WZATJ v Minister for Immigration
[2015] FCCA 333
•18 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATJ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 333 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – Sri Lankan – Tamil ethnicity – Hindu religion – allegations of jurisdictional error, want of procedural fairness and bias – whether jurisdictional error. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Regulations1994 (Cth), Schedule 2, Part 866 |
| Minister for Immigration & Citizenship v SZNVW & Anor (2010) 183 FCR 575; [2010] FCAFC 41 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 Affairs v Shatku [2001] FCA 1857 Minister for Immigration & Multicultural Affairs v Yusuf& Anor (2001) 206 CLR 323; [2001] HCA 30 Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425; [2001] HCA 28 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZEUZ v Minister for Immigration [2006] FMCA 1032 SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 SZJTQ v Minister for Immigration [2008] FMCA 1188 SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 |
| Applicant: | WZATJ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 271 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 26 May & 13 August 2014 |
| Date of Last Submission: | 13 August 2014 |
| Delivered at: | Perth |
| Delivered on: | 18 February 2015 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr PJ Hannan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 271 of 2013
| WZATJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed in this Court on 15 October 2013 the applicant seeks judicial review[1] under s.476 of the Migration Act 1958 (Cth),[2] of a decision of the second respondent, the Refugee Review Tribunal,[3] made on 29 September 2013. The Tribunal affirmed a decision of a delegate[4] of the first respondent, the Minister for Immigration & Border Protection,[5] dated 31 October 2012 to refuse to grant a Protection (Class XA) visa[6] to the applicant.
[1] “Judicial Review Application”.
[2] “Migration Act”.
[3] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 239-247. The CB is Exhibit 1 in the proceedings.
[4] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 144-161.
[5] “Minister”.
[6] “Protection Visa”.
Factual and procedural background
The factual and procedural background to this matter is that:
a)the applicant claims that he:
i)was born in Chilaw, Sri Lanka on 29 December 1968;[7]
[7] CB 4, 74 and 77.
ii)is a Sri Lankan citizen of Tamil ethnicity and Hindu religion;[8]
[8] CB 54.
iii)married on 31 May 2007;[9]
[9] CB 36.
iv)has three children with his wife;[10]
[10] CB 8.
v)lived with his wife, parents, and a number of siblings and half-siblings in Uddapu, Chilaw;[11]
[11] CB 10-12, 50-51 and 93-94.
vi)worked all of all his life as a fisherman;[12]
[12] CB 145.
vii)lived in Udappu, Chilaw but worked in Mullativu as a seasonal fisherman from March 2011 to September 2011;[13]
[13] CB 52, 95 and 145.
viii)lived in Uddapu, Chilaw from September 2011 to May 2012;[14] and
[14] CB 52 and 95.
ix)left Sri Lanka to travel to Australia in May 2012;[15]
[15] CB 45 and 145.
b)the applicant:
i)arrived at Christmas Island by boat on 10 June 2012;[16]
[16] CB 37 at para.28, 96 and 145.
ii)participated in an Irregular Maritime Arrival Entry Interview in Darwin on 23 July 2012;[17]
iii)was granted permission on 7 September 2012 to lodge a Protection Visa application;[18]
iv)lodged a Protection Visa Application on 7 September 2012;[19]
v)made a statutory declaration on 7 September 2012 in support of the Protection Visa Application;[20]
vi)was assisted by a solicitor/migration agent in relation to the lodgement of the Protection Visa Application;[21]
vii)was interviewed by the Delegate on 13 September 2012 as part of the Protection Visa Application process, with his solicitor/migration agent present;[22]
viii)made a submission to the Delegate in support of his Protection Visa Application through his solicitor/migration agent on 13 September 2012;[23] and
ix)provided the Delegate through his solicitor/migration agent with some general country information concerning returned asylum seekers by letter dated 23 September 2012;[24] and
c)on 31 October 2012 the Delegate refused the Protection Visa Application,[25] expressing concerns in the Delegate’s Decision about the credibility of parts of the applicant’s claims.[26]
[17] CB 2 and 22 (“Entry Interview”).
[18] CB 23 (“Protection Visa Application”).
[19] CB 49 and 144.
[20] CB 54-57.
[21] CB 32 and 103.
[22] CB 113-125.
[23] CB 127-139 (“13 September 2012 Submissions”).
[24] CB 140-143 (“23 September 2012 Submissions”).
[25] CB 144 and 161.
[26] CB 150-152.
On 5 December 2012 the applicant lodged an application with the Tribunal, with the assistance of his solicitor/migration agent, for a review of the Delegate’s Decision.[27]
[27] CB 179 and 181.
By letter dated 7 January 2013 the Tribunal invited the applicant to appear before the Tribunal by video link from Sydney to Perth on 4 February 2013.[28] At the hearing before the Tribunal on 4 February 2013[29] the applicant:
a)gave evidence in response to various questions put to him by the Tribunal;
b)had his representative, a solicitor/migration agent, make submissions to the Tribunal on his behalf; and
c)was afforded until 11 February 2013 to provide further information to the Tribunal.[30]
[28] CB 203.
[29] “Tribunal Hearing”.
[30] CB 213-215.
On 5 February 2013 the applicant provided the Tribunal with a 13 page post-Tribunal Hearing submission through his solicitor/migration agent.[31]
[31] CB 217-229 (“Post-Tribunal Hearing Submission”).
On 29 September 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.[32]
[32] CB 243 at para.46.
On 15 October 2013 the applicant filed the Judicial Review Application in this Court.
