Sri Lanka the Minister submitted that:
a)ground 1 was essentially a complaint against the merits of the Tribunal Decision;
b)the Tribunal specifically and carefully considered the applicant’s claims relating to his treatment by the Sri Lankan authorities and, specifically, the Sri Lankan Navy, as well as his alleged detention, and did not accept any of them as true or that the applicant is of any adverse interest from the Sri Lankan authorities for any reason: CB 254-255 at [53]-[55];
c)the Tribunal gave detailed consideration to the applicant’s claims and evidence and found that the applicant was not a credible witness, and that he had fabricated his claims of being of adverse interest to the Sri Lankan Navy and authorities, and did not accept any of those claims as true: CB 255 at [55];
d)it is well established that matters of credibility are matters for the Tribunal, and the credibility findings made by the Tribunal were based on inconsistencies in the applicant’s evidence and his lack of knowledge about matters he should have been aware of; and
e)having found the applicant had not been detained and had never been of interest to the Sri Lankan authorities or Navy there was simply no implication in relation to the applicant’s claims of treatment and detention by the Sri Lankan authorities or Navy that arose to consider.
With respect to the applicant’s submission that the Tribunal failed to examine the real situation of Tamil’s in Sri Lanka and the plight of returning asylum seekers, and the allegation that the Tribunal only considered Department of Foreign Affairs and Trade (“DFAT”) reports and failed to consider independent reports such as Amnesty International and Human Rights Watch the Minister submitted that:
a)the Tribunal clearly examined the situation of Tamils in Sri Lanka and the position of failed asylum seekers: CB 256-257 at [59] to [66];
b)whilst the Tribunal did place reliance on the DFAT report it is incorrect to state that the Tribunal only relied on that report. At CB 252 at [51] the Tribunal makes it clear that it had regard to the country information referred to in the Delegate’s Decision, the applicant’s submissions received from the applicant’s advisors, and a number of other reports; and
c)the use of and weight to be placed on country information is a matter for the Tribunal.
With respect to the applicant’s submission that the Tribunal failed to examine the implications of the POT Act, the Minister submitted that although the issue was raised by the applicant’s representative, the Tribunal found that the applicant was not and had never been of any interest to the Sri Lankan authorities, and in particular had never been arrested or detained on any suspicion involvement with the LTTE. Consequently, there was no basis upon which the POT Act would apply to the applicant.
In respect of WZAPN-High Court the Minister submitted that the High Court held that a period of short detention is insufficient to establish serious harm for the purposes of s.91R of the Migration Act, and also held that the question of whether a risk of loss of liberty constitutes serious harm requires a qualitative evaluation of the nature and gravity of the apprehended loss of liberty. The Tribunal considered relevant country information and undertook the qualitative evaluation of the nature and gravity of the apprehended loss of liberty: CB 252-253 at [51] and 256 at 60]-[62].
Consideration of ground 1
Jurisdictional error
The Tribunal Decision is only 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 Gaudron, McHugh, Gummow, Kirby and Hayne 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 [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 inability to be satisfied or otherwise of the applicant’s claims, were matters for the Tribunal to determine on the evidence before the Tribunal: 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; CLR 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 CLR 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. Subsequently a failure to deal with a claim has been considered to be a denial of procedural fairness by the High Court in Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 (“Plaintiff M61”), because the Minister was not informed upon a question he had been asked to consider: Plaintiff M61 at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In 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 Convention and s.91R of the Migration Act embody an approach concerned with the effects of actions upon persons in terms of harm to them, but that that 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 (“SZTEQ”) 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 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 25, 27, 28, 29, 30, 31, 34, 35, 38 and 44 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 applicant’s treatment and detention by security forces in Sri Lanka, and refers to specific paragraphs of the Tribunal Decision, namely paragraphs 25, 27, 28, 29, 30, 31, 34, 35, 38 and 44 which appear at CB 248-251.
