WZATI v Minister for Immigration & Anor
[2014] FCCA 2750
•3 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATI v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2750 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – Sri Lankan Tamil – whether judicial error – whether lack of procedural fairness – whether bias – whether jurisdictional error. |
| Legislation: Constitution, s.75(v) Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), Part 7, Division 4, ss.36(2)(a) and (aa), 36(2A), 46A(2), 91R, 422B, 425(1), 476, 477(1) Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) |
| Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245 Kioa & Ors v West & Anor (1985) 159 CLR 550 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 |
| Applicant: | WZATI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 266 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 11 August 2014 |
| Date of Last Submission: | 11 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 3 December 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr P Corbould |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 266 of 2013
| WZATI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Refugee Review Tribunal[1] made a decision[2] affirming a decision of a delegate[3] of the first respondent, the Minister for Immigration & Border Protection,[4] to refuse to grant Protection (Class XA) visas to the applicant and his family. The applicant now seeks judicial review under s.476 of the Migration Act 1958 (Cth)[5] of the Tribunal Decision to refuse to grant him a Protection (Class XA) visa.[6]
Factual and procedural background
[1] “Tribunal”.
[2] “Tribunal Decision”; The Tribunal Decision is at Court Book (“CB”) 344-358.
[3] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 211-229.
[4] “Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship.
[5] “Migration Act”.
[6] “Protection Visa”.
Prior to the Tribunal Decision
The factual and procedural background prior to the Tribunal Decision is as follows:
a)the applicant is a Sri Lankan citizen of Tamil ethnicity and was born in Thellipalai, Jaffna District, Northern Province on 19 October 1972;[7]
b)in 2008 the applicant left Sri Lanka for India where he resided, with his wife and two children, until 11 June 2012;[8]
c)the applicant arrived in Australia, with his wife and two children, as an irregular maritime arrival on 28 June 2012 on a boat codenamed “Narko”;[9]
d)on 6 August 2012 an entry interview with the applicant was conducted by an officer of the then Department of Immigration and Citizenship;[10]
e)the Minister exercised his powers under s.46A(2) of the Migration Act, and on 29 October 2012 the applicant lodged a valid application for the Protection Visa. The applicant’s wife and two children were included in the application;[11]
f)following an interview with the applicant on 5 March 2013, the Delegate’s Decision of 21 March 2013 refused to grant a Protection Visa to the applicant and his family;[12]
g)on 28 March 2013 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision.[13] The applicant was represented in the Tribunal review proceedings by a registered migration agent, Ms Kathleen Coffey of BMA Lawyers, who provided a lengthy submission to the Tribunal dated 20 June 2013 in support of the application;[14]
h)the applicant attended a hearing before the Tribunal on 24 July 2013 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife;[15] and
i)on 10 September 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant a Protection Visa to the applicant and his family. The applicant was advised of the Tribunal Decision by letter from the Tribunal dated 11 September 2013.[16]
[7] CB 3, 114, 209.
[8] CB 3-4, 18-19, 126.
[9] CB 1 and 125.
[10] “Department”, now the Department of Immigration and Border Protection; CB 1-24.
[11] CB 42, 48-109.
[12] CB 212-229.
[13] CB 247-251
[14] CB 278-332.
[15] CB 345 at para.5.
[16] CB 344-360
Tribunal Decision
The Tribunal accepted that the applicant was a citizen of Sri Lanka, and that the evidence did not suggest that he had lawful permission to enter, with a right to temporarily or permanently reside in, a country, other than Sri Lanka.[17]
[17] CB 346 at paras.10-11.
The Tribunal summarised the applicant’s claims as to why his life was in danger as being because he was a Tamil imputed with pro-LTTE[18] beliefs, and imputed with those beliefs because:
a)in 1996-1997 he worked in an ice-cream shop owned by the LTTE;
b)the land around his wife’s house was a camping ground for the LTTE from 1997 to 2002;
c)he was pictured watching his brother in a protest against the Sri Lankan Army[19] in 2003; and
d)he went to live in Vanni.[20]
[18] LTTE is an acronym for Liberation Tigers of Tamil Eelam.
[19] “SLA”.
[20] CB 345 at para.1.
The applicant also claims that:
a)he was interrogated and detained by the Sri Lankan Criminal Investigation Division[21] in 2007 whilst in Colombo, and that the CID accused him of being involved with the LTTE; and
b)being an asylum seeker will heighten the risk that he will be harmed on return to Sri Lanka.[22]
[21] “CID”.
[22] CB 345 at para.1.
For practical purposes, the issues were relevantly distilled as to whether the applicant:
a)was credible as to his claims; and
b)had a well-founded fear of persecution in relation to Sri Lanka.[23]
[23] CB 345-346 at para.7.