On 13 November 2013 the Court ordered that:
a)by 22 January 2014 the applicant file and serve an amended Judicial Review Application giving particulars of the grounds of review;
b)by 22 January 2014 the applicant file and serve any further affidavits; and
c)the Judicial Review Application be listed for final hearing on 26 May 2014.
The applicant did not file any amended Judicial Review Application or any affidavit in accordance with the Court’s order of 13 November 2013.
When the matter came on for hearing on 26 May 2014 the hearing of the matter was adjourned to 13 August 2014 and an order made that time for compliance with the Court’s orders for the filing and serving of an amended Judicial Review Application and any further affidavits be extended to 14 July 2014.
On 23 July 2014 the applicant filed an affidavit.[33]
[33] “Applicant’s July 2014 Affidavit”.
At the further hearing of the application on 13 August 2014 the applicant handed up submissions.[34] The Minister did not object to the Applicant’s July 2014 Affidavit or the Applicant’s August 2014 Submissions, either on the grounds of lateness or otherwise.[35]
[34] “Applicant’s August 2014 Submissions”.
[35] The Applicant’s August 2014 Submissions were marked at Exhibit 2.
Tribunal Decision
In the Tribunal Decision the Tribunal first summarised the applicant’s claims as follows:
a)that he was at work on 6 March 2012 when Sri Lankan Army[36] personnel entered his house on the pretext of carrying out a security check and sexually assaulted his wife, and that when he came home he went to the police to complain about the sexual assault of his wife;[37]
b)the applicant says that the police told him they were powerless to intervene and referred him to the local SLA camp, and that when he went there he was severely beaten by the soldiers;[38]
c)the SLA personnel then came to his home and warned his wife that “he should keep his mouth shut” or they would kill the applicant;[39]
d)SLA personnel came in search of him afterwards, but he and his family did not stay at their home but at a neighbour’s home, and that there were many similar incidences of attacks on Tamils by SLA personnel in his village including an incident in 2011 when the mother of a religious leader was sexually assaulted and mutilated;[40]
e)he feared that if he returned to Sri Lanka he would be detained, tortured or killed by SLA personnel or “greasers”, by which he meant Sinhalese SLA personnel, because he was a Tamil and Hindu by religion;[41]
f)SLA personnel had threatened his life and he was scared they would kill him to stop him seeking justice;[42]
g)there was fighting between Tamils and Sinhalese people in the north of Sri Lanka, and although he was not involved or too familiar with the conflict, he feared that he might be targeted or harmed because the authorities might consider him to be a threat to security because he was a Tamil;[43]
h)his sister’s husband had been abducted in September 2006 by armed men wearing masks and black uniforms in a white van and was still missing, and although his brother-in-law had not been a member of any political party, he had been politically active and had volunteered his services during elections;[44]
i)he thought that he might face problems from the Sri Lankan government because he had departed Sri Lanka illegally;[45] and
j)his life might be threatened because he had breached Sri Lankan law in departing illegally.[46]
[36] “SLA”.
[37] CB 232 at para.3.
[38] CB 232 at para.3.
[39] CB 232 at para.3.
[40] CB 232 at para.3.
[41] CB 232 at para.4.
[42] CB 232 at para.4.
[43] CB 232 at para.4.
[44] CB 233 at para.5.
[45] CB 233 at para.6.
[46] CB 233 at para.6.
The Tribunal also had regard to the applicant’s 13 September 2012 Submissions and 23 September 2012 Submissions made by his solicitor/migration agent representative.
In relation to the 13 September 2012 Submissions the Tribunal noted that:
a)the applicant feared persecution because Sri Lankan government security agencies and affiliated para-military organisations suspected that he was linked to the Liberation Tigers of Tamil Eelam[47] because he was a Tamil;[48]
b)the applicant had left Sri Lanka illegally and therefore feared that on his return he would be accused of supporting the LTTE and seriously mistreated;[49]
c)the applicant’s fear of persecution for reasons of race and membership of particular social groups comprising Sri Lankan Tamils and Tamils from the north or east of Sri Lanka, and the applicant’s real or imputed political opinion arising from his race;[50]
d)the applicant’s fear was exacerbated by his membership of a particular social group of Tamils who had fled Sri Lanka illegally and made unsuccessful asylum claims in Australia;[51]
e)the targeting of Tamils was said to be part of a systematic and discriminatory pattern of conduct perpetrated by the Sri Lankan authorities under the “Rajapakse regime” as part of the ongoing suppression and ethnic repression of Tamils, and referred to “the round up and slaughter of thousands of innocent Tamils in May 2009” (with the Tribunal noting that this evidence referred to incidents in the context of the military defeat of the LTTE in May 2009);[52]
f)reference to material quoting Emergency Regulations from 2010 as still being in force, although a further quoted report from December 2011 noted that the Emergency Regulations had been allowed to lapse on 31 August 2011;[53]
g)reference to a decision of the Tribunal (differently constituted) which referred to persons suspected of being LTTE supporters being targeted and subjected to human rights abuse by the Sri Lankan government and the para-military groups supporting the government;[54]
h)reference to Australian press reports, submissions to Canadian Immigration authorities by the Law and Society Trust in Colombo, the INFORM Human Rights Documentation Centre, Networking for Rights in Sri Lanka and a human rights lawyer in the United Kingdom in July 2011 which claimed that failed asylum seekers were almost always detained on arrival in Sri Lanka, sometimes for a few hours and sometimes for months;[55]
i)reference to media releases and reports issued by Human Rights Watch and Freedom from Torture concerning claims some Tamil failed asylum seekers returned to Sri Lanka from the United Kingdom and other countries had been detained and tortured after their return, but the Tribunal noted that what was suggested by those media releases and reports was that these Tamils had an actual perceived association with the LTTE or were Tamils who had been politically active abroad in opposition to the Sri Lankan government, and were therefore at risk of torture and to her ill-treatment on return;[56] and
j)it was asserted that because of the high levels of violence in Sri Lanka and the inability of Sri Lankan authorities to protect their citizens, and the general oppression of Tamils, perpetrated in a climate of impunity and judicial corruption, pervasive human rights violations by Sri Lankan authorities and systematic deprivation of cultural freedom, land rights and freedom of expression, there was a real risk that the applicant would suffer significant harm as defined in s.36(2A) of the Migration Act.[57]
[47] “LTTE”.
