WZATX v Minister for Immigration
[2016] FCCA 2949
•17 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATX v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2949 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – Sri Lankan Tamil – whether failure to have regard to relevant material – whether failure to consider claims made – whether failure to consider complementary protection claims – whether bias – whether failure to consider corroborating evidence – whether data breach in relation to applicant’s personal details – whether jurisdictional error. |
| Legislation: Immigration and Emigration Act 1948 (Sri Lanka) Migration Act 1958 (Cth), pt.7, div.4, ss.46A(2), 65, 417, 474, 476, 477, Prevention of Terrorism Act 1979 (Sri Lanka) |
| Cases cited: AVK15 v Minister for Immigration & Border Protection [2016] FCCA 2324 Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29 Minister for Immigration & Citizenship v SZCOQ [2007] FCAFC 9 Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 Minister for Immigration & Multicultural Affairsv Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 MZABA v Minister for Immigration & Border Protection [2015] FCA 711; (2015) 234 FCR 425 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2006] HCA 63;(2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 SZTVA v Minister for Immigration & Anor [2016] FCCA 2005 SZTXY v Minister for Immigration & Border Protection [2014] FCCA 841 WZATV v Minister for Immigration & Border Protection [2016] FCCA 2019 |
| Applicant: | WZATX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 65 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 31 July 2014 and 17 July 2015 |
| Date of Last Submission: | 17 July 2015 |
| Delivered at: | Perth |
| Delivered on: | 17 November 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr PR Macliver and Mr A Gerrard |
For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be amended to “Administrative Appeals Tribunal”.
That a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal made on 6 February 2014.
That a writ of mandamus issue requiring the Administrative Appeals Tribunal to re-hear the application for review made by the applicant on 30 August 2013 according to law.
That there be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 65 of 2014
| WZATX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 then Refugee Review Tribunal, now the Administrative Appeals Tribunal, made on 6 February 2014 (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision is at Court Book (“CB”) 235-246. The Tribunal Decision affirmed a decision made on 23 August 2013 by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the Minister for Immigration & Border Protection (“Minister”), to refuse the applicant a Protection (Class XA) visa (“Protection Visa”) under s.65 the Migration Act.
The applicant has also applied for an extension of time in which to file his application pursuant to s.477 of the Migration Act (“Extension of Time Application”).
The Judicial Review Application was made on 11 March 2014 which is 33 days from the date of the Tribunal Decision. Section 477(1) of the Migration Act allows 35 days from the date of the Tribunal Decision to apply to this Court for review of the Tribunal Decision. Therefore, as the Judicial Review Application was filed within time, no extension of time is necessary, and the Court does not need to consider the Extension of Time Application.
Background prior to the Tribunal Decision
The background to this matter prior to the Tribunal Decision is as follows:
a)the applicant is an unmarried male citizen of Sri Lanka, of Tamil ethnicity, born in Simbaltivu village, Trincomalee District, on 12 July 1995. He arrived in Australia by boat and without a visa on 25 July 2012: CB 100-101;
b)on 10 August 2012 the applicant took part in an Irregular Maritime Arrival Entry Interview with the assistance of an interpreter: CB 2-15;
c)on 31 October 2012 the applicant was advised that the Minister (then the Minister for Immigration & Citizenship) had exercised his power under s.46A(2) of the Migration Act to allow him to lodge a Protection Visa application: CB 16;
d)on 31 October 2012 the applicant lodged an application for a Protection Visa with the then Department of Immigration & Citizenship (now the Department of Immigration & Border Protection) (“Department”). The application was supported by a statutory declaration made by the applicant: CB 18-51;
e)submissions were made in support of the applicant’s Protection Visa application by BMA Lawyers: CB 85-98;
f)on 23 August 2013 the Delegate’s Decision was to refuse to grant the applicant the Protection Visa: CB 115;
g)the applicant was advised of the Delegate’s Decision by letter from the Department dated 23 August 2013 which was sent to BMA Lawyers: CB 116-119;
h)on 30 August 2013 the applicant made an application to the Tribunal seeking review of the Delegate’s Decision refusing to grant him a Protection Visa: CB 129-134;
i)by letter dated 18 September 2013 the Tribunal invited the applicant to appear before the Tribunal at a hearing on 20 November 2013 (“Tribunal Hearing”) to give evidence and present arguments relating to the issues arising in his case: CB 146-148;
j)on 13 November 2013 BMA Lawyers provided the Tribunal with written submissions in support of the applicant’s application for review (“Applicant’s Tribunal Submissions”): CB 157-212.
k)the applicant appeared at the Tribunal Hearing on 20 November 2013 to give evidence and to present arguments. The Tribunal Hearing was conducted with the assistance of an interpreter in the Tamil and English languages: CB 213 and 236; and
l)on 15 January 2014 BMA Lawyers provided additional documents to the Tribunal in support of the applicant’s claims for protection: CB 219-230.