The Tribunal found the applicant to be a generally credible witness who gave plausible and consistent evidence, save in one respect, in relation to his claims.[24] In relation to the particular claims made by the applicant, the Tribunal accepted:
[24] CB 347-348 at paras.12-24.
a)that for a period of approximately 18 months commencing in 1996 the applicant worked as labourer and kitchen hand in an ice-cream shop in Vanni which was owned by the LTTE;[25]
[25] CB 347 at para.15.
b)that following his marriage in 1997 he lived in his wife’s family house situated on a large piece of land at Mullaitivu, and that in 1997 the LTTE forcibly took over the family’s land on which the house was situated, and set up camp on it until 2002, and additionally that the LTTE took the family’s monthly food rations;[26]
[26] CB 347 at para.16.
c)that the government built a house on the land to replace the house that was destroyed during the Sri Lankan civil war;[27]
[27] CB 347 at para.16.
d)that in 2002, following a peace agreement made with the LTTE, the applicant and his family returned to Jaffna where they lived for the next five years, and where the applicant was a self-employed electrician/plumber, who due to a lack of work moved to Colombo in 2007 in the hope of being able to go overseas to find work;[28]
[28] CB 347 at para.17.
e)that the applicant:
i)went to Colombo, was there for five months, when he was stopped by the CID and asked to show his identification card, which showed he was from Vanni, and he was then arrested by the CID, beaten and interrogated as to whether he was affiliated with the LTTE;
ii)told the CID he had no affiliation with the LTTE, but had worked in the ice-cream shop owned by them in Vanni; and
iii)was kept overnight by the CID and released the following day, following which he returned to Jaffna;[29]
f)that the applicant had been pictured as a bystander watching his brother throwing bricks at the SLA in a protest in 2003;[30]
g)that he had difficulties with the SLA and the forcible requisitioning of his motor bike;
h)claims that he had difficulty with getting a clearance to leave the area from the SLA, which he thought was because the SLA thought he had links with the LTTE;
i)that he was ultimately given a clearance by the SLA and left for Colombo where he sought a tourist visa for India;[31]
j)that none of the applicant’s family members have ever been involved with the LTTE, and that his parents and siblings, who continue to live in Sri Lanka, have never had any problems with the authorities, including the CID or the SLA;[32] and
k)that the applicant left Sri Lanka in 2008 for India, and subsequently left India by boat because of a fear of deportation to Sri Lanka, arriving in Australia as an irregular maritime arrival on 28 June 2012.[33]
[29] CB 347 at para.18.
[30] CB 347-348 at para.19.
[31] CB 348 at para.21.
[32] CB 348 at para.22.
[33] CB 348 at para.23.
The Tribunal did not accept the applicant’s claim that after he left Sri Lanka, the SLA came to his wife’s family’s house and his siblings’ houses looking for him. The Tribunal found that given its findings, as set out above,[34] the claim was not plausible, because the Sri Lankan authorities would not have subsequently come looking for a person to whom they had issued a passport in 2007 and allowed to depart legally from Sri Lanka in 2008.[35]
[34] See para.7 above.
[35] CB 348 at para.24.
The Tribunal turned next to the question of whether or not the applicant had a well-founded fear of persecution if he was returned to Sri Lanka.
The Tribunal:
a)did not accept that because the applicant worked in 1996/1997 in an ice-cream shop owned by the LTTE that he would be imputed with pro-LTTE beliefs, and in so doing noted the applicant’s evidence that nothing had happened to him as a result of working in the ice-cream shop;[36]
b)found that the applicant’s release by the CID in 2007 following a brief period in detention, which included interrogation and mistreatment, suggested that he was not of ongoing interest to the CID as a person associated with the LTTE.[37] This view was reinforced by the fact that he was ultimately able to obtain a clearance from the Sri Lanka authorities to leave Jaffna, obtain a valid passport and exit Sri Lanka without any difficulty;[38]
c)accepted that the CID’s treatment of the applicant in 2007 constituted serious harm for the purposes of s.91R of the Migration Act, but found that the fact that the treatment occurred during the Sri Lankan civil war meant that the Tribunal did not consider that that treatment meant that he faces a real chance of serious harm if returned to Sri Lanka now or in the foreseeable future, given that there has been an end to the Sri Lankan civil war;[39]
d)did not consider that the LTTE’s use of the land around the wife’s family home, and the taking of the family’s monthly food rations, would result in the applicant being imputed with pro-LTTE beliefs as those actions occurred during the period of the Sri Lankan civil war, and subsequently the Sri Lankan government has built a house on the land to replace the house that was destroyed during the Sri Lankan civil war, thus underlining the fact that this would not be a factor leading to the applicant being imputed with LTTE beliefs, and in the Tribunal’s view there was no connection between the applicant’s treatment at the hands of the CID in 2007 and the LTTE’s use of the wife’s family’s land between 1997 and 2002;[40]
e)found that the applicant’s role as a bystander at a protest against the SLA in 2003 in which he was pictured watching his brother participate in the protest would not result in him being imputed with pro-LTTE beliefs, the Tribunal observing that on the applicant’s own evidence none of his brothers, who remain in Sri Lanka, have had any problems with the Sri Lankan authorities;[41]
f)did not accept the applicant’s claim that people who leave Jaffna for Vanni are viewed by the Eelam People’s Democratic Party[42] as being involved with the LTTE, a claim which the Tribunal noted was inconsistent with the applicant’s own evidence at hearing that he personally had never had any problems with the EPDP;[43] and
g)did not consider that the SLA’s repeated requests and forcible requisitioning of the applicant’s motor bike amounted to serious harm for the purposes of s.91R of the Migration Act, nor did it represent or demonstrate any adverse interest in the applicant or that he was ever seriously suspected of being a follower of the LTTE, and the Tribunal did not accept that the motor bike incidents would be reasons for his being suspected of having any involvement in the LTTE.[44]
[36] CB 348 at para.26.