[48] CB 233 at para.7.
[49] CB 233 at para.7.
[50] CB 233 at para.7.
[51] CB 233 at para.7.
[52] CB 233 at para.8.
[53] CB 233 at para.9.
[54] CB 233 at para.9.
[55] CB 234 at para.10.
[56] CB 234 at para.11.
[57] CB 234 at para.12.
In relation to the 23 September 2013 Submissions, which the Tribunal noted were generic rather than specific to the applicant, the Tribunal noted:
a)reference to a European Court of Human Rights[58] decision indicating that Tamils were not at risk per se of serious harm from Sri Lankan authorities, but which referred to a number of factors which might increase the risk, of which only illegal departure from Sri Lanka and having made an asylum claim abroad were relevant to the present case, but in relation to which the ECHR cautioned that the factors and the weight to be ascribed to them, had to be considered in light of the facts in every case;[59]
b)references made by the Tribunal to the applicant’s representative referring to media releases and reports from Human Rights Watch and Freedom from Torture concerning Tamil failed asylum seekers returning from the United Kingdom having been detained and tortured after their return, and the violence, including sexual assault, by so-called “grease devils”, highlighting insecurity in the north and east of Sri Lanka and referring to this as being part of a general strategy to remove Tamils from the north and east, including by government appropriation of land in the north and east of Sri Lanka. The Tribunal observed that the applicant was not from the north or east of Sri Lanka but from a Tamil village in a district of a north-western province, just north of Colombo.[60]
[58] “ECHR”.
[59] CB 234 at para.13.
[60] CB 234 at para.14.
In the course of the Tribunal Decision the Tribunal sets out issues discussed with and put to the applicant at the Tribunal Hearing. Those issues were as follows:
a)the applicant’s Hindu religion and Tamil ethnicity, and the fighting between Tamils and Sinhalese in the north of Sri Lanka, which the applicant admitted he had not been involved in and was not familiar with, and which had not affected him, and which had not given rise to any problems for him;[61]
b)that the applicant said that the problems that he had in Sri Lanka arose “because of his wife”;[62]
c)as a consequence of trying to bring what had happened to his wife to light there had been a threat to his life (by the SLA), and that was “why he had come here” (to Australia);[63]
d)that the SLA had nothing to fear from him and it was therefore difficult for the Tribunal to accept that the SLA had been threatening his life. The applicant indicated that he was simply trying to get justice for what had happened to his wife, and that if he were to go back to Sri Lanka now he still thought that the Sri Lankan government would “give him trouble and that there was no security for his life”;[64]
e)that the SLA personnel responsible for what had happened to his wife had nothing to fear from him, to which the applicant indicated that they might not be scared of him but they had come searching for him twice, and as a consequence “his mother had asked him to leave and to go somewhere to live safely” because his mother was concerned that what had happened to his brother-in-law in September 2006 might happen to him. When it was put to the applicant that his brother-in-law’s position was different to his, the applicant said that what had happened to his brother-in-law was “why his mother had been scared and had asked him to leave”;[65]
f)that his wife was still living in Sri Lanka, in their village, and that it was difficult to suggest that there was a real chance or a real risk that the applicant was going to be killed or otherwise harmed by the SLA for the reasons he had suggested in those circumstances. The applicant responded that his wife was not living in one place, but was moving and hiding in different places such as her sister’s or her mother’s homes or the homes or the homes of other relatives along with their children, but that it was “what he had experienced” which had led his family to ask him to leave and why he was in Australia now;[66]
g)that he did not claim to have ever been suspected of having any connection with the LTTE, did not come from the north or east of Sri Lanka, but a fishing village a little way north of Colombo, and that the UNHCR “Eligibility Guidelines for Assessing International Protection Needs of Asylum-Seekers from Sri Lanka” (2012)[67] meant that he did not appear to fit any risk profile identified by the UNHCR, and it was therefore difficult for the Tribunal to accept that there was a real chance or real risk that he would be harmed because he was a Tamil Hindu who went back to Sri Lanka. The applicant responded that he would not have made a trip like this if there had been no risk to his life, and he was trying to get justice in relation to what had happened to his family;[68]
h)that returning to Sri Lanka as a failed asylum seeker involuntarily meant that he would be interviewed by various Sri Lankan government departments upon arrival with a representative of the Australian government’s Department of Foreign Affairs and Trade[69] present, and that DFAT information indicated that failed asylum seekers were not treated differently from other returnees, and that Tamil returnees were not treated differently from Sinhalese or Muslim returnees, and that DFAT had said that allegations of mistreatment of returnees had not been substantiated;[70]
i)in relation to the applicant leaving Sri Lanka illegally, that DFAT advice indicated that since 2 November 2012 persons who had left illegally had been charged with offences under Sri Lankan law, and that advice from the Sri Lanka Attorney-General’s Department to DFAT indicated that fines would be imposed on those persons unless they were considered to be organisers of irregular migration of people from Sri Lanka;[71] and
j)in relation to the applicant’s possible return to Sri Lanka that he might face up to a fortnight in gaol on remand in prison conditions which were poor due to overcrowding, but that such treatment was not intentional (as was required by Australian law) and that mistreatment of returnees had not been substantiated, and that in the circumstances the Tribunal might not accept that there was a real chance that the applicant would be persecuted, or a real risk that he would suffer significant harm, either as a result of having left Sri Lanka illegally or as a result of having made the Protection Visa Application. The applicant responded that he had come to Australia to secure his life.[72]
[61] CB 235 at para.15.
