WZATX v Minister for Immigration
[2019] FCCA 2576
•13 September 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATX v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2576 |
| Catchwords: PRACTICE & PROCEDURE – Application to amend application and seek to rely on an additional ground – late application – where relevant material not previously provided. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Act 1958 (Cth), ss.36, 65, 414, 416, 424A, 425, 426, 474, 476 |
| Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 CAC16v Minister for Immigration [2017] FCCA 2202; (2017) 329 FLR 243 DEL16 v Minister for Immigration & Border Protection [2017] FCA 1401 |
| Applicant: | WZATX |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 706 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 3 May 2018 |
| Date of Last Submission: | 3 May 2018 |
| Delivered at: | Perth |
| Delivered on: | 13 September 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr MGS Crowley |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr PJ Hannan |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Second Respondent: | 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 applicant have leave to further amend the originating application, as amended by the amended originating application filed 23 April 2018, in terms of the further amended originating application tendered at the hearing of this matter on 3 May 2018.
That the originating application filed on 18 December 2017, as amended and further amended, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 706 of 2017
| WZATX |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant has filed an application under s.476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review (“Judicial Review Application”) of a decision of the Administrative Appeals Tribunal, made on 27 November 2017 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision affirmed a decision by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration & Border Protection, now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”), to refuse the applicant a Safe Haven Enterprise (XE-790) visa (“Safe Haven Visa”).
The Tribunal Decision is in the Court Book (“CB”) at 365-395.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 25 July 2012: CB 1-7;
b)on 31 October 2012 the applicant lodged an application for a Protection (Class XA) visa (“Protection Visa”): CB 34-90, making the following claims:
i)growing up he heard many stories about Tamil people getting kidnapped in his area and from his village, most of those kidnapped were young Tamil men, and the people would get taken in a white van, which he had seen around his village and he got very scared each time he saw a white van, as very few of those who got kidnapped returned, rather they are never seen again: CB 97;
ii)he lived in fear of being kidnapped and if he is to go back to Sri Lanka and nothing has changed he fears he may be kidnapped: and no one is sure who is behind the kidnappings, but they happen regularly and he is a young Tamil male of the age of people who get kidnapped: CB 98; and
iii)the Sri Lankan Government will not protect him because he is a Tamil and Tamils exist without much protection: CB 98;
c)on 23 August 2013 a delegate refused to grant the applicant a Protection Visa, and the applicant sought review with the then Refugee Review Tribunal (“RRT”) which affirmed the decision not to grant the applicant a Protection Visa on 6 February 2014 (“RRT Decision”): CB 104-131;
d)the applicant applied for judicial review of the RRT Decision on 13 March 2014: CB 138-141, and on 15 December 2016 the Court remitted the RRT Decision to the Tribunal for reconsideration: CB 261;
e)on 29 December 2016 the applicant lodged the Safe Haven Visa application the subject of the Judicial Review Application, but provided no written protection claims in the Safe Haven Visa application, and was asked to provide those claims in further correspondence from the Delegate on 6 January 2017: CB 198-201 and CB 222-223;
f)on 5 May 2017 the applicant was again refused a Protection Visa by a differently constituted Tribunal (“Remitted Tribunal Decision” and “Remitted Tribunal” respectively): CB 280;
g)on 1 June 2017 the applicant attended an interview for the Safe Haven Visa with the Delegate, during which he reiterated his previous claims for protection made in respect of his Protection Visa application, and on 6 June 2017 the Delegate refused to grant the applicant a Safe Haven Visa: CB 260-274;
h)on 19 June 2017 the applicant lodged an application for review of the Delegate’s Decision with the Tribunal, and on 11 September 2017 the applicant attended a hearing before the Tribunal: CB 310 and 324-336;
i)on 10 October 2017 the Tribunal sent a letter to the applicant drawing his attention to the fact that:
i)the claim relating to an attempted "white van abduction" sometime in 2012 was not raised in the Protection Visa application; and
ii)a letter of complaint from his mother to police was not produced in evidence until late in the Protection Visa application and review process,
and invited the applicant to comment on this apparent inconsistency: CB 338-340;
j)the applicant responded on 19 October 2017 (“October 2017 Submissions”) submitting that:
i)he did not make reference to a white van abduction in the Protection Visa application for fear that the government of Australia would look adversely at persons associated or perceived to be associated with the Liberation of Tigers of Tamil Eelam (“LTTE”) as that was what he was told, and for the same reason the letter of complaint from his mother to the police was not produced earlier: CB 342;
ii)he has a well−founded fear of retuning to Sri Lanka due to the current state of affairs in the country and referred to a press release of 14 July 2017 issued by the UNHCR representatives investigating the situation in Sri Lanka and the proposed “Counter Terrorism Act” which appears to be worse than the “Prevention of Terrorism Act”: CB 342; and
iii)what constitutes a well−founded fear of persons in his situation, being where one is returning to Sri Lanka as a failed asylum seeker, is found in CAC16v Minister for Immigration [2017] FCCA 2202; (2017) 329 FLR 243 (“CAC16”);
k)on 25 October 2017 the applicant emailed the Tribunal and attached an mp4 video: CB 346.