Tribunal Decision
The Tribunal Decision made on 6 February 2014 affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 235 and 243. Relevant aspects of the Tribunal Decision are dealt with and set out below as necessary.
The Tribunal advised the applicant of the Tribunal Decision by letter dated 10 February 2014 sent to BMA Lawyers: CB 247-248.
Judicial Review Application
The applicant set out a single ground in the Judicial Review Application. There are other grounds identified and referred to below which arise from subsequent materials put to the Court by the applicant.
An affidavit was filed with the Judicial Review Application, attaching the Tribunal Decision.
On 16 April 2014 a Registrar of this Court ordered that the applicant file and serve, on or before 11 June 2014 an amended Judicial Review Application giving particulars of the grounds of review and any further affidavits upon which he intended to rely at the final hearing listed at 2.15pm on 31 July 2014 (“2014 Hearing”).
At the 2014 Hearing the Applicant handed up a document which was marked as Exhibit 1. It comprised of submissions (“Applicant’s July 2014 Submissions”) and an unfiled affidavit affirmed 13 July 2014 (“Applicant’s July 2014 Affidavit”), which annexed various materials, which are dealt with below in relation to the relevant ground of review, further submissions which are set below, and annexed an extract of the Prevention of Terrorism (Temporary Provisions) Act 1974 (Sri Lanka) (“POT Act”). The Applicant’s July 2014 Affidavit was largely objected to on the basis of relevance, but, the Minister did not object to the parts of the document which could be said to be submissions being treated as submissions.
The Court reserved judgment at the conclusion of the 2014 Hearing. The Court however notified the parties on 19 June 2015 that they would be given an opportunity to give further oral submissions subsequent to the High Court’s decision in Minister for Immigration v WZAPN [2015] HCA 22; (2015) 89 ALJR 639; (2015) 320 ALR 467; (2015) 146 ALD 480 (“WZAPN”). The hearing was resumed on 17 July 2015 (“2015 Hearing”). The applicant handed up written submissions (“Applicant’s July 2015 Submissions”) which have been marked as Exhibit 2.
At the 2015 Hearing the applicant handed up an English translation (“Translated Sinhalese Letter”) of a letter originally put to the Court in Sinhalese at the 2014 Hearing (“Sinhalese Letter”). That Sinhalese Letter was not admitted into evidence at the 2014 Hearing on the basis that it:
a)was written in Sinhalese and therefore could not be read by the Court; and
b)was not material put before the Tribunal by the applicant, and therefore the Court could not have regard to it.
Whilst the provision of the letter Translated Sinhalese Letter addresses the first basis for rejection of the Sinhalese Letter, it does not, and cannot, remedy the second basis for rejection of the Sinhalese Letter, namely that it was not before the Tribunal, and it is therefore irrelevant and inadmissible.
Jurisdictional error required
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ. The Tribunal only makes a jurisdictional error if it:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf& Anor [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.
Ground 1
This ground as set out in the Judicial Review Application alleges that:
The Refugee Review Tribunal made an error of law and/or jurisdictional error in finding that the applicant was not a person to whom Australia owes protection obligations for the purposes of s 36(2) of the Migration Act 1958 (Cth).
Applicant’s submissions
In the Applicant’s July 2014 Affidavit the Applicant submitted that:
…
2The Second Respondent failed to exercise his proper jurisdiction by not examining the implications of my father’s arrest, imprisonment and harassment as seen in paragraph 13 and 15 of the RRT Report.
3.The Second Respondent did not examine the real situation of the Tamils in Sri Lanka and the plight of asylum seekers returning to Sri Lanka. Reliance was only placed on the reports submitted by the Department of Foreign Affairs and Trade of the government of Australia. No attention was paid to independent reports of the situation in Sri Lanka by human rights organizations like Amnesty International and Human Rights Watch. Reference is made in this regard to paragraph 25 of the RRT Report in this regard.
4.The Second Respondent failed to examine the contents and the implications of Sri Lanka’s Prevention of Terrorism Act. This Act was mainly enacted to oppress the Sri Lankan Tamil revolt and if I am forcibly returned to Sri Lanka the provisions of this Act will be applicable to me.
…
(Transcribed from the Applicant’s July 2014 Affidavit without amendment)
In the Applicant’s July 2014 Submissions the applicant submitted that:
I. The Second Respondent did not give the needed attention to the fact that my father was arrested under the Protection of Terrorism Act, and thereby my family is perceived to be connected to the Liberation Tigers of Tamil Elam.