[62] CB 235 at para.15.
[63] CB 235 at para.16.
[64] CB 235 at para.17.
[65] CB 235 at para.18.
[66] CB 235-236 at para.19.
[67] “UNHCR Eligibility Guidelines 2012”.
[68] CB 236 at para.20.
[69] “DFAT”.
[70] CB 236 at para.21. In support of the assertion that the allegation of mistreatment of returnees had not been substantiated the Tribunal footnoted country information including DFAT reports from 2009, 2010, and two 2012 reports, as well as reports of the Danish Immigration Service in 2010 and the United Kingdom Home Office in March and December 2012: see CB 236 at fn.1.
[71] CB 236 at para.22 and fn.2.
[72] CB 236-237 at paras.23-24.
The Tribunal also referred to the applicant’s Post-Tribunal Hearing Submission, noting the applicant’s:
a)claim that the Sri Lankan government was not meeting levels of protection for its citizens and that the applicants’ pleas to the SLA had resulted in death threats to silence his complaints and that the security forces in Sri Lanka tortured and abused citizens with impunity;[73]
[73] CB 237 at para.25
b)referral to the consistent allegations by the Sri Lankan authorities that Tamil asylum seekers were LTTE members or sympathisers seeking to keep the cause of the LTTE going abroad, and referred to:
i)a request to the Canadian government by the Sri Lankan authorities to refuse asylum to Tamil migrants on a particular ship in 2010, alleging that Sri Lanka claimed that the majority of the Tamils in question were members of the LTTE; and
ii)comments made by Sri Lanka’s High Commissioner in Australia in 2009 that LTTE cadres may infiltrate asylum seekers coming to Australia, with the Tribunal noting that the relevant press release refers, in fact, to some Tamil asylum seekers having received adverse assessments from ASIO.
The applicant submitted that the inescapable inference was that a returning Tamil asylum seeker would be suspected of supporting the LTTE and would face a real chance of being seriously harmed for that reason;[74]
c)reference to a press article indicating that 500 Tamil fishermen from a village on the west coast of Sri Lanka had left to seek asylum in Australia mainly for economic reasons, and that one villager who had been caught by the Sri Lankan Navy on a boat bound for Australia had been interrogated for two days and gaoled for over a month;[75]
d)reference to a report of police arriving unannounced at the homes of people who had left Sri Lanka demanding to know why they had left and who had taken them, and that this supported claims that failed asylum seekers remained of interest to the Sri Lankan authorities and faced risks of harm on return;[76]
e)reference to various reports in the same terms as that set out at paragraph 17(h) and (i) above;[77]
f)quoting press releases issued by French and Asian Legal Resource Centres in June 2012 concerning routine use of torture and ill-treatment in Sri Lanka, and submitted that it could not be assumed that the applicant would not be at risk of serious harm as a failed asylum seeker and on account of his ethnicity if he returned to Sri Lanka, and referred to:
i)a media report of two Sinhalese failed asylum seekers who were removed from Australia in 2009 and who had spent two years in gaol on remand on charges of involvement in people smuggling; and
ii)reports related to a third man, a Tamil arrested at the airport who was detained for 55 days without charge and tortured,
and submitted that there was a tangible risk of harm for Tamil returnees who may be subjected to treatment ranging from lengthy detention to torture and even death if returned to Sri Lanka now or in the near or foreseeable future.[78]
[74] CB 237 at para.26.
[75] CB 237 at para.27.
[76] CB 237 at para.27.
[77] CB 237-238 at para.28.
[78] CB 238 at para.29.
In relation to the applicant’s claim to have a well-founded fear of persecution for a Convention reason, the Tribunal:
a)accepted that the applicant’s wife was sexually assaulted by SLA personnel in March 2012 and that when he went to the police to complain he was referred to the SLA camp where he was beaten;[79]
b)did not accept that SLA personnel searched for the applicant as:
i)he had no-one to complain to;
ii)the SLA personnel had “nothing to fear from him”; and
iii)the only person who could give evidence about the sexual assault was his wife, and she continued to live in the village;[80] and
c)did not accept the applicant might be abducted like his brother-in-law.[81]
[79] CB 238 at para.30.
[80] CB 238 at para.30.
[81] CB 239 at paras.32.
The Tribunal noted in relation to the applicant’s social groups claims, that the applicant did not, and did not claim to:
a)come from the north or east of Sri Lanka; or
b)have any connection with the LTTE.[82]
Implicit in those findings, based on the applicant’s own evidence to the Tribunal, is a conclusion that he was not a member of social groups of Tamils coming from the north or east of Sri Lanka or having a connection with the LTTE.
[82] CB 238 at para.31.