Each of the paragraphs of the Tribunal Decision mentioned in the preceding paragraph set out a claim made by the applicant, or a claim made by the applicant together with his response to the Tribunal’s questioning concerning his claims. As such, the paragraphs merely set out evidentiary material in relation to the claims. The Tribunal gave specific consideration to the issues raised by the claims, and the issues raised by the applicant’s responses to the Tribunal’s questions concerning those claims. That led the Tribunal to make findings in respect of those claims, having regard to its assessment of the credibility of the applicant, which is an ordinary part of its decision-making function. The Tribunal found the claims set out in those paragraphs were false and that the applicant was not a credible witness. Making findings on credibility is a matter for the Tribunal par excellence, and the Court is chary to intervene: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J.
The approach taken by the Tribunal and its conclusions as to the applicant’s credibility, and its rejection of his claims, does not demonstrate any jurisdictional error on the part of the Tribunal.
The Tribunal did not fall into jurisdictional error in considering the applicant’s claim in regards to detention and treatment by Sri Lankan authorities.
Country information
The applicant’s claim that Tribunal did not examine the real situation of Tamils in Sri Lanka and the plight of asylum seekers returning to Sri Lanka, and that reliance was placed on DFAT reports with no attention being paid to other country information cannot succeed. This is because that claim is factually wrong. The Tribunal examined the situation in Sri Lanka of both Tamils generally and failed Tamil asylum seekers: CB 256-257 at [59]-[66]. The Tribunal did place weight on the DFAT report, however, it also took into account a wide range of other information, including:
a)a December 2012 article in the Sydney Morning Herald;
b)the Human Rights Watch “World Report 2011: Sri Lanka”;
c)a report on post-civil war human trafficking in Sri Lanka appearing on Tamilaussie.com;
d)the applicant’s solicitor/migration agent submissions; and
e)country information referred to by the Delegate: CB 252-253 at [51].
The applicant’s submission that the Tribunal only considered DFAT reports and failed to consider independent reports cannot therefore be made out and does not demonstrate that the Tribunal fell into jurisdictional error.
The applicant asserts that the Court ought to find jurisdictional error on the basis that the Tribunal did not have regard to an Amnesty International Statement which was published on 26 June 2014.
The Amnesty International Statement:
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 Sri Lankan Army and the LTTE during the period under investigation (which period is not expressly stated).
The reliance on the Amnesty International Statement does not assist the applicant. The Amnesty International Statement post-dates, by more than fifteen 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 country information relied upon by the Tribunal.
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 solely 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.
POT Act and I & E Act
The applicant claimed that the Tribunal failed to examine the contents and the implication of the POT Act and the I & E Act.
The Tribunal Decision makes it 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. Having regard to the country information, the Tribunal concluded that the applicant will be subject to the usual detention on remand for a few days and a fine by way of penalty: CB 256 at [60], and that having regard to the applicant’s circumstances he was not a person who would be considered to be a person with actual or perceived links to the LTTE, and therefore not a person of interest to the Sri Lankan authorities: CB 256-257 at [59]-[60]. Put shortly, the Tribunal was not required to consider the provisions of the POT Act, and to the extent that the applicant might be subject to the I & E Act the Tribunal considered the likely treatment of the applicant upon return to Sri Lanka.
On the above basis, any alleged jurisdictional error by reason of a failure to consider the effect of the provisions of the POT Act or the I & E Act is not made out.
Conclusion on ground 1
There is no jurisdictional error apparent in the Tribunal Decision. Ground 1 is therefore not made out.
Ground 2
Applicant’s submissions
The applicant made no express submissions with respect to a failure by the Tribunal to afford him natural justice. There was nothing discernible in the applicant’s submissions from which the Court might imply an allegation of a want of procedural fairness.
Minister’s submissions
The Minister submitted that:
a)there is nothing in the Tribunal Decision which leads to a concern that the Tribunal failed to afford procedural fairness to the applicant;
b)the Tribunal was aware, and had regard to all of the applicant’s claims;
c)the Tribunal approached its task correctly and in good faith, and did not fail to take into account a relevant consideration or take into account an irrelevant consideration; and
d)nothing indicates that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with Division 4 Part 7 of the Migration Act.