[37] CB 348 at para.26.
[38] CB 348 at para.26.
[39] CB 349 at para.31.
[40] CB 348-349 at para.27.
[41] CB 349 at para.28.
[42] “EPDP”.
[43] CB 349 at para.29.
[44] CB 349 at para.30. The “Convention” being the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
The Tribunal accepted country information, which it had put to the applicant at hearing, indicating that:
a)only people with certain profiles, including those suspected of being connected to the LTTE, or having a political profile, or being journalists or human rights defenders, were considered at risk of being persecuted, and there was no evidence that the applicant came within any of those groups, nor that simply because he was a Tamil the authorities would think that he was involved with the LTTE, and nor would the applicant be suspected of being involved with the LTTE on account of his having gone to live in Vanni from Jaffna;
b)the Tribunal found that the country information supported a finding that the applicant did not have a real chance of suffering serious harm on return to Sri Lanka; and
c)whilst asylum seekers returning to Sri Lanka are routinely detained and questioned only those with actual or perceived associations with the LTTE remain at risk of harm, and that the Tribunal did not consider that the applicant has an actual or perceived association with the LTTE, or that the applicant faces a heightened risk of harm on returning to Sri Lanka for being a returned asylum seeker suspected of having spoken against the government. The Tribunal did not accept that routine detention and questioning of the applicant upon his return would amount to serious harm for a Convention reason.[45]
[45] CB 349-350 at paras.32-34.
The Tribunal considered country information relating to:
a)the general security situation in Sri Lanka since 2009;[46] and
b)the treatment of returnees, that is, returned asylum seekers.[47]
[46] CB 353-357 at paras.58-64.
[47] CB 357-358 at paras.65-66.
The Tribunal considered various reports by bodies such as the International Crisis Group,[48] the US Department of State (Country Report on Sri Lanka for 2011),[49] and both Amnesty International and Human Rights Watch (Annual Reports for 2012).[50] The Tribunal went on to consider issues raised at the United National Human Rights Commissioner’s Universal Periodic Review Hearings in Geneva on 1 November 2012, BBC News reports from November 2011, reports in The Economist in January 2012 and the Sri Lankan Guardian in October 2011, plus a Freedom House report in 2012.[51]
[48] CB 353 at paras.58 and 60.
[49] CB 354 at para.59.
[50] CB 354 at para.60.
[51] CB 355-356 at para.61.
The Tribunal went on to describe as credible reports which indicated that there had been documented and undocumented detention of civilians suspected of LTTE connections, and the taking of suspected LTTE sympathisers who have been tortured and killed. Reference was also made to there being no decline in the use of torture against LTTE suspects over the last two years and a sharp increase in the kidnapping of Tamils and the routine targeting of Tamils for extra scrutiny and restrictions on movement. Reference was again made to a variety of sources including the US Department of State country reports, Amnesty International Annual Reports, a Freedom House report and the United Nations December 2012 “Eligibility Guidelines for assessing the international protection needs of asylum-seekers from Sri Lanka.”[52]
[52] “2012 UN Eligibility Guidelines”; CB 356 at para.62.
The country information cited by the Tribunal includes information from the 2012 UN Eligibility Guidelines with respect to risk profiles of persons suspected of links with the LTTE, and notes that the 2012 UN Eligibility Guidelines did not consider that the fact that a person originated from a previously LTTE controlled area created a risk profile, and went on to observe that individuals in certain risk categories may need international refugee protection depending on the specifics of individual cases. The categories identified were:
a)persons suspected of certain links with the LTTE;
b)certain opposition politicians and political activists;
c)certain journalists and other media professionals;
d)certain human rights activists;
e)certain witnesses of human rights violations and victims of human rights violations seeking justice;
f)women in certain circumstances;
g)children in certain circumstances; and
h)lesbian, gay, bisexual trans-gender and inter-sex individuals in certain circumstances.[53]
[53] CB 356-357 at para.63.