The Tribunal accepted that there was evidence that Sri Lankan security forces tortured and abused citizens, and that impunity was a problem, but, for reasons set out above,[83] did not accept that SLA personnel continued to harass the applicant after he went to the SLA camp to complain about the sexual assault of his wife, and further considered that the applicant had exaggerated the frequency of incidents such as that which had happened to his wife, and did not accept that there was a real chance that he would be harassed or beaten by Sinhalese SLA personnel, the so-called “greasers”, if he returned to Sri Lanka now or in the reasonably foreseeable future.[84]
[83] See para.19 above.
[84] CB 239 at para.33.
Insofar as the risk of the applicant being detained, tortured, killed or otherwise persecuted by SLA personnel on account of what had happened to his wife, or on account of his race, religion or membership of any particular social group of Sri Lankan Tamils (but not accepting that he fell within the particular social group of Tamils from the north or east of Sri Lanka, and not accepting that he would be imputed with any political opinion arising from his race or the fact that he was a returning failed Tamil asylum seeker), the Tribunal found that the applicant did not appear to fit within any of the risk profiles identified by the UNHCR Eligibility Guidelines 2012.[85]
[85] CB 239-240 at para.35.
The Tribunal:
a)accepted Sri Lankan authorities might suspect there were former LTTE cadres among the asylum seekers coming to Australia; and
b)did not accept that the conclusion in sub-paragraph (a) meant that the applicant would be seen as an LTTE supporter simply because he returned to Sri Lanka as a failed Tamil asylum seeker.[86]
[86] CB 239 at para.34.
The Tribunal:
a)referred to the submissions from the applicant’s solicitor/migration agent concerning reports as to the risk of torture or ill-treatment of Tamils returning to Sri Lanka;
b)found that the reports (including reports from Human Rights Watch and Freedom from Torture concerning the claims of failed Tamil asylum seekers returning to Sri Lanka from the United Kingdom) suggested those at risk of torture or ill-treatment on return to Sri Lanka were Tamils with an actual or perceived association with the LTTE or who had been politically active abroad in opposition to the government; and
c)found those characteristics did not apply to the applicant.[87]
[87] CB 240 at para.36 (see also para.37).
The Tribunal noted that the UNHCR Eligibility Guidelines 2012 had been put to the applicant.[88]
[88] CB 239 at para.35.
The Tribunal:
a)put to the applicant that people who do not return voluntarily are interviewed by the Sri Lankan authorities;
b)put to the applicant that failed asylum seekers are not treated differently from other returnees (including Sinhalese or Muslim returnees);
c)accepted the applicant would be charged with offences in relation to his illegal departure from Sri Lanka;
d)accepted the applicant would be fined for the offences referred to in sub-para (c) above and could also be imprisoned for up to two weeks; and
e)did not accept there was a real chance that the applicant would be persecuted for reasons of his membership of the particular social group of Tamils who had fled Sri Lanka illegally and unsuccessfully made claims for asylum in Australia.[89]
[89] CB 240-241 at paras.38-40.
The Tribunal concluded that, having considered the totality of the applicant’s circumstances, including their cumulative effect, the applicant did not have a well-founded fear of persecution for a Convention reason if he returned to Sri Lanka now or in the reasonably foreseeable future.[90]
[90] CB 240 at para.40.
For the reasons given above in relation to whether the applicant had a well-founded fear of persecution for a Convention reason the Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there was a real risk the applicant would suffer “significant harm” as defined in s.36(2A) of the Migration Act.[91] The Tribunal also considered prison conditions in Sri Lanka. The Tribunal accepted that Sri Lankan prisons were overcrowded and conditions in them poor, but did not find that this meant the definition of cruel or inhuman treatment or punishment in s.5(1) of the Migration Act. This was because they were not intended to cause extreme humiliation which is unreasonable for the purposes of the definition of degrading treatment or punishment. The Tribunal did not therefore accept, on the basis of the general findings of fact and the findings of fact in relation to prisons, that the applicant was exposed to a real risk of being arbitrarily deprived of his life, or that the death penalty would be carried out, or that he would be subjected to torture or cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Migration Act.
[91] CB 243 at para.44.
The Tribunal concluded that the applicant did not satisfy the criterion within s.36(2) for the grant of a Protection Visa and affirmed the Delegate’s Decision not to grant the applicant’s Protection Visa Application.[92]
[92] CB 243 at paras.45-46.
The Tribunal set out the relevant law, noting that the Minister must be satisfied that the criteria prescribed by the Migration Act for the grant of a Protection Visa Application, as set out in s.36 of the Migration Act, and Part 866 of Schedule 2 to the Migration Regulations1994 (Cth), had been met. The Tribunal also set out the relevant refugee criterion by reference to the relevant articles of the Convention and s.91R(2) of the Migration Act. The Tribunal also noted that a person who did not meet the refugee criterion in s.36(2)(a) of the Migration Act might nevertheless meet the complimentary protection criterion in s.36(2)(aa) of the Migration Act, and that the Tribunal was required to take account of relevant policy guidelines prepared by the then Department of Immigration and Citizenship.[93]
[93] CB 244-246 at paras.47-58.
The Judicial Review Application
The grounds of review, as set out in the application filed 15 October 2013 are as follows:
1.JURISDICTIONAL ERROR
2.NOT FOLLOWING PROPER PROCEDURE
3.NOT FOLLOWING RULES OF NATURAL JUSTIC[94]
[94] Transcribed without amendment from the “Grounds of application” in the Application filed 15 October 2013.
An affidavit was filed with the Application, attaching the Tribunal Decision.