II. The Tamil Rehabilitation Organization (TRO) was an organization that had close links with the LTTE and my father’s work with them was what led to his arrest under the PTA.
III. The Second Respondent did not give attention to my age as a young Tamil youth whose father was arrested for being associated with the LTTE.
IV.Though the LTTE was defeated in 2009 the government of Sri Lanka fears a resurgence of the Tamil revolt.
V.The Sri Lankan government targets Tamils within the Trincomalee District as the strategic habour is situated hear. Therefore every attempt is made by the Sri Lanka government to drive out Tamils from this district and make it a safe place that will be populated by the majority Sinhalese ethnic community.
VI.It was due to these reasons that my father assisted me to leave and take this dangerous journey by boat to Australia.
VII.My father felt that while the State of Tamil Nadu was kind and assisted Sri Lankan Tamils who fled to that state for safety the Central Government of India worked against the interests of the Tamils, which was revealed when the Indian Peace Keeping Force was sent to Sri Lanka to assist the Sri Lankan government.
…
IX.The UNHCR has initiated an investigation into alleged human right abuses against the Sri Lankan Tamils committed by the Sri Lankan government armed forces. This is ongoing.
X.I annex herewith two documents marked A and by the US government authorities, which point to the ongoing facts in Sri Lanka, which was also present at the time the Second Respondent examined my fears to return to Sri Lanka.
(Transcribed from the Applicant’s July Submissions without amendment).
Essentially, the applicant alleges the Tribunal Decision was affected by jurisdictional error because it failed to have regard to relevant material, or failed to consider claims made by the applicant.
Minister’s submissions
With respect to the applicant’s submission that the Tribunal failed to consider the implications of the applicant being a young Tamil whose father was arrested by security forces for being associated with the LTTE in Sri Lanka the Minister submitted that the matter was specifically considered by the Tribunal: CB 239 at [22].
With respect to the applicant’s submission that the Tribunal failed to examine the implications of the POT Act and the Immigration and Emigration Act 1948 (Sri Lanka) (“I & E Act”), the Minister submitted that :
a)although the issue was raised by the applicant’s representative, the Tribunal found that the applicant was not and had never been of any interest to the Sri Lankan authorities, and in particular had never been arrested or detained on any suspicion of involvement with the LTTE. Consequently, there was no basis upon which the POT Act would apply to the applicant; and
b)in WZAPN the High Court held that a period of short detention is insufficient to establish serious harm for the purposes of s.91R of the Migration Act, and that the question of whether a risk of loss of liberty constitutes serious harm requires a qualitative evaluation of the nature and gravity of the apprehended loss of liberty. The Tribunal considered relevant country information and undertook the necessary qualitative evaluation of the nature and gravity of the apprehended loss of liberty: CB252-253 and 256 at [51] and [60]-[62].
Consideration of ground 1
The implications of the applicant’s father’s arrest were specifically dealt with by the Tribunal. The Tribunal accepted that the applicant’s father had been arrested in 1986. The Tribunal concluded, however, that in light of the fact the father had not suffered any harm since that arrest, and because the applicant had never suffered any harm because of it, the father’s arrest did not therefore give rise to any risk of serious harm to the applicant: CB 237-239 at [12]-[17] and [22]. The Tribunal also found that the applicant did not have a profile that would give rise to any real risk of harm due to his Tamil ethnicity or actual or imputed political opinion: CB 238-239 at [21]-[22].
The applicant’s submission that the Tribunal only placed reliance on DFAT reports and no independent reports is incorrect. The Tribunal considered independent country information from a variety of sources, including:
a)the UNHCR, and specifically the UNHCR 2010 and 2012 “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”: CB 238 at [20] and 239 at [22];
b)Amnesty International: CB 240 at [25];
c)the United Kingdom Home Office: CB 240-241 at [26];
d)the Immigration and Refugee Board Canada: CB 239 at [23] and CB 241 at [29];
e)Human Rights Watch: CB 240 at [25]-[26];
f)Freedom from Torture: CB 240 at [25]-[26]; and
g)various media sources including Tamilnet (Sri Lanka), The Sunday Leader (UK) and The Sydney Morning Herald (Australia): CB 240 at [25] and CB 241-242 at [29].
The Tribunal is entitled to have regard to its choice of particular country information, to weigh that country information, and make reasonable factual findings based on that country information, if it puts the country information to the applicant: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ and VTAG v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 141 FCR 291. The Tribunal Decision indicates that relevant country information was put to the applicant by the Tribunal: CB 239 at [22] and CB 241 at [27], and there is no evidence (and indeed no claim by the applicant) to the contrary. The Tribunal had regard to various sources of information concerning the treatment of returnees to Sri Lanka. The assertion that the Tribunal only relied on DFAT country information is therefore not made out. The DFAT country information was part of, but far from the whole of, the country information considered by the Tribunal. The country information relied upon by the Tribunal was capable of justifying the conclusions reached by the Tribunal.
