WZATR v Minister for Immigration
[2019] FCCA 2847
•8 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2847 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal – whether evidence not considered – whether bias – whether jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Act 1958 (Cth), ss.36, 91R, 424AA, 476 |
| CZBH v Minister for Immigration [2013] FCCA 2210 Hamod v State of New South Wales (No.11) [2008] NSWSC 967 Kolan v Minister for Immigration [2014] FCCA 461 Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works (1980) 44 LGRA 65 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 85 ALJR 327; (2011) 273 ALR 223 Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v W64/01A[2003] FCAFC 12 MZYYF v Minister for Immigration [2014] FCCA 75 NADH of 2001 & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328; (2004) 214 ALR 264 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 Shrestha v Minister for Immigration [2013] FCCA 710 SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 38 SZKOK v Minister for Immigration [2010] FMCA 90 SZNHO v Minister for Immigration [2009] FMCA 460 SZNJZ v Minister for Immigration & Anor [2010] FMCA 72 SZNJZ v Minister for Immigration & Citizenship[2010] FCA 689 SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 SZQQU v Minister for Immigration [2014] FCCA 425 SZRHL v Minister for Immigration & Citizenship [2013] FCA 1093 SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 SZSNU v Minister for Immigration [2013] FCCA 1219 SZSQS v Minister for Immigration & Border Protection [2013] FCCA 1880 SZSQS v Minister for Immigration & Border Protection [2014] FCA 219 SZSRI v Minister for Immigration [2013] FCCA 1473 SZTFV v Minister for Immigration [2014] FCCA 996 VMOZ v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 188 WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 WZANF v Minister for Immigration [2010] FMCA 110 |
| Applicant: | WZATR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 23 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 27 June and 15 July 2014 and 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 8 October 2019 (and delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr D Blades and Mr G Arujunan |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr P Hannan and Mr A Gerrard |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the applicant have leave to amend the application in terms of the Proposed Re-Amended Application handed up at hearing on 15 July 2014.
That a writ of certiorari issue quashing the decision of the second respondent made on 8 January 2014.
That a writ of mandamus issue requiring the second respondent to re-hear the application for review made by the applicant on 10 September 2012 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 23 of 2014
| WZATR |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
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 Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent (“Minister”) to refuse to grant a Protection (Class XA) visa (“Protection Visa”) to the applicant.
Facts
The background to this application is as follows:
a)the applicant is a citizen of Sri Lanka of Tamil ethnicity, who arrived in Australia without a visa, by boat on 11 April 2012: CB 63;
b)on 9 May 2012 the applicant was interviewed by an officer of the Department of Immigration & Citizenship, now the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs, (“Department”). The applicant provided the following reasons for leaving Sri Lanka:
i)he operated a furniture business in his home town and the Tamil Peoples Freedom Fighters (“TMVP”) sought favours from his business, such as the provision of money and free materials, which the applicant refused to provide;
ii)he complained about the harassment, which brought him into conflict with a person named “Veera” who was associated with the TMVP, who threatened him with violence;
iii)Veera sent the government’s Central Intelligence Department (“CID”) to his shop, and they took records of the registration of his business and other identifying information;
iv)he feared reprisals from the CID and the TMVP, which is associated with the government;
v)the CID had been to his house in Sri Lanka three or four times since he has been in Australia;
vi)he had previously been detained by the police;
vii)as a Tamil he will be targeted by authorities and assumed to be a member or supporter of the Liberation Tigers of Tamil Eelam (“LTTE”); and
viii)the Sri Lankan Army had abducted and killed his uncle in 1990 on suspicion he was involved with the LTTE: CB 24-25 and 361-362;
c)on 1 July 2012 the applicant applied for a Protection Visa and was interviewed in connection with his Protection Visa application by a Delegate on 11 July 2012 to provide further details of his claims: CB 123-124;
d)on 23 August 2012 the Delegate refused the Protection Visa application and the applicant’s migration agent lodged an application for review with the Tribunal on 10 September 2012: CB 137-141
e)the applicant was invited to appear before the Tribunal on 2 November 2012 (“Initial Tribunal Hearing”), and on the same day the applicant’s migration agent lodged a submission with the Tribunal: CB 171 and 173;
f)the Initial Tribunal Hearing of 2 November 2012 was adjourned to 23 November 2012, and resumed on 23 November 2012: CB 190-220;
g)on 15 April 2013 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa (“Initial Tribunal Decision”). The Initial Tribunal Decision was notified to the applicant and his migration agent by letter dated 16 April 2013: CB 254-283;
h)the applicant sought judicial review of the Initial Tribunal Decision, and on 2 September 2013 the matter was remitted by consent to the Tribunal for reconsideration: CB 286;
i)on 16 December 2013 the applicant’s new migration agent provided a submission to the Tribunal and the applicant was invited to appear before the reconstituted Tribunal on 17 December 2013 by video-link from Sydney to Perth: CB 316 and 320-321(“Second Tribunal Hearing”); and
j)on 8 January 2014 the Tribunal again affirmed the Delegate’s Decision not to grant the applicant a Protection Visa. The Tribunal Decision appears at CB 360-376.
The Tribunal Decision
The applicant attended the Second Tribunal Hearing via video from Perth on 17 December 2013. The Tribunal Member, migration agent and interpreter were all located in Sydney. At the Second Tribunal Hearing the applicant repeated the claims and arguments previously made, namely:
a)Veera and his associates would kill him if he returned for failing to comply with his extortion demands: CB 362 at [8]; and
b)the authorities will harm him for being a failed asylum seeker and his Tamil ethnicity imputing a pro-LTTE political opinion: CB 362 at [8].
The Tribunal noted the receipt of written submissions from the applicant’s migration agent dated 16 December 2013 where the same claims and arguments were raised, but which provided more particularised reasons and examples of the harm and persecution the applicant would face upon return: CB 362 at [7].
During the Second Tribunal Hearing:
a)when asked about difficulties with the authorities the applicant stated he was detained and beaten sometimes during the civil war until 2010, but had not previously raised the claim as the migration agents told him not to mention it and to concentrate on his current concerns: CB 362 at [9];
b)the Tribunal indicated it had doubts the applicant’s migration agents would advise him not to mention such a claim as it was a significant event to raise in support of his Protection Visa application, and subsequently the Tribunal commented it may find he did not mention the claim previously as it had not happened: CB 362 at [9];
c)the Tribunal questioned how the applicant was able to evade the TMVP when he continued to live in and around his home, and was not convinced the applicant explaining he lived discreetly and did not go out was sufficient if the TMVP were in fact determined to find him: CB 362 at [10];
d)the Tribunal discussed the applicant approaching a senior member in the TMVP for assistance with Veera. The Tribunal referred to news articles stating the senior member and Veera were working for different, and opposing, factions of the TMVP and thus the senior member would have no influence over Veera: CB 363 at [11];
e)it was noted the applicant appeared unaware the TMVP was split into different factions and this lack of knowledge raised doubt over his contact with Veera and other TMVP members, while also stating it appeared the applicant was describing circumstances which ceased to exist after the civil war ended in 2009 and his claims of these events occurring immediately prior to his departure in 2012 were doubtful: CB 363 at [11]
f)the applicant discussed his fear of being killed by the Sri Lankan Army like his uncle was in 1990 because he may be perceived as being associated with the LTTE, and though he had never been involved with the LTTE prior to his departure he feared he may be targeted in the future by the authorities: CB 363-364 at [12];
g)when presented with country information indicating asylum seekers were not subject to persecution or significant harm upon return to Sri Lanka and social groups the subject of elevated risk, the applicant claimed Veera would intervene and make him a target so he would be mistreated and suspected of pro-LTTE political opinion: CB 364-365 at [14]-[16]; and
h)the applicant maintained that despite not being a businessman anymore he will still be targeted for what happened previously, and his migration agent reiterated this to the Tribunal: CB 366 at [19].