l)on 26 October 2017 the Tribunal wrote to the applicant stating it had received an untranslated video and audio file (“First Video”), and that nothing could be seen in the video, and as there was no certified translation nor an ability to identify who was speaking, the Tribunal was unable to place any weight on the material: CB 348. The applicant responded on 1 November 2017 stating:
i)his sister took the First Video at night, her phone quality is “not good”, and she did so without the people knowing she was recording, and if they knew it was recorded it would cause big trouble for his family given they put their life in danger to take the First Video in the first place: CB 349;
ii)in the First Video the people who often come to his house were asking his mother about “where do you hiding your son…?”, and if it is translated the Tribunal will understand: CB 349;
iii)he did not get enough time to translate the First Video as it was taken on 24 October 2017, his family will get in trouble if they take it somewhere to be translated, and the Tribunal has permission to take the time to translate the First Video as it is really important to understand his situation: CB 349; and
iv)one of the videos he tried to send through in the previous e-mail had not been attached so he had attached it again (“Second Video”);
m)the Tribunal again wrote to the applicant on 3 November 2017 referring to the October 2017 Submissions and putting information to the applicant in light of the October 2017 Submissions for comment, expressly stating this information would be the reason or part of the reason, for affirming the Delegate's Decision not to grant him a Safe Haven Visa and inviting him to respond: CB 351-356;
n)on 20 November 2017 the applicant emailed the Tribunal as follows: CB 360 (transcribed verbatim):
Hi this is the translation of the videos
Have a look at it
All was happened is at the beginning i didn't tell all things from what happened in my country and i was hearing others and haven't got ability to decide the things on my own when i realized it the time was passed already i was on the court)i didn't even know who was on my side (who is lawyer who is immigration) i am trying to telling the truth if you still not believe me give one year extension time or hold on it for one year in that time when ever they come to my house I will get the video with a face with fixed camera or whatever to i can get the face or this is my family mobile number [omitted] back in sri lanka i can arrange the time to talk to them
o)on 27 November 2017 the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 365-397; and
p)on 28 November 2017 the applicant sent the following email to the Tribunal: CB 403:
Hi you refuse my case after review on 27/11/2017 i notes in the paper work when i send PDF you didn't check my compose mail part i don't know whether you check it or not if you didn't please check compose part as well once again i don't have Facility to make everything in PDF please check all compose mail that i have send to you. some time you missed something that I have send to you thanks.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)noted that the issue to be determined was whether the applicant engages Australia’s protection obligations as a refugee for the essential and significant reason of his membership of either of the particular social groups of young Tamil males in Sri Lanka who are imputed LTTE supporters or returned unlawful departees, or on complementary protection grounds related to these claims: CB 366 at [6];
b)provided a procedural history of the applicant’s migration background including the outcome of his previous Protection Visa application, and noted that the Safe Haven Visa requires applicants to satisfy the same statutory requirements that apply to applications for a Protection Visa: CB 366-368 at [7]-[16];
c)referred to the claims made by the applicant being substantially the same as those advanced in support of his Protection Visa, and exercising the discretion in s.416 of the Migration Act, transcribed verbatim the correspondence exchanged between the applicant and the Tribunal when the applicant was invited to comment on 10 October 2017, noting the applicant’s response was the exact submission he made to the Tribunal prior to the Remitted Tribunal Decision, and transcribed the findings of the Remitted Tribunal Decision, and found unconvincing, the applicant’s response in the October 2017 Submissions: CB 368-371 at [17]-[22];
d)stated it wrote to the applicant under s.424A of the Migration Act and advised him that it appeared that the Tribunal had already considered the submissions in the Remitted Tribunal Decision, and that it may rely upon the findings in the Remitted Tribunal Decision, and if the Tribunal does so this would be the reason, or part of the reason, for affirming the Delegate's Decision not to grant him a Safe Haven Visa: CB 372 at [24];
e)found that the applicant's reasons as to why the letter of complaint from his mother to police was not produced by the applicant or referred to by the applicant at the first reasonable opportunity were not reasonable or logical and it could place little weight on the letter when considering the applicant's credibility and the credibility of the applicant's claims: CB 372 at [25];
f)reviewed the attachments provided to the Tribunal by the applicant and noted the references to the incidences of reports of torture related to “white van abductions”, but found that while any number of cases of apparently officially sanctioned torture are unacceptable, the clear trend of “white van abductions” was a decreasing one and such a trend could be seen to support other sources of country information referred to by the Tribunal about the improving security situation in Sri Lanka: CB 372 at [29];
g)noted that the fact of “white van abductions” had not been in issue in any of the country information or previous determinations relevant to the applicant's claims, but the issue consistently raised by the Tribunal with the applicant has been the underlying question of the credibility of the applicant's particular claims and found that the applicant's submission does not adequately address the Tribunal's underlying credibility assessment of the applicant's claims to have been targeted for “white van abductions”: CB 373 at [35];
h)took to be correct, and relied upon, the findings in the Remitted Tribunal Decision relating to the applicant's actual or perceived LTTE profile in Sri Lanka now, or in the reasonably foreseeable future, as unpersuasive and not founding a well−founded fear of persecution: CB 373 at [36];
i)referred to the applicants submission about the review of the “Prevention of Terrorism Act”, but found that the material provided referenced only the proposed legislative reform rather than the law as it actually applies in Sri Lanka at the time of the Tribunal Decision, thus little weight could be given to the article as it did not appear to be directly relevant to the specific claims made by the applicant in support of his Safe Haven Visa: CB 374 at [37];
j)found that the integers of the claims that were made by the applicant in CAC16 extended well beyond the historical imprisonment and questioning of family members and suspected LTTE profile on account of Tamil ethnicity, and the questions before the Tribunal in relation to the applicant's current Safe Haven Visa application do not correspond with either the questions before the Court or the ultimate determinations in CAC16, and therefore were distinguished from the questions for determination by this Tribunal in the applicant’s circumstances: CB 374 at [39]-[42];
k)had regard to more recent country information than that in any of the applicant’s earlier reviews: CB 375 at [48] and 377 at [55];
l)noted the applicant raised new claims at the Tribunal hearing on 11 September 2017 not previously advanced and submitted media files to the Tribunal in support of these claims however his suggesting he did not understand that these were relevant to his claims in prior proceedings relating to his claims for protection was illogical and lacking in credibility, in addition to being vague and lacking in appropriate detail or substantive corroboration: CB 378 at [58]-[59] and CB 380 at [66];
m)accepted the media file and the translation offered by the applicant as some evidence in support of the applicant's late claims to be the subject of continuing interest to persons unknown in Sri Lanka, however, given the nature of the media file and the content of the translated transcript, it is not possible for the Tribunal to verify its authenticity and thus little weight was placed on this evidence: CB 380 at [65];
n)took to be correct and relied upon the findings in the Remitted Tribunal Decision in relation to the applicant's claim to face a real risk of being abducted by persons associated with a white van, or otherwise kidnapped, abducted or “disappeared”, either extra−judicially or for ransom, in the present application given the applicant provided illogical and inconsistent evidence as to the delay in his raising this integer of the claim at such a late stage of the application process: CB 381 at [71] and CB 382 at [76];
o)noted the applicant made no further submissions in respect of the data breach and status as a failed asylum seeker to that which he submitted to the Remitted Tribunal, and having failed to provide evidence that the Remitted Tribunal had erred and based upon the revised country information before it supporting the findings on these points made by the Remitted Tribunal, adopted the findings that the applicant did not have grounds to be afforded protection on the basis of the data breach or a status as a failed asylum seeker: CB 384 at [83]-[84];
p)at the Tribunal Hearing on 11 September 2017, the applicant, for the first time, made reference to his attendance at Tamil separatist events while in Australia, including Tamil “Bravery Day” celebrations and that questions have been asked of his family about his whereabouts by unknown persons in recent times and suggesting he is on some form of “stop and watch” list as a suspected LTTE supporter if he arrives back in Sri Lanka, however the Tribunal found it should place no weight on these integers of the applicant's claims for protection because they are vague, illogical and lack credibility: CB 386 at [88]-[89];
q)on the basis of the foregoing findings, was satisfied that the applicant does not hold a well−founded fear of persecution in Sri Lanka now or in the reasonably foreseeable future, either on the basis of being abducted by persons associated with a white van, or for the essential and significant reason of his membership of either of the particular social groups: young Tamil males in Sri Lanka who are imputed LTTE supporters; or returned unlawful departees; or on complementary protection grounds related to any imputed LTTE membership if he was returned to Sri Lanka now or in the reasonably foreseeable future: CB 387 at [92]-[93]; and
r)affirmed the Delegate’s Decision not to grant the applicant a Safe Haven Visa: CB 387 at [97].
Amended Judicial Review Application
The applicant set out the following grounds in his Amended Judicial Review Application (transcribed without alteration):
1. The decision of the Administrative Appeals Tribunal (Tribunal) was vitiated by a constructive failure to exercise jurisdiction due to its misconstruction or misapplication of paragraph 416(2)(b) of the Migration Act 1958 (Cth).
Particulars
1.1 The Tribunal erred in 'taking to be correct' the ultimate decision of the previous review body in respect of the Applicant’s claims to protection, as opposed to its elements, because the Tribunal was required to itself conduct the ‘review’.
