WZATL v Minister for Immigration
[2016] FCCA 43
•15 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATL v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 43 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – Sri Lankan Tamil – whether jurisdictional error – whether lack of procedural fairness – whether bias – whether failure to consider complementary provisions. |
| Legislation: Constitution, s.75(v) Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Article 1A(2) Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), Part 7, Division 4, ss.46A(2), 91R, 422B, 425, 474, 476 Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) |
| Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225; (1997) 71 ALJR 381; (1997) 142 ALR 331 Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairsv Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 WZAPN v Minister for Immigration & Anor [2014] FCA 947; (2014) 229 FCR 477 |
| Applicant: | WZATL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 308 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 27 May 2014, 12 August 2014 and 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 15 January 2016 |
REPRESENTATION
| For the Applicant: | In person (with an interpreter) |
| Counsel for the First Respondent: | Mr PR Macliver (on 27 May 2014 and 12 August 2014) and Mr A Gerrard (on 17 July 2015) |
| Solicitors for the First Respondent: For the Second Respondent: | Australian Government Solicitor Submitting appearance, save as to costs |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 308 of 2013
| WZATL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) for judicial review (“Judicial Review Application”) of a decision of the second respondent, the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, then the Minister for Immigration, Multicultural Affairs & Citizenship, now the Minister for Immigration & Border Protection (“Minister”), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The Tribunal Decision is in the Court Book (“CB”) at CB 194-228.
Factual and procedural background
The factual and procedural background to the application is as follows:
a)the applicant is a citizen of Sri Lanka of Tamil ethnicity who was born in Udappu, Puttulam District, Sri Lanka on 17 July 1974: CB 195 at [8];
b)after completing four years of schooling, the applicant worked as a fisherman from Udappu, Mullaitivu and Andimunai, Sri Lanka, apart from when he was unemployed between 1984 and 1986: CB 195-196 at [10];
c)prior to his arrival in Australia on 1 June 2012, the applicant had lived for ten years in Puttulam District, and only travelled outside Sri Lanka when he travelled to India for approximately two weeks in February 2012 for a religious visit: CB 195 at [10]. Upon his return from India to Sri Lanka, the applicant did not experience any difficulties at the airport: CB 199 at [35];
d)on 1 June 2012 the applicant arrived in Australia at Christmas Island without a visa. The applicant’s irregular maritime arrival entry interview took place on 18 and 20 July 2012 with the assistance of Tamil interpreters: CB 7-14 and CB 196 at [11];
e)on 8 September 2012 the applicant was advised that the Minister had exercised his power under s.46A(2) of the Migration Act to allow the applicant to lodge an application for a Protection Visa: CB 16;
f)on 8 September 2012 the applicant lodged his application for a Protection Visa with the assistance of an Immigration Advice and Application Assistance Scheme (“IAAAS”) representative, Mr Paul Grey from Vrachnas Lawyers: CB 17-98;
g)on 11 October 2012 the applicant, through Vrachnas Lawyers provided a detailed written submission in support of the applicant’s protection claims: CB 99-111;
h)the Delegate’s Decision made on 19 December 2012 was to refuse to grant the applicant the Protection Visa: CB 112-135. The applicant was notified of the Delegate’s Decision by letter dated 19 December 2012 which advised him of his entitlement to apply to the Tribunal for a review of the Delegate’s Decision: CB 136-141;
i)on 23 January 2013 the applicant applied to the Tribunal for review of the Delegate’s Decision: CB 150-156;
j)the applicant attended a hearing conducted by the Tribunal (“Tribunal Hearing”) on 8 April 2013 with a lawyer from Vrachnas Lawyers. At the conclusion of the Tribunal Hearing the applicant (through his lawyers) sought, and was granted, further time to provide written submissions in support of the applicant’s protection claims: CB 182-185 and 200 at [45];
k)on 15 April 2013 the applicant, through Vrachnas Lawyers provided further written submissions to the Tribunal in support of the applicant’s claims: CB 186-192 and 200 at [45] (“Post Tribunal Hearing Submissions”);
l)on 14 October 2013 the Tribunal Decision – which is 35 pages long – affirmed the Delegate’s Decision not to grant the applicant a Protection Visa. The applicant was notified of the Tribunal Decision by letter dated 14 October 2013: CB 229-230;
m)on 4 November 2013 the applicant lodged the Judicial Review Application. The grounds of the application are stated to be:
1. JURISDICTIONAL ERROR
2. NOT FOLLOWING PROPER PROCEDURE
3. NOT FOLLOWING RULES OF NATURAL JUSTICE
(Transcribed without amendment from the “Grounds of application” in the Application.)