In relation to the treatment of returnees to Sri Lanka the Tribunal cited a Department of Foreign Affairs and Trade[54] July 2013 country information report on Sri Lanka[55] in which DFAT “assessed that Sri Lankan returnees are treated along standard procedures applying to all Sri Lankans, regardless of their ethnicity and religion.”[56] The Tribunal also cited the 2012 UN Eligibility Guidelines which indicated that returnees were questioned by immigration officials, then by state intelligent service officers, which together may take between an hour and a half to seven hours, but that individuals are allowed to proceed from the security interviews to their destinations, unless they are suspected of having an actual or perceived association with the LTTE, in which case they remain at particular risk of detention and torture.[57]
[54] “DFAT”.
[55] “2013 DFAT Report”.
[56] CB 357 at para.65.
[57] CB 357-358 at para.66.
Considering the applicant’s claims against the Convention both individually and cumulatively the Tribunal found that the applicant did not have a real chance of serious harm now or in the reasonably foreseeable future for any Convention reason, and therefore did not have a well-founded fear of persecution and did not satisfy the requirements of s.36(2)(a) of the Migration Act.[58]
[58] CB 350 at para.34.
The Tribunal also considered whether the applicant met the complimentary protection criterion in s.36(2)(aa) of the Migration Act, and having regard to its findings of fact, did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Sri Lanka, there was a real risk that he would suffer significant harm at the hands of the Sri Lanka authorities or those associated with the authorities. Nor did the Tribunal accept that any treatment of the applicant upon his return would amount to significant harm for the purposes of s.36(2A) of the Migration Act, or that there were substantial grounds for believing that if the applicant returned to Sri Lanka it was a necessary and foreseeable consequence that he would suffer significant harm as defined in s.36(2A) of the Migration Act.[59]
[59] CB 350 at paras.37-38.
The Tribunal therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.[60]
[60] CB 351 at para.40.
The judicial review application
On 7 October 2013 the applicant lodged an application in this Court seeking judicial review of the Tribunal Decision made on 10 September 2013. Although the applicant seeks an extension of time, the application was made within the time required by s.477(1) of the Migration Act.
The grounds set out by the applicant in 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 biaswd (sic) in its decision
The reasons stated above will be submitted in due course on the basis of documents which will be filed in Court.
On 30 October 2013 a Registrar of this Court ordered that the applicant file and serve, on or before 18 December 2013, an amended application giving particulars of the grounds of review and any further affidavits upon which he intended to rely at the hearing.
By order of the Court on 26 May 2014 time was extended to 11 July 2014 for the applicant to file an amended application and any further affidavits upon which he intended to rely at hearing. The applicant has not filed an amended application. The applicant did file an affidavit on 25 July 2014.[61] Save for formal parts the Applicant’s Affidavit is entirely comprised of submissions, which are set out below in relation to the relevant ground of review.
Consideration
Ground 1 – jurisdictional error
[61] “Applicant’s Affidavit”.
Applicant’s submissions
The Court has assumed that by “judicial error” the applicant means “jurisdictional error”, and further observes that the Tribunal is not capable of “judicial error” as it is an administrative tribunal and not a court or other body exercising the judicial power of the Commonwealth.[62] The applicant’s submissions are therefore approached on the basis that jurisdictional error is asserted.
[62] Brandy v Human Rights and Equal Opportunity Commission & Ors (1995) 183 CLR 245 at 260 and 264 per Mason CJ, Brennan and Toohey JJ and 267 and 271 per Deane, Dawson, Gaudron and McHugh JJ.
In the Applicant’s Affidavit 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 paragraph 18, 23, 24, 26 and 31 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.
Essentially, what is put in the Applicant’s Affidavit 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.
At hearing, the applicant made further solely written submissions which were handed up and marked as Exhibit A, and annexed to which was a copy of the Applicant’s Affidavit, amongst other materials.
Relevant to the issue of jurisdictional error the applicant submitted that:
IV.The Second Respondent did not access (sic) 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 indicates the situation in Sri Lanka at present and at the time the Second Respondent heard my case for refugee status in this country.
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.
The Amnesty International Public Statement published on 26 June 2014:[63]
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).
[63] “Amnesty International Statement”.