1.2 The Tribunal erred in the exercise of the discretion to 'take to be correct' a decision, or decisions, of the previous review body by not considering the new information: Tamil independence-related activities in Australia, allegations of persons subsequently enquiring about him at his parents' house, new video evidence (and associated transcription) said to capture such a visit, and anonymous letters said to have been thrown into his parents’ house requiring about his whereabouts.
1.3 The Tribunal erred in its purported evaluation of the future risk of harm, because evaluating the future required the Tribunal to consider the possibility that the video and transcript was genuine and corroborative of the balance of the Applicant’s claims, and the Tribunal’s adoption of the previous review body’s decision foreclosed the Tribunal from undertaking a ‘what if I am wrong?’ analysis.
1.4 The Tribunal erred in treating, in substance if not in form, the decision, or decisions, of the previous review body as prevailing unless the Applicant persuades it that they were ‘misconceived’ or was otherwise invalid.
1.5 The Tribunal erred in taking to be correct the decision of the previous review body at because the previous review body relied upon a purported finding of fact that the Applicant’s confidential information ‘was not downloaded in Sri Lanka’ as part of the reason for dismissing his claim or claims to protection, whereas the material before the review body was that the information had also been downloaded at multiple disguised ‘IP’ addresses around the world.
2. The decision of the Tribunal was vitiated by a constructive failure to exercise jurisdiction due to its misconstruction or misapplication of the ‘well-founded fear’ test.
Particulars
2.1 The Applicant repeats Particular 1.3
3. The decision of the Tribunal was vitiated by a constructive failure to exercise jurisdiction in failing to make an obvious enquiry of a readily observable fact going to an issue of importance.
Particulars
3.1 The Tribunal could have examined the metadata of the video file provided by the Applicant purporting to capture an instance of the Sri Lankan authorities harassing the Applicant’s mother by demanding to know the Applicant’s whereabouts, which metadata might have yielded further information, including time and precise location, tending to authenticate or falsify the video, and therefore also the balance of the Applicant’s claims.
Particulars 1.1 and 1.4 of ground 1 of the Amended Judicial Review Application were not pursued.
Leave to further amend
The applicant sought leave to further amend the Amended Judicial Review Application when the matter came on for hearing on 3 May 2018.
The Further Amended Judicial Review Application contained a new ground 1A with a particular and a new Particular 3.2 as follows:
1A. The Administrative Appeals Tribunal's decision was vitiated by jurisdictional error by failing to take into account a mandatory consideration.
Particular
1A.1 The Administrative Appeals Tribunal overlooked evidence submitted by the Applicant attaching a video file named 'VID-20171025-WA0000.mp4' to an email on 1 November 2017 which purported to capture footage of persons making enquiries about the Applicant in Sri Lanka, and its associated translated transcript, which was dispositive in that it went directly to a claim and indirectly to the Applicant's credibility.
Particular
3.2 The Tribunal could have telephoned the applicant's sister with the number provided and tested the contended provenance of the video files.
At hearing the applicant’s Counsel submitted that the reason for the late filing of the Further Amended Judicial Review Application containing the additional ground and particulars was due to fairly significant omissions in the Court Book up until 16 April 2018. Those omissions were said to include a letter from the Tamil Rehabilitation Organisation, the applicant’s submissions, the videos submitted by the applicant on 25 October and 1 November 2017 and submissions made by the applicant to the Tribunal. All the omitted material is contained in the applicant’s affidavit filed April 2018 (“Applicant’s Second Affidavit”).
The Minister opposed leave to amend the Amended Judicial Review Application in relation to ground 1A and submitted that the further ground is without merit and should have been included in the Amended Judicial Review Application as orders were made by the Court extending time for the applicant to file the Amended Judicial Review Application on two occasions, including allowing the applicant to file written submissions just 3 days prior to the hearing, and the Minister having just over one day to prepare submissions in reply. At hearing the Minister did not oppose leave to amend in terms of Particular 3.2.
The Court has expressed views in relation to granting leave to amend applications which seek to rely on additional grounds in BYM16 v Minister for Immigration & Anor [2017] FCCA 2445 at [7]-[8] per Smith J as follows:
7 The power of the Court to grant an amendment is to be exercised for the purpose of enabling the just, efficient and economical resolution of the proceedings. No doubt, the merits of any grounds sought to be raised by an amendment are ordinarily relevant to the exercise of that power. However, in circumstances where an opportunity to amend has already been given, but eschewed, and there is no explanation for a very late and prejudicial application for amendment, the merits are not necessarily decisive.
8 There is no excuse for the delay in this case. The same solicitors have acted throughout these proceedings. They were involved in the review process conducted by the IAA. They knew of the orders allowing an amendment 2½ months after the orders and 7 months before the hearing. They had all of the relevant material by early October 2016, if not far earlier. They knew of the timetable for submissions. In those circumstances, the solicitors' conduct of this case is unforgiveable and cannot be condoned by the grant of leave to amend.
The Federal Court set out the legal principles to be applied when determining whether leave ought be granted to amend an application in SZSRR v Minister for Immigration & Border Protection [2017] FCA 328 at [47]-[48] per Gleeson J:
…Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
Generally speaking, the exercise of the FCCA’s powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile: cf. Medich v Bentley-Smythe Pty Ltd [2010] FCA 494 at [8]. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out: Research in Motion Ltd v Samsung Electronics Australia Pty Limited [2009] FCA 320; (2009) 176 FCR 66 (“Research in Motion”) at [21] to [22]; Wotton v State of Queensland [2015] FCA 910 at [59]. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding: cf. Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (“Aon”) at [98].
Insofar as ground 1A can be said to arise from the materials said to have been omitted from the Court Book, the Court considers that there is sufficient prejudice arising to the applicant from the omission of those materials from the Court Book to warrant allowing any reasonable amendment arising from those omissions. In this case, ground 1A can be said to arise from arguable error from the Tribunal as described Particular 1 A.1. The Minister did not appear to seriously suggest to the contrary, or address direct argument to the further amendment sought by the Applicant.
To the extent that the Minister submitted that the applicant has been allowed to file submissions close to the time for hearing that does no assist in determining whether an amendment to the Amended Judicial Review Application ought or ought not to be granted. Finally, the Minister did not appear to suggest that there was any particular prejudice to the Minister arising from the proposed amendment.
In all of the above circumstances the Court will grant leave to include ground 1A as a new ground, as per the Further Amended Judicial Review Application.
Further affidavits
In support of the Amended Judicial Review Application two further affidavits were filed by the applicant on 30 April 2018 of:
a)Ms Patricia Ng Phaik Kim (“Ms Kim’s Affidavit”) annexing a transcript of the Tribunal hearing on 11 September 2017 (“the Tribunal Trasncripts”); and
b)the Applicant’s Second Affidavit annexing documents not in the Court Book the applicant wished to place before the Court as evidence, namely:
i)email correspondence regarding the media files and video clips the applicant provided to the Tribunal: (“Email Exchange”), being Annexures DK 1 and DK2;
ii)written submissions produced on behalf of the applicant by his then legal representatives in support of his application for review before the RRT (“RRT Submissions”), being Annexure DK3; and
iii)a letter from the Tamil Rehabilitation Organisation confirming the applicant’s father was detained on suspicion, being Annexure DK4.