The Tribunal:
a)found that the applicant is a citizen of Sri Lanka: CB 366 at [22];
b)held the applicant did not provide a credible account of his circumstances in Sri Lanka when considering the applicant’s claims and the evidence before the Tribunal: CB 367 at [23];
c)was not satisfied the applicant was threatened by senior members of the TMVP or faces current threats of harm from paramilitaries in light of contradicting country information which indicates the circumstances the applicant has claimed may have been contrived to enhance his application : CB 367 at [25];
d)was critical of the applicant demonstrating and providing only limited and vague recollection of his circumstances, including his location and activity, in the months prior to his departure in 2012. The Tribunal formed the opinion the applicant was not in hiding from the TMVP as claimed as he would recall more details of his circumstances if this were true: CB 367 at [26];
e)in light of the credibility concerns, formed the view the claims relating to extortion and threats by Veera and the TMVP were all fabricated: CB 368 at [27]-[28];
f)found the failure to raise the claims of being detained and beaten by authorities did not occur as it would have been apparent to him and his migration agent that such a claim was significant: CB 368 at [29];
g)accepted Tamils are at risk of being targeted by authorities, but found that the applicant did not have the profile of a person who would be at risk because, as indicated in country information, he has had no past association with the LTTE and has not been previously targeted: CB 369 at [32]-[33];
h)found the evidence of the applicant and the relevant country information both supported the finding the applicant was not harmed by the authorities previously, and is confident this will not change in the reasonably foreseeable future: CB 370 at [33];
i)on the basis of country information, did not accept the applicant would be targeted as a Tamil, a failed asylum seeker, an illegal departee and his residing in an LTTE area during the civil war, and consequently held any fear of such was not ‘well-founded’: CB 370 at [34];
j)was not satisfied the applicant had the profile of a person belonging to one of those groups which may attract adverse interest from the authorities: CB 370 at [35];
k)accepted the applicant may be detained upon his return to Sri Lanka but that such occurring will not place him at risk of significant harm: CB 371 at [36];
l)having rejected the claims of extortion, also found the applicant was not harmed previously for his membership of various social groups and rejected the claims that as a businessman he will continue to be extorted upon his return: CB 371 at [37]-[38];
m)held the applicant did not meet the criteria for complementary protection under s.36(2)(aa) of the Migration Act as the applicant does not belong to a high risk group or have the profile of a person who is at real risk, or substantial grounds for believing there is a real risk, of significant harm as a necessary and foreseeable consequence of the applicant returning to Sri Lanka: CB 372 at [42]-[43]; and
n)affirmed the Delegate’s Decision not to grant the Protection Visa: CB 374 at [50].
The present proceedings
The applicant applied to this Court on 27 September 2013 seeking judicial review of the Tribunal Decision.
The Court partially heard this matter on 27 June 2014 and 15 July 2014. The matter was subsequently adjourned pending the outcome of certain proceedings in the High Court decision, and once those proceedings were determined the hearing eventually resumed.
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Judicial Review Application filed on 29 January 2014 and the Amended Judicial Review Application (“Amended Judicial Review Application”) filed on 4 June 2014 (and as further amended at hearing on 15 July 2014);
b)the affidavits of:
i)the applicant filed 29 January 2014 (“Applicant’s Affidavit”);
ii)the affidavit of the Vijeyadezmi Ganasan filed 4 June 2014, annexing at Annexure A the transcript of the Second Tribunal Hearing (“Second Tribunal Hearing Transcript”), as Annexure B a record of interview held by the applicant by an officer of the Department at the Sherga Detention Centre in Queensland on 11 July 2012 (“ Second Scherger Interview Transcript”), and as Annexure C a further interview with the applicant at the Scherger Immigration Detention Centre on 9 May 2012 (“First Scherger Interview Transcript”);
c)the affidavit of Ganasan Arujanan, the applicant’s solicitor, annexing the sound recording of the Second Tribunal Hearing (“Second Tribunal Hearing Recording”), to which the Court has listened both as a whole, and subsequently in various parts;
d)the Court Book (“CB”) in which appears the Tribunal Decision at CB 360-375;
e)outlines of submissions filed by the applicant 18 June 2014 and the Minister on 26 June 2014 (no further written submissions were filed following the adjournment pending the outcome of the High Court proceedings referred to above);
f)the transcript of the hearing before the Court on 27 June 2014 and 15 July 2015 (“Transcript”).
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court. In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reasons for Judgment are being delivered, by video-link, by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Grounds
The Amended Judicial Review Application (“Amended Judicial Review Application”) contains four grounds, which are set hereunder at [12] (ground 1), [19] (ground 2), [35] (ground 3) and [65] (ground 4). The Amended Judicial Review Application is in the form handed up at the hearing on 15 July 2014, the Court has granted leave for the amendments therein proposed on the basis that the Minister had adequate notice of them, was not prejudiced by them, and indeed addressed them at hearing. There will be an order accordingly.
Ground 1
Ground 1 is as follows:
1.In making an adverse credibility finding in relation to the applicant (CB 368, [29]), following a comment by the Tribunal that the applicant had not previously claimed before the Tribunal hearing that he was detained sometimes and beaten by the authorities in Sri Lanka (CB 362 [9]), the Tribunal ignored evidence presented to the Department by the applicant on his arrival, and subsequently, that he had had previous difficulties with the authorities in Sri Lanka, thereby making a jurisdictional error.
Particulars
(a)The applicant claimed in his entry interview conducted on 9 May 2012 that:
i. Veera started sending in the CID to his shop (CB24, Transcript p 19)
ii The CID started visiting his shop about 5 January 2012 (CB 24, Transcript p 19)
iii. He had been detained sometimes by the police (CB 25, Transcript p 23)
iv. The CID had been to his house since his arrival in Australia (CB 29, Transcript p 35)
v. The CID, the army, “everybody is coming and harassing” him (Transcript p 22).
(b)The applicant claimed in his interview with the Minister’s delegate held on 11 July 2012 that the Sri Lankan army and police collaborate with the TMVP (Transcript 14);
(c)The applicant’s adviser made submissions to the delegate regarding close ground level ties between the paramilitary groups and government security forces (Transcript p 16);
(d)The Tribunal erred in finding that the applicant did not provide the claim of mistreatment by the Sri Lanka authorities throughout the processing of his application ([29]);
(e)In these circumstances the Tribunal made a jurisdictional error by making a serious adverse credibility finding against the applicant ([29]).
Applicant’s Submissions
The first ground of the applicant’s submissions claimed:
a)the Tribunal stated the applicant had not previously raised these claims, and as such was an element of the Tribunal making an adverse credibility finding against the applicant: Applicant’s Affidavit, Annexure 1 p.8;
b)the Tribunal failed to consider evidence tendered by the applicant in support of being detained and beaten while in Sri Lanka, and did not consider, or acknowledge a number of occasions where he detailed mistreatment in Sri Lanka in the processing of his application: See Particulars of ground 1; and
c)the Tribunal had already predetermined the applicant was lying and dismissed his seeking to refer the Tribunal to previous times he had claimed to have stated he was beaten: Applicant’s Affidavit, Annexure 1 p.9.
Minister’s submissions
The Minister’s submissions in relation to ground one are as follows:
a)the Second Tribunal Decision should be read fairly and hence holistically, with each constituent part understood in context: Shrestha v Minister for Immigration [2013] FCCA 710 at [37] per Judge Nicholls. The Court should not engage in an over-legalistic analysis of the Second Tribunal Decision or engage in an over-zealous drawing of inferences from things not stated in those reasons: Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works (1980) 44 LGRA 65 at [67] per Fullagar J;
b)the comment in the second Tribunal Decision at CB 362 at [9] is part of a recitation of the course of the second Tribunal Hearing – ie a mini transcript. There is no “link” between that comment and the credibility finding at CB 368 at [29]. The statement at CB 368 at [29] that claims about detentions and beatings not being included in the Protection Visa application (prepared by a solicitor migration agent) is perfectly accurate: CB 61 and CB 67 at [43], CB 70 at [48], CB 75 and 99-103. The particulars to ground 1 do not support the plea;
c)the applicant bears the onus of proving any relevant facts. Generally speaking, administrative acts are presumed valid: VMOZ v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 188 at [30] per Heerey J;
d)the onus of making out ground 1 is on the applicant and hence also the onus of establishing the factual foundation for ground 1: SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 at [11] per Flick J;
e)absent contrary evidence, this Court must accept the statements of fact recorded in the second Tribunal Decision: SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at [13] per Collier J; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 85 ALJR 327; (2011) 273 ALR 223 at [67] per Gummow J (with whom Heydon & Crennan JJ agreed); Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575 [59] per Perram J;
f)there is no evidence to suggest that the second Tribunal hearing did not, before making the Second Tribunal Decision, consider all of the material referred to in the particulars to Ground 1 before making any of the findings at CB 366 at [21]-[40]. Indeed, the Second Tribunal Decision is to the contrary: CB 361 at [3];
g)even if (which the Minister denies) ground 1 is made out, there was no effect on the outcome;
h)the Second Tribunal Decision would still have affirmed the Delegate’s Decision because of other concerns about the applicant’s credibility: SZSRI v Minister for Immigration [2013] FCCA 1473 at [25]-[27] per Judge Manousaridis. The credibility findings at CB 367 at [25] and CB 368 at [28] are entirely separate from the credibility finding at CB 368 at [29]; and
i)the findings at CB 370 at [33] CB 371 at [36] CB 372 at [42], CB 373 at [44] are independent and separate bases for affirming the Delegate’s Decision: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [117]-[124] per Tracey and Foster JJ (with whom Moore J relevantly agreed); SZSRI & v Minister for Immigration [2013] FCCA 1473 at [28] per Judge Manousaridis.