On 13 November 2013 a Registrar of this Court ordered that the applicant file and serve, on or before 22 January 2014, 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 for compliance with the Registrar’s orders of 13 November 2013 for the applicant to file an amended application and any further affidavits upon which he intended to rely at hearing was extended to 14 July 2014. The applicant filed the Applicant’s July 2014 Affidavit, which the Minister did not object to either by reason of lateness or content, and which, save for formal parts, was entirely comprised of submissions, which are set out below in relation to the relevant ground of review.
At the resumed hearing of the matter on 13 August 2014 (it having been adjourned on 26 May 2014 to allow for the applicant to file an amended application and any further affidavits) the applicant handed up the Applicant’s August 2014 submissions, annexed to which was a copy of the Applicant’s Affidavit and various other materials, which are dealt with further below in relation to the relevant ground of review. Again, no objection was taken by the Minister to the handing up of the Applicant’s August 2014 Submissions at hearing.
The Minister also made written submissions which were filed on 21 May 2014 in advance of the initial hearing.[95] Parts of the Minister’s Written Submissions were overtaken, and rendered otiose, by the Applicant’s July 2014 Affidavit and the Applicant’s August 2014 Submissions, but insofar as that occurred the Minister’s Counsel made further oral submissions at the resumed hearing on 13 August 2014.
Consideration
Ground 1
[95] “Minister’s Written Submissions”.
Applicant’s submissions
In the Applicant’s July 2014 Affidavit the applicant says that:
…
II.The Second Respondent failed to exercise his proper jurisdiction by not examining the implications of my treatment and detention by the security forces in Sri Lanka as stated in paragraph 3, 4, 8, 9 and 15 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.
…
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[96] 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.
[96] “Amnesty International Statement”.
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
The Minister submitted that:
a)a consideration of the claims made by the applicant and the submissions of his solicitor/migration agent to both the Delegate and the Tribunal, and the Tribunal Decision, discloses no apparent error in the Tribunal’s reasoning process or the manner in which the Tribunal conducted the review;
b)the Amnesty International Statement was not before the Tribunal (it being a document which post-dates the Tribunal Hearing);
c)the choice of country information was a matter for the Tribunal, in respect of which the choice and assessment of country information is a factual matter for the Tribunal.[97] The weight that the Tribunal gives to country information is a matter for the Tribunal and not this Court.[98] The question of the accuracy of country information is a matter for the Tribunal and not this Court.[99] There is no jurisdictional error in the Tribunal basing a decision on country information that is not true;[100]
d)the Tribunal did look at, examine and have regard to more than just DFAT documents when examining the situation for returnees in Sri Lanka, and in particular had regard to the UNHCR Eligibility Guidelines 2012, plus other materials, including but not limited to, reports from the Danish Immigration Service, the United Kingdom Home Office and a press article from the Sydney Morning Herald;[101] and
e)with respect to the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka)[102] the manner in which the case was put by the applicant did not put the POT Act at the forefront of his case, but in any event its application was subsumed by factual findings concerning the applicant’s status, and how that status would be viewed upon the applicant’s return to Sri Lanka.[103]
[97] See SZEUZ v Minister for Immigration [2006] FMCA 1032 at para.7 per Driver FM.
[98] See SZJTQ v Minister for Immigration [2008] FMCA 1188 at para.52 per Barnes FM (“SZJTQ”).
[99] See SZJTQ at para.52 per Barnes FM.
[100] See SZJTQ at para.52 per Barnes FM.
[101] Citing CB 240-241 at para.38 and CB 242 at para.42.
[102] “POT Act”.
[103] CB 241 at para.39.
Consideration of ground 1
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error.[104] 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.[105]
[104] Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[105] Minister for Immigration & Multicultural Affairs v 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 all or any allegations made by the applicant.[106] 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.[107] 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.[108]
[106] Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at para.19 per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at para.23 per Gilmour J.
[107] 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”).
[108] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
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 3, 4, 8, 9 and 15.[109]
[109] The paragraphs are at CB 232-235.
Paragraphs 3 and 4 of the Tribunal Decision[110] do no more than repeat the applicant’s claims and evidence to the Tribunal. Paragraphs 8 and 9 of the Tribunal Decision do no more than repeat certain submissions made by the applicant’s solicitor/migration agent.[111] Paragraph 15 of the Tribunal Decision sets out evidence that the applicant gave concerning his religion, the fighting between Tamils and Sinhalese in the north of Sri Lanka, and problems arising therefrom in relation to the Sri Lankan government or para-military organisations, and the applicant’s responses to those matters put to him in that respect by the Tribunal.[112]
[110] At CB 232.
[111] At CB 233.
[112] CB 235.