The Minister initially objected to Ms Kim’s Affidavit on the basis of relevance and to Annexure DK4 to the Applicant's Second Affidavit on the basis that it comprised a number of documents that did not appear to "match" [3.3] of the Applicant's Second Affidavit.
At hearing the Minister withdrew his objection to Ms Kim’s Affidavit: Transcript, page16.
At hearing the Minister withdrew his objection to the pages marked 87 and 90 in Annexure DK4: Transcript page, 17.
As to the remainder of the objection to Annexure DK4, the Court considers that the Applicant’s Affidavit at [3] adequately describes the documents contained in Annexure DK4, and therefore the Minister’s objection is dismissed.
Jurisdictional error
The Tribunal Decision may be set aside by this Court upon judicial review 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. An error may constitute a jurisdictional error where the Tribunal:
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 thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: 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. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
The Court does not have jurisdiction to review the merits of a Tribunal Decision, or determine the applicant’s claims for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 1A
Applicant’s Submissions
The applicant submitted that:
a)the applicant’s email of 1 November 2017 clearly shows an ‘mp4’ attachment, the Second Video, and it can confidently be inferred that the Tribunal overlooked that email because:
i)the Tribunal only references the First Video;
ii)the Tribunal references video material in the singular not plural: CB 379-380 at [63] and [64] of the Tribunal Decision;
iii)the Tribunal does not extract in the Tribunal Decision at CB 379-380 at [63] the translated transcription of the Second Video, it only extracts the translated transcription of the First Video, and;
iv)the Second Video would have been important evidence potentially corroborating a claim, and in any event would have answered issues in relation to the applicant’s credibility;
b)it is no answer that the Tribunal could have or would have placed little or no forensic value on the material for the reasons stated by the Full Court of the Federal Court in WAIJ v Minister for Immigration & Multicultural Affairs [2004] FCAFC 74; (2004) 80 ALD 568 at [27] per Lee and Moore JJ, and in W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211; (2002) 124 FCR 449 at [3] per Lee and Finkelstein JJ expressed the same proposition in terms of a misapplication of the test set out by the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”); and
c)the Tribunal was required to consider the Second Video and the associated translated transcript and in not doing so the Tribunal Decision was vitiated by jurisdictional error.
Minister’s Submissions
The Minister submitted that:
a)aside from an essential component or integer of an applicant's claim, the Tribunal is not obliged to refer to, or adequately to consider, evidence, whether or not such evidence might be thought probative: SZOYH v Minister for Immigration & Citizenship [2012] FCA 713; (2012) 128 ALD 554 (“SZOYH”) at [36] per Reeves J;
b)the failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim: that depends on whether it is the only or the overwhelming evidence relating to that integer. It will only be a failure to consider the integer if that evidence, either by itself or coupled with other evidence would or might have affected the outcome of the Tribunal Decision: SXRB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222 at [32]-[33] per Lander J; SZOYH at [37]-[38] per Reeves J; DEL16 v Minister for Immigration & Border Protection [2017] FCA 1401 (“DEL16”) at [56]-[57] per Derrington J; and
c)inevitably, value judgments are involved in determining whether material can be regarded as so "fundamental", "important" or "overwhelming" that a failure to have regard to the material constitutes jurisdictional error: DEL16 at [56]-[57] per Derrington J.
Consideration of Ground 1A
The applicant’s contention is that the Tribunal failed to consider a mandatory consideration, being the ‘mp4’ video (second video) attached to the applicant’s email dated 1 November 2017 and the translated transcript provided to the Tribunal: CB 349 and 362.
The Court notes the following:
a)the email dated 25 October 2017 sent to the Tribunal attaches a file with the title, ‘VID-20171025-WA0000.mp4’ and the body of the email refers to ‘video clips’: CB 346. The email dated 1 November 2017 sent to the Tribunal attaches a file with the title, ‘VID-20171020-WA0017.mp4’ and in the body of the email the applicant refers to ‘videos’ and the attachment of the ‘video below’: CB 349;
b)in the Tribunal letter sent under s.424A of the Migration Act dated 3 November 2017 to the applicant, the Tribunal only makes reference to the audio-visual file attached to the email dated 25 October 2017: CB 354-355 at [14]-[15];
c)the applicant responded to the Tribunal letter dated 3 November 2017 seeking an extension of time to translate ‘all videos’: CB 357 and on 29 November 2017 provided two translations of the videos: CB 361-362;
d)in the Tribunal Decision the Tribunal referred to the translation of the one video only: CB 361-362 and 379-380 at [63]-[66], however, it appears that the Tribunal considered both translated transcripts as they appear as one in CB 379-380 at [63]; and
e)the Tribunal further makes findings that:
64 The applicant was advised by the Tribunal, in the letter of 3 November 2017 referred to above, that the the Tribunal has no way of verifying the authenticity of either the recording or any of its contents. Accordingly, the applicant was further advised that the Tribunal may consider accepting the submission but accord it little, if any, weight. Although the Tribunal did subsequently receive the foregoing transcript of the audio component of the media file, the applicant's submissions do not address the question of the Tribunal's inability to independently verify either its authenticity or any of the content contained therein.
65 Accordingly, the Tribunal accepts the foregoing media file and the translation offered by the applicant as some evidence in support of the applicant's late claims to be the subject of continuing interest to persons unknown in Sri Lanka. However, given the nature of the media file and the content of the translated transcript, it is not possible for the Tribunal to verify its authenticity. Accordingly, the Tribunal places little weight on this evidence.
66 The Tribunal finds that the applicant's evidence at the hearing relating to these integers of his claims is vague and lacking in appropriate detail or substantive corroboration. The Tribunal further finds that the applicant's explanation for failing to raise the foregoing integers of his claims at the first reasonable opportunity is illogical and lacking in credibility. Accordingly, the Tribunal finds that these integers of his claims for protection lack credibility.
The Court further notes:
a)the Full Court of the Federal Court in Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [62] per Kenny, Griffiths and Mortimer JJ said:
A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal.
b)in Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 (“SZRKT”) at [97] per Robertson J, the Federal Court said:
Thus merely to ignore “relevant material” does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.
c)in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 at [47] per French, Sackville and Hely JJ, the Full Court of the Federal Court said:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
d)in Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [28] per North, Lander and Katzmann JJ, the Full Court of the Federal Court said:
However, an error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant's claims is not jurisdictional error, so long as the error, whichever it be, does not mean that the RRT has not considered the applicant's claim: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 630; Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294.