n)the applicant filed an affidavit with the Judicial Review Application, attaching the Tribunal Decision;
o)on 27 November 2013 the Court ordered that the applicant file and serve on or before 18 February 2014 an amended Judicial Review Application giving particulars of the grounds of review, and any further affidavits upon which he intended to rely at the hearing (“27 November 2013 Orders”). The applicant did not comply with the 27 November 2013 Orders;
p)when the matter came on for hearing on 27 May 2014 the hearing of the matter was adjourned to 12 August 2014 and an order made that time for compliance with the 27 November 2013 Orders for the filing and serving of an amended Judicial Review Application and any further affidavits be extended to 14 July 2014;
q)on 23 July 2014 the applicant filed an affidavit (“Applicant’s July 2014 Affidavit”), which, save for formal parts, was entirely comprised of submissions, which are set out below in relation to the relevant ground of review;
r)at the further hearing of the Judicial Review Application on 12 August 2014 the applicant handed up submissions (“Applicant’s August 2014 Submissions”). The Minister did not object to:
i)the late filing of the Applicant’s July 2014 Affidavit; or
ii)the Applicant’s August 2014 Submissions (which were marked as Exhibit A) on the grounds of lateness or as being filed as submissions,
however, the Minister did object to them being admitted as evidence in the proceedings. For reasons which will become apparent it is unnecessary for the Court to consider any such objections;
s)the Judicial Review Application was further adjourned pending the outcome of proceedings in the High Court arising from the Federal Court judgment in WZAPN v Minister for Immigration & Anor [2014] FCA 947, (2014) 229 FCR 477 (“WZAPN Appeal”) The High Court’s judgment in Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; (2015) 89 ALJR 639; (2015) 220 ALR 467; (2015) 146 ALD 480 was delivered on 17 June 2015 (“WZAPN – High Court”); and
t)the hearing of the Judicial Review Application resumed on 17 July 2015. The applicant handed up written submissions which were marked as Exhibit “B” (“Applicant’s July 2015 Submissions”).
The Minister filed written submissions on 16 May 2014 in advance of the initial hearing on 27 May 2014 (“Minister’s Written Submissions”). 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 and 17 July 2015.
Consideration
Ground 1
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 14, 19, 28, and 32 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 [“Amnesty International Statement”] indicates the situation in Sri Lanka at present and at the time the Second Respondent heard my case …
V. The Second Respondent relied mainly on the report of the Department of Foreign Affairs and Trade in assessing the situation of human right abuses in Sri Lanka.
VI. I submit that Sri Lanka is a terror state and that I will be subject to the provisions of both the Immigration and Emigration Act and the Prevention of Terrorism Act if I am forcibly returned to Sri Lanka.
In the Applicant’s July 2015 Submissions the applicant relevantly submitted that:
As a Sri Lanka Tamil I will face significant harm as the Provisions of the Prevention of Terrorism Act of 1979 and the Immigration and Emigration Act no 20 of 1948 and its amendments will be applied as I am a failed asylum seeker who is now forced to return to Sri Lanka.
I have therefore a well-founded fear of returning to Sri Lanka.
The Court has taken the relevant Sri Lankan legislation referred to to be the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”) and the Immigrants and Emigrants Act 1949 (Sri Lanka) (“I & E Act”).
Essentially, what is put by the applicant is that the Tribunal failed to exercise jurisdiction because it failed to have regard to relevant material or failed to consider claims made by the applicant.
Minister’s submissions
The Minister submitted that:
a)a consideration of the claims and submissions made by and on behalf of the applicant 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: CB 201-209 at [46]-[89];
b)the Amnesty International Statement was not before the Tribunal (it being a document which post-dates the Tribunal Hearing), and, in any event, the document is dealing with matters irrelevant to the Tribunal’s consideration of the applicant’s case: Transcript, 12 August 2014, page 3;
c)the evaluation of evidence, including country information, was a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ (“NAHI”); and
d)the Tribunal did look at, examine and have regard to more than just DFAT documents when examining the situation for Tamils in, and returning to, 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: CB 214-228 at [55]-[57], [59]-[63], [66], [68], [74]-[75] and [112]-[148].
With respect to the Applicant’s submission that the Tribunal failed to examine the implications of the POT Act and the I & E Act, the Minister submitted that:
a)it simply goes to the merits of the applicant’s claims and does not allege or establish any jurisdictional error;
b)in WZAPN – High Court the High Court held that a short period of detention is insufficient to establish serious harm for the purposes of s.91R of the Migration Act, and that the question of whether a risk of loss of liberty constitutes serious harm requires a qualitative evaluation of the nature and gravity of the apprehended loss of liberty; and
c)the Tribunal undertook the required qualitative evaluation of the nature and gravity of the apprehended loss of liberty: CB 205-207 at [66]-[76].
Consideration of ground 1
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 180 ALR 1; (2001) 62 ALD 225; (2001) 75 ALJR 1105 at [82] per McHugh, Gummow and Hayne JJ.
