FEDERAL COURT OF AUSTRALIA

CND16 v Minister for Immigration and Border Protection [2018] FCA 199

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first and second appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

GLEESON J:

1    The appellants appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing their application for judicial review of a decision of the Administrative Appeals Tribunal (“Tribunal”): CND16 v Minister for Immigration & Anor [2017] FCCA 708. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“Minister”) not to grant protection (Class XA) visas to the appellants.

2    The notice of appeal contains the following single ground of appeal supported by three particulars:

His Honour made no independent judgement of the Tribunal’s decision.

Particulars

(a)    His Honour erred in not finding that the Tribunal’s decision was affected by apprehended bias.

(b)    His Honour erred in not finding that the Tribunal failed to carry out its duty to review.

(c)    His Honour erred in not finding that the [appellants] were denied procedural fairness.

Background facts

3    The appellants are citizens of Sri Lanka who arrived in Australia on visitor visas on 24 November 2013. The first and second appellants are a wife and husband, respectively, and the third and fourth appellants are their daughters. The third appellant is 18 years old. The fourth appellant is a minor.

4    On 24 December 2013, the appellants lodged an application for protection visas. The husband and daughters are included in the wife’s application as dependent applicants, that is, the outcome of their applications is dependent upon the outcome of the wife’s application.

5    The Minister’s written submissions summarised the claims for protection of the first appellant as follows:

5.    In her application for a Protection visa, the first appellant claimed that she feared persecution and significant harm by reason of having witnessed the murder of an electoral candidate in Sri Lanka in February 2010. The first appellant claimed that in August 2012, when she was living in Sri Lanka (having also lived in Italy for a considerable period), she was approached by the police and her local MP, and was asked to make a statement about the alleged murder which would have “framed” a political opponent of the victim. According to the first appellant, she refused to do so and she and her family were threatened with death.

6.    The first appellant also claimed that in July 2013, when she and her family were residing in Italy, she received threats from the Italian mafia, Camorra, and was told to return to Sri Lanka to assist the police with their investigations. The appellants applied for tourist visas for Australia, which were granted in August 2013. According to the first appellant, the appellants then travelled to Australia via Sri Lanka so that the mafia would not become aware that Australia was their intended destination. They entered Sri Lanka on 2 October 2013 and departed for Australia on 24 November 2013.

6    The application was refused by the Minister’s delegate on 24 August 2014, and the delegate’s decision was affirmed on review by the Refugee Review Tribunal (“RRT”) on 26 June 2015.

7    By order dated 7 April 2016, the FCCA quashed the RRT’s decision and remitted the matter to the Tribunal for reconsideration: BKH15 v Minister for Immigration [2016] FCCA 546.

8    The appellants appeared before the Tribunal on 21 July 2016. The appellant wife and husband spoke at the hearing; the daughters did not give evidence. According to the Tribunal’s decision record, the appellants were accompanied by their adviser, a registered migration agent and the Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

9    On 16 August 2016, the Tribunal affirmed the delegate’s decision.

Tribunal’s decision

10    The Tribunal was not satisfied that the first appellant faced arrest for failing to give evidence in the alleged shooting and murder of the electorate candidate. It reached this finding on the basis that it did not consider that two arrest warrants the first appellant provided to the previously constituted Tribunal in post-hearing submissions were genuine, and noted that the first appellant’s evidence about the status of the warrants was “deeply confused”. It also gave weight to the fact that the appellants had entered and exited Sri Lanka a number of times “unimpeded” after the dates of the alleged warrants, despite independent sources saying that Sir Lankan citizens are checked to arrival to ensure that persons with outstanding court matters are brought to account.

11    The Tribunal was not satisfied that the first appellant was a witness of truth generally and did not believe that she was truthful about having been pressured by her local MP or anyone else to present fabricated or tailored evidence in a court of law in Sri Lanka.