Minister’s submissions
The Minister submitted that:
a)the Tribunal Decision does not demonstrate any error of law or procedure amounting to jurisdictional error;
b)the Tribunal addressed all of the applicant’s claims and did not fail to take into account any relevant considerations or take into account any irrelevant considerations;
c)the Tribunal correctly stated the relevant legal principles and the Tribunal Decision discloses no misunderstanding or misapplication of those principles to the Tribunal’s findings of fact;
d)the Applicant’s Affidavit does not assist the applicant in establishing jurisdictional error. Contrary to the applicant’s assertions in paragraph II, the Tribunal did examine the implications of the applicant’s treatment and detention by the security forces in Sri Lanka. The Tribunal considered that the CID’s treatment of the applicant during the civil war in 2007 amounted to persecution, but that it did not mean that he faced a real chance of serious harm if he returned to Sri Lanka now or in the foreseeable future, given that there had been an end to the civil war;[64]
e)having regard to the country information accepted by the Tribunal, it was reasonably open to the Tribunal to find that the applicant did not have a real chance of suffering serious or significant harm on return to Sri Lanka.[65] To the extent that the applicant contends otherwise, he is engaging in impermissible merits review;
f)there is also no basis for the applicant’s contention that the Tribunal:
i)did not examine the real situation of the Tamils in Sri Lanka and the plight of asylum seekers returning to Sri Lanka; and
ii)placed reliance only on reports submitted by DFAT and paid no attention to independent reports by human rights organisations such as Amnesty International and Human Rights Watch;
g)the Tribunal did examine the situation of Tamils in Sri Lanka and the position of failed asylum seekers returning to the country.[66] It considered and referred to a number of country information reports from different sources, including Amnesty International and Human Rights Watch;[67]
h)the Tribunal did not rely only upon reports by DFAT, but also relied upon reports from agencies such as the US Department of State “Country Reports on Human Rights Practices for 2011: Sri Lanka”, 24 May 2012 and, in particular, the 2012 UN Eligibility Guidelines;[68] and
i)the Tribunal was not obliged to specifically consider the contents and implications of the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka).[69] The Tribunal found that the applicant was not suspected of being connected to the LTTE and did not come within any of those groups who were considered at risk of being persecuted.[70] Accordingly, there was no basis for the Tribunal to consider the application of the POT Act to the applicant.
[64] CB 349 at para.31.
[65] CB 349 and 350 at paras.32 and 37.
[66] CB 349 at paras.32-33.
[67] CB 353-358 at Appendix B, in particular paras.60 and 62.
[68] CB 354, 356 and 357 at paras.59, 63, 64 and 66.
[69] “POT Act”.
[70] CB 349 at para.32.
Consideration
A decision of the Tribunal is liable to be set aside upon review if it involves jurisdictional error.[71] An error by an administrative tribunal such as the Tribunal, will constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks a 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.[72]
[71] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[72] Minister for Immigration & Multicultural Affairsv Yusuf & Anor (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.
The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant.[73] The assessment of the applicant’s credibility was a matter for the Tribunal alone.[74] In this case the assessment of the applicant’s credibility was, save in one respect, positive. 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.[75]
[73] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J.
[74] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J (“Durairajasingham”), and see, for example, SZKHV & Anor v Minister for Immigration & Anor [2009] FMCA 264 at para.56 per Emmett FM; SZONA v Minister for Immigration & Anor [2011] FMCA 99 at para.31 per Lloyd-Jones FM; SZONR v Minister for Immigration & Anor [2011] FMCA 89 at para.49 per Nicholls FM.
[75] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
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.[76]
[76] Namely, paras.18, 23, 24, 26 and 31 at CB 347-349.
The Tribunal accepted that the applicant had been detained overnight in Colombo in 2007 by the CID, beaten and interrogated as to whether he was affiliated with the LTTE, and then released.[77] The Tribunal accepted that the applicant left India by boat fearing deportation to Sri Lanka in June 2012.[78] The Tribunal did not accept the applicant’s claim that the SLA came looking for him at various relatives’ houses after he had left Sri Lanka, and explained that non-acceptance by reference to evidence including the issuance of a passport to the applicant in 2007, and the applicant being allowed to depart legally from Sri Lanka in 2008.[79] The Tribunal in light of those facts did not consider that the Sri Lankan authorities “would come looking for … [the applicant] subsequently.”[80] Those credibility findings were matters which were open on the evidence, and insofar as they were factual findings as to events which actually occurred, they were also open to the Tribunal. Matters of credit are matters for the Tribunal,[81] and this Court should not interfere in the Tribunal’s findings of fact where they are, as here, reasonably open on the evidence.[82]
[77] CB 347 at para.18.
[78] CB 348 at para.23.
[79] CB 348 at para.24.
[80] CB 348 at para.24.
[81] Durairajasingham ALR at 423 per McHugh J; HCA at para.67 per McHugh J.
[82] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Tribunal’s finding that the applicant would not be imputed with pro-LTTE beliefs because he worked in the ice-cream shop owned by the LTTE in 1996-1997 was again one that was open on the evidence relied upon by the Tribunal which was that:
a)the applicant was released by the CID in 2007 following a brief period in detention, his release indicating that he was not of ongoing interest to the CID as a person associated with the LTTE;
b)he was able to obtain a clearance from the Sri Lankan authorities to leave Jaffna; and
c)he was able to obtain a valid passport and leave Sri Lanka without any difficulties,
all of which reinforced the Tribunal’s view that the applicant was not of ongoing interest to the CID or Sri Lankan authorities by reason of any imputed pro-LTTE beliefs.[83]
[83] CB 348 at para.26.