The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at [19] per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at [23] per Gilmour J. Where findings of fact made, including an assessment of an applicant’s credibility and the credibility of an applicant’s claims, and a Tribunal’s inability to be satisfied of an applicant’s claims, are open on the evidence before the Tribunal, there is no jurisdictional error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to the applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. In Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where the failure to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov at [24]-[25] per Gummow and Callinan JJ. Subsequently a failure to deal with a claim has been considered to be a denial of procedural fairness by the High Court in Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14; (2010) 85 ALJR 133; (2010) 123 ALD 244 (“Plaintiff M61”), because the Minister was not informed upon a question he had been asked to consider: Plaintiff M61 at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In WZAPN – High Court the High Court of Australia found that the application of s.91R(2)(a) of the Migration Act, referring to a threat to a person’s life or liberty as an instance of serious harm for the purposes of s.91R(1)(b) of the Migration Act, required an evaluation of the likely circumstances of the loss of liberty feared by a claimant for refugee status, and that both the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (“Refugees Convention”) and s.91R of the Migration Act embody an approach that is concerned with the effects of actions upon persons in terms of harm to them, but that such an approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence: WZAPN – High Court at [52] and [70]-[71] per French CJ, Kiefel, Bell and Keane JJ, and Gageler J agreeing at [100]. The High Court expressed its agreement with the approach of the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; (2015) 321 ALR 44; (2015) 145 ALD 577 wherein the Full Court said that s.91R(2)(a) of the Migration Act was not to be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s.91R(1)(b) of the Migration Act and Article 1A(2) of the Refugees Convention: WZAPN – High Court at [4]-[5] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100], referring to SZTEQ at [59] and [154] per Robertson, Griffiths and Mortimer JJ. The High Court said in WZAPN – High Court that the language of each of the conditions in s.91R(1) and (2)(a) of the Migration Act calls for a qualitative judgment in order to determine whether it is satisfied in any case, which involves an evaluation of the nature and gravity of the alleged serious harm: WZAPN – High Court at [35], [41] and [45] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100].
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 14, 19, 28 and 32: CB 196-198.
Paragraph 14 of the Tribunal Decision: CB 196 is the Tribunal’s summary of the contents of the statutory declaration made by the applicant (which appears at CB 45-47) which states his reasons for seeking protection in Australia. That summary provides as follows:
a. The applicant did not have any difficulties with the Sri Lankan authorities while working as a fisherman between 1987 and 2010. In January 2011, he was detained and questioned by the police at Munthal police station about his work in Mullaitivu and about “weapons caches”. He was physically abused but released on the same day.
b. On 7 August 2011, which was a Sunday, a number of men came to his house in the evening and took him away in the van. He was blindfolded and the journey took a long time. He was left alone in a room and his blindfold removed. The next day he was again interrogated about his work in Mullaitivu and “weapons caches”. He was physically abused and the interrogation took six hours. He was released and had to attend hospital in Silabam for treatment. He then returned to his village.
c. His wife and family advised him he should go to temples in India to pray for a better life. He did this in February 2012.
d. In April 2012, officers from the Criminal Investigation Department (CID) came to his house but he was away fishing. His family and friends advised him to leave Sri Lanka before he was interrogated again by CID officers.
e. He cannot return to Sri Lanka because he fears being persecuted because he is Tamil and because of the continuing interest of the CID in him which may lead to him being interrogated again by the police. He fears officers from the CID or police will interrogate, torture and kill him. He also fears being arrested, detained, interrogated, tortured, imprisoned and killed because he left Sri Lanka illegally. He will get no protection from the police or CID because they are the only people who provide protection in Sri Lanka.
f. There is nowhere he could safely go to live in Sri Lanka because he would have to register wherever he went which would mean the authorities would find him.
CB 196 at [14].
As to the claims of abuse in 2011 and 2012 the applicant gave evidence about those matters to the Tribunal, and was questioned about them by the Tribunal, during the course of which he added a claim that the Sri Lankan CID had come looking for him on 4 June 2012 when he was already in Australia: see CB 198 at [27]-[32]. The Tribunal also questioned the applicant about his travels to India in 2012, and specifically asked whether the applicant had problems returning to Sri Lanka from India. The applicant confirmed that he had not thought about the question of fear of harm upon return to Sri Lanka from India in 2012: CB 199 at [35]. As to the applicant’s fears of persecution upon return to Sri Lanka from Australia the Tribunal put to him that the country information suggested that any harassment and discrimination faced by Tamils in northern Sri Lanka did not amount to serious or significant harm as defined in the Migration Act, and that the Sri Lankan government was only concerned with Tamils who actively supported the LTTE (or their close family members), and did not currently regard all Tamils as being supporters of the LTTE: CB 199 at [33]-[34].
The Tribunal also questioned, and put to the applicant, that available country information suggested that departure from Sri Lanka in breach of Sri Lankan departure laws meant that he was likely to be charged with breach of those laws, imprisoned for a few days, and released on bail and subsequently fined, and that the laws were laws of general application and not ones applied discriminatorily against Tamils alone. The applicant continued to assert that his life would be in danger and that he would simply disappear if he returned to Sri Lanka. See CB 199-200 at [37]-[42].