The Tribunal’s conclusion was that it accepted the media file and translated transcript as evidence in support of the applicant’s claims: CB 380 at [65], but it placed little weight on the evidence of the media file and translation because it did not have the ability to verify its authenticity, and the applicant’s evidence at the Tribunal Hearing was vague and lacking in appropriate detail or substantive corroboration. Further, the applicant’s explanation for failing to raise these integers in the first instance was illogical and lacking in credibility: CB 380 at [64]-[66]. The Tribunal clearly considered the applicant’s claims that he feared returning to Sri Lanka on the basis of his claim that he was the subject of continuing interest to persons unknown in Sri Lanka and as such had a profile of a young Tamil male with imputed associations with the LTTE. The Tribunal plainly accepted the media file, but simply gave it little weight. The weight to be given to evidentiary material is a matter for the Tribunal: Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Tribunal set out the translated transcript of both the audio recordings in full: CB 379 at [63]. The fact that the Tribunal made a mistake and referred to the translated transcript as one transcript and not two separate transcripts is irrelevant because it clearly considered both translations: CB 379-380 at [63]. The misconception of evidence, for example by combining two transcripts into one, is not jurisdictional error: WAKK v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 225 at [46]-[47] and [58]-[63] per Marshall, Mansfield and Siopis JJ; WAHP v Minister for Immigrationand Multicultural Affairs and Indigenous Affairs [2004] FCAFC 87 at [7] per Lee J.
The Court is of the view that the Tribunal’s error in combining the two translated transcripts into one in its Tribunal Decision is not serious enough to find that the Tribunal’s function has not been fulfilled: SZRKT at [111] per Robertson J. Accordingly, it does not constitute jurisdictional error and does not establish jurisdictional error in the Tribunal Decision.
For those reasons ground 1A is not made out.
Ground 1
Applicant’s Submissions
The applicant submits in relation to Particular 1.2 that:
a)the context in which s.416(2)(b) of the Migration Act arises is the primary duty of the Tribunal to conduct a ‘review’ under ss.414(1) and 425(1) of the Migration Act: SZBEL;
b)once satisfied that the applicant’s Safe Haven Visa application should not be granted peremptorily, the Tribunal was required to give the Applicant an opportunity to appear and ‘give evidence and present arguments relating to the issues arising in relation to the decision under review’ Migration Act, s.425(1). The opportunity must be meaningful, not merely a “hollow shell or empty gesture”: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188; (2000) 64 ALD 395 at [31] per Goldberg J;
c)the power under s.416(2)(b) of the Migration Act is permissive: Nejad v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 153; (1997) 48 ALD 48 (“Nejad”) at [158] per Beaumont J; Sun v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71; (1997) 151 ALR 505 at [83] per Wilcox J. In SZNOL v Minister for Immigration & Citizenship [2012] FCA 917 at [23] per Emmet J, the Federal Court said:
[T]hat is to say, in considering a further application, the tribunal is not required to consider certain information, although it is not precluded from doing so, and the tribunal may have regard to and take to be correct any decision made about or because of that information, but is not obliged to do so.
d)the Tribunal was under a positive duty not to allow the Remitted Tribunal Decision findings to so overshadow the exercise of jurisdiction by the Tribunal, and in SZKOX & Anor v Minister for Immigration & Border Protection & Anor [2015] FCCA 789 (“SZKOX”) at [19] per Judge Manousaridis states:
Although [s.416] is a permissive section, it is always subject to the Tribunal’s obligation to review an application before it. That means that it is not open to the tribunal to utilise s.416 in a manner that prevents or constrains it from considering all evidence and submissions that are before it.
e)a methodology, or a manifestation of it, has also been coined the ‘what if I am wrong’ analysis, that proposition must be correct because otherwise the methodology of assessment of future risk set out by the High Court in cases such as Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 (“Guo”) at [56] per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ would be foreclosed; and
f)if that proposition is to be accepted, the Tribunal then fell into error in its application of s.416(2)(b) of the Migration Act by first taking to be correct the Remitted Tribunal Decision findings on the white van abduction attempt, and subsequently rationalising away the fresh evidence or material of the video and related transcript which might have rationally have corroborated that claim.
The applicant submits in relation to Particular 1.3:
a)the Tribunal’s findings on credibility were not expressed so decisively as to relieve the Tribunal from its obligation to actually undertake, in the circumstances, the “what if I am wrong” analysis; and
b)there was a real possibility that the video and translated transcript were true, while certainly, there was no contradictory information available to the Tribunal, and if true it would have tended to support the applicant’s claim of an attempted white van abduction and would have bolstered the applicant’s credibility, and in those circumstances the Tribunal fell into jurisdictional error in its assessment of the future risk of harm.
The applicant submits in relation to Particular 1.5:
a)at CB 384 at [84] of the Tribunal Decision the Tribunal ‘took to be correct’ that the findings in the Remitted Tribunal Decision that the applicant was at no heightened risk due to the exposure of his private information on the internet, including citing at CB 382 at [77] of the Tribunal Decision a finding in the Remitted Tribunal Decision that:
[a]ccording to a report in the Guardian newspaper, citing KPMG as its source, the information was not downloaded in Sri Lanka.;
b)that finding was without a foundation in the material before the Remitted Tribunal Decision, and while true that the Guardian article: CB 146-147, did not list Sri Lanka as one of the countries where there was positive geographical evidence of downloading, the article does state that “several of the downloads came from anonymised locations”; and
c)where the Tribunal ‘adopts’ the findings of the Remitted Tribunal Decision, it also inherits its errors.
Minister’s Submissions
The Minister submits that:
a)the Tribunal may have regard to materials which formed part of the review process prior to an impugned decision: Minister for Immigration & Citizenship v WZANC [2010] FCA 1391; (2010) 119 ALD 275 at [42] per Siopis J, and s.416 of the Migration Act permits the Tribunal to have regard and to take as correct an earlier finding;
b)a court conducting judicial review is not entitled to interfere unless satisfied that there was a vitiating error of law: Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18 per Smith J;
c)there is nothing in the Tribunal Decision to suggest that the Tribunal used s.416 of the Migration Act "in a manner that prevents or constrains it from considering all evidence and submissions that are before it": SZKOX at [19] per Judge Manousaridis. The Tribunal addressed the applicant’s six submissions in the Tribunal Decision: CB 368-375 at [17]-[45]; and
d)even if (which the Minister denies) the summary of the Tribunal's reasoning process as stated in the Applicant's Submissions accurately reflects the way the Tribunal in fact went about the review of the Delegate’s Decision it does not advance the applicant's case unless such reasoning manifests “extreme” illogicality or irrationality.
Particular 1.5 does not support the plea in ground 1, further, the particular is a challenge to the Tribunal's findings of fact and there is no error of law, in the Tribunal making a wrong finding of fact: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [17] per Jacobson J; WZAQU v Minister for Immigration [2012] FMCA 925 at [76] per Emmett FM. The question of the accuracy of country information is a matter for the Tribunal and not this Court: SZJTQ v Minister for Immigration [2008] FMCA 1188 at [52] per Barnes FM.
Consideration of Ground 1
With regard to Particular 1.2, the applicant’s contention is that the Tribunal misconstrued and misapplied s.416(2)(b) of the Migration Act.
Section 416(2) of the Migration Act states:
(2) The Tribunal, in considering the further application:
(a) is not required to consider any information considered in the earlier application; and
(b) may have regard to, and take to be correct, any decision that a review body has made about or because of that information.