Consideration of ground 1
Ground 1 misstates the Tribunal findings at CB 362 at [9] and 368 at [29]. The Tribunal did not find that the applicant “had not claimed before [that is prior in time, rather than in front of] the Tribunal hearing that he was detained sometimes and beaten by the authorities in Sri Lanka”.
What the Tribunal did find was that he had “not … consistently” present that claim: CB 362 at [9], and that he “did not provide the claim throughout the processing of his application because he was not detained and beaten by the authorities in Sri Lanka”: CB 368 at [29].
As the Minister’s submissions pointed out, the applicant did not consistently claim to have been detained and beaten in Sri Lanka. In the Protection Visa application commencing at CB 61 (prepared with the assistance of a legal practitioner: CB 67 and 75) there is no mention of prior beatings and detentions: CB 67 at Q.43 and 70 at Q.48, and especially in the applicant’s statutory declaration annexed to the Protection Visa application: CB 99-103. It has to be observed that whilst not impossible, it would be very unusual for a solicitor migrant agent preparing the Protection Visa application not to include such a claim (it being a proper ground for fearing persecution) if told about it, and where, as here, the applicant seemingly claims his solicitor migration agent was so told.
In this case the fact that the applicant was, at the least, inconsistent in putting forward claims to have been detained and beaten in Sri Lanka provides a basis for the findings made by the Tribunal, and consequent findings concerning the applicant’s credibility and whether the claimed events actually occurred. In the circumstances ground 1 is not made out and provides no basis for finding jurisdictional error in the Tribunal Decision.
Ground 2: Apprehension of bias
Ground 2
Ground 2 is as follows:
2.The Second Respondent made a jurisdictional error in that it made a decision that was affected by a reasonable apprehension of bias.
Particulars
The second respondent:
(a) Stated “I don’t believe you”, in response to a reply given by the applicant to a question about how his migration agent had prepared his visa application (Transcript p 8);
(b) After observing that the persons from whom the applicant claimed to fear persecution ‘sound pretty stupid’, asked the applicant whether those persons were stupid (Transcript p 11);
(c) Stated that certain evidence given by the applicant was ‘a preposterous proposition’ (Transcript p 15);
(d) Referred to the applicant’s claims of having a fear of Veera, the TMVP organiser, as ‘stuff’ (Transcript p 14);
(e) Stated that there was a ‘communication problem’ between the Tribunal and the applicant after the applicant did not understand the content of a lengthy question, regarding UNHCR eligibility guidelines, posed by the Tribunal (Transcript p 16);
(f) Refused a request from the applicant’s adviser for additional time to present written submissions on issues of concern raised by the Tribunal (Transcript p 17); and
(g) Sought to immediately contradict, in an adversarial manner, submissions and answers to questions given by the applicant and his adviser in respect of:
i.extortion of Tamil business people, including the applicant himself;
ii.the collaboration of the Government with the TMVP; and
iii.the continued operation of the sawmill business that the applicant had operated in partnership with his uncle;
rather than seeking information from the applicant and his adviser to determine whether the applicant’s claims met the visa criteria (Transcript p 19-20; applicant’s outline of submissions paragraphs 49-59).
Applicant’s submissions
The applicant referred, economically, to the following authorities:
a)Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 179 ALR 425 (“Ex parte H”) at [27] per Gleeson CJ, Gaudron and Gummow JJ the High Court said that:
27. The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
b)NADH of 2001 & Ors v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 (“NADH”) ALR at [20] per Allsop J:
[20] At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question. Unless that be demonstrated, it is hard to see how a decision-maker has failed to conform to standards of procedural fairness. Such an approach accords with the need for neutral and fair decision-making, without imposing on decision-makers in an administrative context the burden of behaving at all times as would a judge in public in the deployment of judicial power.
c)SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (“SZRUI”) per Allsop CJ at [4]-[5]:
4 A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.
5 The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. …
The actual instances of bias complained of were as set out in the particulars to this ground.
Minister’s Submissions
The Minister’s submissions in relation to ground 2 were as long as the applicants were short, and were as follows:
a)the matters alleged to constitute reasonable apprehension of bias are set out in the particulars to ground 2;
b)an ultimate conclusion founded in part upon adverse findings as to credit may be set aside if the decision-maker has acted in a manner which gives rise to a reasonable apprehension of bias: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J;
c)disagreement with the Tribunal’s findings of fact does not support a contention that the Tribunal failed to consider the evidence properly or fairly: SZJEH v Minister for Immigration and Citizenship [2007] FCA 1706 at [14] per Jacobson J.
d)the Tribunal was not obliged to accept the applicant’s evidence uncritically: SZSQS v Minister for Immigration and Border Protection [2014] FCA 219 at [33] per Farrell J. The Tribunal was entitled to reject the applicant’s claims on the basis of inherent unlikelihood of the narrative: see, for example, SZKOK v Minister for Immigration [2010] FMCA 90 at [30] per Smith FM;
e)unfavourable decisions are not, without more, sufficient to support a reasonable apprehension of bias: Hamod v State of New South Wales (No.11) [2008] NSWSC 967 at [20] per Harrison J quoted in SZTFV v Minister for Immigration [2014] FCCA 996 at [59] (footnote 113) per Judge Manousaridis;
f)the test for ostensible bias on the part of the decision-maker is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend a real and not remote possibility: see MZYYF v Minister for Immigration [2014] FCCA 75 (“MZYYF”) at [35] per Judge Riethmuller, that the decision-maker did not bring an impartial mind to making the decision: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [73] and [99] per Robertson J; and
g)the Court determines the issue of reasonable apprehension of bias objectively: SZRUI at [73] per Robertson J.
h)an allegation of reasonable apprehension of bias may be based on the decision-makers pre-judgment or pre-determination as to the fate of the application. In such cases more must be shown than mere predisposition to a particular view. It is necessary to show the decision-maker’s mind was not open to persuasion: SZRUI at [29] per Flick J;
i)an allegation of reasonable apprehension of bias on the part of the decision-maker may be based on the decision-maker’s exchanges with a party or use of terminology during a hearing: SZRUI at [31]-[32] per Flick J and [91], [96] and [100] per Robertson J;
j)occasional displays of impatience and irritation by the decision-maker, whether justified or not, will not amount to reasonable apprehension of bias. Momentary outbursts and misunderstandings must be tolerated, so long as they pass and do not affect the decision-maker functions. Even if a decision-maker is sarcastic, mocking or rude, such conduct will not of itself constitute disqualifying bias. Mere insensitivity to an applicant will not sustain an allegation of reasonable apprehension of bias: SZRUI at [31]-[32] per Flick J and at [91], [96] and [100] per Robertson J;
k)an allegation of reasonable apprehension of bias must be distinctly made and clearly proved: SZRUI at [22] per Flick J;
l)a reasonable apprehension that the decision-maker was biased must be firmly established: SZRUI at [22] per Flick J;
m)it is not sufficient if a reasonable bystander has a vague sense of unease or disquiet: SZRUI at [22] per Flick J;
n)reasonable apprehension of bias on the part of the decision-maker must not be too readily accepted lest it encourages parties to seek to have their applications heard and resolved by someone thought to be more likely to decide the case in their favour: SZRUI at [22] per Flick J;
o)the whole of the transcript of proceedings must be considered rather than sentences taken in isolation: SZRUI at [75], [91] and [94] per Robertson J; SZSQS v Minister for Immigration [2013] FCCA 1180 (“SZSQS”) at [29] per Judge Driver; CZBH v Minister for Immigration [2013] FCCA 2210 (“CZBH”) at [17] per Judge Neville;
p)it is important to listen to the recording of a hearing so as to appreciate the “tone” of the hearing: SZRUI at [89] per Robertson J; SZSQS [18] per Judge Neville; SZNHO v Minister for Immigration [2009] FMCA 460 at [35]-[42] where Scarlett FM listened to a compact disc: see also WZANF v Minister for Immigration [2010] FMCA 110 at [119] per Lucev FM;
q)the transcript must be considered on the basis that the Tribunal had read the material already submitted: see SZRUI at [75] per Robertson J; MZYYF at [26] per Judge Riethmuller;
r)ostensible bias does not necessarily arise from illogical or irrational decision-making or inferences. A manifestly defective or illogical approach to the consideration of evidence and even irrationality in the reasons for a conclusion may create an impression of confusion, lack of care or incompetence. Such an approach, without more, does not necessarily demonstrate bias: SZQQU v Minister for Immigration [2014] FCCA 425 at [113] per Judge Lloyd-Jones;
s)it will be a rare case where the Tribunal’s reasons for decision demonstrate a reasonable apprehension of bias: SZSQS at [31] per Judge Driver; SZSQS v Minister for Immigration and Border Protection [2014] FCA 219 at [32] per Farrell J.