The applicant also asserts that the Tribunal failed to have regard to the implications of the POT Act and the I & E Act, and that the applicant would be subject to their provisions upon return to Sri Lanka as a failed asylum seeker. The Tribunal found that the applicant would not be imputed with perceived links to the LTTE: CB 239 at [22], and that the applicant, as a person who had left Sri Lanka illegally, would be subject to the usual detention on remand and penalty by way of fine upon his return to Sri Lanka: CB 242 at [30]-[31] and CB 242-243 at [35]-[37]. On that basis it was unnecessary for the Tribunal to have regard to the POT Act, as it would not apply to the applicant: WZATI v Minister for Immigration & Anor [2014] FCCA 2750 at [45] per Judge Lucev.
The Tribunal also considered in some detail the risk of serious harm the applicant faced as a failed returned asylum seeker: CB 239-242 at [23]-[32]. The Tribunal referred to “Sri Lanka’s laws on immigration and emigration” and the application of those laws to a failed returned asylum seeker: CB 242 at [30]. The Tribunal accepted that the Applicant may be arrested interviewed, and detained for a few days in potentially overcrowded conditions. As it was entitled to do: see WZAPN, the Tribunal concluded that it was not satisfied that this was serious harm or gave rise to a real chance of such harm in the reasonably foreseeable future: CB 242 at [30]-[32].
In relation to paragraphs II, III, IV, V, VI, VII, IX and X of the Applicant’s July 2014 Submissions:
a)paragraph II contains assertions of fact concerning an organisation, the Tamil Rehabilitation Organization (“TRO”) alleged to have close links to the LTTE, and with whom it is alleged the applicant's father worked. These matters were specifically considered by the Tribunal: CB 237-238 at [13]-[15];
b)paragraph III alleges that the Tribunal did not consider the applicant’s age, but again the Tribunal specifically considered that issue: CB 238 at [22] and CB 242 at [32];
c)paragraph IV alleges that although the LTTE was defeated in 2009 the Sri Lankan government fears its resurgence. The Tribunal accepted the applicant's evidence that neither the applicant nor any member of his family had ever been involved with the LTTE, and that the applicant had not suffered any past harm in Sri Lanka: CB 238 at [16]-[17]. The Tribunal specifically considered country information concerning the profiles of persons suspected of involvement with the LTTE, and concluded that the applicant would not be suspected of LTTE involvement because his father had been gaoled for two months in 1986, but had not suffered any mistreatment since 1986, and that the applicant's father's background would not cause any future difficulties for the applicant if he returned to Sri Lanka: CB 239 at [22];
d)paragraph V alleges that the Sri Lankan government targets Tamils in the Trincomalee district and seeks to drive Tamils out of Trincomalee, and populate the district with those of Sinhalese ethnicity. The applicant’s claim with respect to returning to Trincomalee specifically, and Sri Lanka generally, were considered by the Tribunal. Further, the Tribunal in any event considered, at length and by reference to a considerable volume of reputable and recent country information, whether the applicant would have a well-founded fear of persecution if he returned to Sri Lanka: CB 238-242 at [19]-[32]. The Tribunal concluded that:
31.Having considered the information before it, the Tribunal is not satisfied that the treatment faced by Tamil returnees who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, or during any questioning by the authorities on his return to Trincomalee amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.
32.Based on all of the evidence before it the Tribunal is not satisfied that there is a real chance the applicant will be persecuted for reason of his failed asylum claim or his illegal departure, his age or his ethnicity either singularly or cumulatively, now or in the reasonably foreseeable future on return to Sri Lanka.
CB 242 at [31]-[32];
e)paragraphs VI and VII contain expressions of view about the applicant’s father’s reasons for assisting the applicant to take the boat journey to Australia and the views of the Indian national government concerning Tamils. The former reasons are otherwise addressed by the Tribunal, and have been dealt with in these Reasons for Judgment, and the views of the Indian government do not assist the applicant in establishing how it is that he might be treated upon his return to Sri Lanka;
f)paragraph IX deals with a UNHCR investigation into alleged human rights abuses against Tamils committed by the Sri Lankan government armed forces, and notes that this is ongoing. Given the Tribunal’s specific consideration of country information concerning the profiles of persons suspected of involvement with the LTTE, and the Tribunal’s consideration of evidence specific to the applicant’s possible return to Sri Lanka as a Tamil, the ongoing UNHCR investigation into past human rights abuses does not assist the applicant to establish a well-founded fear of persecution, or a risk of serious harm, if he returns to Sri Lanka; and
g)paragraph X refers to two annexures, being two news articles, marked as Annexures A and B. Both news articles post-date the Tribunal Decision and are therefore irrelevant and inadmissible.