The Court notes that:
a)in SZSLM v Minister for Immigration & Border Protection [2014] FCA 945; (2014) 240 FCR 267 at [25]-[27] per Jacobson J, the Federal Court said:
25 The appellant's approach to the proper construction of s 416 is contrary to the plain language of the section and to the authorities which have construed it: see Nejad v Minister for Immigration and Multicultural Affairs(1997) 79 FCR 153 at 158D-E (Beaumont J); Sun v Minister for Immigration and Ethnic Affairs(1997) 81 FCR 71 at 83E (Wilcox J); SZNOL v Minister for Immigration and Citizenship[2012] FCA 917 at [23] (Emmett J).
26 As Beaumont J said in Nejad at 158, whether paras (c) and (d) of s 416 are read literally or purposively (or both), the section places no obligation upon the Tribunal to accept the conclusion or process of reasoning of the earlier Tribunal, although in a proper case it is at liberty to do so.
27 Justice Wilcox in Sun at 83 took the same approach and Burchett J at 125 agreed with him. Emmett J in SZNOL at [23] also focussed upon the language of s 416 in stating that it is apparent from the language of the section that it confers a discretion on a subsequent Tribunal as to the significance it may attach to an earlier decision; and
b)in Nejad FCR at 158 per Beaumont J (noting that s.416(c) and (d) of the Migration Act were then relevantly in the same terms as s.416(2)(a) and (b) of the Migration Act):
As I read s 416(c) and (d), whether taken literally or purposively or both, the provision places no obligation upon the Tribunal to accept, or not to accept, the conclusion or the process of reasoning, in whole or in part, of the previous decision. By the same token, in a proper case, the Tribunal is to be at liberty to adopt or accept the conclusion, or the process of reasoning, in whole or in part. When the reasons of the second Tribunal decision are read as a whole, it does not appear that the Tribunal failed to understand that s 416 operated in this way. In my view, no legal error in this regard has been demonstrated.
The Tribunal wrote to the applicant under s.424A of the Migration Act and advised the applicant that he should be aware that if the Tribunal takes to be correct the Remitted Tribunal Decision for his protection visa application, this would be the reason, or part of the reason, for affirming the Delegate’s Decision to refuse to grant him a Safe Haven Visa: CB 371-372 at [23]-[24].
The Tribunal accepted the conclusion and process of reasoning in the Remitted Tribunal Decision in relation to its findings regarding the applicant’s Tamil ethnicity and LTTE profile: CB 380-381 at [68], attempted white van abduction: CB 382 at [76], failed asylum seeker profile and data breach claims: CB 384 at [85] and returned unlawful departees status: CB 386-387 at [91]. It was open to the Tribunal to do so, and in so doing it is not apparent that the Tribunal misapplied or misconstrued s.416(2)(b) of the Migration Act.
With regard to Particular 1.3, the applicant’s written submissions submitted that the Tribunal fell into jurisdictional error in its assessment of the future risk of harm because:
a)its findings on credibility were not expressed so decisively as to relieve it from its obligation to actually undertake the ‘what if I am wrong test’; and
b)there was a real possibility that the video and translated transcript were true and that would have supported the applicant’s claim of an attempted white van abduction and bolstered the applicant’s credibility.
The applicant’s submissions at the hearing in relation to particular 1.3 appeared to be unrelated to the applicant’s written submissions and relate to the power under s.416(2)(b) of the Migration Act and the alleged inherent errors in the Tribunal Decision inherited from the Remitted Tribunal Decision with regard to the data breach: Transcript, page, 12.
The Minister’s written submissions in relation to ground 2 addressed the applicant’s written submissions in 1.3 in the same terms and the Minister did not make any further submissions at the hearing and sought to rely on his written submissions.
This Court has proceeded on the basis that it is necessary to deal firstly with the applicant’s claims set out in the written submissions, and then the different claims set out in Particular 1.3 .
Section 36(2)(aa) and (2A) of the Migration Act states that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The Court notes the following:
a)In Guo CLR at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, the High Court considered the "real chance test":
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason". Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reasons if he were to return to the PRC; and
b)in Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 at [242]-[243] per Lander and Gordon JJ and at [297] per Besanko and Jagot JJ it was observed as follows:
242 The proper test, SZQRB contended, is whether there is a real risk that if SZQRB were to be returned to Afghanistan he would be arbitrarily deprived of his life. The question of “real chance” is, of course, the test to be applied on an application for a protection visa under s 36(2)(a) when considering whether the applicant has a well-founded fear that the applicant will face persecution for a Convention reason if returned to the applicant's country of nationality: Chan v Minister for Immigration and Ethnic Affairs(1989) 169 CLR 379 per McHugh J at 429 and Mason CJ at 389, Dawson J at 398, and Toohey J at 407.
243 In Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (“MZYYL”), the question of the appropriate standard was raised by the Minister in his notice of appeal, in circumstances when the Refugee Review Tribunal said that in assessing a non-citizen's risk of suffering significant harm for the purpose of s 36(2)(aa), the Tribunal should consider whether there is a “real chance”. However, at the hearing, the Minister did not pursue that challenge and accepted in that appeal that the test was whether there is a “real chance”: MZYYL at [31].
297 …For the reasons given by Lander and Gordon JJ, that assessment was not made in accordance with law because the assessor failed to apply the correct standard of proof to the issue of whether there was a real risk that the applicant would suffer significant harm and because the assessor failed to observe the requirements of procedural fairness.
The Full Court of the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220; (1999) 56 ALD 43 (“Rajalingham”) at [60] and [67] per Sackville, North and Kenny JJ, said as follows:
It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a "real substantial basis" for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
…Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred…
In assessing whether an applicant has a well-founded fear of persecution for one of the Convention reasons the Tribunal is entitled to weigh the material before it and make findings prior to considering if the applicant’s fear of persecution is well-founded. Guo at 575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. In circumstances where the Tribunal’s findings are not made with sufficient confidence then the Tribunal may need to consider whether their findings are incorrect in determining the applicant’s well-founded fear: Wu Shan Liang; Guo; Rajalingham.
There is nothing in the reasons of the Tribunal Decision that suggests it had any real doubt as to its findings on credibility. It stated in clear terms it did not accept that the applicant had been abducted by a white van or that his mother had complained to police about this. Further, the Tribunal found that:
a)the applicant’s reasons for not producing or referring to his mother’s copy of a police report at the first reasonable opportunity were not reasonable or logical and therefore were to be afforded little weight when considering his credibility: CB 372 at [25]; and
b)the underlying credibility issues regarding the alleged white van abduction were raised by the Tribunal particularly with regard to country information and the Remitted Tribunal Decision, and it found the applicant’s submissions unpersuasive and unconvincing: CB 373-374 at [33], [35] and [38].
The Tribunal also assessed the credibility of the applicant in terms of the evidence put forward relating to integers of his claims and found his evidence regarding:
a)the media file and translation were vague and lacking in appropriate detail or substantive corroboration, and the reasons for the delay by the applicant in raising these integers to support his claims was illogical and lacking in credibility: CB 380 at [66]; and
b)his attendance at the Tamil Bravery Day celebrations was vague and his explanation for not raising this integer as part of his claims earlier was not credible or logical: CB 386 at [88]-[89].
The Tribunal’s assessment of the applicant’s credibility was not solely based on the white van abduction issue and the media file and translation were just one of many integers put by the applicant. In any event the Court is of the view that the Tribunal did consider the entirety of the translation and still placed little weight on it because it had not been independently verified as to its authenticity: CB 380 at [64]-[65].]