The application of the principles set out above must take into account that the Tribunal:
a)is an inquisitorial body;
b)does not administer public justice;
c)must ensure that the applicant is aware of the issues on which the outcome of the application may turn: SZRUI at [24]-[27] and [34] per Flick J, [93] per Robertson J; SZSNU v Minister for Immigration [2013] FCCA 1219 at [27]-[34] per Judge Manousaridis; MZYYF v Minister for Immigration [2014] FCCA 75 at [34] per Judge Riethmuller;
d)robust and forthright testing of an applicant’s claims does not sustain a finding of reasonable apprehension of bias: SZRUI at [24] per Flick J; and
e)where credibility is an issue the Tribunal Member will necessarily have to test the evidence presented, often vigorously. The requirement for procedural fairness will often require the applicant to be plainly confronted with matters which bear adversely on credit or which bring the account into question. Further, the Tribunal Member’s assessment of an applicant’s credibility will often depend upon the applicant’s demeanour: SZQQU at [113] per Judge Lloyd-Jones.
In relation to this case:
a)in Kolan v Minister for Immigration [2014] FCCA 461 at [39] Judge Riley pointed out the distinction between “I have difficulty accepting …” and “I do not accept ….”. Such distinctions should not be taken too far;
b)it is an error to judge the facts of Case A against the facts of Case B and to reason that, because the facts of Case A may be thought to be more/less extreme than the facts of Case B, it follows that Case A does/does not show a reasonable apprehension of bias: SZRUI at [99] per Robertson J;
c)the question of fact to be addressed is: might a properly informed lay person reasonably apprehend that, as a matter of possibility (real and not remote), the Tribunal might not have brought an impartial mind to bear on the Second Tribunal Decision because the Tribunal had formed the fixed view that the applicant had fabricated the account of events upon which the Protection Visa application was based and hence the application failed: SZRUI at [99] per Robertson J;
d)the Court cannot be satisfied that a reasonable bystander might form the view that there was little if anything the applicant could have said to shift the Tribunal from a view that the applicant’s claims were to disbelieved: contrast SZRUI at [37] per Flick J. On the contrary, the Second Tribunal Hearing was conducted in an exemplary manner;
e)the matters relied upon by the applicant must be considered in context. That is especially so with respect to particulars (a)-(e). It is important to listen to the Second Tribunal Hearing Recording to hear the “tone” of the Tribunal. The matters on which the applicant relies become even more benign than they already were upon listening to the Second Tribunal Hearing Recording. There was nothing in the Tribunal’s conduct that could be regarded as intended to give offence: CZBH at [119] per Judge Neville;
f)in evaluating what was said by the Tribunal it is necessary to consider not only at what stage of the Second Tribunal Hearing the statements were made but also, to the extent possible, the inherent probabilities or improbabilities to which the second Tribunal Member was reacting: SZRUI at [82] per Robertson J;
g)the Applicant’s solicitor/migration agent was present at the Second Tribunal Hearing: Second Tribunal Hearing Transcript at pp.19-20. This is a matter of some significance: CZBH v at [144] per Judge Neville;
h)there was a 10 minute break at about the 72 minute mark: see Second Tribunal Hearing Transcript at p.13;
i)as to particular (d), the use of “stuff” was:
i)plainly a slip of the tongue;
ii)used as a synonym for “subject” or “topics”; and
iii)immediately corrected: see Transcript Affidavit at page 15 (5th para);
j)the tone of the Second Tribunal Hearing was very matter of fact: Second Tribunal Hearing Recording at 88 minute mark.
k)the Tribunal suggested to the applicant a “way out” (“Is that because you don’t remember?”) of the vagueness concerning the Applicant’s avoidance of Veera: Second Tribunal Hearing Recording at p.15.
Consideration of ground 2
The Tribunal is not held to judicial standards when it comes to the issue of bias, but it is nevertheless required to act in a manner which does not evince bias. The relevant law in relation to an apprehension of bias is adequately stated for present purposes in the applicant’s submissions above. In particular, the Tribunal ought not to act in a manner which evinces a premature disposition to disbelieve a party (and relevantly here, the applicant’s case).
Particulars (a) to (c) of this ground, properly construed, are strident statements of disbelief.
In relation to the statement of disbelief at the heart of particular (a) the Court notes, first, that it was made quite early in the Second Tribunal Hearing. Second, the Court notes, as it did above in relation to ground 1, that whilst not impossible, it would be very unusual for a solicitor migrant agent preparing the Protection Visa application not to include a claim of detention and beating at the hands of the authorities in an applicant’s home country if told about it, it being a proper ground for fearing persecution. And so whilst the Tribunal might have expressed its doubts in terms of, for example, likelihood: SZRUI at [92] per Robertson J, an emphatic statement of disbelief, such as that here, is likely to give rise to a finding of bias, more so when made, as here, early in a hearing, and may therefore be a premature expression of disbelief: SZRUI at [4] per Allsop CJ. It might also in particular cases be unreasonable because of its possible prophylactic effect on discourse with an applicant from another country who does not have English as a first language engaged in an environment and a legal and administrative system with which they are unfamiliar (and whether or not they are represented), but that matter was not specifically raised in these proceedings.
The use of the terms “stupid” and “preposterous” is likewise indicative of a level of disbelief, or is such an inappropriate expression of a level of a doubt, as to indicate a predetermined view in relation to the applicant’s claims. And although the use of “stuff” to describe the evidence of the applicant’s fears arising from contact with the TMVP organiser was quickly withdrawn, the initial utterance is another indicator of a state of mind fixed against propositions put by the applicant.
The Court does not consider that the Tribunal’s reference to a “communication problem” in conjunction with questions it was asking the applicant about groups considered vulnerable in Sri Lanka was indicative of an apprehension of bias. It is plain that there was a communication problem between the Tribunal and the applicant at this point, with the problem probably arising more from a long statement by the Tribunal which ended with a question, which in total occupied about a third of a page of the Second Tribunal Hearing Transcript, the meaning of which was probably apt to be lost in translation, than any problem or misunderstanding on the part of the applicant.
In relation to the refusal of the request for additional time for submissions the Court does not consider that there is sufficient evidence to indicate that that refusal, or the manner of the refusal, was indicative of a reasonable apprehension of bias on the part of the Tribunal. In any event, the matter is considered further below, and probably more appropriately, in relation to the applicant’s claim of unreasonableness by the Tribunal.
In relation to particular (g) the Court is not satisfied that the Tribunal was doing any more that engaging, in a fairly robust way it must be said, with the matters raised by the applicant and the applicant’s solicitor/migration agent. Robustness is permissible and is not evidence of a reasonable apprehension of bias: SZRUI at [24] per Flick J.