The Tribunal assessed the applicant’s protection claims. The Tribunal accepted that a young Sri Lankan Tamil fisherman might have faced ongoing harassment and occasional detention at the hands of the Sri Lankan security forces prior to the end of the conflict with the LTTE in 2009, but went on to observe that country information (which it set out) meant that it was able to find that after the end of the conflict with the LTTE in 2009 the Sri Lankan security forces focused their attention on individual Tamils clearly identified as having been members or supporters of the LTTE, rather than assuming that all Tamils in northern Sri Lanka were connected with the LTTE: CB 201 at [48]. These matters were, as the Tribunal noted, put to the applicant at hearing: CB 201 at [49], and the Tribunal concluded in light of its assessment of the country information that it had serious doubts about the applicant’s claims of interrogation and abuse in detention in 2011 and 2012, and further found that the applicant’s willingness to return to Sri Lanka from India in February 2012 to be inconsistent with his claims of interrogation and physical abuse in August 2011, and found that the applicant’s claims of abuse in 2011 and 2012 to be “highly implausible”: CB 201 at [49]. The Tribunal also found that whilst the applicant may have been questioned and harassed, it did not accept that any questioning or harassment by the Sri Lankan security forces occurred any time after the end of the conflict with the LTTE in 2009, and that the applicant had falsely stated that he was questioned and interrogated by the Sri Lankan authorities at a much later time in order to bolster his protection claims. The Tribunal further found that the applicant’s willingness to provide false statements in that regard affected the Tribunal’s assessment of his credibility in respect of other claims concerning his alleged mistreatment by the Sri Lankan authorities, and the Tribunal concluded that “the applicant is not a witness of truth in relation to his claims to be owed protection in Australia as a result of interest in him by the Sri Lankan security forces”: CB 202 at [50]. The Tribunal did not accept the applicant’s assertions of detention and questioning, physical abuse, kidnapping, interrogation and further physical abuse, attendance at hospital as a result of abuse, and alleged visitations by CID officers, during the course of 2011 and 2012: CB 202 at [51].
The Tribunal said in relation to the applicant’s alleged LTTE links (after having referred to concerns about his credibility and possible links between the LTTE and his brother) that:
The applicant has not referred to any instance in the past where he or any member of his family have expressed a political opinion either in support of the LTTE or opposition to the current Sri Lankan government, or any other political opinion. As a result, the tribunal does not accept that the applicant or any member of his family have done so or will do so in the future.
CB 202 at [52].
In relation to the potential return of the applicant to Sri Lanka, the Tribunal found that it was likely that he would be charged with a breach of Sri Lankan departure laws, because he left Sri Lanka other than at a port of lawful departure without his Sri Lankan passport, and that he would be held on remand after being charged, but that his parents or brothers-in-law would be able to provide a personal guarantee in order for him to be released on bail: CB 202-203 at [53].
The Tribunal considered whether or not the applicant had a well-founded fear of persecution for a Refugees Convention reason, noting that he made claims based on his ethnicity, actual and imputed political opinion as a supporter of the LTTE or opponent of the current Sri Lankan government, and his membership of particular social groups linked to Tamil ethnicity and geography, and his illegal flight from Sri Lanka and seeking asylum in Australia: CB 203 at [54].
In relation to his Tamil ethnicity the Tribunal did not accept that harassment and discrimination which Tamil’s currently face in Sri Lanka amounted to harm under s.91R of the Migration Act, and noted the UNHCR’s position that there should no longer be a presumption that protection was needed for Sri Lankans from the north of Sri Lanka on account merely of their Tamil ethnicity, but rather on a particular risk profile of suspected LTTE links, and other types of socio-political activity, and accordingly found that Tamils in northern Sri Lanka did not face a real chance of suffering serious harm solely on account of their ethnicity: CB 203 at [55]. Further, the Tribunal found that a Tamil person would not be imputed to be a supporter or involved with the LTTE, or opposed to the current Sri Lanka government, solely on account of their ethnicity, or their being a Tamil from northern or eastern Sri Lanka, and that it was only Tamils with a history of actively supporting or having been involved with the LTTE or opposed to the current Sri Lankan government, or who are currently actively opposed to the current Sri Lankan government, or who might be imputed to be so, who would face risk of harm from the Sri Lankan government and security forces: CB 203 at [56]-[57]. The Tribunal therefore considered that the applicant did no face a real chance of suffering serious harm if returned to Sri Lanka on account of his Tamil ethnicity: CB 203 at [58].
For similar reasons, the Tribunal did not accept that the applicant would be imputed with a pro LTTE or anti-Sri Lankan government political opinion because of his Tamil ethnicity, or because he was a young Tamil from the north of Sri Lanka who had lived and worked in Mullaitivu between 2000 and 2006: CB 204 at [59].
The Tribunal went on to observe that it had considered the country information before it in relation to the circumstances of failed asylum seekers from western countries returning to Sri Lanka. It noted that there were differences in that country information in relation to the treatment of Tamils on their return, but observed that those reports which referred to the targeting by the Sri Lankan authorities of Tamils who were failed asylum seekers referred to this as being as a result of perceived or actual links with the LTTE or opposition to the current Sri Lankan government. In this regard, the Court notes that the Tribunal refers to country information including:
a)the most recent UK Home Office Report on Sri Lanka, which itself referred to further country information from the British High Commission in Colombo, the Minority Rights Group International, the 2010 Foreign & Commonwealth Office Report, Jones Sentinal Country Risk Assessments, Country Report Sri Lanka, and an International Crisis Group report of July 2011;
b)the UNHCR Eligibility Guidelines for Sri Lanka (UNHCR 21 December 2012, UNHCR Eligibility Guidelines for Assessing International Protection Need of asylum seekers from Sri Lanka);
c)August 2011 and February 2013 information from the Immigration and Refugee Board of Canada;
d)information from Human Rights Watch dated September 2012; and
e)various press reports from the BBC Sinhala, Tamil Net and an Amnesty International 2011 report.
See CB 214-220 at [112]-[124].