The Tribunal finding with respect to the applicant not being imputed with pro-LTTE beliefs was once again a finding that was reasonably open to the Tribunal on the available evidence. For this Court to determine the matter differently would be to engage in impermissible merits review.[84]
[84] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Tribunal finding with respect to the treatment of the applicant by the CID in 2007 to the effect that it constituted serious harm for the purposes of s.91R(1)(b) of the Migration Act, was one clearly available on the evidence of the applicant.[85] What the applicant seemingly complains about is the subsequent Tribunal finding that this treatment occurred during the Sri Lankan civil war, and that treatment of the applicant in 2007 does not mean that he faces a real chance of serious harm if returned to Sri Lanka, now or in the foreseeable future, given that there has been an end to the Sri Lankan civil war.[86] That finding was again open to the Tribunal on the basis of the evidence, and, specifically, the country information.
[85] CB 349 at para.31.
[86] CB 349 at para.31.
The Tribunal set out country information which indicated that the Sri Lankan authorities do engage in activities which would amount to persecution within the meaning of the Migration Act and the Convention, but only in respect of those persons with profiles of a particular kind, including those suspected of being connected to the LTTE.[87] The Tribunal did not accept that the applicant had a profile whereby he would be suspected of being involved with the LTTE, and in that regard the Tribunal relied specifically upon the applicant’s own evidence that neither he nor any member of his family had been involved in the LTTE, but did not accept his contention that simply because he was a Tamil he would be suspected of such involvement, as that contention was not supported by the country information.[88] The Tribunal had otherwise found that the applicant would not be imputed with pro-LTTE beliefs by reason of any of the matters that he asserted might lead the Sri Lanka authorities to impute him with such beliefs, including:
a)his working in the ice-cream shop owned by the LTTE in 1996-1997;
b)the LTTE using the land around his wife’s house as a camping ground and forcibly taking of the family’s rations in the period 1997 to 2002 (that is during the civil war);
c)the applicant’s brother’s involvement in a protest against the SLA in 2003;
d)the applicant’s leaving Jaffna for Vanni; or
e)the forcible requisitioning of his motor bike by the SLA.[89]
[87] CB 349 at paras.32-33.
[88] CB 349 at para.32.
[89] CB 348-349 at paras.26-30.
In light of the Tribunal’s consideration of issues and findings of fact as set out above,[90] that aspect of the applicant’s ground with respect to jurisdictional error that alleges that the Tribunal failed to properly exercise jurisdiction because it did not examine the implications of the applicant’s treatment and detention by the security forces in Sri Lanka is not made out. It is clear that the Tribunal did, in a reasonably comprehensive manner, give proper consideration to that issue.
[90] See paras.34-38 above.
The applicant also asserted that the Tribunal did not examine the real situation of Tamils in Sri Lanka and the plight of asylum seekers returning to Sri Lanka, and relied upon DFAT reports (only, or mainly, the emphasis changing between the Applicant’s Affidavit and submissions) and paid no attention to independent reports of organisations like Amnesty International and Human Rights Watch. The applicant referred specifically to paragraph 25 of the Tribunal Decision,[91] but that paragraph is of no assistance to the applicant as it simply sets out the issue to be determined, rather than its consideration. Allied with the above submission was an assertion that the situation in Sri Lanka at the time the applicant’s case was heard by the Tribunal was as set out in the Amnesty International Statement.
[91] CB 348 at para.25.
The Tribunal found that routine detention and questioning of the applicant upon his return to Sri Lanka would not amount to serious harm for a Convention reason.[92] In this regard the Tribunal Decision set out information not only from the 2013 DFAT Report and “Freedom from Torture” reports, but also the 2012 UN Eligibility Guidelines which made it clear that after a brief period of detention for questioning by immigration officials and the State Intelligence Service (anywhere between an hour and a half and seven hours in total) returnees were released and allowed to proceed to their destinations, provided that they did not have an actual or perceived association with the LTTE.[93]
[92] CB 349-350 at para.33.
[93] CB 357 at paras.65-66.
It is plain that the Tribunal did have regard to the 2013 DFAT Report, but that it was one of at least three sources of information to which it had regard in respect of the treatment of returnees to Sri Lanka, the other sources including the 2012 UN Eligibility Guidelines and “Freedom from Torture” reports published in 2012 concerning Sri Lankan Tamils being tortured on return to Sri Lanka from the UK because of their activities in support of the LTTE. In that regard reference was also made to a previous report with respect to the torture of Sri Lankan Tamils returning to Sri Lanka being at risk of detention and torture because of their association with the LTTE.[94] The country information relied upon by the Tribunal justified the conclusion that the applicant, who was found by the Tribunal not to have any relevant LTTE links, either actual or perceived, would not be persecuted or otherwise be at risk of serious or significant harm, on return to Sri Lanka, because he did not have any actual or perceived links with the LTTE. The choice of country information and the factual findings arising from it are matters for the Tribunal.[95]
[94] CB 357-358 at para.66.
[95] NAHIvMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ (“NAHI”).
The reliance on the Amnesty International Statement of 26 June 2014 does not assist the applicant. It is a statement which post-dates, by more than nine 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 set out in comprehensive reports, including but not limited to, the 2013 DFAT report and the 2012 UN Eligibility Guidelines, to which the Tribunal had access, and which it considered in the Tribunal Decision.