Having listened to the Second Tribunal Hearing Recording the Court is of the view that the “tone” of the Second Tribunal Hearing is not of particular assistance. There is nothing particularly irregular about the tone adopted by the Tribunal, but that it is probably rarely the case in any event. In this case it is more what was said rather than the tone of what was said which is determinative.
Generally the Court does have a strong sense of unease about the conduct of review by the Tribunal in the Second Tribunal Hearing: it is the case in the Court’s view that the Tribunal gave the appearance of having pre-determined certain issues, and the manner in which it conducted those aspects of the Second tribunal hearing seemed to foreclose any possibility for the applicant to persuade the Tribunal to a contrary view.
Particulars (a), (b), and (c) of this ground have been made out. That means that the applicant was denied procedural fairness in the Second Tribunal Hearing.
Ground 3: Section 424AA of the Migration Act and legal unreasonableness
Ground 3 is as follows:
3.The Tribunal made a jurisdictional error by unreasonably refusing to give the applicant additional time to comment on or respond to concerns expressed by the Tribunal about the applicant’s credibility and about the persons from whom the applicant claimed to fear persecution, in breach of s424AA(b)(iv) of the Migration Act 1958.
Particulars
(a)The Tribunal raised with the applicant a number of concerns about his credibility, and the factual information he had submitted, during the course of the hearing, including whether Veera was still involved with the TMVP (Transcript p 13-15);
(b)The applicant’s adviser requested additional time to provide submissions on credibility and Veera’s current involvement (Transcript p 17);
(c)The Tribunal refused to grant the adviser additional time for written submissions and demanded that oral submissions be given there and then (Transcript p17).
Applicant’s Submissions
Specifically referring to the Second Tribunal Hearing Transcript pp.4-5 the applicant submitted:
a)the Tribunal Member sought to confine the issues by putting the applicant on notice that only claims directly mentioned by him at the Second Tribunal Hearing would be considered, which is an inappropriate way to conduct an inquisitorial Tribunal hearing in the context of assessing refugee claims;
b)it was unfair, unreasonable and there is no reason why the Tribunal ought not to have considered a claim or factual assertion previously mentioned by the applicant or his agent to the Department orally or in writing, but which the applicant or his agent did not elaborate on before the Tribunal on the day of the Second Tribunal Hearing; and
c)it was unfair and unreasonable for the Tribunal to ask the applicant to tell it whether the claims provided through the solicitor/migrant agent were something that he said to the solicitor/migrant agent, or whether those claims were something that the solicitor/migrant agent up ‘came up with by themselves’. The applicant was not in a position to categorise the merits of his claims in that way on the spot before the Tribunal.
The applicant referred to the following excerpt from the Second Tribunal Hearing Transcript pp.8-9:
Tribunal: Sir I don’t think I’ve heard this claim before. The army taking you away and beating you.
Applicant: Yes, that’s right, because when I gave my version when preparing the application to my lawyers, they told me to tell them in details the current problems I have, so that’s how I was explaining things, the problems I had with Veera.
Tribunal: Let me see if I’ve understood this right. You’ve told your advisors, your migration agents, that you were taken away by the army and beaten up, and they said, don’t worry about that, let’s talk about what’s happening now?
Applicant: Yes, in the detention centre, when I was giving interview to the lawyers, I told them, yes I had problems which was normal there, the army will take us, beat us, but later on, had problems with Veera where he threatened me that he will shoot me, so from that day, I actually took that very serious and I explained it to them.
Tribunal: I don’t believe you. I mean, unless you had some pretty incompetent advisors, which you didn’t, there is no way that you could tell your advisor that you got taken away by the army and beaten, and they say “Oh let’s not worry about that, let’s deal with something else”. That would’ve been your main claim probably.
The applicant made the following submissions pertaining to pp.8-9 of the Second Tribunal Hearing Transcript:
a)the applicant and his representative advisor had mentioned the claims in his entry interview and the Tribunal erred in concluding they had not done so;
b)the Tribunal told the applicant that he did not believe the applicant when he said that he had mentioned the problems with the army previously indicating pre-judgement of the applicant’s claims; and
c)the final statement of the Tribunal member adapting the words of Allsop CJ in SZRUI slightly, is a moralising speech laced with a premature assertion of disbelief.
The applicant submitted that while it may be open to the Tribunal, in its inquisitorial role, to express some scepticism of the claim that the applicant’s alleged persecutors were not able to find him, the Tribunal moved from legitimate scepticism to sarcasm and rudeness and in so doing failed to recognise the dignity of the applicant: The applicant referred to the following excerpt from the Second Tribunal Hearing Transcript pp.11-12:
Tribunal: They must have been pretty incompetent if, you know, you were at your mother’s house, or your house, but they couldn’t find you.
…
Applicant: They were expecting me, expecting to catch me whenever I’m returning back to the shop, or visiting the shop, or visiting my family, so that’s why they’ve been monitoring those places.
Tribunal: They sound pretty stupid to me. If that’s what they were doing. Were they stupid, do you think?
Applicant: No, they’re not stupid. They’re more powerful people. So it’s my ability, I managed to hide, escape from them.
The applicant submitted that the problem with this portion of the Second Tribunal Hearing is the Tribunal’s trivialising of the applicant’s claims, by using the following language that did not recognise the dignity of the applicant as per Allsop CJ in SZRUI, quoted above:
a)the applicant’s claims about Veera were ‘stuff’;
b)an answer given by the applicant was ‘ so vague, it was virtually meaningless’; and
c)the applicant’s fears were ‘preposterous’. (The word preposterous was used twice.)
The applicant referred to the following excerpt from the Second Tribunal Hearing Transcript at p.17:
Tribunal: Well, I’m afraid that’s not how we go down here, because we look at the information we’ve got and we make a decision. And what the information is telling me is that nothing will happen, nothing in terms of what we’re dealing with here, persecution or significant harm, will happen to you for being a failed asylum seeker returning to Sri Lanka. I want to look at the UNHCR eligibility guidelines now. The UNHCR provided their eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka. That came out 21st Dec 2012. They indicated that only certain groups of people were still at risk of harm by the security forces or paramilitaries. So these are the groups that they listed as being vulnerable: person suspected of certain links with the LTTE, certain opposition politicians and political activists, certain journalists and other media professionals, certain human rights activists, certain witnesses of human rights violations, and victims of human rights violations seeking justice, women and children in certain circumstances, and persons belonging to a sexual minority. So do you consider yourself to belong to any of those high-risk groups?
Applicant: No I don’t understand the question
Tribunal: Well I just listed a group of… certain groups that the UNHCR think that it is these people who are at risk. So are you… would you consider yourself to belong to any of those groups that I’ve just mentioned to you?
Applicant: I don’t understand that clearly
Tribunal: What is it that you don’t understand? I just mentioned some groups, did you understand the nature of those groups?
Applicant: I don’t understand the list of groups clearly.
Tribunal: What’s difficult to understand sir? I’m not sure why we’re having this communication problem? So the group of opposition politicians and political activists. Is that a difficult group to understand?
Applicant: Now I understood.
Tribunal: Good. So do you belong to that group?
Applicant: I don’t belong to that group, but the problem I have is Veera, he will make up stories that I have links with LTTE and somehow he will kill me.
Tribunal: Alright, just for completeness, I will mention some more reports to you and what I understood from them. The US department of state country reports and human rights practices, I looked at the 2011, 2012 reports, I got some information on what’s happening in the human rights situation in Sri Lanka from a Dept of Foreign Affairs and Trade report. That’s DFAT information, sorry DFAT Report 1446, which was released 22 Oct 2012. And finally the Country of Origin Report on Sri Lanka, 7th March 2012, it was written by the UK Home Office. So basically what these reports tell me are that, for example, the State Department says that civil society activists, persons viewed as LTTE sympathizers, and journalists are at risks and still continues to face some risks. DFAT says Human Rights workers are at risk. What all of these reports tell me is that not all Tamils are at risk in Sri Lanka. And there has to be something more before a person attracts the interest of either the authorities or paramilitaries working with the government. It doesn’t seem to me that you have that something more. You’ve got no real connection to the LTTE and your uncle’s involvement 20 years ago, that hasn’t affected you before and is unlikely to affect you in the future. And you’re not an activist, or a politically active person, or involved in any activities which would be of particular interest to either the paramilitaries or the authorities…
The applicant submitted that the problem with this passage from the Second Tribunal Hearing Transcript is that the Tribunal put a large amount of information to the applicant from the UNHCR eligibility guidelines, listing eight high risk groups, and asked him whether he considered he belonged to any of those groups. When the applicant said he did not understand the question, the Tribunal gave a very brief summary of what he had just said, and again posed the question. When the applicant said he did not understand the list of groups clearly, the Tribunal became impatient and stated that there was a communication problem. The Tribunal asked the applicant whether he belonged to the second group on the list: opposition politicians and political activists. The applicant replied that he did not belong to that group, but that he had a problem with Veera, that he would make up stories that he had links with the LTTE. That was the second group on the Tribunal’s list, but the Tribunal failed to explore that issue further with the applicant. Instead, the Tribunal stated some conclusions from DFAT reports, and told that applicant that he was “not…involved in any activities which would be of interest to either the paramilitaries or the authorities”, indicating further pre-judgment of the applicant’s claims.
