WZATM v Minister for Immigration
[2016] FCCA 239
•12 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATM v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 239 |
| 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 protection provisions. |
| Legislation: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2 |
| Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 Minister for Immigration & Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 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 SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 WZAPN v Minister for Immigration & Anor [2014] FCA 947; (2014) 229 FCR 477 |
| Applicant: | WZATM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 324 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 May 2014, 13 August 2014 and 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 12 February 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondents: For the Second Respondent: | Mr PR Macliver (on 26 May 2014 and 13 August 2014) and Mr A Gerrard (on 17 July 2015) Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 324 of 2013
| WZATM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the second respondent, the then Refugee Review Tribunal, now Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision”). The Tribunal affirmed a decision of a delegate (“Delegate” and “Delegate’s Decision”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship), to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
The Tribunal Decision is in the Court Book (“CB”) at 261-282.
Factual and procedural background
The factual and procedural background to the application is as follows:
a)the applicant is a citizen of Sri Lanka, born on 15 August 1992 in Udappu, North-Western Province, Sri Lanka, and is of Tamil ethnicity, who arrived in Australia at Christmas Island on 17 May 2012 without a visa as an unauthorised boat arrival: CB 102-103 and 262;
b)on 3 July 2012 the applicant took part in an irregular maritime arrival entry interview (“IMA Entry Interview”) with the assistance of an interpreter in the Tamil language: CB 1-21;
c)on 24 August 2012 the applicant was advised that the Minister had exercised his power under s.46A(2) of the Migration Act to allow him to lodge an application for the Protection Visa: CB 22;
d)on 24 August 2012 the applicant lodged his application for the Protection Visa with the assistance of an Immigration Advice and Application Assistance Scheme (“IAAAS”) migration agent, and a Tamil interpreter which included:
i)a Statement of Claims made by the applicant at the IMA Entry Interview: CB 50-51; and
ii)written submissions provided by the migration agent in support of the applicant’s protection claims: CB 85-93;
e)on 8 October 2012 the Delegate’s Decision was to refuse to grant the applicant the Protection Visa: CB 94-126;
f)on 11 October 2012 the applicant made an application to the Tribunal for review of the Delegate’s Decision refusing to grant the Protection Visa: CB 132-138;
g)by a letter dated 15 November 2012 the Tribunal invited the applicant to a hearing on 24 January 2013 (“January 2013 Tribunal Hearing”) to give evidence and present arguments relating to the issues in his case: CB 166-168;
h)on 18 January 2013 the applicant accepted the invitation to the January 2013 Tribunal Hearing: CB 202-203;
i)on 21 January 2013 a migration agent provided the Tribunal with a detailed submission in support of the applicant’s Protection Visa application (“Applicant’s January 2013 Tribunal Submissions”): CB 176-201;
j)the applicant attended the January 2013 Tribunal Hearing together with a Tamil interpreter and his migration agent: CB 205-207 and 262;
k)subsequent to the January 2013 Tribunal Hearing (which went for almost 3 hours) the Tribunal provided the applicant with a copy of the recording of the hearing: CB 208-209;
l)by letter dated 23 April 2013 the Tribunal invited the applicant to appear at a further Tribunal hearing to be held on 9 May 2013: CB 212-214 (“May 2013 Tribunal Hearing”);
m)on 30 April 2013 the applicant accepted the invitation to the May 2013 Tribunal Hearing: CB 220-221;
n)the applicant attended the May 2013 Tribunal Hearing (which lasted for almost an hour) with his migration agent and a Tamil interpreter: CB 222-223;
o)following the May 2013 Tribunal Hearing, the Tribunal provided the applicant with a copy of the recording of the hearing: CB 225-226 and 262 at [4];
p)on 21 May 2013 the applicant’s migration agent provided additional information to the Tribunal in relation to the applicant’s case: CB 228-230;
q)on 16 September 2013 the Tribunal again wrote to the applicant to invite him to appear before the Tribunal at a further hearing to be held on 7 October 2013 (“October 2013 Tribunal Hearing”): CB 233-235;
r)there is no evidence of formal acceptance of the invitation to appear at the October 2013 Tribunal Hearing, but the applicant attended at the October 2013 Tribunal Hearing (which lasted for just over an hour) with his migration agent and a Tamil interpreter: CB 243-244;
s)on 14 October 2013 the applicant’s migration agent provided a further written submission to the Tribunal which attached correspondence received from a Ruki Fernando in relation to a Sri Lankan Navy camp at Udappu: 248-254; and
t)on 24 October 2013 the Tribunal Decision affirmed the Delegate’s Decision not to grant a Protection Visa to the applicant.