Each of the paragraphs of the Applicant’s July 2014 Submissions might have been relevant to the strength of the applicant’s Protection Visa claim before the Tribunal, but none are relevant to the Court’s task of judicial review in these proceedings because the paragraphs deal with the merits of the applicant’s claim, which is not a matter for the Court on the hearing of the Judicial Review Application: 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 (“Wu Shan Liang”). Paragraphs II, III IV, V, VI, VII, IX and X of the Applicant’s July 2014 Submissions do not therefore establish any jurisdictional error in the Tribunal Decision.
The Tribunal considered each of the applicant’s claims, and made findings reasonably open to it on the evidence and materials before it. In so doing, the Tribunal carried out a qualitative evaluation of the applicant’s likely loss of liberty and concluded that the circumstances faced by the applicant if returned to Sri Lanka did not amount to serious harm. This was the correct legal test and the Tribunal’s reasoning does not disclose jurisdictional error: WZAPN at [35], [41] and [45] per French CJ, Kiefel, Bell and Keane JJ, with Gageler J agreeing at [100].
For the above reasons Ground 1 is not made out, and fails to establish jurisdictional error in the Tribunal Decision.
Additional ground – ground 2 – failure to consider complementary protection
The Applicant’s July 2015 Submissions raise an alleged jurisdictional error that the Tribunal failed to consider the applicant’s claim under the complementary protection provisions. This will be ground 2.
Applicant’s submissions
The Applicant made the following submissions in the Applicant’s July 2015 Submissions:
The facts of my case proves that as a Tamil in Sri Lanka and belonging to the social group by the fact that I was a fisherman and a suspicion that on the basis of my political opinion of seeking self-determination for Tamils living in Sri Lanka I have a well well-founded fear that I will be persecuted if I return back to Sri Lanka, which is my country of birth.
Tamils living in my village travelled to the Northern Province of Sri Lanka for fishing, and therefore were suspected of having connections with the LTTE who fought for a separate state for Tamils in Sri Lanka.
If a person was not found to meet the refugee criterion his case can be examined on the basis that if he or she returns to the country where the person fled he or she will face significant harm, under the Complimentary Protection Criterion.
I submit that my case should be examined under this criterion
As a Sri Lanka Tamil I will face significant harm as the Provisions of the Prevention of Terrorism Act of 1979 and the Immigration and Emigration Act no 20 of 1948 and its amendments will be applied as I am a failed asylum seeker who is now forced to return to Sri Lanka.
(Transcribed from the Applicant’s July 2015 Submissions without amendment)
The Court further notes that the applicant had submitted in the Applicant’s July 2014 Affidavit that:
4. The Second Respondent failed to examine the contents and the implications of Sri Lanka’s Prevention of Terrorism Act. This Act was mainly enacted to oppress the Sri Lankan Tamil revolt and if I am forcibly returned to Sri Lanka the provisions of this Act will be applicable to me.
…
(Transcribed from the Applicant’s July 2014 Affidavit without amendment)
Minister’s submissions
The Minister submitted that on a fair reading of the Tribunal Decision there was consideration of the complementary criterion.
Consideration ‑ ground 2
The Tribunal expressly considered the Applicant’s claims against the complementary protection criterion, and set out the relevant law: CB 242-243 at [35]-[37] and CB 245-246 at [53]-[55]. The Tribunal discussed the application of the I & E Act on returned failed asylum seekers in respect of complementary protection: CB 242-243 at [35]-[36]. It found that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that the applicant will suffer significant harm: CB 243 at [37]. As discussed at [24] above, because the Tribunal found the applicant would not be suspected of LTTE involvement it did not need to discuss the POT Act.
For the above reasons ground 2 is not made out, and fails to establish jurisdictional error in the Tribunal Decision.
Additional ground – ground 3 – bias
The applicant has alleged that the Tribunal Decision was affected by bias or a reasonable apprehension of bias. This is ground 3.
Applicant’s submissions
In the applicant’s July 2014 Submissions the Applicant asserts that:
VIII The Second Respondent was prejudiced by then policy statements issued by the First Respondent against asylum seekers who arrived by boat in Australia, and by the reports by the Department of Foreign Affairs and Trade.
Minister’s submissions
The Minister submitted that to the extent that the ground could give rise to a claim of bias or a reasonable apprehension of bias, there is no basis upon which the Court could uphold such a claim.