The applicant referred to the following excerpt from the Second Tribunal Hearing Transcript at pp.18-21:
Tribunal:…Now there were references to you being a Tamil business owner, in a former LTTE controlled area. Not sure what the arguments relate to here because, from the information that I’ve read, I don’t see “Tamil business people from the east or north” as being particular targets of either paramilitaries or the authorities. You yourself didn’t articulate any claims relating to that today. Ok so anything you want to say in relation to what I’ve just said?
Applicant: Whatever I told you is true, I know certainly there is risk to my life if I go back. I have to live for my child, I don’t want to lose him, I don’t want him to lose me… sorry, I don’t want him to lose me, so whatever I told you is true. Certainly there is risk to my life.
Tribunal: I’ve got doubts that everything you’ve told me is true, sir. It seems to me that there’s some serious credibility questions here, with regards to both the Veera issue, and even some of your lesser claims, like that you’ll be linked to the LTTE, when you have no real link to that group at all. Ok, well I don’t have anything else to talk to you about. Is there anything more you want to tell me, or ask me?
Applicant: What I want to say, to tell you, is whatever I told you is true; I don’t want to cheat you, and that’s what I want to emphasise again, whatever I told you is true.
The applicant submitted that the above extract from the Second Tribunal Hearing Transcript demonstrates that the Tribunal thought that the applicant did not raise any claims of Tamil business people from the east or north as being particular targets of either paramilitaries or the authorities, a matter on which the advisor may have been able to contribute, but the Tribunal refused to grant the advisor more time to address this and other issues (see below). It also demonstrates pre-judgment by the Tribunal through its statement: “I’ve got doubts that everything you’ve told me is true, sir”.
The applicant referred to the following excerpt from the Second Tribunal Hearing Transcript at pp.18-19:
Tribunal: Ok I’m going to talk to your advisor now. I want you to be interpreter, so anything you say I want the interpreter to interpret ok?
Migration Agent: In relation to facts of the case particularly to his credibility, whether [name deleted] is still part of the TMVP, we need additional time …
Tribunal: I’m not going to give you any additional time, this is the 2nd time around, this is it. Whatever you do today is all you will do.
Migration Agent: It is difficult for me to give submission in relation to his facts of the case because I think it is a serious collaborative issue so I think I don’t want to move other submissions because these are the basic foundation of his case.
Tribunal: So do you want to make any submission in any subject? Oral submissions I mean, now. You don’t have to, I just want you to know, if you want…
The Tribunal was influenced in refusing the solicitor/migration agent’s request for additional time to file submissions by the fact that this was the second time the applicant had been before the Tribunal and he wanted to make a quick decision. It is irrelevant to the determination of a claim how many times an applicant case has been considered by the Tribunal, because each Tribunal member will assess the claims before them in light of their own perception of the applicant’s credibility, knowledge, experience, and decision-making techniques.
In SZNJZ v Minister for Immigration & Anor [2010] FMCA 72 (“SZNJZ”) at [16] per Cameron FM, the Court discussed section 424AA(b)(iv) of the Migration Act, stating:
16. Section 424AA(b)(iv) clearly states that the provision of additional time does not follow automatically upon an applicant requesting it. Such an adjournment will only be required if the Tribunal considers “that the applicant reasonably needs additional time to comment on or respond to the information”. This is a discretionary decision. To succeed in the first allegation in the amended application, on the assumption that a miscarriage of this discretion could lead to a conclusion that the Tribunal’s decision was affected by jurisdictional error: Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1129 [25], it is necessary for the applicant to demonstrate that the exercise of the discretion miscarried: per Cameron FM at [16]
The Court went on to say, relying on High Court authority, that an opinion or the satisfaction of an administrative decision-maker could be reviewed by the courts, if the decision maker acted upon a wrong principle, took into account irrelevant considerations, mistook the facts, failed to take into account a relevant consideration or acted with manifest unreasonableness: SZNJZ at [18]-[20] per Cameron FM. This judgment was affirmed on appeal: SZNJZ v Minister for Immigration & Citizenship [2010] FCA 689.
In the present matter, the Tribunal had observed that the applicant had not articulated any claims at the First Tribunal Hearing in relation to Tamil business people from the east or north as being particular targets of either paramilitaries or the authorities. Further, the Tribunal raised with the applicant a number of concerns about his credibility and the accuracy of factual information given by the applicant, in light of the Tribunal’s reading of information given about Veera and TMVP in newspaper articles. That constituted a giving by the Tribunal to the applicant of ‘clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review: s.424AA(a) of the Migration Act. In that circumstance it was incumbent on the Tribunal to advise the applicant that he may seek additional time to comment on or respond to the information. It was unfair and unreasonable, as well as a breach of s.424AA(b)(iii) and (iv) of the Migration Act, to deny the applicant’s agent additional time to file submissions on the numerous issues of concern raised by the Tribunal.
The applicant referred to the following excerpt from the Second Tribunal Hearing Transcript at p.19:
Migration Agent: No. Once you accept his actual case, my oral submission whether he will suffer a serious harm, in relation to the refugee convention, Section 91R, 2D. It specifically says what are other serious harm? It says the significant economic hardship, that threatens that person’s capacity to subsist…
Tribunal: Yeah, let her interpret, and you don’t have to go through all the sections, I know what that section says.
Migration Agent: That reason, he was subjected to extortion in the past, and there were threat to his life, and that threat and persecution will continue, my submission his fear of persecution, that serious harm, I will come to that part, that’s the persecution. The UNHCR guidelines 2012, accept what he’s said is correct, but also what the guideline says, the UNHCR considers in detail that these profiles, this list is not exhaustive, maybe, and in some cases, are likely to meet International Refugee Protection, depending on the individual’s circumstances. Also, I have the report here, the Canadian Immigration Board report, February 2012.
Tribunal: And what do you want me to focus on in this report?
Migration Agent: According to this report, this Karruna group members are still extorting money from the Tamil business people.
Tribunal: So if the applicant had no real trouble with these people before he set up his business, does that mean now that you have no businesses, sir, that you’re no longer likely to be anyone of particular interest for the purpose of extortion? So is anybody going to try to extort you now that you have no businesses?
Applicant: Yes they will target me, because they know I have money, and having money from my previous business. If I go back, for my living, I have to do business, so they will extort money from me.
The highlighted passage demonstrates a misapplication of the law by the Tribunal. The main reason given by the applicant for leaving Sri Lanka and claiming protection was his fear of Veera, who had harassed him through his business, and Veera’s association with the authorities and paramilitary groups. Section 91R of the Migration Act defines ‘persecution’ for the purposes of s.36 of the Migration Act. Under s.91R(1)(b) and (c) of the Migration Act, persecution must involve ‘serious harm’, and ‘systematic and discriminatory conduct’. Section 91R(2) of the Migration Act lists several instances of serious harm, including ‘significant economic hardship that threatens the person’s capacity to subsist’, and ‘denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist’.
In Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12 (“W64/01A”) at [37] per French J the federal Court discussed the applicable test in refugee cases as explained by the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, and stated:
37 The Tribunal, in assessing claims and evidence before it, is required to undertake a process of " looking to the future" which is the " essence of the Chan test" - Wu at 278…
The future-looking process accepted in Wu was elaborated in Guo where it was said that:
"... unless a person or Tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or Tribunal has no rational basis for determining the chance of an event in that field occurring in the future." (p 575)
In most cases that process will require findings of past events as the bases for inferences about what will happen in the future. … (W64/01A at [37] per French J)
The problem with the Tribunal’s statement “So is anybody going to try to extort you now that you have no businesses?” and what followed is that the Tribunal overlooked the point that no longer having any businesses in Sri Lanka could nevertheless provide a basis for protection, because the test under the Migration Act is forward-looking.