12    It did not accept that the first appellant ever met her local MP after the alleged shooting or that the local MP had made any effort to get the first appellant to give fabricated evidence. This finding was made on the basis of the following:

    The Tribunal accepted that the first appellant was in a car with the electoral candidate and witnessed him being shot to death on 27 February 2010. It also accepted that the report to police presented to the Tribunal was genuine. However, on the basis of the report and a newspaper article, the first appellant did not and could not possibly have been in a position to help identify the killer. Thus, it seemed illogical that the local MP could have benefited from the first appellant changing her evidence by providing information to incriminate his political opponent.

    The first appellant’s claim that her local MP wanted to frame a political opponent for the alleged shooting seemed odd in that the first appellant said that the local MP did not approach her until a couple of years had passed. However, the local MP might have had something to gain by publicising accusations during the 2010 election campaign.

    The Tribunal did not accept that there was ever a court trial about the shooting, which meant that there was no trial for the local MP and the police to try to force the first appellant to attend.

    The Tribunal did not accept that the first appellant left Sri Lanka on 3 September 2012 due to a fear of being harmed as a result of her refusal to assist her local MP or that she left Sri Lanka secretly in September 2012.

13    The Tribunal did not accept that the first appellant was coerced by the mafia in Italy to return to Sri Lanka, finding her evidence on this issue to be implausible, fanciful and far-fetched. It found that the appellants returned to Sri Lanka in 2013 voluntarily.

14    The Tribunal accepted that the appellants had lost the right to reside indefinitely in Italy and the European Union but was not satisfied that the appellants faced a real chance of Convention-related persecution in Sri Lanka for any reason in the reasonably foreseeable future and found that their claimed fear was not well-founded.

15    Having concluded that the appellants did not satisfy the criterion set out in s 36(2)(a) of the Migration Act 1958 (Cth), the Tribunal considered the alternative criterion in s 36(2)(aa) and found that the appellants complementary protection claims relied on the same facts as their refugee claims. Since their main claims failed, for the most part, “due to overwhelming lack of credibility and for not meeting the “real chance” test, the Tribunal found that those claims must also fail in relation to the complementary protection claims. Accordingly, the Tribunal was not satisfied that it had substantial grounds for believing that the appellants faced a real risk of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

FCCA decision

16    In the FCCA, the appellants advanced the following four grounds of review:

1.    The Tribunal’s decision was affected by apprehended bias.

Particulars

a.    The Tribunal referring to evidence simply cut out and pasted the former Tribunal’s decision rather than considering the evidence by perusing a properly prepared transcript of the evidence given to the former Tribunal.

b.    The Tribunal drew a distinction between warrants and summonses where, in Lay terms, none existed.

c.    The Tribunal referred to, in its findings, issues not raised by the Applicant.

d.    The Tribunal made a finding adverse to the Applicant based on a question in the application form indicating that the Applicant could read, write and speak English where the form did not indicate the level of ability.

The Applicant required an interpreter at both Tribunal hearings.

2.    The Tribunal failed to carry out its duty to review.

Particulars

a.    (i)    The Applicant claimed that her oppressor tried to force her to give falsified evidence.

(ii)    The Tribunal only considered whether the factual evidence that could be given would be sought by her oppressor.

b.    The Tribunal only considered whether the lack of schooling in Sri Lanka of the Third and Fourth Applicants could lead to persecution without considering whether it could lead to significant harm.

3.    The Tribunal’s decision was irrational and/or illogical.

Particulars

a.    The Tribunal sought to apply logical western reasoning to an international criminal organisation.

b.    (i)    The Tribunal found that simply because the Applicant had plans in place to depart Sri Lanka she couldn’t be said to be leaving for a fear of any harm.

(ii)    It may have simply been fortuitous that the plans were in place.

(iii)    It does not necessarily mean that the Applicant was not fleeing Sri Lanka due to a fear of harm.