The Tribunal observed that the country information specifically tied the risk of harm for individual Tamil returnees to a perceived connection with the LTTE or opposition to the current Sri Lankan government, and that the Tribunal did not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities solely because he was a failed asylum seeker. The Tribunal did not accept that the applicant or any other members of his family had ever worked for or otherwise been involved with the LTTE, or expressed support for the LTTE or opposition to the current Sri Lankan government. The Tribunal did not therefore accept that the applicant would on his return to Sri Lanka be perceived as a LTTE supporter or an opponent of the current Sri Lankan government, because he was a Tamil, because of his Tamil geographic origins, or because he was a failed asylum seeker or for any other reason, and that he would therefore not face a real chance of serious harm because of actual or imputed political opinion or because he was a member of any particular social group identified in his claim: CB 204-205 at [63]-[65].
The country information referred to above: see [25] above, was also relied upon by the Tribunal in determining that although the applicant may be questioned by Sri Lankan immigration authorities and others upon being returned and identified as a failed asylum seeker, the applicant did not face a risk of harm during the questioning on return to Sri Lanka, and that because of his profile he did not face any risk of harm because he was a failed asylum seeker, imputed with pro LTTE and anti-government opinion as a Tamil or for any other reason: CB 205 at [66]-[67].
In relation to whether the applicant had a well-founded fear of persecution on the basis of his illegal departure the Tribunal commenced its examination with the uncontroversial proposition that it is well established that the enforcement of a generally applicable law did not ordinarily constitute persecution for the purposes of the Refugees Convention: CB 205 at [68] (citing Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225; (1997) 71 ALJR 381; (1997) 142 ALR 331). The Tribunal went on to examine the provisions of the I & E Act, observing that they were not discriminatory on their face and did not disclose discriminatory intent because they applied regardless of ethnicity to all persons who returned to Sri Lanka and were not applied in a discriminatory way or selectively enforced against a particular group of returnees. The Tribunal found that the application of the breach of departure laws to the applicant would be the enforcement of a law of general application and not of itself persecution for a Refugees Convention reason: CB 205 at [68].
The Tribunal went on to look at the situation in Sri Lanka for individuals who were returned and were identified as having departed Sri Lanka in breach of Sri Lankan departure laws. Based on DFAT reports, as well as an article in the Sydney Morning Herald from December 2012, the Tribunal accepted that a returnee may be charged with a breach of the departure laws, and held on remand pending a bail hearing, but was likely to be brought before a Magistrate and bailed within a few days of return based on a personal recognisance with a family member standing guarantee, but with no guarantee payment required: CB 205-206 at [69]. Further, based on the DFAT information, as confirmed by the Sydney Morning Herald article, the Tribunal noted that recent convictions for breaches of Sri Lankan departure law had resulted in fines and not in sentences of imprisonment. The Tribunal specifically considered the offence and bail provisions of I & E Act in so doing: CB 205-206 at [69]-[70]. The Tribunal did not accept that the applicant would be denied bail: CB 206 at [71], and found that the chances of the applicant being sentenced to a term of imprisonment for conviction of a breach of Sri Lanka departure laws was extremely remote, and that the likelihood was that he would be fined, and the Tribunal was satisfied that the applicant’s family had the ability to pay any fine which might be imposed, and therefore the chance that the applicant would spend more than a few days in prison on his return to Sri Lanka as a result of being charged with any breach of Sri Lankan departure laws, or for any other reason, was remote: CB 206 at [71]-[73].
The Tribunal also considered available country information concerning conditions in prison in Sri Lanka, including UNHCR, British Home Office and United States Department of State reports, as well as information from TamilNet and a French non-government organisation, the Danish Immigration Service, the Asian Human Rights Commission, the World Socialist website, Channel 4 News articles and various Sri Lankan news outlets to conclude that the applicant did not face a real chance of being seriously harmed whilst in prison because he was a Tamil, or had been treated in worse ways while in prison than non-Tamil prisoners, while imprisoned on remand for a few days after return to Sri Lanka: CB 207 at [74]. The Tribunal went on to observe that it did not accept that there was a real chance of the applicant being monitored or otherwise targeted by the Sri Lankan authorities because it was only those who identified as supporting the LTTE or being opposed to the current Sri Lankan government who were of concern or interest to the Sri Lankan authorities: CB 207 at [75].
The Tribunal’s conclusions with respect to the applicant’s alleged well-founded fear of persecution were set out as follows:
76.In light of the above, the tribunal does not accept that there is a real chance the applicant will face death, arrest, arbitrary detention (because the few days the applicant will be held on remand on his return to Sri Lanka will be as a result of the non-discriminatory operation of a law of general application), beating, extortion or any other form of serious harm at the hands of the Sri Lankan government and security forces, the local Sinhalese community in his home area or anyone else in Sri Lanka if he were to return there. The tribunal does not accept that the applicant faces a real chance of serious harm while being questioned immediately on his return or while being held on remand as a result of being charged with a breach of Sri Lankan departure laws. The tribunal also does not accept that the applicant faces a real chance of being seriously harmed as a result of a conviction for breach of Sri Lankan departure laws.