If the applicant has no businesses operating any longer in Sri Lanka, then that does not automatically mean, as the Tribunal assumed, that he cannot meet the criteria for a Protection Visa on that account. That is because s.91R(2)(e) and (f) of the Migration Act both contemplate that protection can be given to a person who is unable subsist in their home country by reason of significant economic hardship and denial of capacity to earn livelihood. Further, significant economic hardship, if not for a Convention reason, is also capable of forming a basis for protection under the complementary protection provisions: Migration Act, s.36(2A), in relation to degrading treatment. Therefore, in light of the highlighted country information presented by the solicitor/migration agent, the Tribunal, instead of questioning the applicant on whether anyone will try to extort the applicant now that he has no businesses, should have questioned him on his future economic prospects and capacity for subsistence in Sri Lanka.
It would not be to the point to say that the Tribunal, having found that the applicant had contrived the claims of extortion by Veera or the TMVP at in the Tribunal Decision at CB 368 at [27], and had no need to consider whether the applicant would face economic hardship upon return to Sri Lanka through further instances of extortion. That is because at the time of the Second Tribunal Hearing, whatever views the Tribunal privately held of the applicant’s claims, at that time it was fulfilling its investigative role, and it was not open to the Tribunal to tell the applicant that it had already foreclosed the possibility that he could be granted protection through that particular claim.
In the Tribunal Decision at CB365-366 at [19], the Tribunal mentioned the solicitor/migration agent’s canvassing of the Canadian Immigration Board report, February 2012, according to which the advisor had said that Karruna group members are still extorting money from the Tamil business people. However, the Tribunal failed to consider and apply to the applicant’s claims any aspect of that report.
The applicant referred to the following excerpt from the Second Tribunal Hearing Transcript at p.19-20:
Migration Agent: In relation to the complimentary protection, now this group, also the same report, reveals that there’s an increasing criminal characteristic by this group. If you go back, or if you send back to the receiving country, he needs to go to his village, his town, where he will suffer the same significant harm. And there’s no relocation when someone suffers such a harm from the TMVP. And it is also, is common happening in that region. And I also rely on the country information given by the previous advisor in relation to his visa under complimentary protection.
Tribunal: In relation to that last point relating to extortion, I have to refer again to this DFAT information report that we have to take into account. They say that the same level of state protection that is available to one group of Sri Lanka is available to all groups. So Singhalese, Tamils, Muslims, they have the same access to state protection as any other citizens. They do say that protection mechanisms aren’t particularly good in Sri Lanka, but unlike what a lot of applicants say, it’s not like say the Singhalese get an excellent service and the Tamils get a terrible service. It’s just that everybody gets the same kind of service. So the only reason I mention that is presumably somebody tries to extort money from you, you can … which would be a criminal activity, you would have the same access to remedies as everybody else in Sri Lanka.
Migration Agent: My submissions about this issue. Now, the perpetrators are government agents, or they are collaborated with the Government, these TMVP people. Their head is a government minister. In that situation, that extortion, or continuous extortion, by the TMVP, now the question arise whether the Government will be unable to protect him, or otherwise they’re unwilling, the Sri Lankan government, to protect the Applicant in this situation.
Tribunal: if the authorities haven’t got… the authorities can’t protect everybody all the time, and if resources are such that the service is not very good, its hard to make an argument that that’s serious harm, or significant harm, because there’s no intent to harm. And motivation is a factor in both, refugee status determination and complimentary protection. The Dept of Foreign Affairs states that there are reports of paramilitary groups being active and being involved in criminal activity. But he says, not he, they say that these allegations are difficult to verify but certainly everything else they appear to be saying in this report in relation to Tamil community is that they’re not targeted, or suffer harsher conditions than other groups in Sri Lanka. Any final comments?
Migration Agent: Again, my respectful view is motivation in this case, in relation to the protection, refugee purpose visa. A Tamil business man…again the report I gave you, it says that the Tamil business people are subject to extortion in that particular region
Tribunal: Yes and a lot of those reports are from 2009, just after the civil war so maybe things have changed. Well, certainly the DFAT thinks they’ve changed. March 2009, May 2009, and there’s reports 2010 and 11, May 2009… I’ll have a look at it and I’ll consider it.
Migration Agent: Thank you
Tribunal: I think we’re done sir. Is there anything you want to say before we say goodbye?
Applicant: Yes. I don’t have any partnership with my uncle, which the TMVP aren’t aware of it. So they think I’m still in partnership with my uncle, so if I go back, also based on that, I will get in trouble.
Tribunal: Your uncle is still operating his saw mill?
Applicant: Yes
Tribunal: So I wonder why they haven’t targeted him.
Applicant: Because, since I am not there, they didn’t give them any trouble. So if I go back I think the trouble will start again.
Tribunal: Alright sir. Thank you for coming in today. So now you have to gather your papers and leave the room. I will switch off the video conference equipment and then I’ll switch off the equipment down here as well. I’ll be making a decision in the next few days.
Applicant: Thank you
The concluding stages of the Second Tribunal Hearing highlighted above support the contention that a properly informed lay person would reasonably apprehend that, as a matter of possibility (real and not remote) the Tribunal did not bring an impartial mind to bear on the Tribunal Decision.
The highlighted passages show that the Tribunal, in response to each statement by the applicant and his agent, provided an immediate response to contradict the statements put to it. Significantly, the Tribunal did not ask the applicant whether economic circumstances would require him to return to partnership with his uncle in the sawmill, and discuss with the applicant’s migration agent whether this brought the applicant within the Convention or complementary protection provisions.
A properly informed layperson observing the proceedings would have little or no doubt that the decision to be handed down by the Tribunal “in the next few days” would be a refusal of the application for refugee status, giving rise to a reasonable apprehension of bias.
Minister’s Submissions
The Minister’s submissions in relation to ground 3 were as follows:
a)section 424AA of the Migration Act has no application to the matters referred to in particulars (a)-(c) of ground 3;
b)section 424AA of the Migration Act is only engaged if there is “information” falling within section 424A of the Migration Act: SZNKO v Minister for Immigration and Citizenship [2010] FCA 297; (2010) 184 FCR 505 at [9] per Flick J;
c)the purpose of paras (b) and (ba) of ss.424A(3) of the Migration Act is to exclude from the information which must be given to the applicant information which the applicant gives to the Tribunal for the purposes of the application and the processes following the application. The Tribunal is relieved of the responsibility of telling the applicant that which the applicant told either the Tribunal or the Department in writing: SZMMP v Minister for Immigration and Citizenship [2009] FCA 233; (2009) 174 FCR 514 at [46] per Lander J. Section 424A(3)(ba) of the Migration Act demonstrates that Parliament was alive to the possibility that “information” may be obtained by the Tribunal through oral evidence to the delegate: SZRRN v Minister for Immigration and Citizenship [2014] FCA 77 at [58] per Farrell J;
d)the question is whether the information is “specifically about the applicant or another person” or is more aptly described as general information about a class of persons of which the applicant or other persons are members: see Minister for Immigration and Border Protection v CZBB [2013] FCA 1172 at [62] per Foster J;
e)by reason of s.424A(3)(b) or (ba) of the Migration Act, information concerning the involvement of “Veera” with the TMVP is not “caught” by s.424A of the Migration Act: see CB 24, 102 [24]-[25], 192 [14], [20], 193 [30]-195 [38], 197 [62]-[63], 233 [2]-234 [2], 246-248, 251-253, 270 [62] (last bullet point), 275 (last 3 bullet points), 341 [2] (a)-(c), 347 & 350 [1.4] -351 [1.4] and Tribunal Transcript Affidavit at pages 23, 36 (last 6 paras), 37 (2nd & 4th paras) & 61;
f)section 424AA of the Migration Act accordingly has no application to the information referred to by the applicant: SZMCD v Minister for Immigration and Citizenship (“SZMCD”) [2009] FCAFC 46; (2009) 174 FCR 415 at [80] - [93] per Tracey and Foster JJ;
g)even if (which is denied) ground 3 is made out, there was no affect on the outcome. A court should refuse relief for (an assumed) failure to comply with section 424AA of the Migration Act if the Court is confident the failure could not have affected the outcome: SZEWL v Minister for Immigration and Citizenship [2009] FCA 209; (2009) 174 FCR 498 at [62]-[68] per Rares J;
h)the second Tribunal Member would still have affirmed the Delegate’s Decision because of other concerns about the Applicant’s credibility: SZSRI v Minister for Immigration [2013] FCCA 1473 (“SZSRI”) at [25]-[27] per Judge Manousaridis. The credibility findings at CB 367 at [26], 368 at [28] are entirely separate from the credibility finding at CB 367 at [25]; and
i)the findings at CB 370 at [33], 371 at [36] and 372-373 at [42]-[44] are independent and separate bases for affirming the Delegate’s Decision: See SZMCD at [117]-[124] per Tracey and Foster JJ (with whom Moore J relevantly agreed); SZSRI at [28] per Judge Manousaridis.