Judicial Review Application
On 14 November 2013 the applicant lodged an application in this Court seeking a review of the Tribunal Decision. The grounds in the application are:
1. Judicial error
2. The Tribunal did not follow the correct procedure
3. The Tribunal is biased in its decision.
An affidavit was filed with the application, attaching the Tribunal Decision.
On 11 December 2013 a Registrar of the Court ordered that the applicant file and serve on or before 19 March 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 28 May 2014 time for compliance with the Registrar’s orders of 11 December 2013 for the applicant to file an amended application and any further affidavits upon which he intended to rely at hearing was extended to 11 July 2014. The applicant filed an affidavit on 25 July 2014 (“Applicant’s July 2014 Affidavit”).
At the resumed hearing of the matter on 13 August 2014 (the hearing having been adjourned on 28 May 2014 to allow for the applicant to file an amended application and any further affidavits):
a)the Minister did not object to the Applicant’s July 2014 Affidavit save for its relevance; and
b)the applicant handed up written submissions, annexed to which was a copy of the Applicant’s July 2014 Affidavit and various other materials, which are dealt with further below in relation to the relevant ground of review (“Applicant’s August 2014 Submissions”).
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. The High Court’s judgment in Minister for Immigration& Border Protectionv WZAPN [2015] HCA 22; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480 was delivered on 17 June 2015 (“WZAPN – High Court”).
The hearing of the Judicial Review Application resumed on 17 July 2015 at which time the applicant handed up further written submissions (“Applicant’s July 2015 Submissions”) which reiterated his previous statements and submissions in the Applicant’s July 2014 Affidavit and the Applicant’s August 2014 Submissions, and added a claim with respect to complementary protection.
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 27, 29, 35 and 36 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 paragraphs 37, 42 and 43 of the RRT Report in this regard.
IV.The Second Respondent failed to examine the contents and the implications of Sri Lanka’s Prevention of Terrorism Act. This Act was mainly enacted to oppress the Sri Lankan Tamil revolt and if I am forcibly returned to Sri Lanka the provisions of this Act will be applicable to me.
…
(Transcribed from the 25 July 2014 Affidavit without amendment)
In the Applicant’s August 2014 Submissions the applicant, relevant to the issue of jurisdictional error, submitted that:
IV.The Second Respondent did not access the real situation of the ongoing human right abuses in Sri Lanka. Document marked B issued by Amnesty International on the 26th of June 2014 [“Amnesty International Statement”] indicates the situation in Sri Lanka at present and at the time the Second Respondent heard my case …
V.The Second Respondent relied mainly on the report of the Department of Foreign Affairs and Trade in assessing the situation of human right abuses in Sri Lanka.
VI.I submit that Sri Lanka is a terror state and that I will be subject to the provisions of both the Immigration and Emigration Act and the Prevention of Terrorism Act if I am forcibly returned to Sri Lanka.