The Tribunal accepted the fact that the applicant’s wife had been sexually assaulted by SLA personnel. The Tribunal did not accept, however, that this would result in persecution of the applicant for a Convention reason, or a real risk of significant harm, if the applicant were returned to Sri Lanka now or in the reasonably foreseeable future. The Tribunal arrived at that conclusion having regard to its assessment of the likelihood of the SLA personnel pursuing the applicant in circumstances where the Tribunal considered that the applicant constituted no threat to the SLA personnel concerned. In those circumstances, the Tribunal concluded that the SLA personnel would not have pursued the applicant as he claimed. That was a conclusion which, although it might not have been reached by every finder of fact, was open on the evidence and the inferences able to be drawn from the evidence, and as such ought not be interfered with by this Court on judicial review.[113]
[113] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Tribunal’s conclusions with respect to the treatment of the applicant upon his return to Sri Lanka were based upon country information which indicated that persons returning to Sri Lanka, having left illegally, might be detained on remand and subsequently fined, but unless they were persons of interest to the Sri Lankan authorities on the basis of real or perceived links to the LTTE, there was no risk of persecution for a Convention reason or a real risk of serious or significant harm to a returnee. Likewise, there was no risk of persecution for a Convention reason or real risk of serious or significant harm to a returnee on the basis of Tamil ethnicity or Hindu religion upon return to Sri Lanka, absent any real or perceived links with the LTTE. The Tribunal finding that the applicant had not been imputed with pro-LTTE beliefs or sympathies was a finding reasonably open to the Tribunal on the available evidence. That evidence was specific country information, not only from DFAT, but also from the Danish Immigration Service, the United Kingdom Home Office, Human Rights Watch and Freedom for Torture. In the circumstances, for this Court to determine the matter differently would be to engage in impermissible merits review.[114] In that regard, 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. The Tribunal did not accept that the applicant had a profile where he would be suspected of being involved, or having real or perceived links with, the LTTE, and in that regard the Tribunal relied specifically upon the applicant’s own evidence, including his lack of knowledge of or involvement in the conflict in the north and east of Sri Lanka, and the absence of any affect upon him as a result of the civil war in the north and east of Sri Lanka, and, most notably, his concession that he had had no problems with the Sri Lankan government or para-military organisations because of any suspected link to the LTTE.[115]
[114] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at para.9 per Heerey, RD Nicholson and Selway JJ.
[115] CB 235 at para.15, CB 239 at paras.32 and 34, CB 240 at para.36 and CB 240-241 at para.38.
In light of the Tribunal’s consideration of issues and findings of fact as set out above,[116] the applicant’s ground with respect to jurisdictional error alleging the Tribunal failed to properly exercise jurisdiction by not examining 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.
[116] See paras.21-29 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,[117] or mainly,[118] 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,[119] which sets out part of the Post-Tribunal Hearing Submission by the applicant. There was also an assertion, as part of the above submission, 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.
[117] Applicant’s July 2014 Affidavit, para.III.
[118] Applicant’s August 2014 Submissions, para.V.
[119] CB 237 at para.25.
The Tribunal found that the detention on remand and fining of the applicant upon his return to Sri Lanka as a person who had left Sri Lanka illegally would not found a well-founded fear of persecution for a Convention reason or amount to a real risk of serious or significant harm.[120] The Tribunal set out information in relation to the treatment of returnees from a variety of sources, not limited to DFAT reports, but including the UNHCR Eligibility Guidelines 2012, a report in the Sydney Morning Herald, a 2010 Danish Immigration Service report and United Kingdom Home Office reports from March and December 2012. Those reports formed the basis for the Tribunal reaching the view that the applicant would not be seriously harmed for a Convention reason upon his return to Sri Lanka, and that there was no real risk of significant harm to him upon his return to Sri Lanka. It is plain that the Tribunal had regard to various sources of information concerning the treatment of returnees to Sri Lanka, and that the country information relied upon by the Tribunal was capable of justifying 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, where those factual findings are, as here, open on available material, are matters solely for the Tribunal as the finder of fact.[121]
[120] CB 241 at para.40 and CB 243 at para.44.
[121] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11 per Gray, Tamberlin and Lander JJ (“NAHI”).
The Amnesty International Statement published on 26 June 2014:
a)indicates that the UN High Commissioner for Human Rights had announced that three experts would assist a UN team investigating war crimes and other crimes under international law committed in Sri Lanka;
b)referred to the UN Secretary General’s panel of experts on accountability in Sri Lanka investigation which, up to March 2011, found credible allegations of war crimes and crimes against humanity in Sri Lanka; and
c)asserts that there is credible testimony to war crimes and other crimes under international law being committed by both the SLA and the LTTE during the period under investigation (which period is not expressly stated).
The reliance on the Amnesty International Statement of 26 June 2014 does not assist the applicant. The Amnesty International Statement 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 otherwise set out in the comprehensive reports such as those relied upon by the Tribunal to arrive at the conclusion that the applicant was not at risk of persecution or serious or significant harm if he were to return to Sri Lanka.
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)[122] upon return to Sri Lanka. The Tribunal was clearly aware of the provisions of the POT Act. The Tribunal had regard to the Post-Tribunal Hearing Submission, and did so in the context of a submission that the Sri Lankan government was failing to meet the level of protection its citizens were entitled to expect according to international standards against the backdrop of security forces torturing and abusing citizens with impunity.[123] The POT Act was referred to in the Post-Tribunal Hearing Submission, particularly in the context of a September 2011 International Crisis Group Report on Sri Lanka.[124] 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 the usual detention on remand and penalty by way of fine 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 on account of any real or perceived links with the LTTE.
[122] “IE Act”.
[123] CB 237 at para.25.
[124] CB 225-227.
The reference to the IE Act stands alone. There is no reference to any particular provision of the IE Act in either the Applicant’s July 2014 Affidavit or the Applicant’s August 2014 Submissions. 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 and fine by way of penalty, 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.[125] 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 IE Act the Tribunal considered the likely treatment of the applicant upon return to Sri Lanka.
[125] CB 240 at para.36 and CB 241-242 at para.41.
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.
There is no jurisdictional error apparent on the face of the Tribunal Decision. Insofar as the applicant asserts jurisdictional error none has been made out. The evaluation of the evidence before the Tribunal, including country information, was a matter for the Tribunal.[126] The findings of fact made, and the Tribunal’s ultimate inability to be satisfied as to the applicant’s claims, were findings open on the evidence before the Tribunal, for the reasons set out in the Tribunal Decision.[127] The Tribunal’s findings reveal no jurisdictional error. Ground 1 is not made out.