Consideration of ground 3
Section 424AA(b)(iii) and (iv) of the Migration Act provides as follows:
(b) …the Tribunal must:
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information;
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The Court observes that the submissions in support of this ground went far wider than the ground itself, and contained several possible grounds which were not articulated in ground 3 and not otherwise raised, and which ought not now to be considered. Other aspects of the submissions repeated material relevant to ground 2, or which should have been submitted in relation to ground 2. In relation to ground 2 that is probably immaterial given that that ground has otherwise been made out.
In relation to ground 3 the Court is of the view that it has not been made out because the information referred to by the applicant is not information that the Tribunal raised with the applicant independently, but rather information which the applicant gave to the Tribunal for the purposes of the Tribunal review. Accordingly, as submitted by the Minister, and in accordance with the authorities referred to by the Minister, it is not caught by s.424AA of the Migration Act, and ground 3 is not made out. Ground 3 does not therefore establish jurisdictional error in the Tribunal Decision.
Ground 4
Ground 4 is as follows:
The Tribunal’s failure to be satisfied that the applicant was a person in respect of whom Australia has protection obligations under the Refugees Convention and under the complementary protection criteria was, through the manner in which it conducted the hearing with the applicant and his adviser, unreasonable.
Particulars
(a) The Tribunal informed the applicant that if his migration agent had provided a claim on his behalf that was not articulated by the applicant at hearing, the Tribunal was going to assume that the claim was no longer a concern, or was never a concern in the first place (Transcript p 4);
(b) The Tribunal raised with the applicant a number of concerns about his credibility and the accuracy of factual information given by the applicant, including information from newspaper articles, but refused to grant the adviser additional time for the provision of written submissions on those matters and demanded that oral submissions be given there and then (Transcript p 13-17);
(c) The Tribunal did not give the applicant adequate time to comprehend and respond to a lengthy and detailed question posed by the Tribunal in relation to whether the applicant considered that he belonged to any of eight groups that the UNHCR considered as being at risk of harm by security forces and paramilitaries (Transcript p 16).
Applicant’s submissions
The applicant did not provide written, and did not make oral, submissions specifically in relation to ground 4. Submissions made on the other grounds do however seem to address aspects of ground 4.
Minister’s submissions
The Minister’s general submissions in relation to ground 4 were as follows.
a)ground 4 does not plead any recognised form of jurisdictional error;
b)ground 4 might be based on observations by Allsop CJ in SZRUI at [2] and [4]. Those observations were, however, directed to apprehended bias. Ground 4 might also be based on Allsop CJ’s observations in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [7]-[9]. Those observations were, however, directed to the adequacy of interpretation;
c)another possibility is that ground 4 is framed as denial of natural justice. In that case the Applicant must point to “practical unfairness”: SZRZM v Minister for Immigration [2013] FCCA 2018 at [37] and [87] per Judge Nicholls; SZQQU v Minister for Immigration [2014] FCCA 425 at [32] per Judge Lloyd-Jones; MZZFD v Minister for Immigration and Border Protection [2014] FCA 569 at [28]-[34] per Bennett J;
d)in the circumstances of this case the Applicant cannot point to any “practical unfairness” because he has filed no affidavit as to what steps (including presentation of evidence) the Applicant (or his solicitor/registered migration agent) would have taken but for the matters complained of: Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 at [66] per Emmett, Kenny and Jacobson JJ; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at [34]; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [18]-[25] per Gleeson CJ.
As to particular (a) of ground 4 the Minister submitted that:
a)despite what was said at page 5 of the Second Tribunal Hearing Transcript, the Tribunal actually invited discussion of claims other than “these 2 main issues” (see 7th para on page 5): Second Tribunal Hearing Transcript at pp.8 – 10, 13 (5th para) & 18 (last 7 lines of 1st para), and note CZBH at [92] per Judge Neville;
b)despite what was said in the Second Tribunal Hearing Transcript at p.5, the Tribunal Decision addresses a much wider range of claims than “these 2 main issues” (see 7th para on page 5): see CB 361 at [3], 362 at [7], 364 at [15], 365 at [18], 366 at [22], 367 at [23], 368 at [27]- [30], 370 at [34]-[35] and 371 at [37] and 373 at [46];
c)the applicant’s solicitor/migration agent had the opportunity to make oral submissions at the end of the Second Tribunal Hearing “in any subject”: Second Tribunal Hearing Transcript at p.19 (2nd para); and
d)the applicant has made no submission, much less adduced evidence, as to any aspect of the case that was not given due consideration by the Tribunal. Hence, there has been no “practical unfairness”.
As to particular (b) of ground 4 the Minister submitted that:
a)if credibility was a critical issue before the Delegate, then the Applicant must be taken to have expected credibility to be a live issue at the second Tribunal Hearing: SBKC v Minister for Immigration and Citizenship [2011] FCA 533 at [12] per Marshall J;
b)the applicant’s credibility was always in issue: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [33] – [39] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Delegate expressed an adverse view of the applicant’s credit: CB 124 at [9]. The Initial Tribunal Decision also contained adverse views of the applicant’s credit: CB 256 at [7], [9] and 257 at [11]-[15];
c)the applicant has not adduced evidence as to what written submissions his solicitor migration agent would have made had such an opportunity been afforded. Nor has the applicant articulated how such submissions would have had any impact on determination of his case. For example, what facts drawn by the Tribunal from Sri Lankan newspapers does the applicant contend are inaccurate?;
d)The Tribunal was entitled to say “enough is enough”: at [97]-[99] per Judge Neville; Second Tribunal Hearing Transcript at p.18 (last para).
As to particular (c) of ground 4 the Minister submitted that:
a)the Second Tribunal Hearing Recording does not bear out the complaint.
b)the applicant has not adduced evidence as to what answer he would have given had the Applicant had more time to reflect on the question. Nor has the Applicant articulated how such (unidentified) answer would have had any favourable impact on determination of his case.
Consideration of ground four
In the Court’s view ground 4 is not made out because:
a)it was not unreasonable for the Tribunal to indicate to an applicant represented by a solicitor/migration agent that the Tribunal would only consider those claims put before the Tribunal on the review. It was for the applicant to put and make out his case, and the applicant was on notice that if a claim was to be considered it had to be drawn to the tribunal’s attention in the Second Tribunal Hearing;
b)the applicant’s credibility was always going to be in issue in the Second Tribunal Hearing, and that applicant’s solicitor/migration agent ought to have been prepared to deal with that issue; and
c)the lengthy question at Second Tribunal Hearing Transcript p.16 was not unreasonable. The question did not stand alone and, ultimately, notwithstanding the Tribunal’s self-created “communication problem”: see [29] above, the Tribunal asked further questions which were answered by the applicant, and the issue being addressed was dealt with.
It follows that ground 4 does not establish jurisdictional error in the Tribunal Decision.
Conclusions and orders
The Court has concluded that:
a)parts of ground 2 of the Amended Judicial Review Application have been made out in part, and insofar as those parts have been made out they establish jurisdictional error in the Tribunal Decision;
b)otherwise, the grounds of the Amended Judicial Review Application have not been made out.
It follows from the Court’s conclusion that appropriate prerogative relief ought to be granted to the applicant.
There will also be orders that the name of:
a)the Tribunal be changed to “Administrative Appeals Tribunal”; and
b)the Minister be changed to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 8 October 2019
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