Consideration – Ground 3
It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J (“Jia Legeng”). To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at [72] per Gleeson CJ and Gummow J. Similarly, a reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [27] per Gleeson CJ, Gaudron and Gummow JJ.
The applicant alleges the Tribunal was biased because of policy statements issued by the Minister that were negative towards asylum seekers who arrived by boat in Australia. There is no evidence of the content or date of the policies. There is no evidence that the Tribunal was aware of the policies, or that they influenced the Tribunal in any way. The mere assertion of bias by the applicant does not establish bias, and the onus is on the applicant to put before this Court cogent evidence capable of distinctly and clearly proving bias. The Applicant has not done so. In those circumstances, the allegation of bias in relation to policy statements is not made out.
The applicant alleges the Tribunal was biased because of its consideration of DFAT reports on Sri Lanka. As stated above at [23], the Tribunal’s use of country information in its decision was entirely appropriate. No bias of any kind therefore arises from the Tribunal’s consideration of any DFAT report: CB 239 and 241 at [22] and [27].
For the above reasons ground 3 is not made out, and fails to establish jurisdictional error in the Tribunal Decision.
Additional ground – ground 4 – failure to consider material
Consistent with the Minister’s obligations as a model litigant, the Minister’s written submissions raised an issue that the Tribunal had only been given 39 of the 55 pages of the Applicant’s Tribunal Submissions. Pages 40-55 of the Applicant’s Tribunal Submissions (which appear at CB 197-212 (“Applicant’s Missing Tribunal Submissions”)) were provided to the Tribunal by the applicant’s lawyers, but were apparently not printed and placed on the Tribunal file. The failure to consider material may amount to jurisdictional error having regard to the importance of the material to the exercise of the Tribunal’s function, and therefore the seriousness of any error: Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [111] per Robertson J. This is ground 4.
Applicant’s submissions
The applicant, who was self-represented, made no submissions with respect to ground 4.
Minister’s submissions
The Minister acknowledges that in some circumstances the Tribunal’s failure to consider material may amount to jurisdictional error having regard to the importance of the material to the exercise of the Tribunal’s function, and therefore the seriousness of any error.
The Minister submits that:
a)the fact that the Tribunal did not have the Applicant’s Missing Tribunal Submissions when making the Tribunal Decision did not result in the Tribunal Decision being affected by jurisdictional error because the Applicant’s Missing Tribunal Submissions contained:
i)no new claims on behalf of the applicant;
ii)material from reports which were in fact considered by the Tribunal and referred to in its Statement of Decision and Reasons: see in particular [23] and fn.3 and 4: CB 239 at [24] and fn.5 and 6: CB 239-240 at [25] and fn.7 and 8: CB 240); [29] and fn.12 (CB 241);
iii)material from reports which were referred to earlier in pages of the Applicant’s Tribunal Submissions which were before the Tribunal, such as the Amnesty International Annual Report 2011 which is referred to at pages 22-23 (CB 179-180) and 42-43 (CB 199-200); the Edmund Rice Centre Report at pages 13-14 (CB 170-171) and 46-47 (CB 203-204); and the quote from Bruce Haigh at pages 14-15 (CB 171-172) and 46 (CB 203);
iv)material from reports which were not current, such as the US State Department 2010 report: CB 198-199, 200 and 208, and a 2008 report by the UN Special Rapporteur on Torture: CB 207, an ICJ 2010 report: CB 202 and 208, a 2010 Amnesty International report: CB 204; and a 2009 report by the UK Asylum and Immigration Tribunal: CB 212; and
v)material that was irrelevant in light of the applicant’s profile and the Tribunal’s findings (for example, that the applicant would not be suspected of being involved with the LTTE), such as the Amnesty International Annual Report 2011 dealing with LTTE members and persons suspected to have links with the LTTE: CB 197-198 and 199-200; the 2010 US State Department 2010 Report referring to university students and LTTE sympathisers: CB 198-199; and the Freedom from Torture report in relation to Tamils with an actual or perceived association with the LTTE: CB 120-121; and
b)having regard to the nature of the material set out in the Applicant’s Missing Tribunal Submissions and the Tribunal Decision, that information could not have affected the findings and conclusions of the Tribunal, because:
i)in relation to the applicant’s claim to fear persecution because of his Tamil ethnicity, the Tribunal accepted UNHCR information that only people with certain profiles were considered at risk of being persecuted, and there was no evidence before the Tribunal to indicate that the applicant came with any of those groups: CB 239 at [22];
ii)in relation to the applicant’s claim to fear persecution as a Tamil male who had unsuccessfully sought asylum in Australia, the Tribunal Decision indicates that it had regard to country information from a wide variety of sources, including some of the country information referred to in the Applicant’s Missing Tribunal Submissions, in concluding that the applicant was likely to be interviewed on arrival in Sri Lanka, and that it was not satisfied that being a failed Tamil asylum seeker would give rise to differential treatment for a Convention reason, and in not accepting that during the course of his contact with the Sri Lankan authorities on return there was a real chance of serious harm. Any other country information contained in the Applicant’s Missing Tribunal Submissions could not have altered the Tribunal’s conclusions: CB 239-241 at [23]-[27]; and
iii)in relation to the applicant’s claim to fear persecution because of his illegal departure from Sri Lanka, the Tribunal’s reasons at CB 241-242 at [28]-[32] show that it had regard to a wide range of country information in concluding that it was not satisfied that the treatment faced by Tamil returnees who had departed Sri Lanka unlawfully amounted to persecution involving serious harm or gave rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with the applicant’s personal profile and circumstances in Sri Lanka.