The Applicant’s July 2015 Submissions reiterate the applicant’s claim with respect to the significant harm he alleges he will face if forced to return to Sri Lanka as a returned failed asylum seeker, by reason of the provisions of the Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (“POT Act”) and the Immigrants & Emigration 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)with respect to the applicant’s submission that the Tribunal failed to consider the implications of the applicant’s treatment and detention by security forces in Sri Lanka, that the paragraphs in the Tribunal Decision relied on by the applicant do not disclose any error, jurisdictional or otherwise, in the Tribunal Decision, and in particular:
i)paragraphs 27 and 29 of the Tribunal Decision (at CB 266-267) refer to the applicant’s own evidence regarding his interaction with the Sri Lankan Navy while fishing at Udappu and in the Trincomalee area; and
ii)paragraphs 35 and 36 (at CB 268) of the Tribunal Decision set out the Tribunal’s findings in relation to those claims and the Tribunal’s reasoning does not disclose any jurisdictional error;
b)otherwise this alleged ground goes to the merits of the applicant’s case and does not disclose any jurisdictional error;
c)the Tribunal had regard to a wide range of country information: CB 277-278 at [70]-[72] and not just Department of Foreign Affairs and Trade (“DFAT”) reports;
d)the evaluation of evidence and country information is 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
e)as to the Tribunal’s alleged failure to examine the implications of the POT Act and I & E Act, in WZAPN - High Court the High Court held that:
i)a period of short detention is insufficient to establish serious harm for the purposes of s.91R of the Migration Act; and
ii)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 the Tribunal considered relevant country information and undertook the required qualitative evaluation of the nature and gravity of the apprehended loss of liberty: CB 275-278 at [64]-[75].
Consideration of ground 1
Jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
The Tribunal was under no obligation to uncritically accept all or any allegations made by the applicant: Minister for Immigration & Multicultural Affairs v Shatku [2001] FCA 1857 at para.19 per Gray, Dowsett and Stone JJ; SZQWV v Minister for Immigration & Citizenship [2012] FCA 817 at para.23 per Gilmour J. Findings of fact made, including any assessment of the applicant’s credibility, and the credibility of his claims, and the Tribunal’s ability to be satisfied or otherwise of the applicant’s claims, are matters for the Tribunal to determine on the evidence before the Tribunal: 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 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”). The weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
In Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) the High Court found error founding relief under s.75(v) of the Constitution in circumstances where the failure by the Tribunal to respond to a substantial, clearly articulated argument relying upon established facts was a failure to accord natural justice: Dranichnikov at [24]-[25] per Gummow and Callinan JJ. Subsequently a failure to deal with a claim has been considered to be a denial of procedural fairness by the High Court in Plaintiff M61/2010E & Anor v Commonwealth of Australia & Ors [2010] HCA 41; (2010) 243 CLR 319; (2010) 85 ALJR 133; (2010) 272 ALR 14; (2010) 123 ALD 244 (“Plaintiff M61”), because the Minister was not informed upon a question he had been asked to consider: Plaintiff M61 at [90] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In WZAPN – High Court the High Court of Australia found that the application of s.91R(2)(a) of the Migration Act, referring to a threat to a person’s life or liberty as an instance of serious harm for the purposes of s.91R(1)(b) of the Migration Act, required an evaluation of the likely circumstances of the loss of liberty feared by a claimant for refugee status, and that both the Convention 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].
Paragraphs 27, 29, 35 and 36 of the Tribunal Decision
The applicant asserts a failure to properly exercise jurisdiction by the Tribunal by reason of a failure to examine the implications of treatment and detention by the security forces in Sri Lanka as stated in paragraphs 27, 29, 35 and 36 of the Tribunal Decision.
Paragraph 27 of the Tribunal Decision sets out the particulars of the applicant’s claims that he was harassed by the Sri Lankan Navy. Paragraph 29 of the Tribunal Decision sets out further claims with respect to the same claim and questions asked of the applicant by the Tribunal and his answers. Paragraphs 35 and 36 of the Tribunal Decision set out the Tribunal’s finding with respect to the applicant’s interactions with the Sri Lankan Navy in the Trincomalee area and in Pulmodai and in Udappu respectively.