77.Considering all the information before it, the tribunal also does not accept that the applicant will encounter serious harm capable of amounting to persecution under section 91R of the Act either because of his ethnicity, actual or imputed political opinion or membership of any particular social group or for any other reason, considered both individually and cumulatively, in the reasonably foreseeable future should he return to Sri Lanka.
78.As the tribunal has found that the applicant does not hold a well-founded fear of persecution for a Convention reason on his return to Sri Lanka, it is unnecessary for the tribunal to consider whether effective state protection or safe relocation will be available to the applicant within Sri Lanka.
79.Accordingly, the tribunal is not satisfied the applicant has a well-founded fear of persecution and is not satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention.
CB 207 at [76]-[79].
The applicant’s assertion that the Tribunal did not examine the implications of his alleged treatment and detention by security forces in Sri Lanka having regard to what was set out in the Tribunal Decision: CB 196 at [14] cannot, in light of the material set out above and the Tribunal’s conclusions on the applicant’s alleged well-founded fear of persecution, be made out.
Paragraph 19 of the Tribunal Decision: CB 197 summarises the Delegate’s Decision. That summary is in the following terms:
The delegate did not accept the applicant as a credible witness and found that he had fabricated aspects of his claims. The delegate accepted the applicant may have been questioned about his time in Mullaitivu but did not accept that the Sri Lankan authorities suspected that the applicant had any association with the Liberation Tigers of Tamil Elam (the LTTE) and did not accept that the applicant was of ongoing interest to the Sri Lankan authorities. The delegate did not accept that Tamils, including Tamils from the North and East of Sri Lanka, faced a risk of serious harm on the basis of their ethnicity. The delegate did not accept that Tamils, including Tamils from the North and East of Sri Lanka, were imputed with an association with or support for the LTTE. The delegate accepted the applicant may be identified as having unsuccessfully sought asylum in Australia but did not accept that he would face protracted detention as a result and found that if he were prosecuted for having departed Sri Lanka illegally he would be subject to a law of general application that appears to be applied in a non-discriminatory manner, and so would not amount [to] persecution.
CB 197 at [19].
The task of the Court is not to review the Delegate’s Decision, but rather the Tribunal Decision: Migration Act, s.476. In any event, each of the matters adverted to in paragraph 19 of the Tribunal Decision were matters which were addressed by the Tribunal, as can be seen from the discussion in relation to paragraph 14 of the Tribunal Decision set out at length above: see [17]-[30] above.
In the circumstances, the applicant’s assertion that the Tribunal failed to examine the implications of his alleged treatment and detention by the security forces in Sri Lanka having regard to what was set out in paragraph 19 of the Tribunal Decision: CB 197 at [19] is not made out.
Paragraph 28 of the Tribunal Decision: CB 198 repeats the applicant’s claim that he believes he will be killed by the Sri Lankan CID, and that he had been variously investigated, questioned and searched for by the Sri Lankan CID, police and authorities. The applicant asserted that the Sri Lankan CID suspected he was involved with the LTTE because he was a Tamil and had lived in Mullaitivu for a long time. Once again, each of the above claims was dealt with by the Tribunal in dealing with the applicant’s claims in the manner set out above: see [17]-[30] above. For the reasons there set out the Tribunal did not accept the claims made by the applicant. But it cannot be said, as the applicant says, that the Tribunal did not examine the implications of his alleged treatment and detention by the security forces in Sri Lanka. The Tribunal did so, and found for the reasons set out above, that he would not have the requisite well-founded fear of persecution on the basis of the Refugees Convention ground if he was to return to Sri Lanka. The claim that the Tribunal did not examine the implications of the applicant’s alleged treatment and detention by the security forces in Sri Lanka referred to in paragraph 28 of the Tribunal Decision: CB 198 at [28], is therefore not made out.
Paragraph 32 of the Tribunal Decision: CB 198 set out a question put to the applicant by the Tribunal as to why it was almost five years after the applicant stopped living in Mullaitivu that Sri Lankan security forces came to question him, and his response that it was because they thought he had LTTE connections. The issues in relation to the applicant having lived in Mullaitivu, and being questioned by the Sri Lankan security forces because of his alleged LTTE connections were all matters addressed by the Tribunal for reasons set out above: see [17]-[30] above. It follows that the applicant’s assertion that the Tribunal did not examine implications of his alleged treatment and detention by security forces stated in paragraph 32 of the Tribunal Decision: CB 198 at [32] is also not made out.
The applicant’s assertion that reliance was “only” or “mainly” placed on DFAT reports in assessing the human rights situation in Sri Lanka is plainly wrong when regard is had to the range of country information to which the Tribunal did have regard: see [25] above. Contrary to the assertion by the applicant the Tribunal did have regard to country information from Human Rights Watch, and that information was relatively current, being dated September 2012: see [25(d)] above.
The applicant asserts that the Court ought to find jurisdictional error on the basis that the Tribunal did not have regard to the Amnesty International Statement.
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 exactly eight months, the Tribunal Decision, and was therefore not before the Tribunal for consideration. Furthermore, it is, as one might expect of an announcement of its type, very general in its content, and in any event, does not purport to be indicative of the current position in Sri Lanka, which is otherwise set out in the comprehensive reports 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.