(iv)    The Tribunal’s finding that the Applicant’s return to Sri Lanka was ‘registered’ does not necessarily mean that bribes were not paid to obtain the ‘registration’ and evade notice on her return.

c.    There was no reason to assume that the Applicants would take any interest in the trial of [Mr X].

d.    (i)    It is not logical to find that there was no case in court because her oppressors did not try to present the Applicant in Court

(ii)    The Applicant refused to give contrived evidence. It was, therefore, logical that she was not presented to the Court.

e.    (i)    The Applicant’s didn’t need to apply for protection in Italy because they had a right to reside there.

(ii)    The Tribunal’s adverse finding because protection was not applied for is, therefore, illogical.

4.    The Applicants were denied procedural fairness.

Particulars

a.    The Tribunals findings at paragraph 91 about the actions of Mr [X] is based on speculation and guesswork and not reasonable probative evidence.

17    The application was heard by the FCCA on 10 April 2017. At the hearing, the appellants were represented by counsel and solicitors.

First ground of review

18    In his reasons for judgment, the FCCA judge rejected this ground in the following terms:

30.    In relation to Ground 1, Mr Turner, solicitor for the applicant, took the Court to paragraphs of the current Tribunal’s reasons, which incorporated an indented summary of the applicant’s claims and part of the concerns raised in relation to the applicant’s contradictions by the earlier Tribunal. The current Tribunal clearly considered and properly identified the information taken into account from the earlier Tribunal. It was open to the current Tribunal to accept the summary used and to set out the same.

31.    The Court does not accept that there was a scissor and pasting exercise undertaken by the current Tribunal. On a fair reading of the current Tribunal’s decision, there has been a real and genuine intellectual engagement with the applicant’s claims and the adverse findings made by the current Tribunal were open on the material before it and cannot be said to lack any intelligible justification.

32.    Further, it is apparent that the current Tribunal complied with its statutory obligations in the conduct of the hearing and that the applicants had a real and meaningful opportunity to present evidence and arguments and did so. The suggestion of an allegation of apprehended bias on the basis of the reference to the earlier Tribunal’s summary is without substance. The suggestion that there was a basis for finding bias because of the reference to the warrants and summons is equally without substance.

33.    It is apparent that the current Tribunal correctly understood the evidence that was before it in relation to the warrants and the summons and correctly identified the first applicant’s evidence in respect of those different documents.

34.    In relation to an alleged issue not raised by the applicant, Mr Turner submitted that the Tribunal had taken into account in respect of the applicants’ delay in leaving Italy, a movement record that had been the subject of the basis upon which jurisdictional error had been found by the earlier Court in BKH15 & Ors v Minister for Immigration & Anor [2016] FCCA 546.

35.    Mr Turner submitted that the facts found by the Tribunal could only have come from the movement record. The Court raised with Mr Turner whether in that regard such a finding could be made in the absence of a transcript.

36.    Mr Turner sought an adjournment in order to obtain the transcript of the first Tribunal hearing and the current Tribunal hearing. The application for an adjournment was opposed by Mr Smith.

37.    It is fair to say that the applicants’ submissions and grounds did not clearly identify any s.424A issue in respect of the movement record. However, even accepting it at its highest that such an issue was raised, I accept Mr Smith’s submission that the findings made by the Tribunal were open on the information as identified in the application, to which I have earlier referred. I do not accept that the Tribunal’s reasons in relation to the delay in the applicants’ departure, having obtained the visa in Italy, was information derived from the movement record. I do not accept that the current Tribunal made any error of the kind identified in BKH15.

38.    Accordingly, there was no proper basis to grant an adjournment as the transcript would not assist in establishing the alleged jurisdictional error. The Court is satisfied that an adjournment is not warranted in the interests of the administration of justice.

39.    Further, I reject the submission that there were findings made by the current Tribunal in respect of issues not raised. Mr Turner also sought to agitate the rejection by the Tribunal of the applicant’s explanation of her sister-in-law for the first applicant’s inconsistencies. That is clearly a matter open to the Tribunal. No allegation of bias is made out. The summary from the previous Tribunal and/or the adverse findings by the current Tribunal are not conduct by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by Ground 1.