The Tribunal accepted that the applicant:
a)would be required to obtain a pass to fish and that he had to get this from the Sri Lankan Navy camp in Udappu; and
b)had been stopped and questioned by the Sri Lankan Navy, but on a consideration of country information regarding the administration of fishing licences and permits concluded that although this was time consuming and inconvenient it did not amount to serious harm: CB 265-266 at [24]-[26].
The Tribunal:
a)considered the applicant’s claim that he had been harassed by the Sri Lankan Navy, and specifically that he had been severely beaten whilst fishing near Udappu, and stopped and questioned in Trincomalee;
b)took into account various country information;
c)accepted that the applicant was stopped and questioned by the Sri Lankan Navy when fishing, but found that the applicant had embellished the severity of the physical contact he had with the Sri Lankan Navy in Udappu; and
d)found that neither the treatment of the applicant by the Sri Lankan Navy in Udappu nor Trincomalee amounted to serious harm.
CB 266-268 at [27]-[36].
The Tribunal considered:
a)whether the applicant would face harm in the future because of his Tamil ethnicity, and specifically whether:
i)the applicant will be prevented from working by the military due to his Tamil ethnicity; and
ii)this would amount to serious harm.
The Tribunal gave detailed consideration to this part of the applicant’s claim and ultimately found that on the evidence before it found there was not a real chance that the applicant would face serious harm in the future if he returned to Sri Lanka: CB 268-273 at [38]-[55];
b)the applicant’s claim that he would suffer serious harm because of his religion. The Tribunal noted that the applicant had only raised the claim once during his application for the Protection Visa, and that the Tribunal was entitled to find that the claim lacked credibility given that the applicant had not raised it himself, and had then only done so when asked. The applicant conceded it was not a grave concern. The Tribunal concluded the applicant did not face serious harm in relation to his religion: CB 273-274 at [56];
c)the applicant’s claim that he faced serious harm because of an imputed political opinion. The Tribunal weighed his evidence against the country information and made a reasonable conclusion on the evidence before it that neither the applicant’s Tamil ethnicity, work as a fisherman, travel to the east of Sri Lanka nor his failed attempt to gain asylum in Australia would result in the Sri Lankan authorities imputing to the applicant pro-LTTE or anti-government political opinion to the extent that there would be a real chance of serious harm on return to Sri Lanka or in the reasonably foreseeable future: CB 274-275 at [57]-[61]; and
d)the applicant’s claim he would suffer serious harm due to his illegal departure and status as a returned failed asylum seeker. The Tribunal took into account the applicant’s evidence and numerous country information sources and concluded that although the applicant may be charged and detained, detention would likely be for a short period only and the penalty for leaving Sri Lanka illegally would most likely be a fine. This was a finding reasonably open to the Tribunal pursuant on the country information it considered: CB 275-277 at [62]-[71].
POT Act and I & E Act
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 I & E Act upon 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 by the Tribunal 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 or anti-Government activities: see CB 268 at [38], 275 at [61], 276 at [65], 277 at [71] and 278-279 at [76].
The Tribunal specifically considered the application of the I & E Act to the applicant and found that whilst the process may be stressful and difficult for the applicant, it did not amount to a real chance that the applicant would suffer serious harm now or in the reasonably foreseeable future as a result of his illegal departure from Sri Lanka or as a returned, failed asylum seeker: CB 277-278 at [72]-[75]. The Tribunal having given specific consideration to the I & E Act, the applicant’s assertion to the contrary cannot be made out, and cannot found any jurisdictional error in the Tribunal Decision.
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.
Country information
The Tribunal took into account a wide range of country information, not just the DFAT reports. In the Tribunal Decision reference is made to:
a)newspaper articles from Sri Lanka (CB 272-273 at [53]) and Australia (CB 276 at [65]);
b)reports from international organisations and bodies such as Freedom from Torture (CB 276 at [66]), and the International Crisis Group (CB 272-273 at [53]), governmental reports from the United States Department of State and the UK Foreign and Commonwealth Office (CB 277-278 at [72]), as well as the UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from 2012 (CB 276 at [66]); and
c)a decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) from 2013, namely, GJ & Others (Post-Civil War: Returnees) Sri Lanka CG [2013] UKUT 319: CB 274 at [58],
and the Court notes that the materials referred to above were all recent country information materials, dating from 2011 to 2013.