In the above circumstances, there was no occasion for the Tribunal to have considered the applicant’s future risk of harm by reference to the ‘what if I am wrong’ analysis.
With regard to Particular 1.5, the applicant’s contention is that the Tribunal adopted the findings in the Remitted Tribunal Decision and that those findings were incorrect and without foundation upon the material before the Remitted Tribunal.
The Tribunal made findings that neither the applicant’s evidence at hearing nor the October 2017 Submissions addressed the findings made in the Remitted Tribunal Decision about the applicant’s claims in relation to the data breach, and therefore the Tribunal took to be correct and relied upon the findings made in the Remitted Tribunal Decision at CB 382 at [77], which were as follows:
The information released in the data breach was only available for a short period of time before it was removed. The Tribunal has no knowledge of whether Sri Lankans in Australia accessed the information. According to a report in the Guardian newspaper, citing KPMG as its source, the information was not downloaded in Sri Lanka. The Tribunal considers there was nothing in the data breach that would not be known to the Sri Lankan authorities should the applicant be removed to Sri Lanka in the future. That is, that he was in community detention because he arrived as an irregular maritime arrival whilst underage.
The country information to be relied upon by the Tribunal and the weight to be given to the country information to be relied upon by the Tribunal, are matters for the Tribunal: Wu Shan Liang CLR at 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 291-292 per Kirby J and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, where the Full Court of the Federal Court observed as follows:
... The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information ’, it would be engaging in merits review. The Court does not have power to do that.
The Tribunal had regard to the Guardian Article which did not list Sri Lanka as one of the countries where the data was accessed and therefore it was open for the Tribunal to conclude that data was not accessed in Sri Lanka: CB 146-147.
For the reasons set out above ground 1, particulars 1.2, 1.3 and 1.5 are not made out, and do not establish jurisdictional error in the Tribunal Decision.
Ground 2
Applicant’s Submissions
The applicant submitted that this ground overlaps with Ground 1 particularised in Particular 1.3.
Minister’s Submissions
The Minister submitted that:
a)ground 2 comprises of two parts;
i)the Tribunal allegedly misconstrued and misapplied the "well-founded fear" test because evaluation of the future required the Tribunal to consider the possibility that the video file (and transcript thereof) provided by the applicant was genuine and the Tribunal did not do so; and
ii)the Tribunal allegedly misconstrued and misapplied the "well-founded fear" test because the Tribunal’s adoption of the findings in the Remitted Tribunal Decision foreclosed the Tribunal from undertaking a "what if I am wrong" analysis;
b)the first part adds nothing to particular 1.3 to ground 1 and the second part is not addressed in the Applicant's Submissions and in any event is without merit for the reasons provided concerning ground 1.
Consideration of Ground 2
For the reasons set out at [43]-[51] above, in relation to Particular 1.3 of ground 1, ground 2 is not made out and does not establish jurisdiction error in the Tribunal Decision.
Ground 3
Applicant’s Submissions
In support of ground 3, the applicant submitted that:
a)jurisdictional error may be exposed, albeit uncommonly, where a decision-maker fails to make an obvious enquiry as to a readily obtainable fact: Minister for Immigration & Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112 (“Le”) per Kenny J;
b)before dismissing the First Video and the translated transcription, the Tribunal could have examined the metadata of the video file that could or would have yielded date, time, and even geographical data tending to corroborate or falsify the proposition that the video purported to capture enquiries being made of the applicant at his parents’ house;
c)in any event, the applicant had furnished his sister’s telephone number, having explained that the sister had taken the video and the Tribunal could have and should have sought to contact the sister with a view to testing the applicant’s claim; and
d)it was unreasonable, or a constructive failure to exercise jurisdiction, to reach adverse credibility findings on critical matters without making these simple enquiries.
Minister’s Submissions
The Minister submitted that ground 3 comprised two parts:
a)by not examining the metadata on the videos provided by the applicant, the Tribunal allegedly failed to make an obvious inquiry and thereby failed to exercise jurisdiction; and
b)by not telephoning the applicant's sister on the number provided, which would have allowed the Tribunal to test the provenance of the video files, the Tribunal allegedly failed to make an obvious inquiry and thereby failed to exercise jurisdiction.
Generally the Minister submitted that:
a)there is no general obligation to make inquiries, albeit such an obligation may arise in rare or exceptional circumstances, however, the mere fact that it may have been reasonable to make an inquiry does not mean that the lack of such an inquiry amounts to jurisdictional error: Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 (“Kaur”) at [33] per Dowsett, Pagone and Burley JJ;
b)the central question is whether the Tribunal has faithfully carried out its statutory function of review: ATU16 v Minister for Immigration [2018] FCCA 686 at [71]-[85] per Judge A Kelly, and the failure to inquire must constitute a failure to undertake the statutory duty of review or otherwise be so unreasonable as to support a finding that the Tribunal’s Decision was infected by jurisdictional error: SZMJM v Minister for Immigration & Citizenship [2010] FCA 309 (“SZMJM”) at [30] per Bennett J;
c)there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [62] per Allsop CJ, Griffiths and Wigney JJ;
d)unreasonableness is not a vehicle for challenging an administrative decision on the basis that the decision-maker gave gave insufficient or excessive consideration to some matters or made an evaluative judgment with which a court disagrees even though that judgment was rationally open to the decision-maker: SZUXN v Minister for Immigration [2015] FCCA 1268 at [68] per Judge Driver; and
e)for a failure to inquire to amount to a jurisdictional error, the applicant needs to show that the inquiry was an obvious inquiry, concerned a critical fact the existence of which was easily ascertained, and could supply a sufficient link to the outcome to constitute a failure to review: SZMJM at [31] per Bennett J.
The Minister further submitted in respect of the first part of ground 3 that:
a)the existing particulars assert that examination of the metadata “might have yielded further information, including time and precise location, tending to authenticate or falsify the video”. That particular of itself shows that the so-called “duty to inquire” is not engaged. Also the applicant has not adduced evidence as to what further information would have been “yielded” and thus has failed to discharge the onus of proving any relevant facts: SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 at [11] per Flick J; and
b)evidence is necessary in order to demonstrate a “critical fact” would have been revealed “which could have impacted on the outcome of the case”: MZYYU v Minister for Immigration & Citizenship [2014] FCA 98 at [27] per Bromberg J.
The Minister further submitted in respect of the second part of ground 3 that the additional further particulars asserting that speaking to the applicant's sister would have allowed the Tribunal to test the provenance of the video files again, of itself shows, that the so-called “duty to inquire” is not engaged.
Consideration of Ground 3
Section 426 of the Migration Act states that:
(1) In the notice under section 425A, the Tribunal must notify the applicant:
…
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.
The High Court has made it clear that the Tribunal is under no duty to inquire: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [43] per Gleeson CJ:
43 Rather, s 426 provides that, even if an applicant requests that the Tribunal take oral or written evidence from a witness (such as a medical practitioner or psychiatrist), the Tribunal is not required to obtain such evidence. Thus, the Tribunal is under no duty to inquire.