The applicant also asserts that the Tribunal failed to have regard to the implications of the POT Act, and that the applicant would be subject to the provisions of both the POT Act and the Immigrants and Emigrants Act 1949 (Sri Lanka)[96] upon return to Sri Lanka.
[96] “IE Act”.
The Tribunal was clearly aware of the provisions of the POT Act, it being referred to in the International Crisis Group’s 2011 report cited extensively by the Tribunal in the country information in the Tribunal Decision.[97] In this regard it was a matter considered by the Tribunal, and in respect of which the Tribunal on the basis of its finding that the applicant did not have actual or perceived links with the LTTE, came to the view that the applicant would be subject to no more than routine detention and questioning upon his return to Sri Lanka. It was unnecessary for the Tribunal to have regard to the POT Act in circumstances where the clear inference from the facts found is that, upon 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.
[97] CB 353 at para.58.
The reference to the IE Act stands alone, and there is no reference to any particular provision of that Act in either the Applicant’s Affidavit or submissions. It is plain from the Tribunal Decision that it has considered what would happen to the applicant upon his return to Sri Lanka, including his treatment by immigration officials. Having regard to the country information, the Tribunal has concluded that the applicant would be subject to no more than routine detention and questioning, and having regard to the applicant’s particular circumstances that he would not be considered to be a person with actual or perceived links to the LTTE.[98] In short, 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 IE Act the Tribunal considered the likely immigration treatment of the applicant upon return to Sri Lanka.
[98] CB 348-350 at paras.26-30 and 33.
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 IE Act is not made out.
Insofar as the applicant asserts jurisdictional error by the Tribunal, no jurisdictional error is apparent on the face of the Tribunal Decision. The evaluation of the evidence before the Tribunal, including country information, was a matter for the Tribunal.[99] 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 open findings on the evidence before the Tribunal, for the reasons set out in the Tribunal Decision.[100] Those findings reveal no jurisdictional error. Ground 1 is not made out.
Ground 2 – natural justice (or procedural fairness)
[99] NAHI at para.11 per Gray, Tamberlin and Lander JJ.
[100] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Applicant’s submissions
The applicant made no express submissions with respect to natural justice, or procedural fairness as it is now more commonly called in the context of Migration Act proceedings, and 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 suggests that it failed to accord procedural fairness to the applicant or failed to comply with any of the statutory procedures required by Part 7, Division 4 of the Migration Act;
b)the applicant was invited to and attended a hearing before the Tribunal at which he gave evidence and presented arguments, assisted by a registered migration agent; and
c)at the hearing, the Tribunal put to the applicant relevant country information in relation to the treatment of Tamils and failed returned asylum seekers.[101]
[101] CB 349 at paras.32-33.
Consideration
The requirements with respect to procedural fairness for a Tribunal hearing an application for review of a Delegate’s Decision are set out exhaustively in Part 7, Division 4 of the Migration Act.[102]
[102] Migration Act, s.422B.
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.[103] 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. The applicant provided, through his lawyers, extensive written submissions to the Tribunal in advance of the Tribunal hearing. The applicant attended the Tribunal hearing and gave evidence (as did his wife) in support of his claims and with his representative in attendance, and with the representative also making submissions on the applicant’s behalf.[104] Further, the Tribunal specifically raised with the applicant at the hearing issues that the Tribunal had with his claims and evidence, including, critically, that the country information did not support the applicant’s claims.[105]
[103] Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.
[104] CB 345 at paras.5-6.
[105] CB 349 at paras.32-33.
The Tribunal’s obligations under s.425(1) of the Migration Act were complied with by the Tribunal by giving the applicant the opportunity to be heard.[106]
[106] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”).
Even if “normal” procedural fairness was required to be afforded to the applicant, it was so afforded. The relevant principles in relation to procedural fairness require a decision-maker to alert the person entitled to be heard to the questions or critical issues to be addressed.[107] In SZBEL the High Court approved[108] of what was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd:[109]
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[110]
[107] Kioa & Ors v West & Anor (1985) 159 CLR 550 at 587 per Mason J.
[108] SZBEL CLR at 161-162 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ; HCA at para.29 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ.
[109] (1994) 49 FCR 576 (“Alphaone”).
[110] Alphaone at 590-591 per Northrop, Miles & French JJ.
In Dranichnikov v Minister for Immigration & Multicultural Affairs[111] the High Court found error founding relief under s.75(v) of the Constitution in circumstances where the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice.[112] 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,[113] because the Minister was not informed upon a question he had been asked to consider.[114]
[111] (2003) 77 ALJR 1088; [2003] HCA 26 (“Dranichnikov”).
[112] Dranichnikov ALJR at 1092 per Gummow and Callinan JJ; HCA at paras.24-25 per Gummow and Callinan JJ.
[113] (2010) 243 CLR 319; [2010] HCA 4 (“Plaintiff M61”).