The applicant’s submission that the Tribunal only considered DFAT reports and failed to consider independent reports cannot therefore be made out and does not demonstrate that the Tribunal fell into jurisdictional error.
The applicant asserts that the Court ought to find jurisdictional error on the basis that the Tribunal did not have regard to an Amnesty International Statement which was published on 26 June 2014.
The Amnesty International Statement:
a)indicates that the UN High Commissioner for Human Rights had announced that three experts would assist a UN team investigating war crimes and other crimes under international law committed in Sri Lanka;
b)referred to the UN Secretary General’s panel of experts on accountability in Sri Lanka investigation which, up to March 2011, found credible allegations of war crimes and crimes against humanity in Sri Lanka; and
c)asserts that there is credible testimony to war crimes and other crimes under international law being committed by both the Sri Lankan Army and the LTTE during the period under investigation (which period is not expressly stated).
The reliance on the Amnesty International Statement does not assist the applicant. The Amnesty International Statement post-dates, by more than seven months, the Tribunal Decision, and was therefore not before the Tribunal for consideration. Furthermore, it is, as one might expect of an announcement of its type, very general in its content, and in any event, does not purport to be indicative of the current position in Sri Lanka, which is otherwise set out in the country information relied upon by the Tribunal.
On an application for judicial review of a decision of the Tribunal it is not open for this Court to have regard to material which was not capable of being put before the Tribunal because it post-dated the Tribunal Decision. To do so would be to embark upon fact-finding, and not judicial review, in respect of material, which because of its post-Tribunal Decision origins, cannot give rise to jurisdictional error in the Tribunal Decision. The choice of country information and the factual findings arising from it, where those factual findings are, as here, open on the available material, are matters solely for the Tribunal as the finder of fact: NAHI 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”).
There is no jurisdictional error apparent in the Tribunal Decision. Ground 1 is therefore not made out.
Ground 2
Applicant’s Submissions
The applicant made no express submissions with respect to a failure by the Tribunal to afford him natural justice. There was nothing discernible in the applicant’s submissions from which the Court might imply an allegation of a want of procedural fairness.
Minister’s submissions
The Minister submitted that:
a)there was no procedural error by the Tribunal which amounted to jurisdictional error, or which resulted in a failure to accord procedural fairness to the applicant. The requirements of the natural justice hearing rule are exhaustively set out in Division 4 of Part 7 of the Migration Act;
b)the Tribunal Decision discloses that the applicant was invited to appear at three hearings before the Tribunal, that he attended and gave evidence, and that his lawyers provided further information and written submissions to the Tribunal;
c)the Tribunal Decision discloses that the Tribunal put to the applicant a number of matters which were of concern to the Tribunal, together with relevant country information; and
d)ultimately, the Tribunal did not fail to follow proper procedures, and no jurisdictional error has been established.
Consideration of ground 2
As this was a case to which s.422B of the Migration Act applied the applicant was entitled only to the rights afforded to him under Part 7, Division 4 of the Migration Act. No breach of those provisions has been identified by the applicant, 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 January, May and October 2013 Tribunal Hearings: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300; CB 166-168, 212-214 and 233-235. The applicant attended each of the January, May and October 2013 Tribunal Hearings and gave evidence in support of his claims, assisted by an interpreter and migration agent in attendance: CB 205-207, 222-223 and 243-244.