Grounds 2 and 3
[126] NAHI at para.11 per Gray, Tamberlin and Lander JJ.
[127] 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 a failure to afford procedural fairness or 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 (as a failure to accord natural justice is now more commonly called in the context of Migration Act proceedings).
Minister’s submissions
The Minister submits that:
a)in the absence of evidence to the contrary, the applicant is obliged to accept the “procedural narrative” set out in the Tribunal Decision. In the absence of evidence, such as a transcript, this Court is obliged to accept the statements of fact recorded in the Tribunal Decision as to what was said by the applicant and the general course of the hearing.[128] That narrative does not disclose any failure by the Tribunal to comply with Division 4 of Part 7 of the Migration Act;
b)the Tribunal Decision demonstrates that the Tribunal discharged its procedural fairness obligations under Division 4 of Part 7 of the Migration Act. The requirements of the natural justice hearing rule are exhaustively set out in Division 4 of Part 7;[129] and
c)the applicant attended a hearing before the Tribunal accompanied by his solicitor/migration agent. The Tribunal Decision shows the Tribunal put to the applicant during the hearing a number of matters (including country information) which were of concern to the Tribunal and later formed the basis of findings in the Tribunal Decision. The Tribunal Decision also demonstrates that the Tribunal carefully considered the submissions which the applicant’s solicitor/migration agent provided, including the Post-Tribunal Hearing Submission.
[128] See SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at para.13 per Collier J; Minister for Immigration & Citizenship v SZNVW & Anor (2010) 183 FCR 575 at 591 per Perram J; [2010] FCAFC 41 at para.59 per Perram J.
[129] Migration Act, s.422B(1).
Consideration of Grounds 2 and 3
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.[130] 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, [131] which invitation was accepted by the applicant.[132] The applicant attended the Tribunal Hearing and gave evidence in support of his claims, assisted by an interpreter and with his solicitor/migration agent in attendance.[133] 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)whether he had ever had any problems with the Sri Lanka government or para-military organisations;[134]
b)whether any further steps were taken to pursue his complaint about his wife’s sexual assault after he had been to the SLA camp;[135]
c)that it was difficult to accept that the army would have been threatening his life because they had nothing to fear from him;[136]
d)that his brother-in-law’s position was different to his (bearing in mind that the evidence indicates that the brother-in-law was politically active and had volunteered his services during elections);[137]
e)that his wife was still living in his home village in Sri Lanka;[138]
f)that it was difficult for the Tribunal to accept that there was a real chance or a real risk that he was going to be killed or otherwise harmed by the SLA personnel;[139]
g)that he did not appear to fit within any of the risk profiles identified by the UNHCR Eligibility Guidelines 2012;[140] and
h)the procedures with respect to processing, detention and the imposition of penalties upon non-voluntary returnees to Sri Lanka, including those who had unsuccessfully sought asylum overseas.[141]
[130] 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.
[131] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63.
[132] CB 134-135, 141-142 and 170 at para.20.
[133] CB 150.
[134] CB 235 at para.15.
[135] CB 235 at para.16.
[136] CB 235 at paras.17 and 18.
[137] CB 235 at para.18, and CB 233 at para.5.
[138] CB 235 at para.19.
[139] CB 235-236 at para.19.
[140] CB 236 at para.20.
[141] CB 236-237 at paras.21-24.
The solicitor/migration agent,[142] made the Post-Tribunal Hearing Submission on the applicant’s behalf,[143] which was considered by the Tribunal.[144]
[142] CB 151.
[143] CB 154-161.
[144] CB 169 at para.19.
In all of the above 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 grounds 2 and 3 are not made out.
Additional ground – bias
At hearing, in the Applicant’s August 2014 Submissions, the applicant raised a ground of bias. The Minister took no objection and Counsel dealt with the additional ground in the course of oral submissions. The basis for the additional ground of bias is set out below.[145]
[145] See paras.62-63 below.
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”;[146] and
b)the Tribunal Decision does not demonstrate any actual or apprehended bias on the part of the Tribunal.
[146] 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 CJ and Gummow J and 127 per Kirby J (“Jia Legeng”).
Consideration – additional bias ground
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven.[147] 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.[148] Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment.[149]
[147] 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.
[148] Jia Legeng CLR at 532 per Gleeson CJ and Gummow J; HCA at para.72 per Gleeson CJ and Gummow J.
[149] 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.
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,[150] 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.
[150] See para.58 above.
The applicant alleges bias in relation to comments attributed to the former Minister for Immigration and Border Protection. Assuming that the statement allegedly made by the Minister was made by him, it does not assist the applicant. There is no evidence that the Tribunal was aware of the statement, or that it influenced the Tribunal in any way. The mere assertion of bias by the applicant does not establish bias, and the onus is on the applicant to put before this Court cogent evidence capable of distinctly and clearly proving bias. The applicant has not done so in relation to the comments attributed to the Minister and any affect they may have had on the Tribunal. In those circumstances, the allegation of bias in relation to the Minister’s comments influencing the Tribunal is not made out.
The applicant’s assertion that the Tribunal was biased by reason of reference to reports prepared by DFAT is misconceived. The Tribunal is entitled to have regard to country information of its choosing, and to derive factual findings from that country information where, as here, the import of that country information has been put to the applicant for comment.[151] No bias of any kind therefore arises from the Tribunal’s consideration of any DFAT report.
[151] 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 the additional bias ground has not been made out.
Conclusion and order
The Court has concluded that none of the applicant’s grounds of the Judicial Review Application have been made out, and that the Tribunal Decision does not involve jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 18 February 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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