Consideration – ground 4
It is conceded that the Applicant’s Missing Tribunal Submissions were not considered by the Tribunal. Any failure by the Tribunal to consider material causes concern regarding the Tribunal’s discharge of its legal duties.
Whether this ground establishes a jurisdictional error depends on the circumstances of the case and nature of the submissions. The relevant consideration with regards to the material is its cogency, and its place within the applicant’s claim: Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [50] per Katzmann, Griffiths and Wigney JJ citing Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2012) 136 ALD 41 at [111]-[112] per Robertson J (“SZRKT”); AVK15 v Minister for Immigration & Border Protection [2016] FCCA 2324 at [27]-[28] per Judge Smith.
The Applicant’s Missing Tribunal Submissions contained largely country information that might be said to support the applicant’s Protection Visa claim. That was certainly the applicant’s view.
As stated at [23] above, the weight placed upon country information is a matter for the Tribunal. The Court cannot undertake that reasoning and presuppose the treatment of any material by the Tribunal in relation to country information that was not before the Tribunal.
Country information that was referred to in the Applicant’s Missing Tribunal Submissions that was either referred to in the earlier pages of the Applicant’s Tribunal Submissions, or otherwise referred to by the Tribunal cannot found any jurisdictional error. Nor is it the case that the failure to consider the Applicant’s Missing Tribunal Submissions resulted in a failure to consider a claim, or integer of a claim, made by the applicant.
The material that related to the applicant’s claims that he would suffer harm or persecution in relation because of actual or perceived LTTE links could not have had any effect on the Tribunal Decision. The applicant was found not to be a person who would be suspected of having LTTE links: CB 238 at [20]-[22]. Once the Tribunal found that the applicant would not be suspected of having LTTE links, it does not need to go on and consider the harm faced by suspected LTTE members: MZABA v Minister for Immigration & Border Protection [2015] FCA 711; (2015) 234 FCR 425 at [87] per Bromberg J.
The Minister’s submission that the Applicant’s Missing Tribunal Submissions could not have altered the Tribunal’s conclusions with respect to the applicant’s claims that he will suffer harm because of being a failed Tamil asylum seeker, and having departed illegally from Sri Lanka cannot however be sustained. Country information referred to in the Applicant’s Missing Tribunal Submissions was relevant to those claims. Both claims were fundamental to the applicant’s Protection Visa application that the Tribunal had to determine: Minister for Immigration & Citizenship v SZCOQ [2007] FCAFC 9 at [61] per Buchanan J.
The country information in the Applicant’s Missing Tribunal Submissions which was not considered by the Tribunal included at least the following country information which was relevant to the applicant’s claims that he would suffer harm as a failed Tamil asylum seeker and because of his illegal departure if returned to Sri Lanka:
a)an ABC Lateline April 2011 report concerning failed asylum seekers allegedly being beaten: CB 204;
b)an ACAT-France 2012 report concerning torture in Sri Lanka: CB 211;
c)three Amnesty International reports from 2010 and 2011 dealing with Sri Lanka, Tamils being deported to Sri Lanka, and the safety of detained former asylum seekers in Sri Lanka: CB 204-205 and CB 208;
d)a November 2011 Channel 4 news report concerning Sri Lanka still torturing Tamils: CB 209;
e)a Freedom from Torture November 2011 report of new evidence of ongoing torture in Sri Lanka: CB 205; and
f)other reports from the US State Department, TamilNet, the International Commission of Jurists and the International Crisis Group for Sri Lanka generally: CB 203-211.
The fact that the Tribunal had regard to a wide range of country information dealing with similar issues does not mean that the country information overlooked could not have affected the Tribunal Decision. Had the country information not considered been before the Tribunal then the Tribunal would have had to consider it, and weigh it accordingly: Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57; (2000) CLR 82; (2000) 75 ALJR 52; (2000) 176 ALR 219; (2000) 62 ALD 285 at [4] per Gleeson CJ (“Aala”). The Court cannot speculate as to the weight that may have been given to that country information by the Tribunal. The Court is not permitted to engage the unexplored possibilities of ignored corroborative evidence: SZRKT at [120] per Robertson J. The fact that the country information was relevant to two of the applicant’s central claims is therefore sufficient to found jurisdictional error.