On an application for judicial review of a decision of the Tribunal it is not open for this Court to have regard to material which was not capable of being put before the Tribunal because it post-dated the Tribunal Decision. To do so would be to embark upon fact-finding, and not judicial review, in respect of material, which because of its post-Tribunal Decision origins, cannot give rise to jurisdictional error in the Tribunal Decision. The choice of country information and the factual findings arising from it, where those factual findings are, as here, open on the available material, are matters solely for the Tribunal as the finder of fact: NAHI at [11] per Gray, Tamberlin and Lander JJ. The Tribunal cannot commit jurisdictional error by failing to have regard to relevant material which was not in existence at the time of the Tribunal Decision, and the Court cannot have regard to such material: WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J (“WZATI”).
The applicant also asserts that the Tribunal failed to have regard to the implications of the I & E Act and the POT Act, and that the applicant will be subject to the provisions of both of those Acts upon return to Sri Lanka.
The Tribunal expressly considered the provisions of the I & E Act in relation to the applicant’s possible return to Sri Lanka as a failed asylum seeker, and referred to relevant provisions of the I & E Act dealing with bailable and non-bailable offences in relation to a person’s illegal departure from Sri Lanka: CB 205-206 at [68]-[70]. The Tribunal also had regard to country information in relation to the application, or enforcement, of the I & E Act provisions in relation to returning Sri Lankan citizens who had breached Sri Lanka’s departure laws, specifically to a DFAT report and a December 2012 Sydney Morning Herald article: CB 206 at [70]. In the circumstances, no jurisdictional error arises by reason of the Tribunal’s consideration of the provisions of the I & E Act. More broadly, and as has already been observed, the Tribunal Decision makes plain that the Tribunal considered what would happen to the applicant upon his return to Sri Lanka, including his treatment by immigration and security officials, and having regard to country information, the Tribunal concluded that the applicant will be subject to the usual detention on remand, bail, 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, or as being opposed to the current Sri Lankan government, and was therefore a person who would be treated in accordance with a law of general application, applied in a non-discriminatory manner to all citizens, and which therefore did not give rise to a well-founded fear of persecution: CB 205-207 at [68]-[75]. There is, in the circumstances, no jurisdictional error apparent in the Tribunal’s consideration of the provisions of the I & E Act.
The applicant also asserts that the Tribunal failed to examine the contents and implications of the POT Act, and that he would be subject to the provisions of the POT Act upon return to Sri Lanka. The Tribunal was clearly aware of the provisions of the POT Act. The Tribunal had regard to the Post-Tribunal Hearing Submissions: CB 200 at [44]-[45], 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: CB 187-192. The POT Act was referred to in the Post-Tribunal Hearing Submissions, particularly in the context of a September 2011 International Crisis Group Report on Sri Lanka: CB 188 and 190. On the basis of the Tribunal’s finding that the applicant did not have actual or perceived links with the LTTE, and was not opposed to the current Sri Lankan government, the Tribunal came to the view that the applicant would be subject to no more than the usual detention on remand, bail and penalty by way of fine upon his return to Sri Lanka. In those circumstances it was unnecessary for the Tribunal to have regard to the POT Act because the clear inference from the facts found is that, on return to Sri Lanka the applicant would not, and would not be considered to be, a terrorist under the POT Act, or a person of any interest to the Sri Lankan authorities on account of any real or perceived links with the LTTE. In the circumstances, the findings made by the Tribunal were open to it, and the applicant’s submissions in relation to the POT Act do not demonstrate jurisdictional error: see WZATI at [36], [45], [65] and [67]-[68] per Barker J.
The Court notes that in relation to the alleged failure by the Tribunal to examine the situation with respect to Tamils and returning asylum seekers in Sri Lanka the applicant made reference to paragraph 25 of the Tribunal Decision: see CB 198 at [25]. That paragraph is not of any relevance as it simply sets out the factual position with respect to where the applicant was born and raised, and his family circumstance both past and present. Save insofar as those circumstances provided input to the Tribunal’s consideration of the applicant’s not having actual or perceived pro-LTTE links, or actual or perceived opposition to the current Sri Lankan government, reference to CB 198 at [25] does not assist the applicant to establish jurisdictional error by the Tribunal.
For all of the above reasons, the allegation of jurisdictional error in ground 1 is not made out.
Grounds 2 and 3
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: SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at [13] per Collier J (“SZGJY”); Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666; FCR at [59] per Perram J (“SZNVW”). 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: Migration Act, s.422B(1); 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.
Consideration of Grounds 2 and 3
The requirements with respect to procedural fairness for a Tribunal hearing an application for review of a Delegate’s Decision is set out exhaustively in Part 7, Division 4 of the Migration Act: 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: Minister for Immigration & Multicultural & Indigenous Affairs v Lay Lat [2006] FCAFC 61; (2006) 151 FCR 214; (2006) 231 ALR 412; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62. The applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather, the Tribunal complied with its statutory obligation in s.425 of the Migration Act by validly inviting the applicant to the Tribunal Hearing: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 55; (2006) 231 ALR 592; (2006) 9 ALD 300 (“SZBEL”). That invitation was accepted by the applicant: CB 182. 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: CB 183. 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. It is unnecessary to set out the Tribunal Decision for these purposes in any more detail than is set out above: see [16]-[46] above. No evidence was led by the applicant in contradiction of the procedural and evidentiary narrative set out in the Tribunal Decision, and in those circumstances, the Court accepts the procedural and evidentiary narrative as set out in the Tribunal Decision: SZGJY at [13] per Collier J; SZNVW at [59] per Perram J. The Tribunal’s obligations under s.425(1) of the Migration Act were therefore complied with by the Tribunal giving the applicant the opportunity to be heard: SZBEL.