Consideration of ground 2
As this was a case to which s.422B of the Migration Act applied, 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 its statutory obligation in 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 (“SZBEL”) which invitation was accepted by the applicant: CB 159-166, 247 at [20]. 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 200-201 and 247 at [20]-[21]. 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)why he had given inconsistent evidence regarding the cost of being smuggled to Australia: CB 250 at [34];
b)why he had given inconsistent evidence regarding the number of times he had been detained by the Sri Lankan authorities: CB 250 at [35];
c)his claim that he lived in Tricomalee: CB 250 at [36];
d)his claim that he was a fisherman: CB 250-251 at [37]; and
e)why, given that the civil war had ended in May 2009, he had never had a problem with the authorities and escaped detention until December 2009: CB 251-252.
The Tribunal’s obligations under s.425(1) of the Migration Act were therefore complied with by the Tribunal giving the applicant the opportunity to be heard: SZBEL. In all of the circumstances, the Court finds that there was no failure by the Tribunal to afford the applicant the required procedural fairness under the Migration Act, and ground 2 is not made out.
Ground 3 ‑ bias
Applicant’s submissions
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:
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
The above text appears on a blank page with the number “2” in the middle of that page after the text and some spacing. There is no attribution of a source for the document, nor is it dated.
Minister’s submissions
The Minister submitted as follows:
a)an allegation of bias is a serious matter which must be “distinctly made and clearly proved”: 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”);
b)an allegation of actual or ostensible bias should be particularised: SZOTX Minister for Immigration [2011] FMCA 37 at [12] per Driver FM. Ostensible bias must be firmly established: SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 at [9] per Flick J; and
c)the Tribunal Decision does not demonstrate any actual or apprehended bias on the part of the Tribunal.
Consideration – ground 3 ‑ bias
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. 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, as set out above in relation to procedural fairness: see [57] above, and 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. Assuming that the statement allegedly made by the former 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 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 former Minister and any affect they may have had on the Tribunal. In those circumstances, the allegation of bias in relation to the former 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. In any event, it was not DFAT reports alone which were considered by the Tribunal in deriving its factual findings from country information. As set out above: see [45] above, various country information was considered by the Tribunal in deriving its factual findings. The applicant’s assertion of bias is therefore not only misconceived as a matter of principle, but also as a matter of fact, and has not been made out.
In the above circumstances, ground 3 has not been made out.
Additional ground – failure to consider complementary protection provisions
Applicant’s submissions
In the Applicant’s July 2015 Submissions the applicant relevantly submitted that:
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 a country where person fled he or she will face significant harm, under the Complementary Protection Criterion.
I submit that my case should be examined under this criterion.
Minister’s submissions
The Minister’s submission was that the complementary protection provisions were considered by the Tribunal: see CB 256-257 at [64]-[66] and [68]. The Minister therefore submitted that this ground could not succeed.
Consideration of additional ground – failure to consider complementary protection provisions
This additional ground simply asserts that the applicant’s case should be examined pursuant to the complementary protection provisions of the Migration Act. The ground must fail because the Tribunal did consider the applicant’s case under the complementary protection provisions: CB 256-257 at [64]-[66] and [68]. The Tribunal did so by reference to the relevant test, namely whether upon return to Sri Lanka there was a real risk that the applicant would suffer significant harm: CB 256 at [65], and was not satisfied that there were grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm: CB 256 at [64] and 257 at [68].
The allegation that the Tribunal may not have considered the applicant’s claim under the complementary protection provisions cannot therefore be made out.
Consideration of grounds – conclusion
No jurisdictional error in the Tribunal Decision can be made out. It is therefore a privative clause decision within the meaning of s.474 of the Migration Act, and, as such, is not reviewable by this Court. The Judicial Review Application therefore has no prospects of success, and the Court should not therefore extend time.
Conclusion and orders
The Court has concluded that:
a)it is not in the interests of the administration of justice to extend time under s.477(2) of the Migration Act, particularly given that the Judicial Review Application has no prospects of success, and it follows that the Extension of Time Application ought to be dismissed, and there will be an order accordingly; and
b)in the circumstances, it is unnecessary therefore to make a further order that the Judicial Review Application be dismissed as incompetent: BZABK v Minister for Immigration & Citizenship [2012] FCA 774; (2012) 205 FCR 83 at [43] per Foster J.
The Court will also make an order amending the name of the second respondent to read “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 seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 17 February 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Natural Justice
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Standing
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