The Full Court of the Federal Court in Kaur at [31]-[33] per Dowsett, Pagone and Burley JJ stated that:
31 The duty imposed upon the Tribunal by the Act is a duty to review. In the present case, the appellants were legally represented and had ample opportunity to issue a summons pursuant to s 363 of the Act to compel a witness to appear before the Tribunal. Indeed, as counsel for the Minister points out, in the appellants’ response to the hearing invitation issued by the Tribunal, the appellants’ then legal representatives supplied a form that indicated that the appellants declined the opportunity to take oral evidence from any other persons. In circumstances where, it may be inferred, a deliberate forensic decision was made on the part of the appellants not to seek the issue of compulsory process to compel the attendance of one or more relevant witnesses, it is difficult to conceive of how the Tribunal could have fallen into error by failing to do so itself.
32 In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ at [25] said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. …
33 There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], an obligation may arise in "rare or exceptional circumstances". The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J).
In relation to whether it was reasonable for the Tribunal to make obvious enquiries:
a)the Federal Court in Le at [77]-[79] per Kenny J said as follows:
77 This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision. At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker's statements regarding Mr Nguyen's supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen's written statement. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of this case especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh's residence that day.
78 These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal's review. Of course, once the Tribunal received this information, it was bound to deal with it as the Act required and the ultimate decision on the merits of Ms Le's application was a matter for it to decide in conformity with the Act and the Regulations.
79 Accordingly, the present is a case where the failure by a decision-maker to make a straightforward enquiry for information that was apparently readily available and relevant to critical issues can be characterized as unreasonable in the Wednesbury Corporation sense. I would uphold the Federal Magistrate's decision on this ground; and
b)in Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [22]-[23] per French CJ and Kiefel J it was stated that:
22 …That is not to say that circumstances may not arise in which the Tribunal has a duty to make particular inquiries. That duty does not, when it arises, necessarily require the application of s 427(1)(d).
23 In Minister for Immigration and Citizenship v SZIAI the Court considered the implications of its designation, in earlier decisions, of Tribunal proceedings as “inquisitorial”. As was pointed out in that case, the term “inquisitorial” has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the Tribunal’s statutory functions. As the plurality judgment stated:
“The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”
The Court notes the following:
a)the Tribunal wrote to the applicant on 10 October 2017 inviting the applicant to comment on the inconsistency raised regarding the attempted white van abduction: CB at 337-340 and 368-369 at [17];
b)the applicant responded to the Tribunal’s letter by way of written submissions dated 18 October 2017 in which he refers to a press release and a case: CB 342-345;
c)the applicant further writes to the Tribunal on 25 October 2017 attaching a video and stating that his sister took a video on her mobile regarding the people who come to his house to look for him on 24 October 2017: CB 346 and 378 at [60];
d)the Tribunal replied to the applicant on 26 October 2017 stating that it could not see anything on the video and that without a certified translation it would not be able to understand what is being said, and while it accepts the submission it places no weight on it and invited the applicant to make further submissions on the matter before 3 November 2017: CB 348 and 378;
e)the applicant emailed the Tribunal on 1 November 2017 further explaining why one of the videos does not work and that his sister took the footage: CB 349 and 378-379;
f)on the 3 November 2017 the Tribunal wrote to the applicant under s.424A of the Migration Act, inviting the applicant to comment or respond to certain information the Tribunal considered would be the reason or part of the reason for affirming the decision under review making particular reference to the video recording and authenticity. The applicant was given until 10 November 2017 to respond: CB 351-356 and 380 at [64];
g)on 6 November 2017 the applicant requested an extension to respond and this was given and extended until 24 November 2017: CB 357-359;
h)on 21 November 2017 the applicant provided a translation of the audio from the footage provided to the Tribunal on 26 October 2017: CB 360-362; and
i)the Tribunal accepted the media file and the translation offered by the applicant, however, questioned its authenticity and said that the fact that it could not verify its authenticity meant that it would place little weight on it: CB 380 at [64]-[65].
The issue then becomes whether this case gives rise to sufficiently exceptional circumstances that this Court could find that the Tribunal erred in not calling the applicant’s sister to verify the authenticity of the media file and that it was unreasonable in not doing so. The applicant was given ample notice that the authenticity of the media file was in question, and had the opportunity to:
a)obtain an affidavit or statutory declaration from his sister as to the provenance of the media file, or to take more active steps to arrange for his sister to give evidence from Sri Lanka, whether by mobile telephone or otherwise, as opposed to simply providing a telephone number to the Tribunal; and
b)to arrange for a local IT specialist to analyse the video file and give evidence as to it authenticity.
Setting out what the applicant might have done to obtain the evidence from his sister or in relation to the omitted data also points out the difficulty in ascertaining that evidence, and makes the point that it is not necessarily easily obtainable. In the case of the evidence of the applicant’s sister, is it not obvious it would be easy to obtain that evidence by telephone from the applicant’s sister in Sri Lanka, or in indeed that it would be possible for the Tribunal in those circumstances to ascertain that it was the applicant’s sister giving evidence. In relation to the omitted data it would be necessary for the Tribunal to make arrangements for the video file to be analysed and for the evidence of the analysis to be put before it in a proper form. It is not the function of the Tribunal to make out the applicant’s case; the Tribunal was not obliged to conduct an enquiry to discover whether the applicant’s case might be better put or supported by other evidence, particularly in circumstances where the applicant had already had the opportunity to adduce that evidence: Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] and [49] per Keane CJ; Minister for Immigration and Citizenship and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ. In the Court’s view the evidence of the sister was not easily ascertainable and the evidence of the omitted data would have required the Tribunal to make its own enquires and essentially provide its own evidence in order to arguably satisfy itself as to the nature of that evidence. It cannot, in the circumstances, be said that the evidence of the sister or the evidence as to the omitted data was easily ascertainable. Further, in any event, there is nothing in the circumstances of this case which warrants it being described as one involving “rare or exceptional circumstances”, and were the Court to do so, it would impose an intolerable burden upon the Tribunal in all manner of future cases.
The Court notes that the Tribunal was provided a telephone number of the family living in Sri Lanka in the email sent by the applicant dated 20 November 2017 which attached the translation. The applicant stated that he could arrange a time for the Tribunal to talk to the family. However, this was done in the context of asking for an extension for a year in order for his family to obtain further footage of a face with a fixed camera of each time they came to his house asking for him not for the Tribunal to contact his sister to verify the alleged video footage she took: CB 360. In terms it appears to be more than a request for the Tribunal to make its own enquiries, but rather an invitation to involve itself in the gathering of evidence on behalf of the applicant. It was for the applicant, and not the Tribunal, to advance evidence on and make out the applicant’s case: Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1 at [18] per Gummow and Hayne JJ.
For the reasons above the Court is of the view that ground 3 is not made out and does not establish jurisdictional error on the Tribunal Decision.
Conclusion and orders
The Court concludes that none of the grounds of the Further Amended Judicial Review Application have been made out, and the grounds do not, therefore, establish jurisdictional error in the Tribunal Decision It follows that the Further Amended Judicial Review Application must be dismissed. There will be an order accordingly.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship, Migrant Services and 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 Lucev
Date: 13 September 2019
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