In all of the 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.
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 Court notes that the “document marked A” contains the following text:
Scott Morrison attacks critics of Sri Lanka
Dennis Shanahan
Political Editor
Canberra
Jared OwensReporter
Canberra
SCOTT Morrison has lashed out at “increasingly shrill” critics of Sri Lanka, accusing asylum-seeker advocates of using boatpeople to pursue a political agenda of internationally isolating the once war-torn nation.
On his return from Sri Lanka yesterday, the Immigration Minister said that isolating Sri Lanka would only harm economic growth and increase the prospect of more people-smuggler boats coming to Australia
The above text appears on a blank page with the number “2” in the middle of that page after the text and some spacing. There is no attribution of a source for the document, nor is it dated.
Minister’s submissions
The Minister submitted as follows:
a)an allegation of bias is a serious matter which must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 17 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”);
b)an allegation of actual or ostensible bias should be particularised: SZOTX Minister for Immigration [2011] FMCA 37 at [12] per Driver FM. Ostensible bias must be firmly established: SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 at [9] per Flick J; and
c)the Tribunal Decision does not demonstrate any actual or apprehended bias on the part of the Tribunal.
Consideration of additional ground – bias
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision shows that the Tribunal properly raised various concerns about the applicant’s case with the applicant, and, as set out above in relation to procedural fairness: see [51] above, canvassed relevant issues in accordance with its obligations under the Migration Act. The opportunity afforded to the applicant to make submissions before the Tribunal hearing, and the Tribunal’s questioning of the Applicant at the Tribunal hearing, demonstrate that the Tribunal gave the Applicant the opportunity to persuade the Tribunal to the requisite degree of satisfaction in relation to his claims, a fact reinforced by the applicant being allowed to file Post-Tribunal Hearing Submissions. 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: cf WZATI at [71]-[72] per Barker J.
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: NAHI at [11] per Gray, Tamberlin and Lander JJ. No bias of any kind therefore arises from the Tribunal’s consideration of any DFAT report.
In 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.
Additional ground – failure to consider complementary protection provisions
Applicant’s submissions
In the Applicant’s July 2015 Submissions the applicant relevantly submitted that:
If a person was not found to meet the refugee criterion his case can be examined on the basis that if he or she returns to a country where person fled he or she will face significant harm, under the Complementary Protection Criterion.
I submit that my case should be examined under this criterion.
Minister’s submissions
The Minister’s submission was that the complementary protection provisions were considered by the Tribunal: see CB 207-209 at [80]-[89]. The Minister therefore submitted that this ground could not succeed.
Consideration of additional ground – failure to consider complementary protection provisions
This additional ground simply asserts that the applicant’s case should be examined pursuant to the complementary protection provisions of the Migration Act. The ground must fail because the Tribunal did consider the applicant’s case under the complementary protection provisions, and did so in not insignificant detail at CB 207-209 at [80]-[89]. The Tribunal did so by reference to the relevant test, namely whether upon return to Sri Lanka there was a real risk that the applicant would suffer significant harm: CB 207 at [80]. The Tribunal had regard to the various claims made by the applicant in relation to a well-founded fear of persecution, and having regard to its findings on that issue did not accept that there was any real risk that the applicant would suffer significant harm at the hands of the Sri Lankan authorities, and that he would not be considered to actually be, or be perceived to be, an LTTE supporter or opponent of the Sri Lankan government, and therefore did not face a risk of significant harm for that reason: CB 208 at [81]-[82]. The Tribunal also examined the country information (which has been referred to above) and found that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of his return to Sri Lanka as a result of his Tamil ethnicity, or because he was a Tamil male from the northern regions of Sri Lanka, or because he was a Tamil returning from a Western country, or a Tamil identified as a failed asylum seeker: CB 208 at [83]-[84]. The Tribunal accepted that the applicant was likely to be questioned upon his return to Sri Lanka, and that he was likely to be imprisoned for a few days before being granted bail, and that it was likely that he would ultimately be fined for breaching Sri Lankan departure laws, but not imprisoned: CB 208 at [85] and CB 209 at [87]-[88]. The Tribunal also dealt with the issue of prison conditions and found that they did not pose a real risk of significant harm to the applicant who would only be imprisoned for a few days: CB 208-209 at [86]-[87].
The Tribunal was therefore not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm: CB 209 at [89].
Given the relatively comprehensive way in which the Tribunal dealt with the complementary protection provisions, and its consideration of the application of the relevant test to the applicant, it cannot be said that the Tribunal did not consider the application of the complementary protection provisions to the applicant. This additional ground must therefore fail.
Conclusion
The Court has concluded that none of the applicant’s grounds relied upon in support 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 sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 15 January 2016
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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Jurisdiction
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