[114] Plaintiff M61 CLR at 356 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at para.90 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
If a failure to consider a claim by the applicant is a failure to afford procedural fairness, then to the extent necessary, those matters are addressed above in relation to ground 1, and the Court finds that there was no failure by the Tribunal to consider any claim made by the applicant.
In all of the above circumstances the Tribunal did accord procedural fairness to the applicant. No jurisdictional error by want of procedural fairness, procedural error by way of want of procedural fairness, or any other procedural error has been established. Ground 2 is not made out.
Ground 3 – bias in Tribunal Decision
Applicant’s submissions
In the applicant’s submissions he 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 that:
a)there is no basis for the applicant’s claim of bias;
b)it is well established that an allegation of bias is a serious matter which must be “distinctly made and clearly proved”;[115]
c)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;[116]
d)a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment;[117]
e)there is no evidence to suggest any apprehension of bias, let alone actual bias by the Tribunal. The Tribunal in fact found the applicant to be a credible witness who gave “plausible and consistent evidence through the processing of his claims”.[118] The Tribunal largely accepted the applicant’s evidence, save for the applicant’s claim that, after he left Sri Lanka, the SLA came looking for him at certain relatives’ houses;[119] and
f)the Tribunal’s acceptance of the applicant’s claims and evidence is a strong indication that it was not biased against the applicant. The Tribunal’s conclusion that the applicant was not a person in respect of whom Australia has protection obligations was one which was reasonably open to it on the evidence and does not demonstrate any bias or reasonable apprehension of bias.
[115] Citing Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J and 546-547 per Kirby J; [2001] HCA 17 at paras.69 per Gleeson and Gummow J and para.127 per Kirby J (“Jia Legeng”).
[116] Citing Jia Legeng CLR at 531-532 per Gleeson CJ and Gummow J; HCA at para.72 per Gleeson CJ and Gummow J.
[117] Citing Re Refugee Review Tribunal & Anor; Ex parte H& Anor (2001) 179 ALR 425 at 434 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at para.27 per Gleeson CJ, Gaudron and Gummow JJ (“Ex parte H”).
[118] CB 347 at para.12.
[119] CB 347-348 at paras.13 and 24.
Consideration
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven.[120] 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.[121] Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment.[122]
[120] Jia Legeng CLR at 531 per Gleeson CJ and Gummow J and 546-547 per Kirby J; HCA at para.69 per Gleeson CJ and Gummow J and para.127 per Kirby J.
[121] Jia Legeng CLR at 532 per Gleeson CJ and Gummow J; HCA at para.72 per Gleeson CJ and Gummow J.
[122] Ex parte H ALR at 434 per Gleeson CJ, Gaudron and Gummow JJ; HCA at para.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,[123] 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.
[123] See para.52 above.
Insofar as the allegation of bias relates to comments attributed to the current Minister for Immigration and Border Protection, and assuming that the statement allegedly made by the Minister was made by him, it does not assist the applicant. The Court notes that the date of the Tribunal Decision was 10 September 2013. Proof is not required about knowledge that is not reasonably open to question and is capable of verification by reference to a document the authority of which cannot reasonably be questioned.[124] A judge may acquire knowledge of this kind in any way that a judge thinks fit, and a court may take knowledge of that kind into account.[125] At the hearing of this matter the Court raised the question, as it was obliged to do,[126] as to whether or not the Tribunal Decision could have been influenced by any statement made by the current Minister for Immigration and Border Protection given the timing of the last federal election in 2013. No particular assistance was able to be derived from the parties in this regard, understandably so, given that the matter was raised without notice during the course of the hearing. The Court, having consulted the Government Notices Gazette, notes that writs were issued on 5 August 2013 to cause the last federal election to be held on 7 September 2013.[127] The Honourable Scott Morrison was appointed by the Governor-General as Minister for Immigration and Border Protection on 18 September 2013.[128] In the above circumstances, it would not therefore have been possible for the current Minister for Immigration and Border Protection to have influenced the Tribunal in the manner asserted by the applicant as at the time of the Tribunal Decision (10 September 2013) the current Minister had not yet been appointed as the Minister, and therefore could not have made the comments attributed to him in his capacity as a Minister.
[124] Evidence Act 1995 (Cth), s.144(1) (“Evidence Act”).
[125] Evidence Act, s.144(2) and (3).
[126] Evidence Act, s.144(4).
[127] Government Notices Gazette C2013G01199 06/08/2013.
[128] Government Notices Gazette C2013G01423 20/09/2013.
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, that country information has been put to the applicant for comment.[129] No bias of any kind therefore arises from the Tribunal’s consideration of any DFAT report.
[129] NAHI at para.11 per Gray, Tamberlin and Lander JJ.
In all of the above circumstances, the applicant’s allegation of bias has not been made out. It follows that ground 3 has not been made out.
Conclusion and order
The Court has concluded that none of the grounds of review have been made out. It follows that the application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 3 December 2014
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