The Minister’s submission that some of the country information was not current does not assist the Court in determining whether this ground establishes jurisdictional error. In certain circumstances the Tribunal may be entitled to prefer earlier country information to more recent sources that traverse the same issues: VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 at [63] per Lander J (“VWFW”). In VWFW the Full Court of the Federal Court of Australia commented that an applicant who alleged that the Tribunal had relied on out of date country information could not establish jurisdictional error in a Tribunal decision by showing that the Tribunal had referenced older country over new, but had to demonstrate that the more recent sources had actually been ignored: VWFW at [59]-[63] per Lander J. In this case where material was essentially ignored (albeit by reason of an administrative error), the Tribunal cannot be absolved because the material was “out of date”, because that goes to the weight the material would have been given had it not been ignored. In any event, much of the country information not considered dated from 2010 to 2012, which is still relatively recent, and sufficiently so for it to at least warrant examination by the Tribunal to see if it should have been considered.
If it had been considered by the Tribunal the country information not considered may arguably have corroborated important parts of the applicant’s Protection Visa claims, and may have affected the Tribunal Decision: Aala at [4] per Gleeson CJ. Whether or not it did so is ultimately a matter for the Tribunal, but the failure to have regard to the country information not considered constitutes a failure to consider relevant material. Additional ground 4 therefore establishes jurisdictional error in the Tribunal Decision.
Additional ground – ground 5 – data breach
Annexed to the Applicant’s July 2014 Submissions is Annexure C, which is a letter from the Department concerning the unintentional release from the Department website of personal information pertaining to the applicant, and other persons in immigration detention (“Data Breach Letter”).
Applicant’s submissions
According to the Data Breach Letter the data breach occurred on 10 February 2014, four days after the Tribunal Decision was made.
Certain of the applicant’s personal details were unintentionally released by the Department in February 2014. The information included the applicant’s name, date of birth, nationality, gender, details about the applicant’s detention (when detained, reason and where) and if other family members are in detention, but did not include the applicant’s address (or any former address), phone numbers or any other contact information and did not include information about the protection claims actually made.
The applicant asserts that the information has been accessed in a number of countries, including India, and that the Indian police and governmental authorities may have read his personal information, and be aware of his criminal convictions.
Minister’s submissions
The Minister submitted that:
a)the issue of the processes available to applicants following the unauthorised release of personal information was considered in SZTXY v Minister for Immigration & Border Protection [2014] FCCA 841;
b)any claims which may arise from the disclosure of personal information were not before the Tribunal; and
c)the applicant can request that the Minister exercise his power under s.417 of the Migration Act in relation to any claims arising from this new circumstance, but that does not have any relevance to the matters which arise before the Court in this proceeding.
Consideration – ground 5
The claim with respect to unauthorised access to the applicant’s personal information was not a claim made by the applicant before the Tribunal on the materials available to the Court. As such, the claim now made is not one which is judicially reviewable by this Court, nor can the Court consider it independently. There can therefore be no jurisdictional error in the Tribunal Decision with respect to the unauthorised access to the applicant’s personal information, and there is otherwise no matter presently within the Court’s judicial review migration jurisdiction: Migration Act, ss.474 and 476; WZATV v Minister for Immigration & Border Protection [2016] FCCA 2019 at [83] per Judge Lucev.
There are, as the Minister’s submissions suggest, other avenues available for any claims that the applicant may have to make in respect of the unauthorised access to his personal information. Whether the applicant pursues, or can now pursue, those avenues is another matter: Minister for Immigration & Border Protection v SZSSJ [2016] HCA 29, and more recently in this Court SZTVA v Minister for Immigration & Anor [2016] FCCA 2005 at [22]-[27] per Judge Manousaridis.
Ground 5 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
Conclusion
Grounds 1, 2, 3 and 5 have not been made out and do not establish jurisdictional error in the Tribunal Decision.
Ground 4 establishes that the Tribunal Decision was affected by jurisdictional error. It follows that prerogative relief ought to be granted to the applicant. There will therefore be orders that a writ of certiorari issue quashing the decision of the former Refugee Review Tribunal (now the Tribunal) made on 6 February 2014, and that a writ of mandamus issue requiring the Tribunal to re-hear the application for review made by the applicant on 13 August 2013.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch 2.
As the applicant was self-represented there will be no order as to costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 17 November 2016
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