Second ground of review

19    With respect to the second ground, the FCCA judge found as follows:

40.    Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal that were open. It was open to the Tribunal to reason in relation to the applicant’s inability to identify the killer as a relevant credit issue in respect of her explanation in respect of her evidence. Further, in relation to the education of the third and fourth applicants it is apparent that was a matter referred to by the Tribunal both in relation to the consideration of the issue of whether the applicants were refugees through paragraph 107 as well as the incorporation through paragraph 110 and the adverse findings in respect of complementary protection. No jurisdictional error is made out by Ground 2.

Third ground of review

20    In relation to this ground, the FCCA judge concluded that:

41.    In relation to Ground 3, Mr Turner submitted that the Tribunal had, in substance, approached the fact-finding in relation to the applicants’ evidence and the conduct of the criminal organisation through flawed western eyes. There is no substance in this submission and it is in reality an invitation to this Court to engage in impermissible merits review. There was no failure by the Tribunal to carry out its duty to review the decision of the delegate.

42.    Mr Turner also sought to attack the reasoning of the current Tribunal in paragraphs 96 to 98 as well as raising issues in respect of the reasoning of the Tribunal in paragraphs 92 to 94. None of the matters raised by Mr Turner identified any irrational or illogical reasoning by the Tribunal. The adverse findings were open to the Tribunal. No jurisdictional error is made out by Ground 3.

Fourth ground of review

21    The FCCA judge also rejected this ground, finding as follows:

43.    In relation to Ground 4, reference is made to part of the Tribunal’s reasoning in paragraph 91. The Tribunal’s reasons are to be read as a whole. Paragraph 91 was not a finding on its own but was part of the reasoning in which the Tribunal legitimately and properly identified a concern in respect of the applicant’s credibility. There was no denial of procedural fairness as alleged by ground 4. The application fails to make out any jurisdictional error.

APPEAL TO THIS COURT

22    The appellants did not file written submissions.

23    At the hearing of the appeal, the appellants appeared unrepresented with the assistance of a Sinhalese interpreter. The first and second appellants appeared unrepresented. Each of them made oral submissions. Neither identified any error that they said had been made by the FCCA judge.

24    The first appellant, the wife, said that she could not return to Sri Lanka. She referred to municipal elections that occurred the previous day. She noted that her older daughter had succeeded in matriculating into medicine at university in Australia and that her second daughter is in year 11. The first appellant said that she is certain that she would be killed if she returned to Sri Lanka. She said that she had always said the truth and could not accept the decisions that had been made against her.

25    The first appellant said that she was so depressed that she could not even think about these things now. She said that her mental state is not very stable. She asked the Court to allow her and her two children to stay in Australia. She said that her children’s education would be destroyed if they returned to Sri Lanka. The first appellant also blamed herself for her family’s situation and said that it was because of her that all this had happened to her family.

26    The second appellant, the husband, explained that the situation in Sri Lanka was not a good situation and, as I understood it, that the municipal elections the previous day had made it less safe for the family to return to Sri Lanka. Horrifically, the second appellant said that he would commit suicide rather than return to Sri Lanka.

Consideration

27    As articulated in the notice of appeal, and set out at [2] above, the complaint is that the FCCA judge erred by failing to make an “independent judgement of the Tribunal’s decision”.

28    However, in their submissions, the appellants have not said anything to support their case that the FCCA judge made any such error.

29    I have read the written submissions filed by the respondent which argue against each of the matters that are particularised in the grounds of appeal. I did not identify anything in those written submissions which caused me to question whether the FCCA judge had committed any error. In the light of the submissions that have been made today, I do not consider it necessary or appropriate for me to address those matters individually. It follows that I am not persuaded that the FCCA judge committed any error and I therefore dismiss the appeal with costs.

Associate:

Dated:    2 March 2017

SCHEDULE OF PARTIES