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)details relating to the alleged harassment by the Sri Lankan Navy: CB 266 at [28]-[31];
b)that country information indicated that Tamils in Sri Lanka generally do not need international protection: CB 268-269 at [38];
c)whether the applicant could obtain work if he returned to Sri Lanka: CB 269 at [40];
d)concerns as to whether a Sri Lankan Army base the applicant alleged existed near Udappu did actually exist, and gave the applicant an opportunity to put forward more evidence to support that assertion: CB 269-270 at [40]-[42];
e)that not all Tamils were prevented from working in Sri Lanka: CB 272 at [52]; and
f)that the applicant’s inconsistent evidence in relation to the CID visiting his house may cause the Tribunal to doubt some of his claims: CB 275 at [63].
The applicant’s migration agent made the Post-Tribunal Hearing Submission on the applicant’s behalf: CB 270 at [43]-[45], and the Post-Tribunal Hearing Submission was considered by the Tribunal: CB 271-273.
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 ground 2 is not made out.
Ground 3
Applicant’s submissions
In the Applicant’s August 2014 Submissions the applicant asserts that:
II.The Second Respondent was prejudiced by the policy statements issued by the First Respondent against asylum seekers who arrived by boat in Australia, and by the reports by the Department of Foreign Affairs and Trade.
III.The document marked A clearly indicates that the first respondent was prejudiced in his attitude to Sri Lankan Tamil asylum seekers and by his policy statements influenced the decisions of the Second Respondent.
The “document marked A” contains the following text:
Scott Morrison attacks critics of Sri Lanka
Dennis Shanahan
Political Editor
Canberra
Jared OwensReporter
Canberra
SCOTT Morrison has lashed out at “increasingly shrill” critics of Sri Lanka, accusing asylum-seeker advocates of using boatpeople to pursue a political agenda of internationally isolating the once war-torn nation.
On his return from Sri Lanka yesterday, the Immigration Minister said that isolating Sri Lanka would only harm economic growth and increase the prospect of more people-smuggler boats coming to Australia
The above text appears on a blank page with the number “2” in the middle of that page after the text and some spacing. There is no attribution of a source for the document, nor is it dated.
Minister’s submissions
The Minister submitted as follows:
a)an allegation of bias is a serious matter which must be “distinctly made and clearly proved”: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 17 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”);
b)an allegation of actual or ostensible bias should be particularised: SZOTX v Minister for Immigration & Anor [2011] FMCA 37 at [12] per Driver FM. Ostensible bias must be firmly established: SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 at [9] per Flick J; and
c)that there is nothing in the Tribunal Decision to suggest the so called policy statements were taken into consideration or influenced the Tribunal, and otherwise the Tribunal Decision does not demonstrate any actual or apprehended bias on the part of the Tribunal.
Consideration – Ground 3 ‑ Bias
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ.
The Tribunal Decision shows that the Tribunal properly raised various concerns about the applicant’s case with the applicant, and, as set out above in relation to procedural fairness: see [39]-[40] 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 on three occasions, 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: cf WZATI at [71]-[72] per Barker J.
The applicant alleges bias in relation to comments attributed to the former Minister. 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, and, in any event, many sources of country information were considered in the Tribunal Decision: see, for example, the country information cited at [29] above.
In all of the above circumstances, the applicant’s allegation of bias has not been made out. It follows that ground 3 has not been made out.
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 279-281 at [78]-[86]. 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 279-281 at [78]-[86]. 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 279 at [78]-[79]. The Tribunal had regard to each of the claims made by the applicant in relation to a well-founded fear of persecution, and set out its findings at some length: CB 279-281 at [80]-[86], and having regard to its findings did not accept that there was any real risk that the applicant would suffer significant harm at the hands of the Sri Lankan authorities.
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 281 at [86].
The allegation that the Tribunal may not have considered the applicant’s claim under the complementary protection provisions cannot be made out. The Tribunal specifically considered whether the applicant was owed complimentary protection and found there was not a real risk he would suffer significant harm if removed from Australia and returned to Sri Lanka: CB 279-281 at [78]-[86]. The additional ground has not been made out.
Conclusion
The Court has concluded that none of the applicant’s grounds in 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 also make an order amending the name of the second respondent to read “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 12 February 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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Standing
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